G.C. Jain, J.
(1) The parties to this appeal are Jains of Oswal sect resident in Delhi. Lotan Mal, the common ancestor died on November, 3, 1928 leaving behind a widow LadBai, two sons Kastur Chand and Suraj Mal, and two daughters.Kastur Chand was married to Tara Bai (respondent No. 2).Soon after his marriage he died on 23/03/1936 without leaving any issue. His widow adopted Babu Lal (respondent No. 1) as a son ott 3/02/1949.
(2) On 21/05/1949 Suraj Mal brought a suit against his mother Lad Bai, Tara Bai and Babu Lal claiming l/3rd share in the joint family property by partition. According to the averments in the plaint he. Lad Bai, and Tara Bai had 1/3rd share each in the joint family properties in suit He denied the adoption of BabuLal but imp leaded him as a party for getting all the disputes settled. Lad Bai in her written statement disputed the factum as well as validity or the adoption. She.however, had no objection to the partition. Tara Bai alleged that her signatures on the adoption deed were obtained bymisrepresentation. The deed was to provide that she would continue to be the owner of her share till her life and BabuLal would remain obedient to her and in case of violation of these terms she will have the right to repudiate the adoptiondeed. However, no such term was incorporated. When she came to know of this fact she tore away the deed. She asserted that the adoption could be made in law. Babu Lal averred that he was validly adopted by Tara Bai. Disputesraised in this case were however not decided because on the request of Suraj Mal he was allowed to withdraw the suit with permission to file another suit on the same cause of action by order dated 4/11/1949 (Ex. P-24).
(3) On 19/07/1965 Babu Lal and Tara Bai, respondentsherein, brought a suit (out of which the present appeal hasarisen) against the appellants, Suraj Mal and Lad Bai (sincedeceased), claiming partition of their l/3rd share in the joint family properties and rendition of accounts etc. for a periodof 6 years prior to the institution of the suit. The details ofthe properties have been given in para Ii of the plaint. According to the averments in the plaint Lotan Mal was a Jainand governed by Hindu Law and custom in the matters of succession and adoption. Babu Lal was adopted by TaraBai on 3/02/1949 in accordance with the custom prevalent in Jains and acquired all the rights of his adopted father Kastur Chand in the joint family along with Suraj Mal,Lad Bai and Tara Bai. Suraj Mal and Lad Bai have been managing the family properties and Realizing rents from the tenants since the death of Kastur Chand in 1936. Suraj Mal had sold two joint family properties and kept sale (proceeds with him.
(4) This suit was resisted by Suraj Mal and Lad Bai, According to their pleas Lotan Mal was governed by Hindu Law and not by custom. Tara Bai was (ha widow of Kastur Chand but she did not inherit his properties on his death in 1936.Babu Lal was not adopted by Tara BaL She was not competent to adopt a son and in. any case) Babu Lal being older or equal in age to Tara Bai could not be lawfully adopted.There was no custom recognising such an adoption. Suraj Mal had sold the two properties to pay oft' the antecedent debts.Neither Babu Lal nor Tara Bai had any interest or right in the properties in suit. In any case Suraj Mat had managed the properties as manager and Karta and no suit for rendition of accounts was competent against him. They were in possession of the properties in dispute for more than 20 years openly without any obstruction and the suit was barred by time.
(5) The learned single Judge vide his judgment dated 23/01/1973 recorded the following findings :--
(1)Babu Lal was adopted by Tara Bai on 3/02/1949.(2) A Jain widow of Oswal sect was competent to adopt a son of any age and even married and the adoption was valid.(3) On the death of Kastur Chand in 1936 his undivided interest in the coparcenery properties-devalued on his coparcener by suirvivalship and not on his widow Tara Bai,
The defendants (the present appellants) had failed to prove ouster of the plaintiffs (the present respondents) from the joint family properties for a period of 12 years and the suit was not barred bylimitation.(5) Immoveable properties mentioned in para 1litems (i) to (iii) of the plaint only existed on the date of suit. Babu Lal was entitled to a decree of 1/3rd share in these properties by partition and also to accounts for the period subsequent to the date of suit only.
