1. This is an appeal by defendant 3 from a preliminary decree made by the Subordinate Judge of 24-Parganas on 17th August 1929, and arises in a suit for partition of five items of immovable properties mentioned in Schedule A of the plaint and of moveable properties mentioned in Schedule B of the plaint. The plaintiffs claim eight annas share of the said properties under one title and two annas under another title. The Subordinate Judge has dismissed plaintiffs' claim in respect of the Schedule B properties (moveables). He has, however, granted a decree declaring plaintiffs' title to eight annas share of the immovable properties described in Schedule A and has appointed a commissioner to effect the partition of the same. Hence the present appeal by defendant 3, who contends that the entire suit should have been dismissed. The relationship between the parties to the suit is shown in the following genealogical tree:
By his first wife | By his second wife
Rajkrishna = Swarnamayee Prankrishna Nabeenchandra Umacharan
(Died 1862) (Died 1862)
Narshingha = Mahamaya (widow) Nandlal = Sukumaree (Deft. 2)
(Died between (Died 1908) |
1894-1896) Kanai = Susheela (Deft. 1)
|-----------| Subodh (Deft. 3)
Bhubalika (plff. 1) Ambalika (plff. 2) = M. Prabodh Biswas
2. It appears from the said tree that Bishwanath died leaving him surviving ' four sons, and it is common ground that he left three cottas of land in Dakshineshwar. The case of the plaintiffs is that, of the four sons, Rajkrishna, Nabeen and Umacharan continued to live as members of a Dayabhaga joint family after their father's death and that Prankrishna abandoned his share in the ancestral properties and started a new business of his own and separated from the joint family ; and this is common ground. The plaint further alleges that after Bishwanath's death, Rajkrishna, Nabeen and Umacharan started a joint family partnership business in castor oil seeds; that, on 21st July 1862, Rajkrishna executed a will and died a short time after in the same year. In this will he made provisions for carrying out of the business by Nabeen for the maintenance of his wife after his death ; that, at the time of death of Rajkrishna, his son Narasingha was a minor ; that Nabeen, following the directions of his elder brother, carried on the business with due diligence and acquired considerable properties both moveable and immovable, mentioned in Schedules A and B to the plaint ; that Nabeen died leaving him surviving his son Nandalal, the husband of defendant 2, and his grandson Kanai, now deceased, the husband of defendant 1 ; that, prior to his death in the year 1892, Nabeen executed the will on 18th June 1891, in which he recites that all the properties acquired with the profits of the castor oil business were his self acquired properties. It may be stated here that, by the will, Nabeen appoints Narasingha and Kanai as executors and Nanda who was an ascetic was given a legacy of Rs. 500 and in case of his return he was given a legacy of 25 rupees per month ; the will further provides that:
If any sons be born to him (Narasingha) then you, the executors, shall be entitled to my entire estate upon effecting a partition thereof in two equal shares. If, on the other hand, no son is born to him, then, in that case, the daughters of the said Narasingha shall be entitled to a 4 annas (four annas) share of the said estate, while Kanailal shall get the remaining twelve annas share thereof.
3. That probate of the will was taken by both Narasingha and Kanai on 10th September 1892. The plaint alleges that Nabin had no authority to make a disposition of Rajkrishna's share in the oil business and in the joint properties that were acquired out of the profits of the same ; that Narasingha died after making a will dated 23rd Chaitra 1300 B. S., corresponding to 5th April 1894, and leaving him surviving his wife Mahamaya and his daughters, the two plaintiffs in the suit. In para, 13 of the plaint the plaintiffs submit that their father Narasingha was under a misapprehension of facts and law as regards his own right and erroneously thought that he was entitled only to a four annas share of the joint estate under the will of his uncle Nabeen, although, as a matter of fact, eight annas share of Rajkrishna had already vested in him. This is the foundation of the plaintiffs' title regarding the eight annas share of the disputed properties.
4. The plaintiffs claim a further two annas share on the basis of the will of Nabeen, but as this claim has been abandoned both before the lower Courts and before us nothing further need be said about the two annas share. The plaintiffs further said that the defendants are in possession of the properties mentioned in Schedules A and B and that the plaintiffs are in possession of a portion of the same; that in spite of repeated demands the defendants are not giving to the plaintiffs their share after partition by metes and bounds. Hence the cause of action for the suit. It may be mentioned here that it is common ground that on 23rd December 1879, Umacharan separated from his two stepbrothers giving up his share in the joint properties by taking the sum of Rs. 20,000 and executed a deed of release in favour of Nabeen and Rajkrishna's son Narasingha.
