S. Mohan, J.
1. Both these second appeals can be dealt with under a common judgment. Defendants 13, 14, 15 and 19 in O.S. No. 3696 of 1972 on the file of the Fifth Assistant Judge, City Civil Court, Madras, are the appellants in Second Appeal No. 650 of 1981 and defendants 5 and 6 in the said suit are the appellants in Second Appeal No. 894 of 1981. The facts are as under:
2. The dispute relates to the right of management in respect of Saint Syed Moosa Shah Kadiri Darga in Madras. One Syed Mohideen Sahib was in management. He had two sons by name Syed Ismail Sahib and Syed Gulam Dasthagir Sahib. The right bf management was divided between the two sons, each taking six months. This was on the basis of a judgment of this Court in C.S. No. 116 of 1909. The plaintiffs and defendants 1 to 10 and 12 to 19 belonged to the branch of Syed Gulam Dasthagir, whose right of management was in the months of February, March, June, July, October, and November. On the death of Syed Gulam Dasthagir, the right of management and possession of the Darga devblved on his two sons, Syed Gaffer and Syed Mohideen, as well as a daughter by name Fathima Bi, in accordance with the Mohammedan Law. All the three were in management and possession of the Darga. The expenses used to be met out of the hundial collections in the Darga and the balance was appropriated by the said three persons. The plaintiffs 1 and 2 and the second defendant are the son and two daughters of Fathima Bi. They were associating themselves with their maternal uncles and their sons in the management of the Darga and were in receipt of their share of the income. However, recently the first defendant, the maternal uncle, and the sixth defendant, a son of another maternal uncle; are preventing the plaintiffs from exercising their lawful rights with regard to their share in the management and receipt of the income. Even though a notice was sent calling upon them not to obstruct, they sent a reply stating that Fatima Bi being a woman was not entitled to any right whatever and even if she had any, the same had become barred by limitation. Those pleas are untenable. The right of all the family members, including women, to participate in the management has been recognised by several Court proceedings. Under these circum stances it has become necessary to file the suit for declaration that the plaintiffs are entitled to the management and possession of the Darga for a period of 27 days in the year during the above said six months. Further, there is also a prayer for injunction to restrain the defendants from interfering with the said right.
3. Though the suit came to be originally instituted against defendants 1 to 10 only, subsequently the Wakf Board was impleaded as the eleventh defendant. On the death of the second defendant, her legal representatives defendants 3 to 5 were brought on record. On the death of the first defendant, defendants 12 to 19 were brought on record as his legal representatives.
4. In the written statement of the first defendant, it was contended that the suit was not maintainable in the absence of the Wakf Board as a party and for want of sanction from the Advocate-General under Section 92 of the Civil Procedure Code. The right involved in the suit is the right to function as a Mujawar in the Darga and the said right can be exercised only by males and not by females. On the death of Syed Ismail in 1902, Syed Gulam Dasthagir was in management and was distributing the income between himself and the heirs of Syed Ismail1. Syed Gulam Dasthagir died in 1905 leaving to adult male member, to function as Mujawar. The widows of Syed Ismail and Syed Dasthagir could not exercise the right of Mujawarship. Therefore, the maternal grand-father of Syed Gafoor and Syed Mohideen on their behalf, and one Miohamed Yasin on behalf of the minor son of Syed Ismail, were managing the affairs of the Darga. This is evidence to the fact that no lady could ever be in management of the Darga, In 1907 there was a reference to arbitration, after disputes arose, and that proved to be infructuous. Thereafter C.S. No. 116 of 1909 was instituted and under the decree therein, the right of management claimed by the widows of Syed Ismail and Syed Gulam Dasthagir was negatived, the right being granted in favour of the sons only. Fathima Bi was not a party to the said suit. As such, her rights were not recognised. The first defendant denied that Fathima Bi was participating in the management of the Darga. In any event, as she never enjoyed the right to the hundial collections of the Darga, limitation ran against her from the date of the judgment in C.S. No. 116 of 1909. As such, her right had become barred by limitation. So far as the decree in O.S. No. 198 of 1968 is concerned, it proceeded without full facts being placed before the Court and the consent decree was without making the Wakf Board a party. After the death of Fathima Bi in 1957, her children also had nevej participated in the management or the hundial collections of the Darga and thus their rights had also become barred by limitation.
5. I do not think it necessary to set out in detail the averments in the written statements of the other defendants, as they are more or less on the same lines as that of the first defendant.
6. After the disposal of the suit and during the pendency of the appeal therefrom in the first appellate Court, along with the prayer for injunction an alternate prayer for possession was also made.