(6) A preliminary decree was passed accordingly and a local commissioner was appointed to partition the properties in terms of the judgment and also to examine the accounts.
(7) Assailing the findings of the learned single judge accept the finding No. 3, the defendants (the appellants) have filed the present appeal.
(8) Tara Bai plaintiff No. 21respondent No. 2 has preferred cross-objections (C. M. 312173). By way of these cross-objections she assails finding No. 3 of the learned single judge. This judgment will dispose of both the appeal and the cross-objections. '
(9) That the adoption took place as a fact is no longer in dispute. This is proved by unimpeachable evidence of Sumer Chand Chuttan Lal, Kundan Lal, Bahadur Singh, Tara Baiand Babu Lal, who were all present at the time of the adoption ceremony and have stated in unequivocal terms that Babu Lal was taken in adoption by Tara Bai. Their evidence stands corroborated from the adoption deed (Ex. P-l) and the photograph (Ex. P-3) taken on that occasion..
(10) The main question which has been seriously argued is whether the adoption is valid in law, the principal objection to adoption being based upon the fact that Babu Lal, the adopted son, was older or equal in age to Tara Bai, the adopter.
(11) The parties ale Jains. The Jains, no doubt, do not believe that a son, natural or adopted, confers any spiritual benefit on the father. The dead are forgotten soon after they arecremated. The living do not perform Sharadhs or religious ceremonies for the dead. They, however retain many of the customs of orthodox Hindus and have followed substantially the broad features of Hindu Law. They do not cease to be-governed by Hindu Law, by lapses from orthodox Hindu practice or by deviation or dissent from orthodox Hindu doctrines.It is now settled law that in matters of adoption, (prior to the enactinent of Hindu Adoption and Maintenance Act) they were governed by Hindu Law except to the extent it is varied by custom. (See para 613 of Mulla's Hindu Law 15th edition; Rup Chand v. Jambu Prasad 32 All 247(1);Chottay Lal v. Chunno Lall and Others 6 is 15; Parshotam Ganpat Gujar v. Veni and Ganpat Crujar AIR 1921 Bom 147 (2)(3); Hira Chand Gangji v. Bowji Sojpal and Another Air 1939 Bom 377(4); and Sundar Lal v. Baldeo Singh & Others Air 1932 Lah 426(5).
(12) Oti behalf of the appellant it was argued that the parties were governed by custom a.nd custom only. Learned counsel could not show any Law in support of this contention. He relied on pleadings. In para 5 of the plaint it was averred that Babu Lal was adopted according to custom prevailing in Delhi in Jain community In para 5 of the written statement it was averred that there was no custom prevaien in Delhi permitting Tara Bai to adopt Babu Lal. In any case Tara Bai could not adopt Babu Lal who was older or equal to her age. Such a custom was unnatural and against publicpolicy. Learned counsel however conveniently forgot to refer to para 3 of the plaint where it was pleaded that Lotan Mal was a Jain and governed by the Hindu Law and custom in matters of succession and adoption. Appellants in para 3 of their written statement averred that he was governed by Hindu Law only. Pleadings, thereforee, do not help the appellants.This contention has no merit.
(13) In Mulla's Hindu Law 15th edition para 480 tho LAW on the requirement of age of the adopted person is stated in these words :
(4)there is a difference of opinion between the schools as to the age when a boy may be adopt-ed :
(I)in Bengal, Benares, Bihar ana Orissa, the adoption must be before upanayana that is before the boy is invested with the sacred thread; it t& immaterial that the adopted boy is older than the adopter
(II)the above rule applies also in the Madras State;but if the person to be adopted is of the same gotra as the adopter, the adoption may be made even after, upanayana, provided it is made before marriage -
(NI)in the Bombay State, a person may be adopted at any age, though he may be older than the adopter and though he may be married and havechildren. The adoption is not- invalid although it took place after the thread ceremony of the boy was performed. '
(14) Thus in Bengal, Benaras, Bihar and Orissa a person can be adopted before he is invested with a sacred thread. According to all the schools (except Bombay school) he must notbe married at the time of adoption. The object of adoption among Jains, however, is purely secular, i.e. to secure a heir and perpetuate the adoption's name. ft has no religious significance whatsoever. There is, thereforee no restriction of age or marriage and a married man could be adopted among Jains.
