Ramaprasada Rao, J.
1. The third defendant in O.S. No. 234 of 1962 on the file of the Court of the Subordinate Judge. Coimbatore, is the appellant in Appeal No. 533 of 1969. Defendants 18 to 20 who are the legal representatives of the 12th defendant in the said suit are the appellants in Appeal No. 203 of 197O. The suit was filed by the plaintiff for partition and separate possession of his 14/144th share in Schedules B to F properties. Sheik Hussain Din I and Sheik Magdoom were brothers. They had considerable properties in which each had a half-share therein. In 1888 Sheik Hussain Din I died leaving behind him his widow Sheikammal, two daughters Varu Ismail Bibi and Khader Hussain Bibi and two sons Khader Hussain Din and Sheik Hussain Din II. Varu Ismail Bibi had a daughter Meeran Bibi who died leaving behind defendants 21 to 24 as her legal representatives. She had another son Syed Mohammed Abbubakkar, who is the plaintiff in the action. Khader Hussain Bibi, the other daughter of Sheikammal died in 1944 and her heirs are defendants 8 to 11. Khader Hussain Din (the first son of Sheikammal) married Rahima Bibi, the 7th defendant in the suit and left behind him his heirs defendants 2 to 6. Sheik Hussain Din II died unmarried on 27th July, 1961.
The 12th defendant is the alienee of some of the suit properties from the heirs of Khader Hussain Din. Defendants 13 to 18 are either the lessees of the suit properties or having an interest therein as encumbrances. As already stated, the plaintiff claims a share in all the plaint schedule properties and would attack inter alia the deed of gift executed by Sheik Hussain Din II in relation to certain items of the suit properties and would say that the said hiba would not bind him and the said properties also should be deemed and considered to be family properties in which he has a share. Originally the plaint was filed in the Court of the District Munsif, Udumalpet. As the defendants raised a plea of exclusion of the plaintiff as a co-owner from joint possession of the suit properties and as the jurisdictional value was beyond the jurisdiction of the Munsif's Court, the plaint was returned and thereafter presented in the Sub-Court, Coimbatore, and renumbered as O.S. No. 243 of 1962.
2. The first defendant supports the plaintiff's case. The second defendant' case is that the properties described in schedules B to F did not belong to Sheikammal and her children and in particular he would say that the properties described in the E schedule excepting S.F. No. 163/A-2 were purchased by Khader Hussain Din and Sheik Hussain Din II on 21st June, 1912 from one Khadarsa Rowther of Ayakudi, that the Schedule properties belonged only to the father of the first defendant and his uncle and that the plaintiff, his mother or grand-mother did not have any right, title or interest therein. It is the case of the defendant that the plaintiff has no right over the B Schedule properties, that the half-share of Sheik Magdoom therein was sold in 1902 itself that defendants 2 to 6 and their uncle Sheik Hussain Din II were adversely in possession of the B Schedule properties, that the plaintiff's mother in an earlier suit filed by her in 1913 did not even claim any share in the said properties and that therefore, the plaintiff has no right to them.
According to this defendant, the plaintiff has lost his right to claim a share in the C Schedule properties by limitation and the plaintiff's mother having filed an earlier suit for partition as early as 1913 and she not having furthered the decree therein, the properties described in Schedules D and F are adversely held by this, defendant and the third defendant, adverse to the other heirs and, therefore, the plaintiff's claim to have the properties described in Schedules D and F partitioned and he be allowed his share is unsustainable. According to this defendant and the third defendant the suit properties were in their exclusive possession and were held by them adversely to others and, therefore, the plaintiff's suit for partition as prayed for is not maintainable. As between him and the third defendant the second defendant would say that the gift deed dated 16th April, 1961 is invalid and does not bind him and that he would be entitled to a half-share in the properties of Sheik Hussain Din II.
The third defendant sustains the hiba and pleads that the E Schedule properties are not family properties in which the plaintiff could claim a share. In particular he would allege that Sheik Hussain Din II obtained S.F. No. 163/A-2 on dharkast from the Government and that, therefore, the plaintiff cannot project any interest therein. He would plead like the second defendant that the B Schedule properties have ceased to be the family properties, and that defendants 2 to 6 and Sheik Hussain Din II were in exclusive possession of the same to the prejudice of the other heirs. A similar contention is raised as regards the properties described in Schedules C and D. He sustains the alienation made by him, and the second defendant and Sheik Hussain Din II to the 12th defendant. On the question of hiba or the gift-deed executed on 16th April, 1961 third defendant's case is that the same is valid gift and the second defendant having attested the same and acquiesced in it cannot question it. Even so, his case is that the properties gifted to him by Sheik Hussain Din II are not family properties. On the whole it is pleaded that the right of the plaintiff and the other heirs of Sheikammal to obtain their respective shares in the properties mentioned of in Schedules B, C, D. and F are barred, as the third defendant and the second defendant were in possession of the same adversely to the other co-heirs. The third defendant also denies the right of the plaintiff to any mesne profits in any one or more of the items of the suit properties. In the additional written statement, the third defendant raised the plea that the present suit is barred by Order 2, Rule 2, Civil Procedure Code. The 4th defendant and the 5th defendant sail with the third defendant.
