1. This is an appeal by the Defendant No. 1 against a preliminary decree in a suit for partition of immovable properties and the plaintiffs have filed cross-objections against the decree in so far as it has dismissed the plaintiffs' claim with respect to certain items of the claim. The following genealogical table [vide P. 1177] will be of help in understanding the relations between the parties and the basis of their respective shares claimed in the disputed properties.
2. Basir, it appears, died in the year 1885 and left his mother, three widows and a large family by two of them as his heirs. The third widow, Rahimannessa, was childless. The present suit relates to the property left by Basir who it appears, was a substantial cultivator and left considerable properties both moveable and immovable. His two daughters by his wife Gofurennessa are Plaintiffs Nos. 1 and 2 and the husband of a deceased daughter by the same wife is the Plaintiff No. 3.
3. The Defendant No. 1 is the only son of Basir by Gofurennessa, and the suit is really directed against him, the other defendants are the other claimants to the property with the exception of Defendant No. 8 who is the wife of Defendant No. 1. Plaintiff No. 3 married Momezunnessa, one of Basir's daughters, in the year 1890 and became a widower in 1893, and married the plaintiff No, 2 in 1896. It is as husband of his deceased wife that he claims a share in Basir's property.
4. The case of the Plaintiffs Nos. 1 and 2, who shall be called the plaintiffs in this judgment, shortly stated, is that they were infants at the time of their father's death and they lived jointly with Defendant No. 1, also a minor, in a joint family with their grandmother Sahebunnessa and mother Gofurennessa in their father's house and were maintained out of the in-come of their father's property, and that they were married at the instance of Defendant No. 1. That since their marriage they occasionally came to their father's house and lived with Defendant No. land were then maintained out of the income of the family properties and that many of their children were born in their father's house and that all incidental expanses were borne out of the income of the family properties and that they got ornaments and other presents, and also got occasionally cash money when necessary from their brother. In substance their case was that their grand-mother managed the family property until Defendant No. 1 took charge from her and that they participated in the income of the family properties until their right was denied by the Defendant No. 1 in or about the year 1911. Hence, they have brought this suit for declaration of their title to their legitimate share in their father's properties and for possession after partition of the various properties with the other sharers therein. The immovable properties left by Basir are described in schedule (ka) of the plaint and the properties subsequently acquired with the income of the ancestral properties are described in schedule (kha) of the plaint. The other schedule deals with moveable properties, the claim to which has been dismissed except a small item, and it is not necessary to deal with them in details as the appeal does not relate to them.
| | |
Nadir 1. Sohagi =Jhagu, (married 3 wives)=3. Sahebunnessa, Araj Bibi
| =2. Feli died 1906 |
Nasir, | | sons died
no wife, children | | grandsons
no wife, children. |
1. Solemannessa, =Basir, (married 3 wives.) =3. Rahimannessa,
died about 1915 died 1291, B.S., 1885 died 1904
| =2. Gofurennessa,
| Defendant No. 2
Tasirannessa, (died 1903) |
married to Sariuddin Defendant No. 7, |
2 sons and 1 daughter, Defendant |
Nos. 4, 5 and 6. |
| | | | |
1. Asiruddin Mondal 2. Azirennessa, 3. Latifunnessa, 4. Momezunnessa, 5. Khatemannessa
Deft. No. 1, Deft. No. 3 Plf. No. 1, died 1893, Plaintiff No. 2,
married to married Kafiluddin, married to married 1893 to
Sahedennessa, 1297 B.S. 1890 Harizuddin, Plf. No. 3
'Deft. No. 8 Plf. No. 3
5. The case of Plaintiff No. 3, who stands on a totally different footing to plaintiffs Nos. 1 and 2, is not specifically stated, nor is it shown how he enjoyed possession of his share which he inherited in 1893, although he lived in a different village and managed and enjoyed his own properties there.
6. The Defendant No. 1 who alone really contested the suit, mainly relied on the defence of limitation, and as to properties of schedule (kha) he claimed them as his self-acquired properties and in (ka) he claimed Baghall as the property obtained by him by gift from Sahebunnessa, to whom that property, according to him, really belonged. Baghall, in schedule (Ka) and Douki, a property in schedule (kha), were not originally included in the claim, but were subsequently added by a petition for amending the plaint filed on the 9th September 1920, long after the Defendant No. 1 filed his written statement on the 19th of March 1920. The property called Douki added after amendment was claimed by Defendant No. 8 as her own property.