5. In their written statements the defendants raised several defences to the suit. We propose to notice those defences which are material to the controversy in the present appeal. Such defences are: (1) that the plaintiffs' claim is barred by the operation of Article 11-A, Lim. Act, and by Order 21, Rule 63, Civil P.C. ; (2) that the properties are the self acquisitions of Nabeen and that the heirs of Rajkrishna had no title to the same ; (3) that whatever properties were acquired by Rajkrishna were compulsorily taken by the Government for the Dakshineshwar powder magazine; (4) that the title of the plaintiffs to the properties left by Nabeen has been extinguished by Mahamaya's taking a sum of Rs. 20,000 as provided for by Nabeen's will; (5) that, assuming that the properties were joint properties of Rajkrishna and Nabeen, as the father of the plaintiffs admitted in his last will that he had got only four annas share in the properties in suit, Narasingha, by his acts and conduct by taking probate of Nabeen's will, could not himself have claimed eight annas share and the plaintiffs as his (Narasingha's, heirs are bound by the election made by their father and cannot claim that the properties were not self acquired properties of Nabeen; (6) that plaintiffs' title has been extinguished by adverse possession of the defendants for more then 12 years [see para. 30 of the written statement] and (7) that a moiety of plot 2 having been sold to one Amulyocharan Das by Nandalal, the suit is not maintainable in respect of that plot in the absence of Amulya.
6. On these pleadings both oral and documentary evidence was led on both sides and several issues were raised in the suit. They are to be found at p. 37 of the paper-book. The Subordinate Judge has reached the following conclusion on the points which were debated before us. He holds: (1) that the castor-oil business was joint family property; (2) that after the nadabi by Umacharan the entire property in Schedule A which grew out of the joint business came to belong to Nabeen and Narasingha in equal shares ; (3) that Nabin was not the sole owner of the property or the business and his will is operative only in respect of his half share in these properties ; (4) that by Nabin's will Narasingha got no share and the will of Nabin has been wholly misconceived both by Narsingha and his successor-in-interest; (5) that the acts which resulted from such misconception cannot make any change in the course of legal inheritance ; (6) that the will by Narasingha is void ; (7) that plaintiffs as heirs of Narasingha are entitled to half the property in Schedule A ; (8) plaintiffs cannot get any relief regarding the moveables in Schedule B; (9) Order 21, Rule 63 is no bar to the present suit; and (10) the defendants have not been able to establish that plaintiffs' title has been extinguished either by adverse possession for more then the statutory period or ouster. He has, accordingly decreed the suit in part as indicated above.
7. This judgment has been challenged in appeal on seven grounds and I will indicate the grounds and deal with them in the order in which Mr. Rupendrakumar Mitra, who appears for the appellant, has argued them. It has been argued. in the first place, that Narasingha having accepted the administration of the estate of Nabeen as executor, he and his heirs are estopped from setting up a title in himself or themselves in a part of the property which he has taken under Nabeen's will. It is pointed out that there is a clear assertion in Nabeen's will that the properties in suit are his self acquired properties. The material portion of the will with reference to this is to be found at p. 23, part 2 of the paper-book and runs as follows:
When my elder brother Rajkrishna Niyogi was alive, we had very little properties. Upon his demise. I have, with my own labour and by doing business, etc., increased the estate and purchased immovable properties also at various places-some in my own name and others in the name of my said son Nandalal Niyogi by whom I got a deed of 'declaration of trust' executed (in my favour) later on. Thus although the properties are my self acquired properties, yet as Narasingha Babajiu is very obedient and dear to me I make the following provisions.
8. It is argued that even assuming that the properties disposed of by the will are joint properties and that Narasingha had half and Nabeen another half-share of the same, the effect of Narasingha's taking out probate of the will is that he was estopped from asserting that the said properties are joint properties and this estoppel is available against Narasingha's heirs. It was open to Narasingha not to take out probate, but having taken out probate he could not say that a portion of the estate which the testator had devised was Narasingha's. Once having made his election Narasingha cannot be permitted to withdraw from the position that the entire property did belong to Nabeen, and, in support of this position, reliance has been placed on the decision of the Madras High Court in the case of Munisami Chetty v. Maruthemmal (1910) 34 Mad 211 and to two English cases, namely Board v. Board (1873) 9 QB 48 and Datton v. Fitzgerald (1897) 2 Ch 86. These cases no doubt lay down the proposition that anyone taking possession under a will cannot set up an adverse title.