7. The learned Fifth Assistant Judge, City Civil Court, Madras, on trial, came to the conclusion that the plaintiffs had established their right and granted a decree for declaration and injunction.
8. Aggrieved by the said judgment and decree, defendants 3 to 6 and 12 to 19 preferred A.S. No. 19 of 1980 and the seventh defendant prefered cross-objections. Both came to be dealt with by the learned First Additional City Civil Judge, Madras. He, on a consideration of the matter, ultimately concluded that the judgment and decree of the trial Court will have to be substantially confirmed, except for the modification with reference to the arrangements of Mujawarship. The cross-objections were dismissed. Under those circumstances the present second appeals, as stated above, by the respective defendants.
9. Mr. R. Kesava Iyengar, learned Counsel for the appellants, could urge that both the Courts below have missed a very essential aspect of the matter and have gone astray in so far as they assumed as if the plaintiffs have an independent right other than that of Fathima Bi. In the instant case, it cannot be denied that it is Article 124 of the Limitation Act that would apply. The entire case of the defendants was that it was C.S. No. 116 of 1909 which was the root of the title. There fore, on and from the date of that decree the rights of Fathima will have to be reckoned. If she had remained inactive during that period in her lifetime, the question of ouster will arise and in such a case, on the evidence of P.W. 1 himself, it should be held to be established. It would be clear from Kalipada Chakraborti and Anr. v. Sm. Palani Bala Devi and Ors. : 4SCR503 at 131, that it is Article 124 of the Limitation Act that should be made applicable. If that be so, then it is wrong on the part of the Courts below to say that it is for the defendants to prove how hostile title was exhibited or how they held adversely to the interests of the plaintiffs.
10. The long inaction, coupled with the failure to exercise any right for well over 40 years and thereafter would clearly spell out that the plaintiffs' predecessor herself had been ousted and the theory of presumption of ouster has not been properly appreciated by the Courts below. In support of this sub mission the learned Counsel relies on P. Lakshmi Reddy v. L. Lakshmi Reddy : 1995(5)SCALE509 ; Minor Ibramsa Rowther and Ors. v. Sheik Meerasa Rowther and Ors. : (1972)2MLJ466 ; Karunal Ammal v. Karuppa Gounder and Anr. : (1980)1MLJ432 and K. Venkataramanujam and Ors. v. P.T. Parthasarathi and Ors. (1976) 89 L.W. 12.
11. It is borne out by the evidence that there are small acts of generosity shown by the maternal uncles. But from that it cannot be construed as if the plaintiffs' predecessor-in-title exercised her rights of ownership. Nor was her right ever recognised. As a matter of fact, such acts of generosity cannot be misconstrued so as to confer an advantage in favour of the plaintiffs. In support of this sub mission, the learned Counsel cities Appalaswami v. Suryanarayanamurthi and Ors. (1947) 2 M.L.J. 138 : I.L.R. (1948) Mad. 440 : 60 L.W. 412 : A.I.R. 1947 P.C. 189. Then again, with regard to the fixation of dates, as dealt with in paragraph 36 of the judgment of the lower appellate Court, there is an obvious mistake and that requires to be corrected as well, should the Court be inclined not to accept the contention of the appellants with regard to limitation.
12. Mr. Abdul Hadi, learned Counsel for the respondents, would urge that the decree in C.S. No. 116 of 1909 does not conclude the rights of Fathima Bi at all. As a matter of fact she was not a party to those proceedings and, therefore, it cannot be said to be binding, and all that came to be decided in that suit was, whether the parties were entitled to share the income per capita or per stirpes. That is clear from the appeal judgment against that decree. The failure on the part of Fathima Bi to make a claim would not defeat her rights is evident from a reading of the ruling reported in Puttathayamma and Anr. v. Rathnarajiah and Anr. A.I.R. 1955 Mys. 33. It is not unusual in the case of Mohammedans that one male member holds on behalf of a female member as well.
