1. The facts of this appeal briefly stated are as follows:
One Shaikh Fazal Husain died in 1894 possessed of some landed property in the district of Azamgarh leaving him surviving three sons and three daughters, viz., Kalab Husain, Mohammad Shan and Mohammad Taqi and Musammat Kulsum, Musammat Zainab and Musammat Zaitun. After his death mutation of names was effected in the revenue registers in favour of his three sons only in respect of the property left by him. They sold a part of their father's property to Raghunandanand Munna, defendants Nos. 4 and 7, on the 19th March 1903 by a registered sale-deed. On the 14th May 1909, the same vendors sold the rest of the property of Fazal Husain to Gaya Prasad Lai and Bishnath Prasad Lai, defendants Nos. 5 and 6 by a registered sale-deed. On the 17th March 1912 two of the daughters of Fazal Husain, viz., Musammat Zainab, and Musammat Zaitun executed a sale-deed in favour of the plaintiffs in respect of their proportionate shares in their father's property. On the 14th March 1914 the plaintiffs instituted the suit out of which this appeal has arisen, against the sons of Fazal Husain and their vendors for possession of the shares sold by Musammat Zainab and Musammat Zaitun. The claim was resisted on the ground, among others, that the plaintiffs or their vendors had not been in possession of the shares sold on the 17th March 1912 within twelve years of the institution of the suit. The learned Munsif in whose Court the suit was filed yielded to this plea and dismissed the claim. On appeal by the plaintiffs the decree of the first Court was upheld. The plaintiffs have come up in second appeal to this Court and contend that the Courts below have taken a wrong view of the case. The appellants do not dispute but admit the correctness of the rule laid down in the case of Jafar Husain v. Mashuq Ali 14 A. 193 : A.W.N. (1892) 55 that where a claim for possession of immoveable property is met by a plea of adverse possession for more than twelve years the question of limitation becomes a question of title and the plaintiff in such a case must first make out by prima facie evidence his possession within twelve years of the institution of the suit. They, however, contend that the rule has no application to the case of co-owners. The possession of one co-owner is not to be presumed to be adverse to the other co-owners but is to be considered for the benefit of all the CO-owners, and his possession will not become adverse until there was an ouster or something equivalent to an ouster of the other co-owners. In the present case the vendors of the parties to the appeal are heirs to a deceased Muhammadan and took his estate as co-owners or, to use an English legal expression, 'as tenants-in-common.' The vendors of the contesting defendants, that is, the three sons of Fazal Husain entered in possession of the property left by him, as co-owners and their possession must be presumed to have been on behalf of all the heirs. A mere intention on the part of the three sons of Fazal Husain, if they had any, to deprive their sisters of their shares in the inheritance, will not defeat the sisters' rights. It roust be proved that the possession of the brothers from its commencement or sometime subsequently but in any case from twelve years prior to the institution of the suit was of such an 'actual, open, notorious, exclusive and hostile character as to amount to an ouster' of their other sisters or was of such a character as to amount to something equivalent to an ouster of their sisters. No such proof has been given in the present case. In support of his contention the learned Vakil for the plaintiffs-appellants has referred to the following cases:Jogendra Nath Roy v. Baladeb Das 35 C. 961 : 12 C.W.N. 127 : 6 C.L.J. 7?5; Jajneswar Saha v. Satish Chandra Saha 23 Ind. Cas. 562; Ponnusawmy Iyer v. Permaye 26 Ind. Cas. 346 : 16 M.L.T. 530; Surja Bibi v. Tarap Mondal 26 Ind. Cas. 788.; Musammat Bibi Bakhtun v. Syed Ahmad Ishaque 27 Ind. Cas. 1; Babu Lokenath Singh v. Babu Dhwakeshwar Prosad Narayan Singh 27 Ind. Cas. 465 : 21 C.L.J. 253 : 20 C.W.N. 51; Faizuddin Khan v. Reju Akab 28 Ind. Cas. 22 : 21 C.L.J. 192 : Marian Beeviammal v. Kadir Meera Sahib Taragan 29 Ind. Cas. 275; Hidayat Ali Khan Sahib v. Khadar Khan Saheb 30 Ind. Cas. 586; Ahmad Raza Khan v. Ram Lal 26 Ind. Cas. 922 : 37 A. 203 : 13 A.L.J. 204 and Corea v. Appuhamy (1912) A.C. 230 : 81 L.J.P.C. 151 : 105 L.T. 836. For the respondents the reply is that whatever may be the view of the other Courts the balance of opinion of this Court is in favour of the application of the rule laid down in Jafar Husain v. Mashuq Ali 14 A. 193 : A.W.N. (1892) 55, even to the case of co-owners and particularly so to the case of Muhammadan co-owners. It is said that the heirs of a deceased Muhammadan take definite shares and have separate interests and have no joint interest in the inheritance and the possession of one co-owner cannot be presumed to be for the benefit of all the heirs. Reliance is placed for the respondents on the following cases:--Inayat Husen v. Ali Husen 20 A. 182 : A.W.N.