The 6th defendant, however, would say that the gift-deed dated 16th April, 1961 executed by Sheik Hussain Din II in favour of the 3rd defendant is not valid. She would, however, sail with the third defendant that the plaintiff has no right over the E Schedule properties including S.F. No. 163/A-2. She would join with defendants 2 and 3 in asserting that the plaintiff's right over B, C, D. and F. Schedule properties are barred, since those properties were adversely held by others to the prejudice of the plaintiff. She claims her share in the B to F Schedule properties and seeks for a decree for partition in that behalf. The 7th defendant sails along with the 3rd defendant. Defendants 8 to 11 would allege that Khader Hussain Din was managing the entire family properties mentioned in the suit Schedules and that after his death Sheik Hussain Din II was similarly managing the properties and that the income from the properties was being divided amongst variours shares including these defendants and that the possession of the suit properties by Khader Hussain Din and Sheik Hussain Din II was only for the benefit of the family and, therefore, no question of adverse possession would ever arise. They would also allege that certain properties mentioned in the suit Schedules are in their possession and that they are entitled to a 7/48th share in the suit properties and other family properties. They would attack the gift-deed dated 16th April, 1961.
3. The 12th defendant - alienee claims that his purchase is fully supported by consideration and that he purchased the properties from Khader Hussain Din and Sheik Hussain Din II when they were recognised as absolute owners thereof, and that, he, being a bona fide purchaser for value, his title to the properties purchased by him has to be sustained. This defendant would also assert that he has made considerable improvements on the properties and has been mortgaging the same for his benefit without any protest by others and that therefore, the properties purchased by him from Khader Hussain Din and Sheik Hussain Din II and their heirs ought to be excluded from being partitioned.
4. The other defendants filed formal written statements. On the above pleadings the following issues and additional issues were framed-
(1) Whether the properties in schedules B to F did not belong to Sheikammal and her children;
(2) Whether F schedule properties exclusively belong to the 3rd defendant;
(3) Whether 3rd defendant had acquired any title by adverse possession and limitation in properties in Schedules B to F;
(4) Whether the plaintiff is stopped from claiming a share in B schedule properties;
(5) Whether 2nd defendant is entitled to the house in Schedule B;
(6) Whether defendants 2 and 3 are entitled to any improvements, if so, to what extent;
(7) Whether the gift deed dated 16th April, 1961 is true, valid and binding on the plaintiffs and other defendants;
(8) Whether the defendants are not liable to render accounts to plaintiff for his share of the income from the suit properties;
(9) To what share the plaintiff and defendants are each entitled?
(10) To what reliefs are the parties entitled?
Additional issues framed on 18th March, 1964.
(11) Whether the possession of the 4th defendant and 7th defendant and their predecessors-in-title have been hostile to the plaintiff and whether they have perfected their title to the properties in their possession by enjoyment over the statutory period adversely to the plaintiff;
Additional issues framed on 6th February, 1965:
(12) To what share is the 6th defendant entitled;
Additional issues framed on 24th February, 1968:
(13) Whether the plaintiff has been in possession of S. Nos. 162/A-1 and 162/A-3 (Schedule E) within 12 years of the suit;
(14) Whether defendants 12, 18, 19 and 20 have perfected their title to S. No. 162, Schedule E by adverse possession;
(15) Whether 12th defendant, the predecessor-in-title of defendants 18 to 20 has carried out improvements and if so to what extent;
(16) Whether the suit is barred by limitation in respect of defendants 12, 18, 19 and 20;
(17) Whether the plaintiff's suit is not maintainable without asking for cancellation of the gift deed;
(18) Whether the suit is in time;
(19) Whether the suit by plaintiff is not maintainable in view of the decision in O.S. No. I95I of 1913 on the file of the District Munsif Court, Udamalpet;
(20) To what share is defendant 5 entitled?
(21) Whether the suit is barred by Order 2, Rule 2.
5. On the first issue, the learned trial Judge came to the conclusion that all the suit properties belonged to Sheikammal and her children. On issue 2, he found that the E schedule properties did not belong exclusively, to the third defendant. On issue 3, he found that the 3rd defendant or any other defendant did not acquire title to the properties described in Schedules B to F to the plaint either by adverse possession or otherwise.
After rendering his opinion on the formal issues 4, 5 and 6, he held that the gift deed dated 16th April, 1961, was not true, valid and binding on the plaintiff and defendants other than the third defendant. On the question of accounting he held against the defendants and on the issues relating to adverse possession he held against the defendants and in favour of the plaintiff and on issue 13 he held that the plaintiff would be entitled to his legitimate share in the E schedule properties excepting the land obtained in dharkhast by Sheik Hussain Din II which is S.F. No. 163/A-2, and also held against the 12th defendant as he was of the view that he could only be a usufructuary mortgagee over the properties purchased by him and ultimately found that the suit was in time and is maintainable. In the result, he granted a preliminary decree for partition and separate possession of the plaintiff's 14/144 share in the suit properties and made the necessary directions which normally follow a preliminary decree for partition.