13. In the instant case, having regard to the relationship between the parties as brothers and sisters, no adverse possession can. ever be claimed, as laid down in Mohammad Mohit Ullah Khan and Anr. v. Bibi Halima Begam : AIR1932All666 . The learned Counsel further citing Mitra's Law of Limitation and Prescription 9th Edition, Volunme II, page 1517, would say that having regard to the close relationship of the parties, ouster cannot be spelt out. D.W. 1 has been absolutely silent about ouster. Performance of marriage and giving money in recognition of shares belonging to the plaintiffs themselves would be sufficient to defeat the theory of ouster. If really the Court were to accept the theory of ouster, the denial must be such and must be sufficient, as laid down in Sinnaraj Pillai and Ors. v. Ramayee Ammal and Anr. : AIR1969Mad96 . In support of this argument Muhammad Kaliba Rowther v. Muhammad Abdullah Rowther : AIR1963Mad84 , is also cited. Further reliance is placed on Karunal Ammal v. Karuppa Gounder and Anr. : (1980)1MLJ432 , showing that in a case where there was a Court-auction purchase the theory of ouster cannot be put forth. In Abdul Hussain Khan v. Mst. Bibi Sona Dero and Anr. (1918) 45 I.A. 10 : 34 M.L.J. 48 : A.I.R. 1917 P.C. 181, it has been held that having regard to the close relationship between the parties, the Court should not readily presume an ouster. Ouster being a question of fact, cannot be gone into and decided in second appeal, exercising jurisdiction under Section 100, Civil Procedure Code, as seen from Karbalai Begum v. Mohd. Sayeed and Anr. : 1SCR863 . With regard to the fixation of days, it is dealt with in paragraph 36 of the lower appellate Court's judgment. Since the second defendant is the wife of Syed Ghouse, it has been so arranged as to cause no inconvenience to any of the parties. For establishing adverse possession, it is necessary to plead and then lead in evidence. But absolutely nothing has been done.
14. I will proceed to consider the above submissions seriatim.
15. Firstly, whether Fathima Bi's right got barred by reason of the decree in CS. No. 116 of 1909 and because of her failure to make a claim? In C.S. No. 116 of 1909 the parties were Vazir Bi, the mother, and her minor son Syed Moosa, representing Syed Ismail's branch, and Mohideen Bee, the mother and her two minor sons Syed Gaffar and Syed Mohideen, representing Syed Gulam Dasthagir's branch. The decree was in the following terms:
1. That the 1st plaintiff and the 1st and 2nd defendants herein are entitled to perform the duties of Mujawar (Superintendent) of the Darga of Saint Hazrath Syed Qadiri situate in Mount Road, Madras, in turns.
2. That the 1st plaintiff and the 1st and 2nd defendants herein are entitled to collect and receive the offerings, gifts and other emoluments of the said Darga. as well as the collections of the Hundi Box in the said Darga and apportion the same in two equal moieties and that Syed Moosa Sahib, the 1st plaintiff is entitled to one half and Syed Gaffar Sahib and Syed Mohideen Sahib the 1st and 2nd defendants are entitled to the other half of the collections, offerings, gifts and other emoluments.
3. That the 1st plaintiff herein is entitled to Rupees fifteen (Rs. 15) a month as and for his share of the mesne profits of the said Darga, since 15th day of May, 1907, to the end of October, 1909, less Rupees ninety-five, annas twelve and pies five (Rs. 95-12-5), which was paid by the defendants to the plaintiffs in respect of this period and it is ordered and decreed as follows:
4. That Mr. Mohamed Ibrahim Sahib, the Receiver appointed herein do pay to the plaintiffs herein the amount retained by him representing one half of the net collections payable to the plaintiffs.
5. That the defendants herein do pay to the plaintiffs herein mesne profits at the rate of Rupees fifteen (Rs. 15) per mensem from 15th May, 1907 upto the end of October, 1909, after giving credit for Rupees ninety-five, annas twelve and pies five (Rs. 95-12-5) paid on account; and
6. That the defendants herein do pay to the plaintiffs their costs of this suit when taxed and noted in the margin hereon with interest thereon at the rate of six per cent, peiannum from the date of taxation to the date of payment.
Clause 1 of the decree is very relevant for our purpose because it is stated therein that 'the 1st plaintiff and the 1st and 2nd defendants herein are entitled to perform the duties of Mujawar of the Darga. By a reading of this clause it would be very apparent that if really the female members had any right, the respective mothers, namely Syed Moosa's mother Vazir Bi, and the mother of Syed Gaffar and Syed Mohideen, namely Mohideen Bi, would never have remained quiet without putting forth their rights as well. Be that so. This decree was taken up in appeal in O.S.A. No. 34 of 1910. That came up before Benson, Officiating C.J., and Sankaran Nair, J., The learned Judges held as under:
The plaintiff has not proved the allegation in the plaint and there is no finding in his favour. No other mode of succession having been set up, and both parties conceding that the right of management descends according to the laws of inheritance the only question being whether it descends per capita or per stirpes, we are of opinion that succession must be governed by the Mohammedan Law of inheritance. See also the case of Kunhi Bivi v. Abdul Aziz (1883)Mad. 103. The plaintiff is accordingly entitled to succeed to his father and the defendants are only entitled to take their father's share. This view is supported by the authoritites cited by Wallis, J.--Macnaughten, page 341; Wilson's Digest II Edition, 372; and Amir Ali, Volume I, page 426, 3rd Edition. The general statement in Macnaughten p. 336, that charitable donations should be distributed among the heirs of the departed saint is not applicable to the present case which is not a case of succession to the departed saint. We agree, therefore, with the learned Judge and dismiss the appeal with costs.