9. It seems to us that this doctrine is subject to the qualification that the election must be made with full knowledge of the circumstances. In this case, it appears to us that Narasingha was six years old when his father died. He was an infant and it has not been shown that he was cognizant of the will of Rajkrishna which stated in para. 4 that the karbar and the bhadrasan were the joint properties of both Rajkrishna and Nabeen. By the will of Rajkrishna, Nabeen was appointed as executor and trustee. Nabeen, in betrayal of that trust, makes no reference whatsoever to Rajkrishna's will, and it can hardly be said, in these circumstances, that Narasingha was fully cognizant of the true state of things when he made the election and took probate. It has been argued for the appellant that all the cards were laid bare before Narasingha seeing that the order forms for purchase and sale of castor-oil (at pp. 143 and 144 of the paper book) were in the joint names of Rajkrishna and Nabeen and these order forms were produced from Narasingha's box, as is deposed to by plaintiffs' withess Dhirendra, son of Bhubalika. We do not think that any knowledge can be imputed to Narasingha of these two contract forms from the mere fact that they were found along with other papers in his box. It is next said that there is conclusive evidence to show that Narasingba knew of Rajkrishna's will, for this fact is recited in the nadabi farkhat patra of Umacharan executed on 23rd December 1879. This document, it is true, referred to Rajkrishna's will and is a statement made by Umacharan and not by Narasingba, but from this it would not be a legitimate inference to draw that Narasingha was aware of the contents of the will of his father Rajkrishna.
10. In the cases cited, possession was taken under the will, and it was held, in those circumstances, that it was not open to such a person to question the validity of the will. It does not appear clear in this case that Narasingha took possession under Nabeen's will; it rather seems that Narasingha was in possession from before the execution of the will. This circumstance also distinguishes the present case from the case of Board v. Board (1873) 9 QB 48 referred to above. For the reasons given above we are of opinion that Narasingha's heirs are not precluded from showing that Nabeen had no power to dispose of whatever belonged to Bajkrishna. The second ground taken turns on the construction of Narasingha's will. It is argued that, Under Clause (5) of the said will, Narasingha's widow Mahamaya was given the entire eight annas share in the disputed properties which be inherited from Rajkrishna, for it was provided that:
If the said Mahamaya Dasee does not pull on well with the said Kanailal Niyogi and the members of the family, then, in that case, the said wife shall be entitled to a lump sum of Rs. 20,000 from the said Kanailal Niyogi and his representatives. If the said Mahamaya Dassee gets the said amount, then neither she nor any of my other heirs shall have any claim, title or interest to or in the moveable and immovable properties left by me. Even if such a. claim be asserted, the same shall not be accepted. But the said Mahamaya Dassee shall during her lifetime be entitled to live in our bhadrasan (dwelling house), and upon her demise my heirs, such as daughters and daughter's sons, shall get from the said Kanailal Niyogi the sum of; Rs. 2,500 only.
11. The will is addressed to Mahamaya and it is said that, Under Clause (5), the material portion of which has been quoted above, the residue of the estate, after the payment of the legacies and payment of the expenses for the daily and occasional religious rites and payment of certain sums for the marriage of Amba lika Dasee, the unmarried daughter of the testator, will pass to Mahamaya. Dasee and as she has taken the sum of Rs. 20,000 from Kanai, the plaintiffs are not entitled to any of the properties in suit subject to the tender of Rs. 2,500 to them before suit and it is said that the tender has been made. In order to consider the soundness of this contention the effect of Clause (3) of the will must be taken into account. By this clause Narasingha states that, save and except the four annas share which he has in the moveables and immovables, the business in castor seeds and the castor oil mill as bequeathed to him by Nabeen's will he had got no other properties and that those properties were undivided and held by him jointly with Kanailal. Now it appears, from the following provisions in Nabeen's will, namely, that if any son be born to him (Narasingha) then you the executors shall be entitled to my entire estate upon effecting a partition thereof in two equal shares. If on the other hand, no son is born to him then in that case the daughters of the said Narasingha, shall be entitled to a four annas share ' of the said estate.' It appears therefore clear that Narasingha got nothing under Nabeen's will, as no son was born to him.
12. But Narasingha had eight annas share in the disputed properties by inheritance from Rajkrishna and by his will Narasingha certainly disposed of the four annas share, although he was under the mistaken belief that be bad got the four annas share under Nabeen's will. The question is whether the remaining four annas of his inheritance passed to Mahamaya under the residuary gift in Clause (5). The appellant argues that the residuary bequest in Clause (5) is expressed in terms wide enough to include whatever estate, not otherwise disposed of by the will, Narasingha had at his death, whether he knew that he had it or not; and in support of this construction attention is drawn in particular to the words
neither she nor any of my other heirs shall have any claim, title or interest to or in the moveable and immovable properties left by me,
as also to para. 2 of the will by which Mahamaya and Kanai were appointed as executrix and executor
to all the properties moveable and immovable which I now have or which I may hereafter acquire.