(1897) 19; Deba v. Rohtagi Mal 28 A. 479 : A.W.N. (1906) 95 : 3 A.L.J. 334 and Chiranjimal v. Nathia 4 A.L.J. 473 : A.W.N. (1907) 195. If I had to decide and choose between the two views contended for by the parties to this appeal, I would prefer that of the appellants. The heirs of a Muhammadan take as co-owners or tenants-in-common and there does not seem to me to be any valid reason for making a difference in their case on the ground that they take definite shares and that joint ownership in the sense of the joint family system as known to Hindu Law is not recognised by the Muhammadans The rule that the possession of a co-owner is to be presumed to be on behalf of all, is based on the principle that his possession is 'in itself rightful and does not imply hostility as would be the possession of a mere stranger. The law will never construe a possession tortious unless from necessity. On the other hand it will consider every possession lawful the commencement and continuance of which is not proved to be wrongful, and this is based upon the plain principle that every man shall be presumed to act in obedience to his duty until the contrary appears Vide Jajneswar Saha v. Satish Chandra Saha 23 Ind. Cas. 562. It is well known that in Muhammadan families the management of the property of the family is by reason of the seclusion of the male members. It is extremely difficult to prove in a Court of law payment by the brothers of the profits or income of the shares of their sisters to the latter, especially when the income is not large as in the present case. The sisters being in seclusion, no strangers could be present at the time of payment and business habits of obtaining receipts and keeping accounts have not yet taken roots. The brothers' evidence or that of any other near male relative as to payment is usually discarded by Courts on the ground of relationship and the inconsistency in the conduct of the brothers who sell the property as their own and then afterwards say that they had always paid their sisters their shares of the profits. The rule that the possession of a co-owner is to be presumed to be for the benefit of all co-owners until his possession is proved to be of such a character as to amount to an ouster or some* thing equivalent to an ouster of the other co-owners should apply, in my opinion, with greater reason to the case of Muhammadan co-owners, some of whom are females. I need not, however, discuss the case-law on the subject, as in the words of a learned Judge of this Court in the case of Ahmad Raza Khan v. Ram Lal 26 Ind. Cas. 922 : 37 A. 203 : 13 A.L.J. 204. I am relieved from the necessity of doing so by the pronouncement of their Lordships of the Privy Council in a Ceylon case, viz. Corea v. Appuhamy (1912) A.C. 230 : 81 L.J.P.C. 151 : 105 L.T. 836. The parties to that case were not Hindus. The rule as to the possession of the co-owners is definitely and distinctly stated to be that his possession will be presumed to be for the benefit of all the other co-owners until he had done something which would amount to an ouster or something equivalent to an ouster of the other co-owners. I may note here that the case of Corea v. Appuhamy (1912) A.C. 230 : 81 L.J.P.C. 151 : 105 L.T. 836 was decided subsequent to the cases relied upon by the respondents, I, therefore, hold that the lower Courts were wrong in dismissing the plaintiffs-appellants' claim on the ground that they had failed to prove their or their vendors' possession within twelve years of the suit. As the lower Appellate Court [did not dispose of all the issues raised in the appeal before it, the case must be remanded.
2. The learned Vakil for the respondent has asked me to note his request for the amendment of his written statement and for the production of fresh evidence in support of the proposed amendment. He wants to take a fresh objection to the effect that the possession of the vendors of his clients, i.e., the three sons of Fazal Husain, was of such a, character as to amount to an ouster of their sisters. No such objection was taken in the first Court or in the lower Appellate Court, the reason of the omission to take the objection earlier and press it for the first time at this stage is stated to be the belief of the respondents that the law as laid down in the cases relied upon by them and referred to above was the law that would be followed by this Court. The obvious reply is that the Ceylon case already referred to was decided subsequent to those cases and prior to the institution of the present suit. If the respondents are so careful as to always regulate their litigation by the case-law, they surely could not have been ignorant of the Ceylon case and must also have known that the pronouncement of their Lordships of the Privy Council would alter the view of the law taken by this Court. I do not think that the proposed amendment should be allowed for, among other considerations, two reasons, viz., (J) the plea now proposed to be taken has probably no basis in fact and (2) evidence in support of it will very likely be manufactured. I reject the request of the respondents' learned Vakil.
3. I allow the appeal and set aside the decree of the lower Appellate Court and remand the case to it for trial of the other issues according to law. Costs of this appeal will abide the event.