On this finding, they dismissed the appeal. What is sought to be contended by Mr. A. Hadi, learned Counsel for the respondents, is that the entire question that came up for decision in this ruling was whether, according to the laws of inheritance, the Mujawarship descended per capita or per stirpes and nothing more than that. I do not think I need con sider this submission in detail because of what I have noted abote, namely, the failure of the mother to make any claim. Fathima Bi was not a party to the suit no doubt. Therefore, it cannot be said that the decree as such will be binding on her. Now, what was the conduct Of Fathima Bi after the decree came to be parsed? This' becomes necessary, because specifically it is stated in the written statement in the present suit by the first defendant in paragraph 9, 'that in view of the judgment in C.S. No. 116 of 1909, which is the root of title of Mujawarship and also by way of practice since early times in this Darga, the right to receive the income from the hundies is conditional upon the right to perform the duties of MujaWar. In the circumstances, Fathima Bi, the daughter of Gulam Dasthagir Sahib, did not desire or possess any right whatsoever to claim the hundial collection or any part of it.' Further, paragraph 10 proceeds to state as under:
As at the time Fathima Bi enjoyed the right to the hundial collection of the Darga, the period of limitation ran against her right from the date of judgment in C.S. No. 116 of 1909 which ignored her right, if any, and declared completely the right of her brother Syed Gaffar Sahib and Syed Mohideen Sahib. Even if, for the purpose of argument, it is claimed that she might have claimed a share when the Madras Act XVIII of 1940, Section 2 of the Shariat Act, 1937, was amended, she lost her right-because she did not as a fact claim the right till her death. And thus she had no right whatsoever to transmit to her heirs in respect of the hundial collections.
Therefore, it is evident from a reading of the above averments, that the basis for the claim, as far as the parties are concerned, was the decree in C.S. No. 116 of 1909., It is to be clearly borne in mind at this juncture that it is not a mere right to honours, etc., but it is a right coupled with certain monetary benefits by way of hundial collections. It is somewhat strange that till her death in 1957 Fathima Bi did not care to make a demand at any point of time. Under those circumstances the question would be whether Article 124 of the Limitation. Act, would apply. Article 124 of the Indian Limitation Act, 1908 reads as:
For possession-of an hereditary office Twelve years--when the defendant takes possession of the office adversely to the plaintiff. Explanation:--An hereditary office is possessed when the profits thereof are usually received, or (if there are no profits) when the duties thereof are usually performed.
In this case there are undoubtedly profits. The corresponding Article in the Limitation Act of 1963, is Article 107, which is a verbatim reproduction of old Article 124, as could be seen below:
For possession of a hereditary officer-Twelve years--when the defendant takes possession of the office adversely to the plaintiff. Explanation:--A hereditary Office is possessed when the properties thereof are usually received, or (if 'there are no properties') when the duties thereof are usually performed.
16. When Fathima Bi, during her lifetime, did not make any claim to these profits from the Darga, namely the hundial collections, as to what would be the position is evident from the decision in Kalipada Chakraborti and Anr. v. Sm. Palani Bala Devi and Ors. : 4SCR503 . At page 130 the Supreme Court observed:
There could be no doubt that there is an element in the shebaiti right which has the legal characteristics of property; but shebaiti-ship is property of a peculiar and anomalous character, and it is difficult to say that it comes under the category of immovable property as it is known in Law. Article 141 refers expressly to immovable property and not to property in the general sense of the word. On the other hand, it is quite settled that shebaiti right is a hereditary office and as such comes within the express language of Article 124, Limitation Act.