13. Reliance is placed on the case of In re Bagot Paton v. Ormerod (1893) 3 Oh 348 in support of this contention The facts of the case just referred to were that a testatrix, by mistake, recited in her will that she had settled upon a certain relation a particular property, which, in fact, was still at her disposition. The will contains other recitals of other properties and also a residuary bequest in favour of Ormerod. It was held that the property which she thought erroneously she had settled upon her relation passed under the residuary gift. Lord Lindley pointed out:
She intended whatever was hers, and was not otherwise deposed of, to go to her residuary legatee. It is true that she did not intend this particular fund to go at once to him, because she thought she had settled it already, and that therefore it was not hers. She made a mistake; it was hers, and the residuary bequest in terms carries it.
14. But the rule laid down in this case is subject to the qualification indicated in the judgment of Kekewich, J., in the same case in the following passage:
Of course a testator may enumeratc his estate in such terms that there can be left no doubt but that he means that enumerated estate, and that only to pass, and then the residuary gift, however large in its terms, may be construed to include only such portions of the enumerated estate as are not specifically given.
15. If one looks to para. 3 of Narasingha's will it appears clear that Narasingha enumerated his estate by saying that his estate consisted of nothing else except the four annas share in the moveable and immovable properties, business in castor-seeds and the castor-oil mill bequeathed to him under Nabeen's will. The residuary estate, in my opinion, should be construed to include such portions of the enumerated estates as were not specifically given. On a proper construction of the several clauses of the will, I am of opinion that residuary gift cannot apply to the other four annas share which descended to Narasingha from Rajkrishna as this was property unknown to the testator. There is also some authority for saying that there is a difference between the Indian and English law in this respect. Under the Indian law it would seem that a residuary clause does not apply to property unknown to the testator. In the case of Kunthalammal v. Suryaprakasaroya Mudaliar AIR 1916 Mad 17, Bakewell, J., pointed out that the residuary clause in the form in which it appears in English wills is practically unknown to the ordinary testator in Madras and the rules of construction which have been laid down by English Courts are not applicable. In that case the residuary bequest was in the following terms:
The sum which may be left after deducting the abovementioned legacies and such other expenses shall be utilised in my name for Pooja and other charities in Vytheshwarer temple.
16. Unknown to the testator there was a sum of Rs. 4,000 lying to his credit with the Registrar of the High Court, and it was held that that sum was not disposed of under the above residuary clause of the will and that the plaintiff was entitled to it as on an intestacy. The contention therefore of the appellant that the entire eight annas share of Rajkrishna, to which Narasingha was entitled, passed under the will must fail. Mahamaya obtained the four annas on Narasingha's death as on an intestacy and had a Hindu widow's estate in the same.
17. So far as the other four annas, which passed under Nabeen's will to Mahamaya is concerned, it appears that Mahamaya, in lieu of the four annas share, took Rs. 20,000 from Kanai and abandoned her rights in the same. It appears. from the farkhatnama (Ex. F) dated 7th January 1897 that Mahamaya acknowledged the receipt of Rs. 20,000 from Kanai in Government currency notes and executed the deed of release which was attested by Mr. Hirendranath Datta, a well-known solicitor of the High Court, and, on the same date she lent this sum of Rs. 20,000 to Kanai and his father Nanda on mortgage of some of the properties released by her in favour of Kanai. She obtained a decree on the mortgage against Nanda and Susheela, the widow of Kanai, who was then dead, on 19th December 1903 (see Ex. H, p. 73), and in execution of the decree purchased 23 bighas odd situate at Alambazar, Bara-nagar, Raja's garden, and another plot on 18th December 1905. She sold these two parcels of land to one Binodlal Ghosh on 31st August 1906 for a sum of Rupees 32,000. The present plaintiffs also joined in the conveyance. It is clear, therefore, that so far as the four annas share of the properties now in dispute, except the dwelling house, is concerned the title of plaintiffs is extinguished by farkhatnama and the receipt of Rs 20,000 by Mahamaya. The second ground taken therefore succeeds to this limited extent. With regard to the question of this four annas share in the dwelling house different considerations arise.
