1. The defendants Nos. 3 to 14 are the appellants before us. They are the wife and children of the 2nd defendant, who made a gift in 1895 (Exhibit XII) of the plaint six items to his said wife and to the children who were then in existence. The 3 plaintiffs, the defendants Nos. 1, 2 and 15 and about 40 others formed an undivided tarwad at the time of the disputed gift in 1895, the tarwad consisting of four taywazhis. The plaintiffs brought the suit (out of which this appeal has arisen) on the basis that the tarwad of the four taywazhis remained undivided till this suit was brought in the end of 1907, and the plaintiffs prayed, on behalf of the Said undivided tarwad, to set aside the gift deed of 1895 and to recover the plaint six items.
2. As a matter of fact, however, there was a registered karar deed of partition in 1902, in which all the adult members of the four taywazhis and all the minor members represented by the adult members of their respective branches took part. In this karar of 1902 (Exhibit II), it is recited that, excluding certain undefined tarwad properties which had been given before to the 2nd defendant in consideration of his discharge of tarwad debts, all the remaining tarwad properties were divided, among the four taywazhis in a certain mode, so as to destroy all community of interest between the four taywazhis which, by reason of that harar, became four divided tarwads. Among the tarwad properties so divided as the only properties which then belonged to the tarwad, the plaint six items do not find a place, The plaintiffs wholly ignored this karar in their plaint, while defendants Nos. 1 and 15 (who colluded with plaintiffs as against defendants Nos. 3 to 14) set up that, at the time of the karar, the 2nd defendant was given only a life-interest in these six items, a contention which was afterwards not sought to be supported by a tittle of evidence.
3. The learned District Judge gave judgment for plaintiffs on the following three findings:
(a) The karar (Exhibit II) could not be said to have put an end to the original undivided tarwad of four tiywazhis and converted it into four divided tarwads, and hence plaintiffs' suit on behalf of the old undivided tarwad is not unsustainable.
(b) The 2nd defendant and the adult members of the tarwad acquiesced in the plaint six itsms being treated as his self-acquisition, and their being left out of account in the division of 1902 as not belonging to the tarwad, though the properties then really belonged to the tarwad. But this must be viewed as the perpetration of a fraud on the minor members of the tarwad, and hence plaintiffs are entitled to get back the properties on behalf of the tarwad, 2nd defendant's story that they never belonged to the tarwad after 1863 and that, in 1863, they were sold under Cadjan deed, Exhibit 1 to him is false, Exhibit I being a forgery. The title deeds for the plaint properties obtained in the years 1875 and 1878 (Exhibits IV series and VII) in the 2nd defendant's name should be treated as having been taken on behalf of the tarwad as 2nd defendant was the de facto manager of the tarwad till 1902.
(c) Defendants Nos. 3 to 14 have not proved that they have been in possession for more than 12 years before suit, and, even if they were so in possession, their possession should not be treated as adverse to the tarwad, because it is not shown that the members of the tarwad other than the 2nd defendant knew before 1902 that 2nd defendant had given possession of the plaint properties to his wife and children. Hence, the suit is not barred by limitation.
4. After hearing the arguments on both sides, we are of opinion that the karar, (Exhibit II), according to its true construction, did put an end to the community of interest between the four taywazhis of the original tarwad and converted them into four new, separate tarwads. (See especially the 9th paragraph of Exhibit II). Though we agree with the lower Court that Exhibit I is a forgery, we are unable to hold that any fraud was practised on the minor members of the tarwad, when the plaint properties were excluded from division in 1902 as not being included in the properties which alone then remained and fell for division among the four taywazhis of the tarwad. The negotiations and discussions among the adults of the family and their friends and relations who acted as mediators (including the husband of one of the senior ladies of the tarwad) lasted for about 5 days. All the adult male members knew evidently that the plaint items and some other items were claimed and all of them thought that, in the interests of the tarwad, the division should take place of the properties other than the plaint items which should be treated as having been gifted to 2nd defendant on account of the assistance given by the 2nd defendant to the tarwad by the discharge of tarwad debts out of his comparatively large separate earnings as a physician. It has been held in several cases that, where the major members of a family, with full knowledge of all the facts, have entered into a family arrangement on behalf of themselves and of minors, fully represented by their natural guardians, such arrangement is binding on the minor members in the absence of fraud, though there were doubtful claims admitted to be valid by the guardians of the minors, which claims might be held to be invalid, if fought out to the end in a Court of justice. The written statements of defendants Nos. 1 to 15 in this case (they having been parties to the partition deed, Exhibit II) do not raise any question as to fraud or misrepresentation having been practised by the 2nd defendant in the bringing about of the karar, Exhibit II. We might add that it is the 15th defendant (who has since quarrelled with his brother, the 2nd defendant) that has been conducting this litigation both in the lower Court and before us on the plaintiffs' behalf. The lower Court had, in our view, no sufficient material before it for its conclusion that the karar, Exhibit II, was vitiated by fraud practised on the minors or their guardians, and that the plaint items were treated as not belonging to the tarwad and hence not available for division owing to fraud. We think that (as recited in paragraph 2 of Exhibit II, the recital being corroborated by the evidence of defence witness No. 6 and by the written statements of 1st and 15th defendants), that the plaint items were deliberately and with full knowledge left out of the partition as having ceased to belong to the tarwad. The recital in Exhibit XII (the gift deed of 1895 to his wife and children) further indicates that the tarwad had given up the plaint items to 2nd defendant to be enjoyed as his separate property.
5. Holding, as we do, the above view as to the effect of the family settlement, Exhibit II, it is unnecessary to deal with the question of limitation raised by defendants Nos. 3 to 14 at any length. The judgment of the learned District Judge leaves the impression that he thought that Article 144 applied to the case, and that the burden of proof as to adverse possession for 12 years before suit lay on defendants Nos. 3 to 14. As plaintiffs admit that, for some years before the suit, the defendants Nos. 3 to 14 have been in possession and that the four taywazhis, in whose behalf the plaintiffs sue, (whether the taywazhis still continue as one undivided tarwad according to plaintiff's case or have become four separate tarwads as we have fouud), have been dispossessed and have discontinued possession of the plaint properties, the proper Article is 142, see the case of Maddali Venkatarayudu v. Moova Sankarayya (1911) M.W.N. 93 : 20 M.L.J. 306 and the burden of proof is on plaintiffs to establish that the tarward's possession continued to within twelve years before suit. They have clearly failed to discharge that burden, the evidence of plaintiff's witnesses Nos. 2 and 3 on the question of possession being worthless.
6. In the result, the lower Court's decree is reversed and the suit will stand dismissed. As the defendants Nos. 2 to 14 put forward the forged document, Exhibit I, as the foundation of their title, instead of relying on the defence of limitation and on the family arrangement recited in and continued by the acknowledgment in karar, Exhibit II, we refuse costs to appellants, and direct the parties to bear their own respective costs in both Courts.