Then again, at page 131 it was held:
Reading Article 124, Limitation Act, along with Section 2(8), the conclusion is irresistible, that 'to defeat the title of the plaintiff under Article 124 it is necessary to establish that the defendant had taken possession of the office adversely to the plaintiff or somebody from or through whom the plaintiff derives his title, more than 12 years prior to the institution of the suit. This is exactly what is laid down in Gnanasambanda v. Velu (1900) 27 I.A. 69 : I.L.R. 23 Mad. 271 : 10 M.L.J. 29 . In this case two persons, who were hereditary trustees of a religious endowment, sold their right of management and transferred the entire endowed property to the defendant-appellant. The sales were null and void and the possession taken by the purchaser was adverse to the vendors from the very beginning. The plaintiff Velu was the son and heir of one the hereditary trustees and he instituted the suit more than 12 years after the date of the transaction claiming possession of the office along with the heir of the other trustee who was joined as a defendant in the suit. It was held by the Judicial Committee that the plaintiff's suit was barred and the reason given is that the respondent Velu could only be entitled as heir to his father Nataraja, and from him and through him, and consequently his suit was barred by 'Article 124'. This portion of the judgment, it seems, was overlooked by the learned Judges of the Calcutta High Court and also by the Madras High Court in the cases referred to above. The fact that under the ordinary law of inheritance the plaintiffs would come as the heirs of the husband of Kajalakshmi is immaterial. That would not be deriving their right to sue through and from the. widow, and in this view of the case the plaintiffs' suit cannot be held to be barred.
17. In the instant case, what has happened was, after the decree in C.S. No. 116 of 1909, it was only the male heirs who were exercising their rights. That is evident from what has been spoken to by P.W. 1 himself. He states that at the time when his mother died she was aged 79 and in C.S. No. 116 of 1909 she was not impleaded as a party. He is not aware as to whether she tried to implead herself as a party claiming a share. He categorically admits that she was aware of the filing of C.S. No. 116 of 1909. Later on it is stated by him that from 1942 to 1960 he did not know what was given to his mother. At any rate, from 1957 no money was ever paid, except that the maternal uncle was treating them as his own sons and paying Rs. 300 or Rs. 400 stating that that was the share. However, he would add that his mother could not be directly Mujawar and, therefore, it was Syed Gaffar as agent who was conducting the affairs on her behalf, for which there was no document. After the death of his mother nobody was employed as an agent. Only at the time when he consulted the vakil he came to know that his mother had 36 days' share in the Mujawarship. Before that he did not know. In spite of repeated demands the uncle did not do anything concerning the share of the hundial collections. The demand was from 1960 to 1972. But nothing was paid. He knew that he had rights even before. From the above evidence, it is clear that the mother of P.W. 1 was aware of the filing of C.S. No. 116 of 1909. Irrespective of that, in so far as there is absolutely no evidence whatever to show at any point of time till her death in 1957 Fathima Bi ever made a demand or ask for a share of the hundial collections, it should be held that her rights had become barred. Therefore, if really the rights of Fathima had become barred by her not exercising the rights, the plaintiffs themselves can have no independent right to claim. The Courts below have completely misdirected themselves when appreciating the pleadings. As a matter of fact, the plaint itself categorically proceeds on the following basis:
The plaintiffs state that their mother Fathima Bi was entitled to a fifth share in the rights of management of the dargha and in the income of the dargha which her father was enjoying for a period of 6 months in a year, namely February, March, June, July, October and November; after her death the plaintiffs herein as her son and daughter are entitled to 3/4th share in the said rights of their deceased mother. Thus the plaintiffs are entitled to be in possession and management of the said dargah for a period of 27 days in a year during the the above said 6 months period. A geneological tree is filed along with the plaint.
In view of what has been said above, the plaintiffs have laid this action for a declaration that they are entitled to the share of the management of the said dargha and to receive their 3/4th share of the income of their mother Fathima Bi who was entitled for a fifth share in her father's aforesaid right and also for an injunction restraining the defendants herein from interfering in any manner with the rights of management of the dargha and with the right to share the income of the dargha by the plaintiff as per law.
If, therefore, Fathima's rights are not available for inheritance, there is nothing which the plaintiffs could agitate. This should be enough to non-suit the plaintiffs.
18. Coming next to the question whether there could be a presumption of ouster, the Courts below proceeded upon an erroneous assumption as if it is the duty of the defendants to prove by what hostile assertions of title and possession ouster had been established. The law is, as I understand, by long inaction, more so when it is coupled with sharing of profits, in not claiming the profits at any point of time, there would arise a clear presumption of ouster. The first of the authorities that may be looked at in this regard is the one reported in P. Lakshmi Reddy v. L. Lakshmi Reddy : 1995(5)SCALE509 , where at page 317, while discussing the requirements of adverse possession, the Supreme Court stated:
Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nee pracario See Secretary of State for India v. Debendra Lal Khan . The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. See Radhamoni Debi v. Collector of Khulna (1900) 27 Ind. App. 136 : I.L.R. 27 Cal. 943 . But it is well-seeled that in order to establish adverse possession of one co-heir as against another, it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one coheir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. See Corea v. Appuhttmy (1912) A.C. 230. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment of one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal ILR(1920) Mad. 244 : 46 I.A. 285 : 38 M.L.J. 313 : 10 L.W. 679 : A.I.R. 1919 P.C. 44 , quotes apparently with approval, a passage from Culley v. Doed Taylerson (1840) 3 P. &. D. 539 : 52 R.R. 568, which indicates that such a situation may well lead to an inference of ouster 'if other circumstances concur' See also Govindrao v. Rajabai . It may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.