18. In order to understand the third ground chrged before us, certain new events will?uave to be referred to. It appears that Nabeen started an oil mill in Arhiadaha. The business prospered for a certain time, but, after the death of Nabeen, the business dwindled and became a losing concern. One of the unsecured creditors of the said business, named Sadasukh Kutheri, instituted a suit against Susheela, defendant 1 in the present suit and the administratrix to the estate of her husband, in the Original Side of this Court, and on 2nd September 1903, Sadasukh obtained a decree for Rs. 2,484 against Susheela (see Ex. 5. p. 66). On 16th January 1905, in execution of the said decrees, all the properties, which form the subject matter of the present suit, were sold and purchased by Sadasukh for the sum of Rs. 2,800 (see Ex. C. 1, p. 68). Kutheri took symbolical possession of the properties and actual possession of all the properties in suit except the dwelling house, i.e., item 1 of the present plaint. It appears that the entire sum due on the mortgage executed in favour of Mahamaya by Kanai and Nanda was not realised by the sale of the mortgaged properties and Mahamaya applied, on 15th January 1907, for a personal decree against Nanda. During the pendency of such application Mahamaya died in 1908, and the present plaintiffs 1 and 2 got themselves substituted in place of Mahamaya in the personal decree proceedings. After obtaining a personal decree, the plaintiffs proceeded to execute the decree by attachment of the dwelling house, item 1 of the plaint, alleging that the said dwelling house belonged exclusively to Kanai and was in possession of Kanai's widow Susheela (see Ex. D 3, pp. 92-9.7) and this dwelling house was actually attached on 21st February 1913 (see Ex. B, pp. 98-99). As soon as the present plaintiffs attached the dwelling house, Sadasukh's son Kasturchand preferred a claim to the said dwelling house and the claim was allowed. It is necessary to quote some of the remarks made by the Subordinate Judge, 24-Parganas, in the judgment in the claim case:
The only thing which seems to have led the decree-holder, who, I should note, also lives in the same house, to attach this property as if it still belongs to Susheelabala, is that, instead of ousting Susheelabala's father-in-law and his people, the claimant has allowed them to live in it together with the decree-holder who has a charge on it but into which it is not necessary for me to enter here
19. And again, in another place, the sub-Judge remarks: 'The decree-holder herself has the right of occupancy of a part of it.' On the result of these claim proceedings, which terminated in August 1913, it is argued that as no suit was brought Under Order 21, Rule 63, Civil P.C., within one year from the date of the order allowing the claim, the order has become final and conclusive and the present suit for partition of the said dwelling house is barred. We are unable to accept this contention for the claim proceedings were started against the present plaintiffs in their capacity as stridhan heirs to their mother Mahamaya in respect of the personal decree obtained by them as such heirs. The present suit has been brought by the plaintiffs under a very different title, namely, as heirs to their father's estate. The order of 30th August 1913 is conclusive against the plaintiffs as representing their mother's estate; but it is not conclusive against them as claiming under their father. Although the parsons against whom the order was made are identical with the persons who want to get behind the order physically, they are, in the eye of the law, different persons as they claim under different titles. This ground which concerns the dwelling house only must fail.
20. The fourth ground taken is that the evidence leads to the conclusion that the properties in suit were the self-acquired properties of Nabin and consequently plaintiffs have no right to the same. This ground has only been faintly urged before us by Mr. Mitra and there is abundant evidence on the record to justify the conclusion that the items of immovable property in Schedule A to the plaint were purchased with the joint family funds and were acquired out of the joint family partnership business in castor-oil. It appears that in 1871 a portion of the family dwelling house was acquired compulsorily for Daksheneshwar powder magazine and a sum of Rs. 24,000 was paid to Nabeen, as representing the family, for the value of these structures, which they had on the land acquired, and it is this sum which might have been applied for carrying on the joint family business. Therefore all the properties in suit which were acquired out of this business belongs to Nabin and Rajkrishna jointly. The fifth ground taken is that the suit is barred by adverse possession by the defendants for more then the statutory period of 12 years. This is a ground which deserves very serious consideration in view of the events to be narrated presently. It appears that all the properties in suit were purchased by Kutheri in January 1905, and that, after Kutheri's purchase, he took possession of all the properties except the dwelling house (item 1 of the plaint). The defendants' case is that all the other properties besides the (bhadrashan) was in Kasturchand's possession from 1905 to 1919 when they were sold to Nanda who was the gomasta of Kutheri (see Ex. A, p. 127) and since then they were in possession of Nanda and after his death, of his grandson Subodh, defendant 3 (see p. 98). (After discussing the evidence, His Lordship held that Mahamaya and the plaintiffs were ousted from possession of all the properties except the dwelling house and that the plaintiffs' claim with regard to the four items of the properties of Schedule A besides item 1 is barred by adverse possession. (The judgment then proceeded.) The Subordinate Judge, dealing with this part of the case, which is raised by issues 7, 9 and 19, observed as follows:
As to adverse possession I do not think any one has claimed . . . the parties are co-owners and there never has been a direct or open assertion of hostile title or any positive ouster. The trust placed upon Nabeen descended to his heirs and I do not think there can be any question of limitation.