6. It is as against this, the 3rd defendant and the 12th defendant have come up in appeals already referred to.
7. Though a semblance of an argument was addressed before us on the findings rendered by the trial Court in relation to the properties described in Schedules B, C, D and F yet no substantial material has been placed before us to interfere with the finding and conclusions of the Court below in relation to the above-mentioned properties. As a matter of fact, at one time this was not even seriously argued or pressed. In the light of this we are not adverting to or canvassing the correctness of the findings of the Court below as regards properties described in Schedules B, C, D and F and hold that the plaintiff and other heirs would be entitled to their legitimate share in it according to their personal law and they should be deemed and held to be family properties.
8. The main controversy, however, is as regards the E schedule properties. We shall advert to the merits of the appeal A.S. No. 203 of 1970 presented by the alienee 12th defendant at a later stage. We shall now consider the broad aspects which touch upon the E schedule properties and find whether the plaintiff's theory that the E schedule properties should be deemed, construed and held as the family properties is correct and sustainable.
9. Under E.A. 1, Sheik Magdoom obligated himself to pay 17 salagais of paddy to Sheikammal and her heirs in consideration of himself being put in possession of the entire family properties which obviously included his half-share therein also. Sheik Magdoom having committed default in the matter of the payment of annuity, Sheikammal had to file a number of suits as is seen from Exhibits B-1 to B-4. Pursuant to a decree obtained by her in O.S. No. 797 of 18g9 on the file of the Court of the District Munsif, Udamalpet, a certified copy of which is Exhibits B-4 Sheikammal brought the share of Shaik Magdoom in the E schedule properties to sale through Court. One Khadersa Rowther of Ayakudi purchased the half share of Sheik Magdoom and incidentally also purchased the right of Sheik Magdoom to manage the entire properties which was stipulated in Exhibit A-1. The Court-auction purchase is evidenced by a sale certificate issued in favour of Ayakudi Khadersa Rowther under Exhibit B-5, dated 15th November, 1900. There is evidence to show that Ayakudi Khadersa Rowther took possession of these properties after the issue of the sale certificate and that he had the pattas transferred to his name. These facts are evidenced by Exhibits B-6 and B-8. The case of the plaintiff is that this purchase of Ayakudi Khadersa Rowther was benami for the family and the possession of Ayakudi Khadersa Rowther or his successors-in-interest should always be held to be for the benefit of the Sheikammal and her heirs. Incidentally, it was pointed out that Ayakudi Khadersa Rowther was the husband of the sister of Sheikammal and that it was Sheikammal, who paid the amount towards the Court-auction purchase and that the possession of Avakudi Khadersa Rowther could only be attributed to the possession of the-members of the family of Sheikammal. The learned Judge was inclined to accept this theory.
10. We are unable to share that view. There was no pleading to the effect that the Court-auction purchase under Exhibit B-5 which was about 60 years-before the suit was laid was a benami one.
11. It is a well-known rule that if a person sets up a case of benami title in another, the onus is very heavy on him; besides he should expressly plead that the ostensible title-holder is a benamidar for another, and after having said so should expatiate the same by oral and documentary evidence. Courts do not allow the weaving and developing of such a plea either in the course of arguments or in the course of trial. Section 66, Civil Procedure Code, is intended to put a stop to benami purchases at execution sales and has to be construed strictly. Clause 1 of Section 66 effectively makes the certified purchaser the real purchaser and makes such a purchase as conclusive evidence that the Court-auction purchaser is a true owner and shall not be liable to be ousted on the-ground that his purchase was made on behalf of another. Such being the purport of Clause 1 of Section 66 it is idle for the plaintiff to tort out a case of benami without pleading the same, nearly six decades after the Court-auction sale.
12. The Supreme Court in S.K. Karim, v. Mt. Bibi Sakina : 6SCR780 held that the protection available by Section 66, Civil Procedure Code, is not only against the certified purchaser but also against any one claiming through him and Section 66 bars the claim of a stranger to the bargain. The Court also said that the second sub-Section refers to the claims of the creditors and not of transferees, which is dealt with in the first Sub-section A retrospect of the attendant circumstances and facts prevailing at or about the time when the Court-auction sale was held also gives the impression that the sale of the property by Ayakudi Khadersa Rowther in 1901 could not have been benami for Sheikammal or her heirs. We have already seen that Sheikammal had to file successively suits in 1891, 1894 and 1900 under Exhibits B-1 to B-4 for the recovery of small sums such as Rs. 51, Rs. 97-8-0 and Rs. 612. It was in execution of one of those decrees that the property was sold. It has not been brought out that apart from the properties which Sheik Magdoom was administering for and on behalf of Sheikammal, she had any independent means and separate property. The fact that Ayakudi Khadersa Rowther is a relation of Sheikammal does not throw any light on the proposition under consideration. The other circumstances that the creditors were filing suits against Sheikammal and the members of her family as is seen from Exhibits B-1 to B-12 also show that Sheikammal did not have the wherewithal to provide any money to a third party so as to bid at the Court-auction for her benefit.