7. The learned Subordinate Judge found that the claim is not barred by limitation and that all the plaintiffs were entitled to their share which, however, he found to be less than the shares claimed. He further found that the plaintiffs had no right to the properties described in schedule (kha) with the exception of items Nos. 22, 23, 24, 25 and 97 and also to the two properties stated above, and also that their claims to the moveables were not established with a small exception, and on those findings made a preliminary decree for partition.
8. The Defendant No. 1, as I have already stated, filed this appeal, and his main contentions raised by the learned vakil, who appeared for him are these:
First: That the claim of the plaintiffs was barred by limitation and that even assuming that the Plaintiffs Nos. 1 and 2 are not barred, the claim of the Plaintiff No. 3, which is materially different from those of Plaintiffs Nos. 1 and 2, was barred.
Secondly: That there was a custom prevalent in Pabna by which daughters of a Muhammadan are precluded from inheriting jotes left by their fathers.
9. The plaintiffs pressed their cross-objections as regards property called Baghall, and it was contended on their behalf that the findings of the Subordinate Judge that it belonged to Sahebunnessa and that she made a gift of those properties to Defendant No. 1 were erroneous.
10. These are the only questions which arise for determination in this appeal and the cross objections.
11. I shall first deal with the questions which are really questions of fact and in which we agree with the decision of the Sub-Judge.
12. The question of custom raised by the appellant was faintly urged, and we think there is no substance in that contention.
13. The custom set up is, in derogation of the clear law of succession as laid down by the Muhammadan Law, which overrides the law as laid down in that law, and must be strictly proved by very clear and definite evidence, and such evidence must establish all the elements of valid custom. The learned Subordinate Judge has fully dealt with that evidence: we have no hesitation in agreeing with his conclusions. The evidence is meagre and is of a very unsatisfactory character. No evidence of any concrete cases has been given In which a claim by a daughter to a jote right was disallowed by Courts of law; but on the contrary evidence has been adduced that in a number of cases such claims have been enforced even without any question by the opposite party. It is needless to discuss the evidence in detail. We agree with the Subordinate Judge and generally for the reasons given by him.
14. Then I shall deal with the cross-objections raised by the plaintiffs as to Baghail.
15. The claim of the plaintiffs to this property was disallowed by the Subordinate Judge on the ground that this property belonged to Sahebunnessa Bibi and not to Basir. The learned Subordinate Judge has discussed the question in full details and we agree with his conclusions.
16. Sahebunnessa was a lady of considerable business capacity. She claimed some of the jotes constituting this property on the basis of transfers to her in lieu of her dower. When the zamindar after measurements, made a fresh settlement, Sahebunnessa, as the owner of the jotes, executed the kabuliyat In 1878, at a time when Basir was alive, and evidence has been adduced to show that this was done with the knowledge and concurrence of Basir, who was then managing his own ancestral properties and died shortly after leaving five children and three widows. Sahebunnessa exercised all acts of ownership; she paid the rent due to the Zemindar, and the collections were made in her name, and there is ample and satisfactory evidence that she enjoyed the profits of the property. When she separated from the Defendant No. 1 and his mother, she retained this property and then she made a gift of this property to Solemannessa the stepmother of Defendant No. 1, Upon this the dispute between her and her grandson broke out. The result was that she was obliged to give up this property to Defendant No. 1 in lieu of a monthly annuity promised to be paid to her for her maintenance. That there was pressure brought to bear upon her with a view to induce her to give up this property there can be no doubt. i he whole thing was managed according to the direction of Defendant No. 1, Here the property was described as Basir's property. This statement is no doubt of considerable weight against the Defendant No. 1; but we are satisfied on the evidence that this was not a correct statement. The evidence is overwhelming to prove that the property was really Sahebunnessa's own property and not Basir's as alleged by the plaintiffs.
17. On the whole, therefore, we agree with the Subordinate Judge that the plaintiffs have failed to establish that Baghail was Basir's property. The plaintiffs' claim in this suit is based, as is stated in paragraph 5 of the plaint, on the ground that the properties belonged to Basir. They claimed their shares of the properties left by Basiruddin Handle and of those acquired with the profits of those properties; they cannot, therefore, get any share of this property as it did not form part of Basir's estate.
18. It was argued by Dr. Bysak for the plaintiffs that by the Nadavi executed by Sahebunnessa she gave up only her share in Baghail inherited by her from Basir: therefore, there was no transfer of the rest. We think that by this deed she intended to give up all her rights in Baghail, although the deed is clumsily drawn. Even assuming that Dr. Bysak is right, as 1 have already shown, that does not help the plaintiffs as their present claim is confined to the share which they claim in Basir's property.
