John Wallis, C.J.
1. I have had the advantage of reading the judgment prepared by Seshagiri Aiyar, J., and will state my conclusions very briefly. If the property was undivided and Article 127 is applicable, I entirely agree with him that to bar the plaintiff there must be exclusion from the whole of the joint family property and that exclusion from the suit property only will not do. The decision in Vishnu Ramachandra v. Appaji Chaudhari I.L.R. (1895) Bom. 325 appears to me to be opposed to the decree of the Privy Council in the Balgaum case I.L.R. (1897) M. 256 and to the other cases cited by my learned brother as well as to the language of the article and I am unable to follow it. Assuming however that a division must be presumed to have taken place, it is said that Article 127 does not apply because the plaintiff is not a person excluded from joint family property within the meaning of the article but only a tenant in common excluded from the common property. The words 'Joint family property' are used in the corresponding Section 1 Clause 13 of the Act of 1859, and I think the scope of the two enactments is the same though the starting points of limitation are different. It is in my opinion unnecessary to review the decisions on the question whether the words 'joint family property' in the article apply where there has been a division in status but no division of immoveable properties by metes and bounds. In such a case if Article 127 does not apply Article 144 must apply. Under that article the suit would not be barred, as the possession of one tenant in common is the possession of all, and is not adverse to his co-tenants in the absence of clear evidence of ouster, Corca v. Appuswamy I.L.R. (1912) A.C. 230. The Subordinate Judge has not found that there was anything amounting to ouster in this case and there is no sufficient evidence of it. I agree with the order proposed by my learned brother.
Seshagiri Aiyar, J.
2. This is a suit for partition. Defendants 1 and 2 represent one branch; defendants 3, 4 and 5 the second branch; the 6th defendant the third branch; and the 7th defendant the 4th branch. The fifth branch is not represented in this litigation. Defendants 8 to 12 are alienees from defendants 3 to 7. The plaintiffs purchased the suit properties from defendants 1 and 2. The plaintiffs' case is that the family was divided and that as purchasers from defendants 1 and 2 they are entitled to the sole possession of the properties in the suit. They also set up the alternate plea that defendants 1 and 2 had acquired title by prescription to the properties.
3. The defence is that the members of the family are undivided and that the plaintiffs are not entitled to more than a fifth share in the properties conveyed to them. The Subordinate Judge held that as the plaintiffs' vendors were in exclusive and hostile possession of the suit properties for more than 12 years they were competent to convey them to the plaintiffs. He also expressed the opinion that the five branches had become divided in status, though the properties were not divided by metes and bounds. The appeal was argued on the supposition that the finding as to division of status was correct without deciding the point.
4. The point for decision is whether the possession of defendants 1 and 2 of a portion of the family properties was adverse to the other members of the family. In my opinion, the decision of the Subordinate Judge is wrong. I shall shortly trace the history of the legislation regarding adverse possession by co-tenants in England and in India before dealing with the decided cases. In England before the enactment of 3 and 4 William IV Ch. 27 the law as to possession by co-tenants was this (Vide the First Eeport of the Common Law Commissioners made in the year 1851 as to forms of action relating to ejectment). ' In cases where by reason of the rule plaintiff and defendant being tenants in common joint tenants or co-parceners an actual ouster must be established in order to found an action of trespass the rule is modified by requiring the substituted defendant to admit fictitious ouster only in case an actual ouster of the lessor of the plaintiff is proved.' Then came the statute of 3 and 4 William IV Ch. 27. Section 12 ran thus: --' that when any one or more of several persons entitled to any land or rent as coparceners, joint tenants, or tenants in common, shall have been in possession or receipt of the entirety or more than his or their undivided share or shares of such land or of the profits thereof, or of such rent, for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last mentioned person or persons or any of them.' This section was apparently enacted to negative the presumption that possession by one co-tenant is possession on behalf of all of them. As was pointed out in Holmes v. Newlands (1819) 11 Ad.