1. The following are the fasts. A certain Chandrika died some time previous to 1900. His widow Anurani succeeded him. She died on the 7th of August 1900. Mulai hia brother's son and Chandrika's daughter Jagrani applied to succeed her. There was a compromise between Jagrani and Mulai, under which Jagrani abandoned her claim and Mulai succeeded to the property. Then Jagrani instituted a suit against Mulai to obtain possession of the property, alleging that the compromise had been obtained from her by fraud. These proceedings did not terminate until 1916. The Trial Court, the first Appellate Court and the High Court dismissed Jagrani's suit, holding that the compromise was a good compromise. But a Full Bench of the High Court decreed her suit, holding that the compromise was ineffective because it was unregistered, though it was not decided that the compromise was fraudulent. The final decision was on the 24th of March 1916, In the year 1919 Sheo Dulary and Muiammat Kapura, the present plaintiffs-respondents, instituted a suit against Jagrani on the following allegations. They stated that they were the daughters of Chandrika and Anurani and the sisters of Jagrani, that Jagrani had represented them in all the previous proceedings and that when she had won her case and obtained possession over the property in question, they had asked for mutation of their names in respect of their shares and that Jagrani had dishonestly contested their claim. They, therefore, instituted a suit for possession of two thirds of the property which Jagrani had obtained against the representatives of Mulai, Jagrani replied shortly that the plaintiffs were not her sisters. That was her main defense. She also set up that the suit was barred by time. She went so far as to say that the plaintiffs were the daughters of Bisheshar Dube, the son of Mulai Dube, in other words, that they were the grand daughters of the man who had according to her own account tricked her into making a compromise. The Trial Court found directly against Jagrani on the question of relationship. It found that the plaintiffs were the daughters of Chandrika and Anurani. It dismissed the suit, however, holding that it was barred under the provisions of Article 141, Schedule I, Act IX of 1908. In appeal the learned District Judge affirmed the finding that the plaintiffs were the daughters of Anurani and Chandrika. He found that the Article of the Limitation Act having application was Article 144. He decreed the suit. Jagrani comes here in second appeal.
2. The points taken in the grounds of appeal are as follows:--that Article 141 or 142 has application, that if neither Article has application, the possession of Jagrani was adverse, that it was for the plaintiffs to establish that they were less affluent than or equally indigent with Musammat Jagrani before they could be allowed to succeed as joint tenants, and that they could not succeed without paying their share of the costs and contribution incurred by Jagrani in the previous suit. The first point to be decided is with regard to the Article having application in respect of limitation. I have first to consider the nature of the suit and the findings of the lower Appellate Court upon the pleadings and the issues. The plaintiffs did not come into Court claiming their share in the property of their deceased father as against Mulai or Mulai's successors. On findings of fast which cannot be assailed, they are the daughters of Chandrika and Anurani, but they did not some into Court to claim the property of their father against a person who was alleged to have obtained it with no rights of succession. They same into Court to claim their property against their sister who, they allege, had rightly obtained it as a daughter of Chandrika, on the assertion that she had acted in their interests and on their behalf. The Trial Court found that they had not contributed to the expenses of the suit brought by Jagrani against Mulai and his representatives. The lower Appellate Court arrived at no finding on this point. The allegations of the plaintiffs that they had contributed to the expenses were found against them by the Trial Court. I see no reason to send the matter back for a decision upon this point, for I agree with the Trial Court that there is not sufficient evidence that they contributed towards those expenses. Bat the lower Appellate Court has rightly pointed oat that whether they did or did not contribute the expenses, Jagrani must be considered as having acted on their behalf in the absence of any specific assertion of adverse title or other acts amounting to an ouster. The suit was thus one on the face of it brought by two joint tenants against a third joint tenant for their share in the joint property, which the third joint tenant by her action in the mutation proceedings had shown that she claimed as her exclusive property. It is to be noted that until she denied their title in the mutation proceedings, she had set up no previous assertion against them and the finding is that the plaintiffs and the defendant were joint tenants. What Article then has application? The lower Appellate Court has applied Article 144. It considers that this was a suit for possession of immoveable property not otherwise specially provided for is the Limitation Act and has applied Article 144. Article 144 will have application when no specific Article can be found which has application. Neither Article 141 nor 142 can have application, I can find no other Article which could possibly have application. It is perfectly