In Minor Ibramsa Rowther and Ors. v. Sheik Meerasa Rowther and Ors. : (1972)1MLJ466 at 475 : 85 L.W. 596, a Division Bench of this Court observed:
In Abdul Kadir v. Umma I.L.R. (1970)Mad. 636, there is a detailed reference to all the cases of all the High Courts, in which presumption of ouster was drawn from the length of exclusive possession and other circumstances concurring. We may also refer to the decision of the Privy Council in Varada Pillai v. Jeevararaihnammal 38 M.L.J. 313 : ILR(1920)Mad. 244 : 46 I.A. 285 : A.I.R. 1919 P.C. 44--(observations of Viscount Cave, at page 252) in which the Privy Council has quoted with approval the statement of the law in the leading and oft-quoted English decision in Culley v. Doe 113 T.R. 697, that if a co-owner has been in exclusive possession and in receipt of the rents and income from the property for a considerable length of time and the other co-owner was, throughout, inactive, it will be legitimate for the Court to raise the presumption of ouster and that the length of time is a relevent and important factor in coming to a conclusion one way or other on the question of ouster.
19. It only remains to refer to the two English decisions which have held the field for about two centuries, in which the importance of the time factor has been stressed as giving rise to the presumption of ouster. The first is the, decision in Doe v. Prosser 98 E.R. 1052. In that case, a co-tenant was not in possession of the property, nor in reception of the rents and profits, for nearly forty years and, on his behalf, it was urged that mere exclusive reception of rents and profits by the other co-owner for any length of time would not constitute ouster. But it was held that the jury may presume an actual ouster from such sole and uninterrupted possession by one co-tenant to the exclusion of the other for 36 years. Lord Mansfield observed:
It is very true that I told the jury, that they were warranted by the length of time in this case, to presume an adverse possession and ouster by one of the tenants-in-common, of his companion; and I continue still of the same opinion. Some ambiguity seems to have arisen from the term 'actual ouster', as if it meant some act accompanied by real force, and as if a turning out by the shoulders were necessary. But that is not so. A man may come in by a rightful possession, and yet hold over adversely without a title. If he dies, such holding over, under circumstances, will be equivalent to an actual ouster.
In Karuna Ammal v. Karuppa Gounder and Anr. (1980) 1 M.L.J. 433 , it was held:
It is true that in the case of a co-owner mere possession, however long it might be, could not constitute adverse possession. It is also-true that mere non-participation in the income would not lead to the automatic conclusion of ouster. Possession must be over the statutory period and there must be a clear ouster to the knowledge of the co-owner or the co-heir against whom adverse possession is pleaded. No detailed discussion by referring to many authorities would be necessary excepting to cite P. Lakskmi Reddy v. L. Lakshmi Reddy : 1995(5)SCALE509 , wherein as to what would constitute knowledge and ouster have been clearly spelt out. In this case, what is the position and whether there are enough averments in the written statement, is the question. Before examining the averments, it is necessary to note what exactly is the case of the first defendant. The case of the first defendant is, by his brother's purchase under the Court-auction proceedings and delivery of possession on 20th March, 1930, he became the owner of the entirety of the C Schedule properties. Consistent with that, he states in paragraph 4 of the written statement that from the time of purchase both his predecessor-in-title as well as he were in possession and enjoyment for a period of forty years and consequent on that uninterrupted possession during that long period, the title of the plaintiff got extinguished by adverse possession. The question of co-heirs or co-owners does not arise at that stage. Therefore, it will be too much to expect the first defendant to plead knowledge of ouster.