21. Mr. U.N. Sen Gupta, the learned counsel who appeared for respondents, has tried to meet the case of adverse possession or ouster, on the same line of. reasoning as has been adopted by the Subordinate Judge. He has argued that, in the case of joint property, possession or exclusive occupation by one co-sharer without more is not sufficient to constitute ouster or adverse possession even if such exclusive possession extends long beyond the statutory period of 12 years and in support of this proposition he has relied on the decision of the Judicial Committee of the Privy Council in Corea v. Appuhamy (1912) AC 230, and on the case of Hardit Singh v. Gurmukh Singh AJR 1918 PC 1, which was also the decision of the Privy Council. But this rule can have no application to the present case seeing that the four items of the immovable property besides the dwelling house were rightly or wrongly taken possession of by Kutheri in 1905 and passed out of the joint family property, and Kutheri having possessed them for more then 12 years had acquired an indefeasible right to them by adverse possession. So that when Nanda, who was Kutheri's gomasta purchased back the four items of the property from Kutheri with his own money, his possession cannot be said to be the possession of the cosharer. By the sale in execution of the decree by Kutheri against Susheela, the right, title and interest of Nanda might have passed but Kutheri took possession, not simply of the share of Nabeen, but the entire properties. In this view, the fact of Nabeen's being a trustee does not affect the question of adverse possession. We are of opinion therefore that the plaintiffs' right to the eight annas share of the properties Nos. 2, 3, 4 and 5 of the plaint is extinguished by adverse possession of Kutheri and of defendant 3 for more then 12 years and plaintiffs' claim in respect of those properties must be dismissed. The question of adverse possession with regard to the dwelling house stands on a different footing. There can be no doubt on the evidence that the plaintiffs have been in actual possession of portion of the dwelling house. Great stress has been laid on behalf of the appellant on the following passage in the claim proceeding [(Ex. l), p. 102]:
On the whole, it appears tome that Nandlal and his people are occupying the house through the claimant's permission and their possession should be regarded as the possession of the claimant (Kutheri).
22. This finding can only refer to the part of the house occupied by Susheelabala and her father-in-law, for the same claim proceeding shows that the decree-holder Ambalika, one of the plaintiffs, was held to have a charge on the house and the Court also recognized the fact that the decree-holder herself has the right of occupancy of a part of it (see Ex. 1, p. 102) and that seems to be the correct view, for Kutheri did only purchase the right, title and interest of Susheela as administratrix of Kanai's estate in the dwelling house and Kutheri's claim could only refer to the share of Kanai in the dwelling house. We are not unmindful of a statement in Ex. D-3, pp. 95-97, that the present plaintiffs as heirs of Mahamaya wanted to execute their personal decree by attaching the whole dwelling house. Column 10 of the petition is rather a loose statement, for the facts remains that the plaintiffs themselves were in possession of a portion of the dwelling house and they could not have intended to attach their own interest in the same; and the existence of this interest was recognized by the Subordinate Judge in the claim proceeding when he said that
the decree-holder herself has the right of occupancy of a part of it.
23. I am therefore of opinion that, so far as the four annas share of the dwelling house, which is not affected by Narasingha's will, is concerned, the plaintiffs' right is not extinguished by adverse possession. With regard to the other four annas share of the dwelling house, which is touched by Narasingha's will, the provisions of the said will have to be considered. The material portion of the will is as follows:
But the said Mahamaya Dasee shall, during her lifetime, be entitled to live in our bhadrashan (dwelling house) and upon her demise my heirs, such as daughters and daughter's sons, shall get from the said Kanailal Niyogi the sum of Rs. 2,500 only. Save and except, these my heirs shall have no claim to my bhadrashan (dwelling house).
24. Having regard to this clause of the will, it appears clear that plaintiffs are not entitled to get this four annas share, but are entitled to get the sum of Rupees 2,500 with interest at six per cent per annum from the date of the institution of the suit till realization. Sixthly, it is argued that if all the five points fail, plaintiffs are not entitled to decree without payment of the sum of Rs. 20,000 with interest. In the view which we have taken, this ground does not require to be considered. The seventh ground taken relates to item No. 2 of the plaint. It is said that this property was sold to-one Amulya on 5th March 1920 and the claim for partition of this property cannot be determined in his absence. This ground also does not require consideration, as plaintiffs' suit for partition of this plot must be dismissed on the ground of adverse possession, as already stated. The result is that the decree and judgment of the Subordinate Judge must be set aside and in lieu thereof the following decree will be made. Plaintiffs' title to four annas share of the dwelling house item 1, Schedule A be declared. Plaintiffs will recover from the defendants the sum of Rs. 2,500 (Rupees two thousand five hundred) only with interest at the rate of six per cent per annum from the date of the institution of the suit till realization. Let a commissioner be appointed to effect a partition of item 1, Schedule A. Plaintiffs' claim with regard to items 2, 3, 4 and 5, Schedule A be dismissed. Plaintiffs' claim for the moveables in Schedule B be also dismissed. The commissioner is directed to effect a partition of item 1 according to the convenience and existing possession of the patties as far as may be practicable The costs of the partition shall be borne equally by the parties.