&El.; 44 and Culley v. Doe (1840) 11 Ad & El. 1003 before the statute of William IV, there was no adverse possession in such cases. The bare receipt of all rents and profits by a tenant in common was not adverse to his co-tenants. Beading v. Rawsterne (1702) 2 LR 829 : 92 E.R. 54 Fairclaim v. Shackleton (l710) 5 Bur. 2604. In Peaceable v. Read (1801) 1 East 568 it was held that where one tenant in common levied a fine and received all the rents for more than five years afterwards without any entry or claim made to avoid the fine, no actual ouster of his co-tenant could be presumed. After the passing of the statute, as has been pointed out in 19 Halsbury para 247. 'The possession of the joint tenants, tenants in common, and co-parceners is separate and is not the possession of the other joint tenants.' It was held in Thornton v. France L.R. (1897) 2 Q.B 143 that if a person entitled to an undivided share in the land, is in exclusive possession of the whole land or any part of it, the title of his co-owner to his undivided share would be extinguished, by such possession. In Glyn v. Howell L.R. (1909) 1 Ch 666 Eve, J says:--'Mr. Upjohn is right when he says the decisions have proceeded upon two lines, the one being those cases where the possession of the part has been treated as possession of the whole, because the court has found, either by contract or according to conscience that possession of the whole is what the person possessed of the part was intended to have, and the other being those cases in which the court, finding no just reason for inferring, in favour of a person relying solely on possession of a part, a constructive possession of the whole, has refused to make such inference.' This is the state of law under 3 and 4 William IV. Now we have to see how the law stands in India. Under Act 14 of 1859, Section 1 Clause 13 enacted the general rule that suits to enforce the right to share in any property moveable or immoveable on the ground that it is the joint family property must be brought within 12 years from the death of the person from whom the property alleged to be joint is said to have descended or from the date of the last payment to the plaintiff or any person through whom he claims, by the person in the possession or management of such property or estate on account of such alleged share. The Limitation Acts of 1871 and of 1877 although they fixed the starting point of Limitation from demand and refusal in the one case, and from exclusion in the other, introduced no substantial changes in the first column of the schedule. Two things are clear from the history of the Indian Limitation Acts. One is that no distinction is made between moveable and immoveable property as in the case of '6 and 4 Willaim IV. Secondly there is no special provision regarding the hostile possession of tenants in common. The reason is not far to seek. In India co-parcenery and joint enjoyment are normal; whereas in England they are exceptions. The legislature apparently, considered that it would be dangerous to introduce the principle enunciated in 3 and 4 William IV into this country, where managers and other members of the family are ordinarily in enjoyment of either the whole or portions of the property exclusively to avoid the disruption of the family ties and the partition of family properties,
5. I am of opinion that the decisions passed on Section 1 Clause 13 of Act XIV of 1859 govern Article 127 in the later Acts. Under the Act of 1859 it was held in Ranjeet Singh v. Kooer Gujraj Singh (1873) L.R. 11. A. 9, that if one of the members of the family was in possession of only a portion of the property to the exclusion of the others the presumption will be that the possession was for and on behalf of the other members of the family. This is what their Lordships say: --' Their Lordships entertaining the view which they have expressed, there was no partition, but that the plaintiffs took the seer land as equivalent to a payment in respect of their shares by the defendant, are of opinion that the proceeds of those seer lands have been substantially payments by the defendant within the meaning of that section, payments which have continued, to the time of action brought, and that, therefore, the Statute of Limitation does not apply.' In Sakho Narayan Khandalkar v. Narayan Bhikkaji Khandalkar (1869) 6 Bom. H.C.R. 238, the learned Judges say 'But in the class of cases similar to the one before us, where both parties are in possession of portions, we should require a definite finding as to whether there had or had not been partition between the parties. In this particular case we have a clear finding that no partition was made, and that each party is in possession of a portion of the entire estate, either