The other factor, which also supports the appellants' contention is about the treatment of the E schedule properties by Ayakudi Khadersa Rowther after he purchased the same in Court auction. There is ample material on record to show that it was Ayakudi Khadersa Rowther, who was in possession of the suit properties and even third parties, who had an interest in them, recognised such title and the possession in Ayakudi Khadersa Rowther. Exhibit B-6 is the receipt evidencing the taking over possession of the properties soon after the Court sale was concluded. Ayakudi Khadersa Rowther was paying the kist for the land and obtained a patta as is seen from Exhibit B-8 Exhibit B-12 is a suit by a mortgagee over a property which mortgage was effected by Sheik Magdoom. He impleaded Ayakudi Khadersa Rowther as a party to the suit. He is also described as a party, who has purchased the E schedule properties in the Court-auction sale.
It is not in dispute that Sheik Magdoom had other properties, which were the subject-matter of the above mortgage suit. Exhibit B-12 is yet another document to show that Ayakudi Khadersa Rowther was in possession of the E schedule properties. Exhibit B-33 was a suit for possession filed by Khaderusunu Rowther alias Kokkatti against Sheikammal and her heirs in which suit also Ayakudi Khadersa Rowther was made a party. He was the 10th defendant in that suit and he was specifically impleaded in that suit as the Court auction-purchaser of the E schedule properties. Exhibit B-55 is a suit filed for declaration of title by Sheik Hussain Din II as against his brothers and sisters for recovery of possession of his 14/48th share in one-half of the suit properties. Therein also both Kokkatti and Ayakudi Khadersa Rowther were made parties. It is seen from the description in the pleadings and in the decree that Ayakudi Khadersa Rowther was recognised by the members of the family of Sheikammal as the party in possession of one moiety of the E schedule properties.
There is again an acceptance by those parties who are interested in the E schedule properties, which points out that Ayakudi Khadersa Rowther was recognised as the person in possession of the E schedule properties. In fact it is not in dispute that items 1 to 9 are the properties which are equivalent to the E schedule properties in the present action. The evidence given by Ayakudi Khadersa Rowther which has been marked as Exhibit B-25 and which is a deposition of his recorded in 1906 shows that he was in possession of the E schedule properties (at any rate one-half thereof as the Court-auction purchaser) But what is contended, however, is that the above material is not sufficient to show that Ayakudi Khadersa Rowther was in possession of the E schedule properties. It is seriously sought to be made out that the purpose of the suit filed by Kokkatti in Exhibit B-33 was to deprive Sheikammal and her children of their share in the B schedule properties, namely, the family house and that the relative prayers in the suits as evidenced by Exhibit B-33 and Exhibit B-55 do not definitely point out that Ayakudi Khadersa Rowther was in possession of the E schedule properties.
13. We are unable to accept this argument, A reference can also be made to Exhibit A-2, which is a judgment in a partition suit filed by Khader Hussain Din, Vavu Ismail Bibi, Khader Hussain Bibi and Sheikammal against Sheik Hussain Din, the first defendant and others for partition of their respective specific shares in plaint items 2 to 9. It is significant that no relief was asked for in respect of E schedule properties. Mr. Meeran, appearing for respondents 7 to 10 would urge that it is possible that the members of the family concentrated in that litigation in denying their claims and contentions and particularly that of Kokkatti Khadersa Rowther and there might have been an omission on their part in the matter of seeking relief in respect of E schedule properties. This is, however, a far-fetched contention.
14. The evidence of D.W. 1 is pressed into service by Mr. V.G. Veeraraghavan, appearing for some of the respondents. There is nothing clinching in the said evidence. There was no doubt no partition of the E schedule properties at any time amongst the members, who are entitled to the same. But this is an insignificant circumstance. Such an inaction on the part of those interested in securing independent possession cannot be put in the forefront to set at naught a Court sale under which Ayakudi Khadersa Rowther became the owner of half of the E schedule properties. In consequence, the title of Khadet Hussain Din and Sheik Hussain Din II to such one half-share in the E schedule properties by reason of their purchase under Exhibit B-9 cannot also be ignored.
15. The next pertinent question is as to what was the property which Khader Hussain Din and Sheik Hussain Din II obtained under Exhibit B-9. On 21st, June, 1912, Ayakudi sells under Ex. B-9, the property which he purchased in the Court-auction. We have already seen that when Sheikammal brought the E schedule properties to sale and when Ayakudi Khadersa Rowther purchased them in public auction sale, he could have only purchased the title, right and interest of Magdoom. Magdoom had an independent half-share in the E schedule properties: besides, he was in possession of the other half share as a person nominated by Sheikammal to manage the same. Such management of one-half of the E schedule properties automatically came to an end in 1903. The Court sale was held in 1901. The right, title and interest of Magdoom to manage the one-half interest in the E schedule properties might have been the subject-matter of that sale. But such a right by efflux of time came to an end in 1903. Therefore, when Ayakudi Khadersa Rowther sold under Exhibit B-9, the properties which he purchased in the Court-auction under Exhibit B-5, he could have conveyed the half-share in the E schedule properties, which were originally owned by Magdoom. By some inaction or improper action on the part of the other members of the family Khader Hussain Din and Sheikh Hussain Din II continued in possession of the entirety of the E schedule properties. But in law they have acquired only a right, title, interest in the one-half share in E schedule properties and not to the entirety of the same.