(15) In Lala Rup Chand v. Jambu Prasad (supra) the finding of the High Court that 'among the Jains adoption is no religious ceremony, and that under the law or custom there is no restriction of age or marriage among them' was confinned. In Sheofcuarbai v. Jeoraj,- 25 CWN 273(6) the Privy Council held that in Sitambari sector Jains the adopted son may, at the time of his adoption, boa grown up and a married man. In Manohar Lal v. Banarsi Doss 29 All 495(7) the High Court of Allahabad held that according to the law and custom prevailing amongst the Jain community a married man may lawfully be adopted bya widow.
(16) The evidence of Muna Lal (PW-2) and Chuttan Lal(JPW-4) disclosed that they both belonged to Oswal Jains and were married the time of their adoption. DW-5 Megh Raj admitted that one Paima Lal at the time of his adoption was married and had children. It was thus clear that amongst Jains there was no restriction as to age and even a married roan could be adopted.
(17) There being no restriction as to age amongst the Jain it was immaterial if the adopted person was older or equal image to the adopter. In Manak Chand v. Munna Lal 1909 PR 95 (8) the parties were Oswal Jams ofDelhi. It was held that among Jains adoption was a purely secular transaction designed, inter alia, to perpetuate the name-and family of the adopter without any religious meaning. No special ceremonies were necessary to give legal effect to adoplion. A widow of a deceased Jain may adopt without any authorisation from her husband. A married man having children of his own may be adopted and it was not necessary that the must be younger than the adoptive fathers widow adopting him. This authority, in our judgment, proves that among Jains there was no restriction of age and a person equal or older in age to the adopter could be adopted. It may be mentioned here that in Chandreswar Prosad Narain Singh v.Bisheshwar Pratap Narain Singh (1927 IC 289(9), Patna High Court had held that even Hindu Law imposed DO restriction as to age and whatever be the age of the adopted on the adoption was valid if made before Upanayana if he belonged to any of the regenerate classes and before marriage. The adoption was not liable to be set aside if the boy adopted was older to the adopter. In Balabai Tukaram Baban v.Mahadu Krishna Babar Air 1924 Bom 349(10) the adoption of a boy older than the adoptive father in Bombay Presidency was held valid. In Punjabai v. Shamrao AIR 1955 Nag 293(ll) it was held that even a minor widow could validly adopt a person older in age than herself provided she had attained the age of discretion.
(18) APPELLANTS' learned counsel urged that the decision in Manohar Lal's case Was based on evidence recorded in thatcase. However, in the present case none of the witnesses examined by the respondents could cite a single instance where adoptee was older or equal in age to the adopter; the said decision, thereforee was of no help. We do not agree. This judgment, keeping in view the object of adoption among Jains and also the fact that even among orthodox Hindus there was no such general restriction, conclusively proves that among Oswal Jains the adoption, where adopted person was older or equal in age to the adopter, was valid.
(19) The plea that such a custom was immoral or .against public policy is devalid of any merit. It has been repeatedly recognised by the courts.
(20) The contention, that the respondents had failed to prove the act of giving and taking and free consent of BabuLal and, thereforee, the adoption was invalid, has also no merit.Sumer Chand, Chuttan Lal, Kundan Lal Parekh, BabadurSingh, Tara Bai and Babu Lal have stated that Babu Lal was given by his natural father Kapur Chand and taken in adoption by Tara Bai. Their evidence finds corporation from the photograph Ex. P-3 and the adoption deed Ex. P-l.
(21) Tara Bai in cross-examination deposed that she .had no talk with Babu Lal before she took him in adoption. She did not consider it necessary to obtain his consent for being adopted as her son because she had already obtained the con-sent of his natural father. Babu Lal also admitted that there was no talk between him and Tara Bai regarding adoption actually took place. From this evidence it cannot be inferred that Babu Lal was not consenting party. The fact that he allowed himself to be given in adoption by his father and the circumstance that in photograph Ex. P-3 taken at the time of adoption ceremony he was sitting just close to Tara Bai proves his free consent.