19. The question of limitation is the main question urged in this appeal. 1 shall deal with this question so far as it affects Plaintiffs Nos. 1 and 2, separately from the question as against Plaintiff No. 3.
20. Now, so far as the Plaintiffs Nos. 1 and 2 are concerned, the judgment of the Subordinate Judge has been assailed on the ground that the evidence establishes a case of adverse possession of the Defendant No. 1 for over 12 years. The learned vakil for the appellants put his case on the footing that Article 144 of the Limitation Act was applicable to the case, and he argued that although the plaintiffs were co-sharers their title was denied by the defendant to their knowledge and that the evidence shows that there was ouster for more than 12 years before suit.
21. The learned Subordinate Judge has carefully considered the evidence and has found, to quote only a few passages from his judgment, that: 'The same affectionate relations continued till 1911 when they demanded a share of the compensation money obtained on account of lands acquired for the Sara Bridge (Hardinge Bridge), which probably was the first time when they demanded their full share of any property or profits of the state. Up to that time their relations were friendly, that Latifunnessa often came to her brother's place, several of her children were born there, and a son of Defendant No. I used to remain with Latifan's husband for prosecuting his studies. Now if the plaintiffs had insisted upon the entry of their names in the records, and Asiruddin had expressly denied their title, or had they understood that the opposition to the claim of Tasiran amounted also to a denial of their right, the terms between them and the Defendant No. 1 could not have continued to be so cordial and affectionate as it did.'
22. Then again 'of course it is admitted by the plaintiffs, that before 1318 they never demanded the division of the income and payment of their share, and it is also the fact that the income of their share far exceeded what small amounts they participated in by residing in the family or by the occasional presents. It is also true that where the sisters have no legal rights, e.g., among Hindus, such residence in the brother's family, or occasional visits, or receipt of occasional presents would not amount to possession of the property. But where they have a legal right by inheritance, I think they may fall back upon such acts of slight participation as evidence of their joint possession.
From the above facts and circumstances, and relying upon the rulings cited above, I am of opinion that there was no express denial of the plaintiff's title or such open hostile, and exclusive possession of Defendant No. 1 which would amount to an ouster of the plaintiffs more than 12 years before the in institution of the suit. 1, therefore, hold that the plaintiffs' claim regarding the immovable properties is not barred by limitation and the possession of Defendant No. 1 was on behalf of himself and other co-heirs of Basir, excepting, of course, Tasiran.
23. These findings are amply supported by the evidence in the case which was placed before us and discussed by the learned vakils of both the parties.
24. The principles of law of limitation and adverse possession as between tenants-in-common have been discussed and laid down in numerous cases. In the case of Jogendra Nath Rai v. Baldeo Das  35 Cal. 961, Mr. Justice Mukerji, after discussing numerous cases, both Indian and English, laid down the rule in the following words at page 969: 'Much stronger evidence, however, is required to show an adverse possession held by a tenant-in-common than by a stranger; a covenant will not be permitted to claim the protection of the Statute of Limitations, unless it clearly appears that he has repudiated the title of his co-tenant and is holding adversely to him; it must further be established that the fact of adverse holding was brought home to the co-owner, either by information to that effect given by the tenant-in-common asserting the adverse right, or there must be outward acts of exclusive ownership of such a nature as to give notice to the co-tenant that an adverse possession and disseisin are intended to be asserted; in other words, in the language of Chief Justice Marshall in Mc Clung v. Ross  5 Wheaton 116, a silent possession, accompanied with no act which can amount to an ouster or give notice to his co-tenant that his possession is adverse ought not to be construed into an adverse possession'; mere possession, however exclusive or long continued, if silent, cannot give one co-tenant in possession, title as against the other co-tenant: See Clymer v. Dawkins  3 Howard 674, in which it was ruled that the entry and possession of one tenant-in-common is ordinarily deemed to be the entry and possession of all the tenants, and this presumption will prevail in favour of all, until some notorious act of ouster or adverse possession by the party so entering is brought home to the knowledge or notice of the others: when this occurs, the possession is from that period treated as adverse to the other tenants.'