16. If this aspect is borne in mind, then the question arises whether the possession of the Din brothers of the other half share in the E schedule properties could be treated as possession adverse to the co-owners of the properties and other members of the family. The other question, which arises for consideration is, whether the Din brothers were in possession of one-half share of the E schedule properties which they purchased under Exhibit B-9 as representatives of the family of Sheikammal.
17. I shall take up the first question. We have already seen that the Din brothers after 1903 were in possession of the other half-share of the E schedule, not in furtherance of any right vested in them. If they continued in possession, then it should for all purposes be for the benefit of the other sharers and members of the family. It was by accident that they came into possession of the other half-share of the E schedule properties. It is a fundamental principle of law that a co-owner cannot set up a title in himself I by being accidentally in possession of such property to the exclusion of others, unless a specific case of ouster is pleaded and made out. In fact, the Din brothers themselves did not at any time make it appear that they have ousted the other members from the other half-share of the E schedule properties.
18. Mr. M.S. Venkatarama Iyer, himself would not stress this question of perfection of title to the other half-share by adverse possession by the Din brothers. Possession to be adverse must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. There is no such evidence. But on the other hand, the Din brothers continued to occupy the other half of the E schedule properties obviously because they were put into possession of the same by Ayakudi Khadersa Rowther, who was in possession of the entirety of the properties as Court-auction purchaser. It may be recalled that the entire E schedule properties were with Magdoom. One-half thereof belonged to him and the other half thereof vested in him as administrator of the same on behalf of Sheikammal. This right was snapped in 1903 when the Din brothers purchased the E schedule properties in 1912. They got back the other half-share and continued to be in possession of the same in a fiduciary capacity and as co-owners of the property. The Din brothers, therefore, cannot project any adverse title in themselves as co-owners. We agree with the trial Court that the other half share in the E schedule properties was held by the Din brothers as representatives of the family and that one-half hare of the E schedule properties is partible amongst the sharers of the Mahomedan family. In the absence of any pleading to that effect, we are unable to I disagree with the trial Court on this aspect. We hold that the Din brothers did not perfect their title by adverse possession in so far as the other half-share of the property is concerned.
19. As regards the second question, whether the Din brothers were in possession of one half-share of the E schedule properties purchased by them under Exhibit B 9, as representatives of the family of Sheikammal, we are equally unable to accept the finding of the Court below that such was the position. The personal law of Muslims does not recognise a system of joint holding as is common amongst Hindus. There may be cases, however, where a custom may be set up in the matter of the holding of such properties by some of the members of a Muslim, family whereby it could be established that such possession and title in some of the members is customarily to be interpreted and understood as possession on behalf of all the members. Acquisition of property independently by a member cannot automatically be said be for the benefit of the family. If there is conclusive evidence that a member of the Muslim family, who acquired such properties gained an advantage to himself and caused prejudice to others and if such acquisition is traceable to surplus family assets or funds from and out of which the property could have been purchased, then matters would be different. Again it is also necessary to prove that the members were living jointly and enjoying the property jointly and in common.
A reference to the expression 'Kudumba Thalaivan' in some of the documents is also pressed into service in support of the contention that Khader Hussain Din was treated as the manager of the family. A mere description will not effect legal implications of a given situation. We are not impressed by the argument that as Khader Hussain Din was described as (Kudumba Thalaivan) the general principle applicable to the holding of property by a Hindu joint family manager would automatically have an impact on the facts of this case and that it should be taken for granted that the half share purchased by the Din brothers under Exhibit B 9, should be held to be for the benefit of the other members of the family.
20. We shall now refer to the decided cases. Exhibit B-9 is a document of the year 1912. The suit is of the year 1962. The document is, therefore, 50 years old.
21. The Privy Council in Bangachandra Dhur Biswas v. Jagat Kishore Acharya Chowdhri 43 I.A. 249 : 31 M.L.J. 563 : I.L.R. 44 Cal. 186 A.I.R. 1916 P.C. 110, stated as follows:
Recitals in deeds cannot by themselves be relied upon for the purpose of proving the assertions of fact which they contain. They can only be evidence as between the parties to the conveyances and those who claim under them. After a long period, however, has elapsed between the alienation and the suit to set it aside when all those who could have given evidence on the relevant points have grown old or have passed away, a recital consistent with the probabilities and circumstances of the case assumes greater importance and cannot lightly be set aside. The recital is clear evidence of the representation, and if the circumstances are such as to justify a reasonable belief that an enquiry would have confirmed its truth, then when proof of actual enquiry has become impossible the recital coupled with such circumstance would be sufficient evidence to support the deed.