(22) It was also argued that the adoption was a result of fraud and misrepresentation and had been repudiated by Tara Bai. Reliance was placed on Ex. D-l, certified copy ofthe written statement filed by Tara Bai in the suit which had been filed by Suraj Mal for partition of his I /3rd share in the joint Hindu properties in 1949. In her written statement Tara Bai had stated that Kapur Chand had obtained the signatures on the adoption deed by playing a fraud.The adoption deed was to contain a term that she would remain the owner of her share till her life and Babu Lal would be obedient to her. No such term was included. When she came to know about this fact she tore it away. In cross-examination in the present suit she admitted that this written statement had been prepared under the instructions. She,however, explained that two or three months after his adoption Babu Lal wanted to go back to his natural father at Bombay.She stopped him from doing so and threatened that-if he went back to his natural father against her wishes she would destroy the deed of adoption. Babu Lal tried to snatch the deed from her in that process it was torn. In the written statement she took the said plea with the object of frightening Babu Lal so that he remained obedient to her. In view of this statement the version in Ex. D-l is of consequence, ln any case she had no right to cancel the adoption.
(23) Tara Bai in her cross-examination deposed .that she would not have adopted Baba Lal had she known that he was cider in age to her. This part of her statement again is of no significance especially when there is no cogent evidence to prove that Babu Lal was older in age to Tara Bai. Moreover we are of considered opinion that these picas were not open to the appellants.
(24) For all these reasons we hold that the adoption wasvalid.
(25) The last question which requires determination in the appeal is whether the appellants had become owners ofthe properties in suit by adverse possession.
(26) It is admitted that the suit properties were joint familyproperties. It has further been admitted that since the death of Kastur Chand in 1936 the appellants had been managing the family properties and enjoying all the rents realised from the tenants. It has also been admitted that Suraj Mal had sold one property in 1951 and kept the sale proceeds with him,Does this conduct amount to adverse possession? In our opinion, answer must be in the negative.
(27) The expression 'adverse possession' means a hostilepossession, that is, the possession which is in denial of the title of the true owner. It must be adequate in continuity, in publicity and in extent to show that it was possession adverse to the real owner. It is well settled principle of law that the possession of a co-parcener or co-heir is deemed in law to be possession on behalf of all the co-parceners or co-heirs. By itself it cannot be considered adverse because possession is never adverse if it can be referred to a lawful title.
(28) No doubt, if there is an ouster the possession of a coparcener can be adverse. However mere management of the joint family properties or realisation of rent would not amount to ouster. Suraj Mal was Karta of the family and as such had a right to manage properties and realise the rent. This conduct was not inconsistent with his character as a Karta.In Hardit Singh & others v. Gurmukh Singh and others AIR 1918 PC 1(12) it was held that 'if by exclusive possession of Joint estate is meant that one member ofthe Joint family alone occupies it. that by itself affords no evidence of exclusion of other interested members of the family Uninterrupted sole possession of such property, without more,must be referred to the lawful title possession by the joint holder to use the joint estate and cannot be regarded as an assertion of the right to hold it as separate, so as to assert an adverse claim against other interested members.' In Gajapati Narasimbha Deo Garu and another v. Gajapati Krishnachandra Deo Guru and Anr. AIR 1920 Mad 793(13) the Madras High Court held that the mere fact that a co-parcener had not enjoyed any portion of the property for 12 years or more cannot deprive him of his rights. possession of one co-parcener is deemed in law to be possession on behalf of all co-parceners, although other co-parceners may take no part in the management and may not even enjoy any of the income of the property.