by mutual agreement or accidental circumstances. In this view of the matter we consider the suit not barred.' In the Udayarpalayam Case I.L.R. (1901) Mad 562., which related to the Udayarpalayam Zemindari it was pointed Out- 'that although one member of the family was in sole possession of the estate the receipt of maintenance by the other member and his enjoyment of portions of property allotted to him for maintenance would be regarded as participation in the family income.' In Sri Raja Lakshmi Devi Gam v. Sri Raja Surya Narayana Dhatraju Bahadur Garu I.L.R. (1897) Mad. 256 which related to the Belgaum Zemindary one member of the family believing the estate to be impartible was in sole possession of the major portion of the zemindary. The others were given a few villages for their maintenance. After the death of the last zemindar the question was whether the other members who were enjoying the villages for maintenance were not barred by limitation. On behalf of the widow the plea of limitation was raised on the ground that the other members notwithstanding their possession of portions of property were excluded from the zemindari. Both the High Court and the Judicial Committee overruled this contention. They held that so long as there was no total exclusion of the claimants there can be no adverse possession in favour of persons holding portions of the property. As against these decisions we were referred to Vishnu Ramachandra v. Ganesh Appaji Chandhari I.L.R. (1895) Bom. 325 in which it was held that the possession of a part of the property exclusively by a member of the joint family would be hostile to the other members of the family. I am unable to agree with the decision. It is inconsistent with the decisions I have quoted a d with the judgment of Lord Macnaughten in Corea v. Appuswamy (1912) L.R.A.C. 230 where it was pointed: ' Before the Act. 3 and 4 William IV was passed it was a settled rule of law that the possession of any one of such persons was the possession of the other or others of the co-proprietors. It was not disputed at the Bar that such is now the law in Ceylon.' I may add that this is the law in India as well. Having regard to the decisions I have referred to and to the observations of Lord Macnaughten it seems to me that the decision in Vishnu Ramachandra v. Ganesh Appaji Chaudhari I.L.R. (1895) Bom. 325 is not right. There is only one other decision to which I shall refer and that is the decision in Lakshman Dada Naik v. Ramachandra Naik I.L.R. (1880) Bom. 48. That was a case in which the co-parcenor wanted to establish his right to his own share as well as to a moiety of his father's interest to which he became entitled on the death of his father. It was held that Section 1 Clause 13 of the Act of 1859 applied to such a case. As regards the plea of limitation the Judicial Committee says at page 59: --' Now, as far as the immoveable property of the family is concerned, there seems to me no ground for the application of the statute. Not only has the respondent all along been in the enjoyment of part of that property viz., the house at Shahpur but is also entitled to exclude from the computation the period of limitation during which he had prosecuted the suit.' This decision is authority for the proposition that possession of part of the property would save limitation, as regards the rest of the property. In the present case it is not denied that defendants 3 to 12 have been in possession of portions of the joint family property.
6. It was contended for the respondent that the expression 'joint family property' in Article 127 does not apply to the case of persons who have become divided in status. Granting this contention is well founded as to which I express no opinion the cases referred to by me establish that even if Article 144 applied to the case, the possession of the plaintiff's vendor would not be adverse to the other defendants. In any view therefore the decision of the Court below is wrong and his decree must be reversed.
7. The plaintiffs as purchasers of the shares of defendants 1 and 2 are entitled to a 2/5th share in the suit properties by partition and to the mesne profits on that share from the date mentioned in the judgment of the Subordinate Judge: plaintiffs are entitled to the damages awarded by the Lower Court, on the security of the B schedule properties as provided in the judgment of the lower court. Plaintiffs are entitled to the costs from the respondents 1 and 2 who in their turn will get all their costs from respondents 3 and 4 personally and on the security of the B schedule properties inclusive of what they pay appellants (defendants 3 to 7 and 9 to 12) for their costs in both the courts: Plaintiffs are also entitled to interest on Rs. 7,500 from 26th March 1912 up to date of payment.