In the instant case, the other members of the family had ample opportunity to act and establish that Exhibit B-9 should be understood as conferring title on the Din brothers only as representatives of the family. Then such an opportunity was available to them, as is seen from the various litigations fought, they did not agitate this aspect but, on the other hand, they were satisfied by not claiming a share in the entirety of the E schedule properties. After a long lapse of time as clinching evidence of the intention of the parties cannot be produced, the recitals in Exhibit B-9 may be taken as probablishing the case of the Din brothers that they acquired on-half of the E schedule properties absolutely for themselves and without intending to vest any beneficial interest in the members of the family.
22. In Aminaddin v. Tajaddin : AIR1932Cal538 , a Division Bench of that Court laid down the principle thus:
Where members of a Mahomedan family live in commensality possessing the family property in common and in jointness, the acquisition by one of the members occupying the position of a managing member, during the jointness of the family will be presumed to be for the benefit of the members of the family not because of any presumption regarding acquisition akin to the joint Hindu family, but because such person is in fiduciary relationship with other members and has an obligation to discharge towards other members and if any property as acquired stands in the name of such person, the burden of proving that it was his self acquired and not the property of the joint family will be on him.
Thus, it is seen that the burden of establishing that a property held by a member in a Mahommedan family is his self-acquired property would arise only if the property is held commonly by the other member of the family and the entire family lives in commensality possessing the family property in common. That is not the case here. It is nobody's case that apart from the Din brothers the one half share in the E schedule properties purchased by them under Exhibit B-9 was held and possessed commonly by the family and they were enjoying it together. It is also not pleaded that the Din brothers held such property in trust for the other members. No doubt this pleading is made as regards the other hall share. In so far as the half-share of the E schedule properties purchased by them under Exhibit B 9 is concerned, it cannot be said that there was such a fiduciary relationship between the Din brothers and the other members of the family when they purchased the same.
23. In Vellai Mira Ravuthan v. Mira Moidin Ravuthan (1864) 1 MH.C.R. 414, the well-known principle that additions made to the joint estate by the managing member of a Mahommedan family will be presumed, in the absence of proof, to have been made from the joint estate, and will be for the joint benefit of all the members of the family entitled to a share, is referred to. But the point is that each case has to be decided on its own merits. It is not the case of the respondents that the properties purchased by the Din bothers under Exhibit B-9 was an accretion made to the joint estate by the Din brothers from the available surplus of the family nucleus. This has to be established factually in order to sustain the contention that the property purchased by the Din brothers under Exhibit B-9 would be the family property. No attempt has been made to do so and even otherwise, there is no evidence to support this contention.
24. Mullah in his Book on the Principles of Mahommedan Law, 17th Edn., page 54, brings out the scope of the principle underlying the discussion thus:
When the members of a Mohammedan family live in commensality, they do not form a joint family in the sense in which that expression is used in the Hindu Law. Further, in the Mohammedan law, there is not, as in the Hindu law, any presumption that the acquisitions of the several members of a family living and messing together are for the benefit of the family. But if during the continuance of the family properties are acquired in the name of the managing member of the family and it is proved that they are possessed by all the members jointly the presumption is that they are the properties of the family, and not the separate properties of the member in whose name they stand.
As the theory of representation is unknown to Mahommedan law, and as there is no presumption that acquisition of one or more of the properties of the family are to be presumed to be for the benefit of the family, unless there is proof to the contrary and as stated by Natesan, J. in Maimoon Bivi v. Khaji Mohideen : AIR1970Mad200 , children in a Mahommedan family are not co-owners in the sense that what is purchased by one person enures for the benefit of another.
25. We may usefully refer to the observations of Rajamannar, J., as he then was, in Sahul Hamid v. Sultan : AIR1947Mad287 .
The Mohammedan law does not recognise a joint family as a legal entity. In fact, according to the rules of the Mohammedan law of succession, heir-ship does not necessarily go with membership of the family. There are several males and females who have no interest in the heritage but may be members of the family. On the other hand, there are several heirs like, for example, married daughters of a deceased male owner who take an interest in the estate but form no part of the family.
In the instant case, there is no doubt that the female members went out of the family by marriage long before the purchase by the Din brothers under Exhibit B-9. It, therefore, follows that their heirs cannot seek for a share, which is the subject-matter of Exhibit B-9, on the ground that their ancestors were enjoying the property purchased under Exhibit B-9 in commensality with the Din brothers.
26. For all the above reasons, we are unable to hold that the property purchased by the Din brothers under Exhibit B-g, is the family property and that it should be shared by all the sharers in the action. One doubt was raised before us that the Din brothers were not possessed of requisite funds to purchase the property, as they purported to do under Exhibit B-9. It is not the case of the plaintiff that the family of Shaikammal or any other heir provided such funds to the Din brothers. It is in this sense that the argument is a hesitant, one and in the nature of ad miseri cordiam. Din brothers have become majors and it would not have been impossible for them to purchase the properties under Exhibit B-9 for valid consideration.
