Arnold White, C.J.
1. The point which arises for consideration in this appeal is whether there is a finding by the lower appellate Court which we can accent and act upon with regard to the status of the family since the separation. The family consisted of a father and five sons. In 1873 the father and one son separated from the other sons including Manikam and Seenu. Later on there was another division and another son Venkatachalam separated. And the question which the lower appellate Court put to itself is: What effect had the separation on the position of Manikam and Seenu. 'Did they' as the lower Court thinks 'become tenants-in-common or did they remain joint or subsequently become joint after a temporary separation.' The learned Judge has answered his own question. We have to look to a later portion of the judgment, i.e., paragraph 3 for the answer. There he says 'In these circumstances I dissent from the lower Court's conclusion in favour of division and the tenancy-in-common which is necessary in order to support it.' That is no doubt by implication a finding that the tenancy was joint.
2. In an earlier portion of that paragraph we find the learned Judge referring to the decision of the Privy Council which is reported in Balabux v. Rukhmabai 30 C.k725. But I am not satisfied that the learned Judge appreciated the effect of that decision. For this is what he says at page 23 line 13: 'In the present case, if the lower Court's finding is right, those concerned returned so far towards joint tenancy that they became tenants-in-common. That relation is abnormal as between persons, who have been and are competent again to be coparceners and I think that proof of it would be sufficient to raise a presumption that the further incidents of survivorship, by which joint tenancy would be reached, were intended until the contrary were proved.' That passage, to my mind, rather suggests that the view of the learned Judge was that there was at any rate, in this case a presumption in favour of the joint tenancy and that seems to me to be inconsistent with the decision of the Privy Council to which I have referred. There they lay down that there is no presumption when one co-parcener separates from the others that the latter remain united. * * * * And an agreement amongst the remaining co-parceners to remain united or to re-unite must be proved like any other fact. However, I do not think it necessary to proceed with this point further, because it seems to me that the defendant is entitled to succeed on his plea of limitation.
3. The finding of the lower appellate Court with regard to this question of limitation is: 'As regards enjoyment, I concur in the lower Court's conclusion from the evidence.' And the lower Court's conclusion is: 'My finding on this issue is that the properties of Manikam and Seenu were enjoyed only by Manikam, and defendant after the death of the former. Seenu Pillai died 15 years ago for plaintiff's 1st witness says it was three years after Kannammal's marriage which was eighteen years ago.' It seems to me that, accepting that finding the defendant has established his plea of limitation.
4. The plaint was originally to eject upon the ground that properties were enjoyed separately. Nothing can be clearer that the allegation in paragraph 8 of the plaint: 'Defendant's father Manikam Pillai, the said Seenu Pillai, and I are divided brothers. Each of us has been separately enjoying his respective properties.' The Munsif treated the case on the footing that notwithstanding that the suit was one in ejectment, the plaintiff was entitled to be given a decree for partition and he gave him a decree for partition.
5. He originally set up in the plaint the right to evict and I do not think the plaintiff is entitled to rely upon tenancy-in-common which he does not allege in the plaint for the purpose of getting rid of the plea of limitation.
6. For these reasons and for the reason that the plea of limitation is made out I would affirm the decree of the lower appellate Court and dismiss the second appeal with costs.
Krishnaswami Iyer, J.
7. I agree in the decision arrived at by the learned Chief Justice. It is argued for the appellant on the authority of Ahmed Walikhan v. Shamsh-ul Jahan Begam 28 A.k 482 that the plaint ought to be liberally construed and relief should be given him on the basis of a tenancy-in-common. I do not think we shall be justified in putting this liberal construction. For in the circumstances of this case where the plea of limitation has been raised by the defendant and made good by him, on the case set up by the plaintiff, the plaintiff's allegation of exclusive title to the suit properties is what he should be confined to.
8. In respect of the alternative case which the plaintiff wants us to accept I am not inclined to put the liberal interpretation which the plaintiff asks us to give to the plaint.
9. As regards the question which has been argued at considerable length as to the effect of a partition decree which gives the plaintiff a share in property for which it is necessary to determine the shares of the other members, namely, whether these other members are to be treated at tenants-in-common subsequent to the partition decree or as joint tenants, it is unnecessary for us to determine it in this case.