true that the plaintiffs at the time of the death of Annrani became entitled as Hindu daughters to possession of immoveable property, So at first sight it might appear that Article 141 is the article which should be applied. But Article 141 only applies to like suits and the words 'like suit' must mean in this connection a suit for possession against a person holding contrary to the interests of a Hindu entitled to the possession of the immoveable property. That person was Mulai. Undoubtedly a suit brought by the plaintiffs in 1919 against Mulai's representatives would have been time-barred under Article 141. But the case is very different, where one sister had obtained the whole of the property as against Mulai and Article 141, in my opinion, has no application. Article 142 would place the time from which the period begins to run at the date of dispossession. This Article has no application, for the plaintiffs were never in possession at all in their own right. They did not obtain possession and then became dispossessed. Jagarani obtained possession in 1916 and that was the first time that a daughter obtained possession. Thus, I think, the learn-ed District Judge was right in applying Article 144. It next has to be considered whether possession of Jagrani has become adverse to the plaintiff, and if so, when did it become adverse. Assuming that the plaintiffs have complete title (a point which I will discuss later), it will have to be shown that there was an absolute ouster of the plaintiffs by Jagrani before she could assert adverse possession against them. I need not quote any other authority in support of this except the well known decision in Corea v. Appuhamy (912) App. Cas. 230 at p. 231 : 81 L.J. P.C. 15 : 105 L.T. 836. Jagrani as a sister was one of three joint tenants. The mere circum-stance that she instituted the suit in her own name is not sufficient to show an ouster of the other joint tenants, nor is the circum-stance that she claimed the property exclusively sufficient to show such an ouster,
3. The first time that there was anything approaching to an ouster in the present case was when Jagrani denied the plaintiffs' relationship in the mutation proceedings. This was only a short time before the suit was instituted. I thus decide that ordinarily the suit was within time. On the facts Jagrani could not set up any title by adverse possession against her sisters. This decision disposes of the first five grounds of appeal.
4. The 6th and 7th grounds remain. If the plea contained in the 6th ground of appeal finds favour, the suit will have to be dismissed, but the plea therein cannot be accepted on the merits of the case. It is to the effect that as under the Mitakshara Law preference is given to indigent married daughters to the exclusion of wealthy daughters, the plaintiffs' suit should fail because they did not assert that they were equally indigent with Jagrani. Of course, if Jagrani were indigent and they were wealthy, they would be entitled to nothing. But the plea here is that it should be assumed that Jagrani was indigent and that they were wealthy, and that, therefore, their suit should fail. Admittedly, if they were all three equally wealthy or equally indigent, they would take jointly. Now I do not agree with the learned Counsel for the appellant that it was necessary for the plaintiffs to assert in their plaint that they were in the same state of indigents or wealth as Jagrani It would be, I consider, superfluous in a case such as this to make such an assertion in the plaint. If Jagrani had wished to take the point, she ought to have asserted it in her written statement, She did not do so. She took the defense that the plaintiffs were not her sisters. The point was never raised in the Trial Court. It was never raised in the lower Appellate Court. I do not propose to permit it to be raised now. There is absolutely nothing to show that the three sisters are other than what would be expect-ed, that is, in the same class of affluence. The last ground taken is that Jagrani obtained possession of the property in question against the successors of Mulai on condition that she paid them Rs. 157-5-3. This is true. She did obtain possession on those terms. It was certainly open to her in defending the suit to have put forward that the plaintiffs could not succeed unless they contributed their share of what she paid to the descendants of Mulai under this order. If she had put forward that plea and the plaintiffs had admitted it, the decree would have been made conditional on their paying their share of contribution. If the plaintiffs had denied it, she would have had to prove what she actually paid to the defendants of Mulai. It may be argued that she was not likely to obtain possession without satisfying that portion of the direction in the decree. It certainly is not likely that she would have been able to escape this liability. But it cannot be assumed that she has paid them anything and I cannot (sic) to this plea in view of the fast that it is now being raised for the first time. It was Jagrani's obvious duty, if she wished this condition to be inserted in the dearee against her sisters, to have put forward the plea at the earliest opportunity. There is no such plea in her pleadings no such plea was raised before the Trial Court and no such plea was raised in the lower Appellate Court. I cannot permit it to be raised now. I have now considered all the points raised in this appeal. I dismiss it with costs, which will includs in this Court fees on the higher scale.