(29) The contention that the appellants had denied the title of the respondent while withdrawing the suit filed by Suraj Malin 1949 has no merit. Firstly in para 10 of the written statement the plea taken was that Suraj Mal was managing the properties as an absolute owner after attaining majority in 1950.No hostile title prior to 1950 was thus pleaded. Secondly I Suraj Mal in his statement as DW-5 deposed that he withdraw the earlier suit as he had been advised by his counsel that he had no right of partition and also that Tara Bai had only a right of maintenance. He no where stated that he denied the title of the respondents or pleaded ouster or exclusion. The averment made in Ex. P-4, certified copy of the application under Order 23 rule I, for permission to withdraw the suit, are of no help. In para 4 of the said application, on which reliance was placed, all what was pleaded was that because of the statement of counsel for the defendants and written statement it was clear that defendants BabuLal and Tara Bai were not in possession of properties and,therefore, he (Suraj Mal) did not want to get the propertiespartitioned. The learned counsel urged that the averment was that Babu Lal and Tara Bai had no share in the properties and not that they were not in possession of the properties, This has not been made out. Suraj Mat has not supported this version in his statement. In the written statement of Babu Lal or Tara Bai there was no averment made by them that thoy had no share in the properties. No such statement was made before issues by their counsel. As a matter of fact Babu Lal was asserting his rights as an adopted son.
(30) There is no evidence on record to show that in 1950or thereafter the appellants or any of them asserted any hostiletitle. Suraj Mal has not stated a word about it. Babu Lal in cross-examination said 'Rent from all the tenants has throughout been recovered by Lala Suraj Mal, defendant. He did not give any share from the rent recovered either to me or toSmt. Tara Bai. We orally demanded our share of the rent on some occasions but he did not pay anything and said that we should have recourse to a Court of law. I cannot say whether it was ten years or more when Suraj Mal refund to pay any share out of teh rent and asked us to approach a Court of law'.This evidence is worthless. A bare denial of a right is not an assertion of adverse ownership. To say 'You go to court' merely means that only under a Court decree the appellant will pay to the respondent his due share in property and nototherwise. The appellants' answer may amount to refusal to pay but not an assertion of a hostile title. there is not a scintilla of evidence to support the case of adverse possession which may have ripened into adverse ownership. Adverse possession is a possession that is hostile, under a claim or colour of title, actual, open, notorious, exclusive, and continuous, continued for the required period of time thereby giving an indefeasible right of possession or ownership to the possessor by operation of the limitation of actions. None of the elements is present in this case.
(31) The decisions in Chhotelal Babu Lal v. Premlal Girdhari Lal and Smt. Samundra Devi v.Chand Singh, turn on their own peculiar facts and are of no help.
(32) Article 57 of the Indian Limitation Act provides a period of three years for a suit to obtain a declaration that an alleged adoption is invalid, or never in fact took place, lime begins to run from the date when the alleged adoption becomes known to the plaintiff. This Article is however restricted to declaration in a suit In respect of adoption and not toa suit for possession, notwithstanding the fact that the Court in granting the relief was obliged to give a finding on the validity or invalidity of the adoption.
(33) For these reasons the appeal has no merit and is dismissed with costs.CROSS-OBJECTIONS (C. M. 312173)
(34) It is admitted that Kastur Chand husband of TaraBai died in March 1936 leaving behind his widow, mother and brother Suraj Mal. It is also not disputed that they were members of a joint family and the properties in suit were joint family properties. The rule of Hindu Law then prevalent deprived a widow of any right in such properties of her husband and gave her only a right of maintenance. KasturChand's undivided interest in the co-parcenery property will pass to his brother Suraj Mal as surviving co-parcener. The Hindu Women's Rights to Property Act (Act xviii of 1937)was enacted to give better rights to women in respect of property. Under Section 3(2) a widow was to have same interest in joint family property as her husband had, though her interest was a limited interest, i.e. Hindu Women s Estate. ThisAct, however, came into force on 14/04/1937 i.e., after the death of Kastur Chand. It had no retrospective operation.See Moni Devi v. Hadibandhu The provisions contained in Section 14 of the Hindu Succession Act, 1956 would apply to property possessed by a Hindu female and to which she had some kind of title, however restricted the nature of her interest may be. This Section would have no application to a case where a widow had no right whatsoever in the properties and had only a right of maintenance. Cross-objections, thereforee, fail and are dismissed leaving the parties to bear their own costs.