27. We summarise our conclusions on the E schedule properties thus:
(1) Half of the E schedule properties purchased by the Din brothers under Exhibit B-9 is their properties and the other sharers being the members of the family of Sheikammal do not have any right therein.
(2) The other half-share in the then possession of the Din brothers and now with the third defendant is liable to be partitioned amongst the sharers, as it cannot be said that the Din brothers or their successors-in-interest have perfected their right title to it by adverse possession.
28. The other surviving question is, whether the hiba executed by Sheik Hussain Din II in favour of Khader Hussain Din is valid and enforceable. Exhibit B-39 is the document evidencing such a gilt. Under Exhibit B-9, Sheik Hussain Din No. II was entitled to one half-share therein. He was also a sharer under the personal law of the parties in the other half-share of the E schedule properties. What Sheik Hussain Din II did was he gifted away all his right, title and interest in the properties mentioned in Schedules D, E and F to the third defendant. The person, who could at all challenge the gift, is the second defendant, since no one else had any interest or a right to attack the same. The plaintiff, defendants 1, 8 to II, and defendants 4 to 7, are not the heirs of Sheik Hussain Din II and hence they cannot question the validity of the hiba. But Mr. Ahmed Meeran, learned Counsel for respondents 7 to 10, sustains the judgment of the trial Court and says that the gift is invalid.
According to him it was executed 17 days before his death, when he was not in a position to understand what he was doing. Further, according to him he could only give one-third of his estate and not its entirety and that the 2nd defendant as heirs of his did not consent to such an execution of the gift. It is seen that Sheik Hussain Din II died unmarried. We have already expressed the view that defendants 1 and 8 to 11 being the sisters' children and defendants 4 to 7 being the female heirs of Khadar Hussain, are not the statutory heirs of Sheik Hussain Din II. The only person, who could at all challenge the gift is the second defendant. The question isj whether the second defendant can attack the gift deed, its truth or validity. In our opinion, he cannot do so for the following reasons:
(1) The second defendant has attested the said document and he was the willing identifying witness before the Sub-Registrar at the time when the document was registered.
(2) In C.C. No. 508 of 1953, on the file of the Sub-Magistrate, Udarnalpet, he says that his uncle had executed gift deed and that he attested the gift and that he went to the Sub-Registrar's office for identifying the executant.
(3) Again, the second defendant in a counter-affidavit filed in I.A. No. 116 of 1961 in O.S. No. 412 of 1956 on the file of the Court of the District Munsif, Udamalpet, refers to the hiba and admits the execution of the same by Sheik Hussain Din II.
(4) Further, in another civil proceeding in E.P. No. 572 of 1963 in O.S. No. 522 of 1941 on the file of the Court of the District Munsif, Udamalpet, the second defendant, who was a party to it, did not: question the gift deed. As a matter of fact, the Court in its order, Exhibit B-47, in the above proceedings to which the second defendant was a party, made the following observations:
Exhibit A-1 is the registered deed of gift dated 16th April, 1961, executed-by Sheik Hussain Din Rowther in favour of the petitioner herein. Under this document all the properties belonging to the deceased executant have been gifted in favour of the petitioner. The truthfulness of the gift deed is not attacked by the contesting respondent.One of the contesting respondents is the second defendant herein.
(5) Even in the written statement filed Jin the present suit, it does not appear to us that the second defendant has raised the plea that the hiba is unsustainable.
(6) The second defendant did not give the impression during the course of the trial of the suit that he was attacking the gift deed. A self-serving opposition raised at the last moment challenging the hiba will not be of any avail to the second defendant. Various acts of omissions and commissions referred to above estop him from contending that Exhibit B-39 hiba is neither truthful nor valid.
29. We, therefore, set aside the finding of the Court below that the hiba is not sustainable.
30. It only remains for us to consider the contentions in A.S. No. 203 of 1970. The 12th defendant died in the course of the proceedings and he is now represented by defendants 18 to 20 who are the appellants. Under Exhibit B-30, dated 9th November, 1949 an extent of 12-1 acres in Section No. 162/A (162/A-, 162-A3) was purchased by the 12th defendant from defendants 2, 3, 5, 6 and 7, the heirs of Khader Hussain Din and Sheik Hussain Din II. From the recitals in the document, it is seen that there was ample consideration for the sale. The sale was effected in order to discharge a mortgage debt created by the second and the seventh defendants along with late Khader Hussain Din. The mortgage deed is exhibited as Exhibit B-15 and is of the year 1943. Again the sale consideration went to discharge another mortgage evidenced by Exhibit B-29 executed by the second defendant and late Khader Hussain Din in 1947. A sum of Rs. 1,500 was paid towards a decree obtained against the family of Khader Hussain Din and the balance was received by the second defendant. In the pleadings the plaintiff referred to defendants 12 to 18 as the lessees of the particular property under consideration. The first defendant adopted the case of the plaintiff and even so his legal representatives defendants 21 to 24. It is the contention of the legal representatives that the sale was for the discharge of antecedent debts. Defendants 2 to 7 did not challenge Exhibit B-30. Defendants 8 to 11, on the other hand, while referring to this alienation, characterised the 12th defendant as a lessee, who, it is said, has surrendered possession. But the case of the 12th defendant is that the suit is barred by limitation, that he perfected his title by adverse possession and that ever since the purchase of the property in 1949, he was in possession of it having obtained a patta therefor and was paying the public revenue thereon-He claims that he improved the property considerably. He would also refer to a suit filed by the 4th defendant in O.S. No. 36 of 1962, on the file of the Court of the District Munsif, Udumalpet, in which the matter was practically compromised' and his title to the property was recognised. But in the meantime, the present action has been filed in the Sub-Court, Coimbatore. In any event, the 12th defendant s case is that he is a bona-fide purchaser for value and that he was in possession' of the same adversely to others and that his title ought not to be disturbed. It is also seen that the 4th defendant did not even attack the sale in the present action.