25. I have had the advantage of reading the judgment which has just been delivered by my learned brother, but I should like to say something with regard to some of the points which have been raised before us. I will first deal with the question whether the properties in suit belonged to Nabeen alone. Now, it is common ground that chore was a nucleus, which consisted of the castor-oil business, which was carried on jointly by Rajkrishna and Nabeen. The site was eventually acquired by Government and the business was then transferred to another site in Arhiadaha. The properties in question were purchased out of the profits of that business and the point at issue is whether that business was joint or the business of Nabeen alone. The business, having originally been joint, it is clearly for the appellant to establish his case.
26. Sukumaree Dassee. the widow of Nandalal, stated in her evidence that the business was kept in abeyance for a period of two years after the acquisition of the original site and that Nabeen then started a new business with money borrowed from her father. This of course would be conclusive in favour of the appellant. But I should not be prepared to accept a mere statement by an interested withess, entirely uncorroborated, as it is, by any documentary evidence: in fact, Mr. Mitra did not place any reliance upon it in the course of his argument.
27. It is clear that, in order to rebut the presumption in favour of the plaintiffs, the appellant must establish facts which are inconsistent with it: circumstances which are consistent with either case cannot be said to rebut the presumption. The following facts are relied upon by the appellant: (a) statements made by Nabeen in his will; (b) statements made by Narasingha in his will; (c) the conduct of Narasingha, his wife and the plaintiffs themselves; (d) the properties were consistently dealt with by Nabeen and Kanai on the footing that they belonged to Nabeen alone. Baldly stated, those facts may suggest that the appellant has a strong case; but if they are examined in connexion with their context, it seems clear that they do not really rebut the presumption. Narasingha's wife and daughter had no personal knowledge in the matter and would naturally accept the position adopted by Narasingha himself. Now, it would be going too far to infer that Narasingha knew that these properties were acquired by Nabeen alone; in my judgment, the proper inference to draw is merely that he thought that they were. He was in fact not in a position to know. When his father died he was a child of six years and everything was left in the hands of Nabeen: if Nabeen chose to claim the whole business as his own, there was prima facie no reason for Narasingha to disbelieve him.
28. On the other hand there is one circumstance which supports the case of the plaintiffs. When the original site was acquired, one would expect that the whole of the compensation money would be used for the purpose of setting up a new business. The award was made in favour of Nabeen. If in fact he only used his share for this purpose, he must have made over the other half in favour of Narasingha. But there is no evidence at all to show that Narasingha ever got his share. For these reasons, I am of opinion that the decision of the learned Subordinate Judge on this point was correct. I will now deal with the question of adverse possession. The case of the plaintiffs is that they are still in joint possession and it has, accordingly, been argued on their behalf that no question of adverse possession arises at all; this position was accepted by the learned Subordinate Judge. In her evidence the plaintiff Bhubalika frankly admitted that, except for the house, she is not in possession at all; the other plaintiff, Ambalika, tried to make out that she was in possession of all the properties; but she broke down hopelessly in cross-examination. She does not live in the house at all but resides with her husband in Calcutta and her claim to possession is based on an allegation that she spent two or four nights in the house in the course of several years. I am clearly of opinion that a few spasmodic visits of this kind to see her sister would not amount to possession. The conclusion to be drawn on this part of the case is that Ambalika is out of possession altogether and that the possession of Bhubalika is confined to residence in the house.
29. This residence is not denied; but the case of the appellant is that this residence is merely permissive and was never that of a co sharer. The first point to notice in this connection is that the possession of the appellant is based upon a title which is inconsistent not only with that of Narasingha but also with that of Nabeen himself. The appellant is in possession through inheritance from his grandfather, Nandalal. who was entirely excluded by Nabeen's will and who purchased the property from a stranger some years after the latter had himself purchased it in execution of a decree. In these circumstances, it would be rather strange if the plaintiffs thought that the appellant was in possession jointly with them as co-sharer.