In K. Venkataramanujam and Ors. v. P.T. Parthasarthi and Ors. (1976) 89 L.W. 12 , it was observed:
Article 58 is obviously a residuary Article appearing in Part III of the Schedule to the Limitation Act. The cause of action for such a suit arises on the date when the right to sue first accrues. Taking Exhibit B-4, the right to sue for a declaration such as the one now asked for, is already stated to have accrued in favour of the plaintiff. But no action has been filed till 1966. Even assuming that the plaintiff was seeking for possession of a hereditary office, the question is whether the cause of action survived in 1966, to the plaintiff. The trend of the correspondence between the plaintiff and the trustees in management of the trust from time to time, and particularly in 1949, shows that they have taken possession of the office to the exclusion of the plaintiff, and so were in possession of the office adversely to the plaintiff. If he was, therefore, seeking a right to joint possession of such hereditary office, from which he was ousted, he should have filed a suit within 12 years from the date when the defendant took possession of the right adversely to the plaintiff.
Therefore, on the basis of these rulings, it is contended that the right to sue by Fathima Bi arose from the date of the decree in C.S. No. 116 of 1909 and she did not do anything in that direction, while the male heirs were enjoying exclusively. Under those circumstances, the question of ouster does not arise at all. By her non-exercise of the rights, the rights of Fathima Bi became barred. There is absolutely no explanation in the plaint as to why Fathima did not make a claim between 1910 till her death in 1957.
20. In order to get over this difficult situation, the learned Counsel for the respondents would rely upon Buttaihayamma and Anr. v. Rathanarajiah and Anr. A.I.R. 1955 Mys. 33. it was held in paragraph 4:
In a case like this, where the plaintiff and defendant 1 are close, relations, I think very much more and better and stronger evidence of a positive character was necessary to establish title by prescription and adverse possession in favour of the plaintiff.
Further, referring to Laximipatirao v. Venkatesh Tirumal A.I.R. 1916 Bom. 63, it was observed:
Where a female lives with her male relatives, the ordinary presumption is that they manage her property for (her and do not hold it adversely. See Inayat Hussatn v. Aziz Banno (1911) 10 I.C. 413 Where possession has commenced lawfully, e.g., by an agreement as to the management of the property, the Court would be slow to hold that it has: subsequently become adverse to the rightful owner unless the evidence clearly and unequivocally, establishnes ouster. Laxmipatirao v. Venkatesh Tirumal A.I.R. 1916 Bom. 63.
In dealing with the question of possession as between brothers and sisters, in native families, regard must be had to the conditions of life under which such families live, and the fact that in such families the management of the property of the family is by reason of the seclusion of the female members, ordinarily left in the hands of the male members. In the case of such families slight evidence of enjoyment of income arising 'from the property is sufficient prima facie proof of possession' See Inayak Husen v. Ali Husen ILR(1898) All. 182.
This case has no application, because admittely it relates to possession of lands which was by a male owner on behalf of all the female members. But in the case on hand, as admitted by P.W. 1, if Fathima Bi knew the 'filing of C S. No. 116' of 1909 and was further aware that she was not a party and there was a claim in respect of hundial collections and Mujawarship which was being agitated by her brothers without reference to her at least after the passing of the decree, one would expect her to take some action or other: Nothing of that kind was ever done. It is true Mohammdd Mohit Ullah Khan and Anr. v. Bibi Halima Begum A.I.R. 1932 All. 666, lays down that where the parties are closely related like brothers they cannot be in adverse possession. The passage occurring at page 1517 of II Volume in the 9th Edition of Mitra's Law of Limitation and Prescription is also to similar effect. But it is not the mere relationship that would be enough. It is long inaction that would defeat the rights of the plaintiffs. I am unable to accept the argument that because of what the defendants 12 to 19 had stated in their written statement, which has loomed large before the lower appellate Court as seen from paragraph 33 of its judgment, it could be stated that it is their duty to establish adverse possession. That is not, as I said above, the correct way of approaching the matter. The ruling in P. Lakshmi Reddy v. L. Lakshmi Reddy : 1995(5)SCALE509 , which has already been referred to, lays down under what circumstances adverse possession can be spelt out. That does not afford any assistance to the respondents. In Sinnaraj Pillai and Ors. v. Ramayee Ammal and Anr. : (1968)2MLJ639 , the denial on behalf of the person claiming adversely should be notorious and open. This is what was stated at page 647:
A tenant-in-common pleading ouster must establish that there was denial of the other co-owner's right in the properties, that the denial was sufficiently notorious and open, that the tenant-in-common out of possession should have, got knowledge of it, and that the tenant-in-common in possession continued to enjoy the properties in repudiation of the rights of the other co-tenant in the properties for the statutory period.
