Brett and Mookerjee, JJ.
1. A certain jote belonged to one Ataulla, and the plaintiff No. 1, who is his daughter, and the plaintiffs Nos. 2 and 3, who are his granddaughters through a daughter, brought the suit for a declaration of their title to 14 annas 5 gundas share of the jote and to recover possession from the defendant No. 1, who claimed the property as mortgagee purchaser from Amirulla, the husband of the sister of plaintiff No. 1, (who is also the mother of the plaintiffs Nos. 2 and 3), and who denied that the jote in question over belonged to Ataulla.
2. Both the Courts below have found that the jote belonged to Ataulla, and not to Amirulla, and this finding is not contested in this appeal.
3. It has, however, been pleaded on behalf of the defendants that the suit was barred by limitation.
4. The first Court has held that the suit is not barred so far as the shares of all throe plaintiffs are concerned.
5. The Lower Appellate Court has held that the suit is not barred so far as the shares of plaintiffs Nos. 2 and 3 are concerned, and so far as the share of the plaintiff No. 1 inherited from her mother is concerned, but that the claim of plaintiff No. 1 so far as it is based on the share derived from her father Is barred.
6. The Court of first instance decreed the suit in favour of the plaintiffs in the following manner. It found that the share to which the plaintiff No. 1 is entitled was 477/936, and the share to which the plaintiffs Nos. 2 and 6 were entitled was 192/936. The Lower Appellate Court has modified the decree of the Court of first instance by reducing the share of the plaintiff No. 1 to 361/936.
7. The plaintiff No. 1 has appealed, The only ground on which the Lower Appellate Court appears to have held that the plaintiff No. 1's right to the share inherited from her father was barred by limitation was that, after the death of Ataulla, Amirulla had been in possession of the jote as manager of the widow of Ataulla and for his own wife, that in consequence he had held the property on behalf of the widow and his wife adversely to the plaintiff for more than 12 years, and so her claim was barred by limitation. It has, however, been pointed out on behalf of the appellant that, after the death of Ataulla, the plaintiff was living in the house of her mother, the widow of Ataulla, and her sister, the wife of Amirulla, and it is contended under these circumstances that it cannot be held that, while she was living in the house on the jote and was being supported out of the profits of the property, the possession of Amirulla, even though he was managing the property on behalf of his wife and her mother, was adverse to plaintiff No. 1. On the death of her father there can be no doubt that the plaintiff No. 1 succeeded with her mother and her sister as co-sharers to his property. There is also no doubt that the possession or occupation of the property by one co-sharer does not constitute adverse possession against the other co-sharer: see Baroda Sundari Deby v. Annoda Sundari Deby (1898) 3 C.W.N. 774. The same rule has been laid down by the Madras High Court in the case of Ittappan v. Manavikrama (1897) I.L.R. 21 Mad. 153. 166. The rule is there stated to be this: 'Consequently sole occupation by one tenant in common is prima facie not inconsistent with the right of any other tenant in common. And in such cases there is no ouster or adverse possession, until there has been a disclaimer by the assertion of a hostile title and notice there of to the owner either direct or to be inferred from notorious acts and circumstances.'
8. In this case it has not boon suggested that there had been any assertion of any hostile title by Amirulla, and the mere fact that he was managing the property on behalf of two of the co-owners would not constitute adverse possession against the other co-sharer.
9. We think therefore that the Lower Appellate Court has erred in holding that the plaintiff's claim to the share inherited from her father was barred by limitation. We accordingly set aside the findings of the Lower Appellate Court as regards the share which the plaintiff No. 1 inherited from her father, and restore the findings of the Court of first instance.
10. It has, however, been pointed out to us that there has been a small error in the calculation by which 4/936 too much has been allowed to the plaintiff on account of her mother's share. The learned vakil for the appellant admits that this error has been committed, and the decree of the Court of first instance will therefore be restored with this modification that the share to which the plaintiff No. 1 is entitled will be declared to be 473/936 instead of 477/936.
11. We therefore decree the appeal with this slight modification with costs.