30. In fact the conduct of the plaintiffs themselves shows that they were aware that the property was being held adversely to them and they actually accepted the position as correct. In connection with the administration of the will of Nabeen, the plaintiff's father, Kanai paid off the plaintiff's mother by executing a mortgage in her favour. She instituted a suit on the mortgage and eventually put the decree into execution: the price fetched at the sale of the mortgaged property was not sufficient and she then obtained a personal decree. After her death the plaintiffs put the decree into execution and proceeded to attach the house, which is one of the properties now in dispute. In the meantime the appellant's father, Kanai, had died and the judgment-debtor was the present defendant 2 as executrix to his estate. Before taking out execution, the plaintiffs had obtained a succession certificate,
31. In the petition for execution it was prayed that this house, which was alleged to be in the possession of the judgment-debtor, might be attached and sold in satisfaction of their decree. This application was quite inconsistent with their present case and shows that at that time they claimed neither title nor possession. A stranger intervened in the course of these execution proceedings and filed a claim to this house on the ground that it had previously been purchased by his father in execution of another decree. He admitted that the judgment-debtor was in actual possession, but claimed that this possession was permissive only, as his father had allowed her husband to continue in residence after symbolical possession had been taken. This dispute was fought out between the claimant and the plaintiffs; the learned Subordinate Judge decided in favour of the claimant, holding that his case of permissive possession was true and that the actual possession should be regarded as being on his behalf. The plaintiffs did not institute any suit and have accepted the position that both title and possession had passed to the transferee of the appellant's mother. It is true that, in the judgment dealing with the claim case, the Subordinate Judge refers to a charge in favour of one of the plaintiffs, into which it was not necessary for him to enter, and to her right of occupancy in a part of the property. I have not been able to discover what exactly he means by this. But the present claim of the plaintiffs is based neither upon a charge nor upon a right of residence; in fact they claim something totally different, and their present claim is inconsistent with the position they adopted in the claim case. As already noticed, they sought to sell the whole of the residence. The claimant objected on the ground that he had already purchased it himself. He was successful. In my opinion these remarks in the order afford no assistance to the plaintiffs in the present case.
32. In these circumstances, it seems to me to be perfectly idle for the plaintiffs to come forward now and say that they are in joint possession with the appellant as his co-sharers. Ambalika's evidence that she was continually asking in vain for her share in the profits of the property cannot be accepted; if it were true this suit would have been brought long ago. The evidence given on behalf of the appellant to show that Bhubalika's possession is permissive only receives the strongest possible corroboration from the conduct of the plaintiffs themselves.
33. I have no doubt that, until the quarrel which took place shortly before the institution of this suit it never entered the head of either of the plaintiffs that they had either title to or possession in the property, and am clearly of opinion that they are not in possession. In connection with Mr. Mitra's argument that in any view of the case, the plaintiffs' title has been extinguished by adverse possession, there are three points of time at which it might be said that possession became adverse: (1) the application for probate of the will of Nabeen ; (2) the purchase in execution of a decree by the Marwari Kutheri ; (3) the conveyance in favour of Nandalal. It seems from the judgment of the learned Subordinate Judge that he thought that possession began to be adverse with Nandalal's purchase ; but inasmuch as that took place within 12 years of the suit, it is of no practical importance.
34. Nabeen's will set up a claim to the whole of the property. The executors were the appellant's father Kanai and the plaintiffs' father Narasingha ; they got probate in 1892. According to the plaintiffs' case, eight annas in the property really belonged to Narasingha ; but inspire of this fact, he joined with Kanai in asserting a hostile title and taking possession under it. On this part of the case the learned Subordinate Judge seems to hold that the possession of Nabeen's executors could not be adverse, because Nabeen himself was the executor of the will of Narasingha's father, Rajkrishna: at any rate he says that the trust placed upon Nabeen descended to his heir. But neither of the executors was Nabeen's heir and all the properties in dispute were acquired after Rajkrishna's death. In my opinion, the possession of Nabeen's executors was adverse to Narasingha's title with the result that there was complete ouster of Narasingha.
35. The case with regard to the purchase of Kutheri is even stronger. It has been proved that he took symbolical possession: it is however argued on behalf of the plaintiffs that he never took actual possession. In my judgment the evidence is conclusive that he did. I have already dealt with the actual possession of the house. This very question was fought out between him and the plaintiffs in the claim case, where it was decided that possession was with him: the plaintiffs cannot therefore be allowed to say now that it was merely symbolical. There can be no question that the decree was a genuine one and, as was pointed out by the learned Judge who decided the claim case, there is no reason why the auction purchaser should have given up any of the property after having bought it. He was paid the compensation awarded by the Collector on account of acquisition of a portion of the property: his successors are admittedly in possession of the rest of the property covered by the sale certificate. The property now in dispute is all covered by the conveyance executed in favour of Nandalal some years later. In my judgment the only inference to be drawn from these facts is that actual and not merely symbolical possession was taken and I do not think that the matter would have been carried any further by the examination of a few witnesses to prove collection of rent and isolated acts of possession.. For these reasons, I am of opinion that the plaintiffs' title has been extinguished, by adverse possession.
36. I agree that no case of estopped has been made out. I am satisfied that Narasingha took possession of the property as executor of Nabeen's will ; but, as my learned brother has pointed out, he was not aware of the real facts when he applied for probate: indeed it may be doubtful whether he would ever have made the application bad he been aware of them. I am also very doubtful whether in any event the plaintiffs themselves would be estopped in view of the fact that they are entirely out of possession. The result is that I would dismiss the suit. But as the point on which I have the misfortune to differ from my learned brother relates only to a four annaa share in the residence and Mr. Mitra intimated, in the course of his argument, that the appellant would not be averse to giving this concession to the plaintiffs, I concur in the order which my learnad brother proposes to make.