That Fathima Bi had knowledge is established by the evidence of P.W. 1. Her inaction stares at the face. Open and notorious enjoyment of the male members to the exclusion of Fathima has also been clearly established Under those circumstances I am unable to see what further requirement is necessary to establish adverse title. In Muhammad Kaliba Rowther v. Muhammad Abdullah Rowther : AIR1963Mad84 , a Division Bench of this Court at page 85 stated as under:
If Article 144 is the proper Article applicable, as we hold it is, the question then arises as to whether under that Article the suit is out of time. It is well-settled law, and we think no citation or authority is necessary that possession in the hands of a co-sharer of a property owned in common is position in law that mere non-participation Implicit in this proposition is the further position in law that mere non-participation in the receipts from such immovable property or mere inaction in respect of it for any length of time on the part of one or more of the co-sharers is not regarded as amounting to ouster or as investing the possession in the hands of one Of the co-sharers with an adverse character so as to enable him to prescribe against the other co-sharers. It is only when acts are clearly proved on the part of the co-sharer in possession which would be inconsistent with any other co-sharer being entitled to any possession or interest in any part of the property, it can be said that any question of ouster of the co-sharers not in possession can arise. In the absence of such ouster there will be no room for adverse possession or prescription in favour of the co-sharer in possession.
Tested in the light of this ruling, I find in the instant case all the requirements are fully satisfied as stated above, namely, Fathima Bi's knowledge, her inaction and the open and notorious exercise of the rights' of Mujawarship by the male members.
21. The decision in Karunal Ammal v. Karuppa Gounder and Anr. : (1980)1MLJ432 , related to a different situation altogether, because that was a case of a Court auction purchase. That has no relevance to the facts of the present case.
22. Now, coming to the question whether the plea of ouster can be decided in second appeal, the learned Counsel for the respondents relies on the decision in Karbalai Begum v. Mohd. Sayeed and Anr. : 1SCR863 . It was observed therein that ouster being a question of fact could not be decided in second appeal. I am afraid this contention is somewhat misconceived'. What I am pointing out is the Courts below have completely misdirected themselves with regard to two aspects namely : (1) as if the plaintiffs had independent rights other than through Fathima Bi; and (2) as if it is incumbent upon the defendants to prove ouster, without noting the important fact of Fathima's inaction. Under those circumstances, I see no relevance for the application of the above ruling to the facts of this case.
23. Next as to whether acts of generosity would constitute recognition of the rights of Fathima : In the instant case, the evidence is that occasionally a few sums of money were paid in favour of the plaintiffs. Even that would not have the effect of militating against the theory of ouster. Because in Appalaswami v. Suryanarayanamurthi and Ors. (1947) 2 M.L.J. 138 : A.I.R. 1947 P.C. 189 , it has been held that:
The danger of construing acts of generosity or kindness as admissions of legal obligation has been pointed out in many cases: See for example the decision of this Board in Lata Muddun Gopal Lal v. Mt. Khikhinda Koer ILR(1891) Cal. 341: 18 I.A. 9.
Therefore, on this score it cannot be said that Fathima's rights still exist. As a matter of fact, in the very ruling relied on by the learned Counsel for the respondents, namely Abdul Hussain Khan v. Mst. Bibi Sona Dero and Anr. (1918) 45 I.A. 10 : 34 M.L.J. 48 : A.I.R. 1917 P.C. 181 , it has been clearly observed:
The argument put forward by the defendant that, in many of the cited instances, the women said to have been excluded have been provided with dowries either in the lifetime of the owner of the estate, on the division of which they received no benefit, or after his death by a male relation, and that this was equivalent to, and must be taken as, a recognition of their right to share, is one to which their Lordships are unable to accede. If is quite possible that the husband of a wife who had been suitably dowered would not desire to claim rights of inheritance against those by whose generosity or at whose expense the dower had Keen provided; but this would not involve the conclusion that the right to share existed and had been satisfied by the dower.
Hence, neither the relationship between the parties as brothers and sister, nor the occasional payments would have the effect of diluting the theory of ouster.
24. Lastly, as to the fixation of dates: In paragraph 36 this point has been dealt with by the lower appellate Court. This is because, admittedly, the second defendant Zahurunnissa, who died pending these proceedings, married Syed Ghouse, son of Syed Gaffoor through his first wife. Therefore, her family would be entitled to the right in question through her husband. I do not think any interference is warranted in this regard. However, this question is unnecessary to be decided in view of what I have found in the preceding paragraphs.
25. Having regard to all the above, I hold the judgments and decrees of the Courts below are liable to be set aside and accordingly they are set aside. The second appeals will stand allowed. In view of the pure questions of law that have been agitated before me, I do not think that this is a fit case to award costs. Therefore, I direct the parties to bear their respective costs throughout.