31. The trial Court was obviously obsessed with its earlier finding that the E schedule properties are family properties and in that light, it disallowed the claim of the 12th defendant. It would not accept that the 12th defendant perfected his title to this piece of land by adverse possession. It negatived the claim of the 12th defendant that he made any improvements. It, however, accepted that the 12th defendant could only claim to be a usufructuary mortgagee in respect of the property and he has no more interest in it. It, therefore, decided against the 12th defendant.
32. We are not impressed by the argument that the plaintiff s suit is barred by limitation and that the 12th defendant has perfected his title by adverse possession. He was a usufructuary mortgagee and he purchased the property only from Sheik Hussain Din II and the heirs of Khader Hussain Din other than the 4th defendant. The 4th defendant no doubt by his attitude in O.S. No. 36 of 1962 on the file of the Court of the District Munsif, Udumalpet, gave the impression that he was not attacking the title of the 12th defendant. But it cannot be said that the 12th defendant on and after the date of his purchase could have been in possession of the property openly, continuously and adversely to the interest of all the sharers. The pleadings and the evidence let in do not support this contention. Again, the present action was filed on 23rd March, 1962, originally in the Court of the District Munsif, Udumalpet; but later it was returned for presentation to the Sub-Court.
33. It is also clear from the records that the 12th defendant took possession of the property only on 8th April, 1950. The plaintiff presented the first suit in the Court of the District Munsif, Udumalpet, on 23rd March, 1962. In our view such an institution of the suit by the plaintiff in the first instance in the Court of the District Munsif is on a mistaken impression. Such a process has to be, therefore, understood as a bona fide litigation undertaken by the plaintiff. As the date, when the 12th defendant took possession of the property, falls within a period of 12 years, from the date of presentation of the plaint in the first instance, the 12th defendant and the appellants in A.S. No. 203 of 1970 cannot base their claim on adverse possession. Even otherwise the time taken by the plaintiff in prosecuting the suit in a wrong Court but bono fid' ought to be excluded under Section 14(1) of the Limitation Act.
34. Taking all these circumstances into consideration, we are not impressed with the argument that the 12th defendant has satisfactorily established his title to the property based on adverse possession. Still the question remains whether the sale in his favour has to be set aside. We have already seen that the sale is for the discharge of an antecedent debt. Therefore, the 12th defendant should be considered and deemed to be a bona fide purchaser for value. We have to, there fore, accept the sale as a binding one. In the circumstances, therefore, we direct, while upholding the sale in favour of the 12th defendant that at the time of the final decree the property purchased by the 12th defendant may be allotted to the share of the heirs of Khader Hussain Din, namely, defendants 2 to 7 and thus adjust the equities between the parties.
35. In the result, therefore, we allow the appeal in part and modify the judgment and decree of the Court below in the light of our judgment as above. In so far as the decree for accounting is concerned, we are satisfied that defendants 2 and 3 are liable to account to the plaintiff, the heirs of the first defendant and defendants 8 to 11 in respect of one half-share in the E schedule properties, the other half share being heirs, excepting S.F. No. 163/A which, as already observed, was obtained on dharkhast by Sheik Hussain Din and which will be his separate property. Account shall be taken in this behalf at the time of tbe final decree. The findings of the Court below in so far as they are not inconsistent with the findings rendered by us in the course of our judgment shall stand.
36. As the shares are admitted, we are not touching upon them. The family properties shall be as described in Schedules B, C, D and F and one-half of the E schedule properties, less the dharkhast land comprised in S.F. No. 163/A and also the extent of the land sold to the 12th defendant and now held by his heirs who are appellants in A.S. No. 2O3 of 1970.
37. In the result, a preliminary decree for partition and separate possession of the plaintiffs 14/144th share in the family properties is passed. The direction as to accounting and mesne profits shall be considered at the time of the final decree proceedings. The sharers, of course, will file a memorandum at the time of the final decree as to what would be their quantified share in the family properties and obtain separate decrees in their favour on the payment of the necessary Court-fee. As the appellants have succeeded in the main, we direct that all the parties bear their own costs in this Court and in the trial Court.