25. In a case between Muhammadan co-owners, Mr. Justice Brett, sitting with Mr. Justice Mukerji, held that, although there was no actual participation of the profits as a co-sharer by the plaintiff, as an heiress to her mother, the claim was not barred although the property was actually held and managed by her brothers because the plaintiff 'while she was living in the house of the jote she was being supported out of the profits of the property;' See the case of Ujalbi Bibee v. Umakanta Karmokar  31 Cal. 970. Similarly in a case, Maulvi Saiyid Mohammad Munawar v. Razia Bibi  27 All. 320, in which a daughter of a deceased Muhammadan lady brought a suit for possession of her share of the inheritance long after 12 years, from the death of her mother, the Judicial Committee held at page 626: ' That the High Court was right in holding that exclusive enjoyment by the husband of the wife's estate in terms of the deed, did not constitute his possession adverse to a daughter who survived the wife, but predeceased the husband and the right of the heirs of the daughter to recover her share of her mother's estate was not lost'. In a case where one of co-heirs had taken possession of the entire property, under the claim of a sole heir, the Judicial Committee in the case of Corea v. Appuhamy  A.C. 280, considered the question of adverse possession and ouster of the other co-heirs, and Lord Macnaghten by whom their Lordships judgment was delivered said as follows; 'The. two learned Judges in the Court of appeal did not adopt in its entirety the suggestion of the trial Judge. They both held that Iseris entered as ' sole heir ' and that his title has been adverse ever since he entered. They held that he entered as 'sole heir ' apparently because he had it, in his mind from the first to cheat his sisters. But is such a conclusion possible in law? His possession was in law the possession of his co-owners. It was not possible for him to put an end to that possession by any such secret intention in his mind. Nothing short of ouster, or something equivalent to ouster, could bring about the result.' In applying the principle of this decision in a case of adverse possession between a Muhammadan brother and sister, Sir Lawrence Jenkins, Chief Justice, held in the case of Faizuddin Khan v. Raju Akab  21 C.L J. 192, that 'Therefore, in this case, prima facie the possession of Rajabdi was the possession of his sisters, and it could not become an adverse possession until there was an ouster.'
26. In this case, the case of the plaintiffs is much stronger because at the time of the death of Basir both the plaintiffs were minors and so was the Defendant No. 1, the property was in the possession of the grandmother and mother, and the plaintiffs were maintained from the income of the property and they were married and the expenses came out of the income of the family property. In the year 1895 a suit was brought by Defendant No. 1 with respect to a family property in which the Plaintiffs Nos. 1 and 2 but not No. 3, were joined as co-sharers and the decree obtained was put into execution in 1898 on behalf of all. It was, therefore, incumbent upon the Defendant No. 1. to establish definitely as to when, alter 1898, his possession became adverse to those plaintiffs. The defendant has relied upon the proceedings at the time of the record-of-rights when he expressly denied the title of Tasiran, the half-sister of Defendant No. 1; but there is nothing to show that he denied the title of the plaintiffs also who are his uterine sisters. I have already shown that the plaintiffs remained on as friendly terms with their brother, the Defendant No. 1, as before and participated in the profits of the property when they lived in the family house in the same mess with Defendant No. 1 and for months on some occasions. Defendant No. 1 never denied the title of his sisters, the Plaintiffs Nos. 1 and 2. The dispute really broke out between the parties when the plaintiffs share in the compensation money obtained from the Land Acquisition Collector was refused to be given to the plaintiffs by the defendant in the year 1911. It is in evidence that the Defendant No. 1 admitted the title of the plaintiffs before the Rajah of Dighapatia, their landlord, to whom the parties applied for a settlement of their dispute. It is an admitted fact that Rs. 1,001 was paid by the Defendant No. 1 to the plaintiffs at that time, although there is considerable difference between the parties as to the conditions under which the payment was made.
27. On the whole we, therefore, find that that case comes within the principles of the cases cited above, and the claim of Plaintiffs Nos. 1 and 2 is not barred by limitation.
28. The case of the Plaintiff No. 3 stands upon a different footing. He inherited a share out of the share which his deceased wife Momezannessa who died in 1893, inherited from her father, Basir. He is a stranger although he married the plaintiff Mo. 2 in 1896. His house is at a considerable distance from Basir's house and he has his own house and jote lands. He never claimed his share over 30 years and never participated in the profits of the properties as the other plaintiffs did. He was excluded in the suit of 1895 and we can find nothing in the evidence to hold that the possession of defendant No. 1 was anything but adverse against him.
29. Plaintiff No. 3 did not examine himself in this case and practically there is nothing on the record to prove his case. It was incumbent upon him to show how he was in possession of his share which he inherited more than 30 years ago and it was also clearly his duty to explain, if possible, why the possession of Defendant No. 1, after he was excluded from the suit of 1895, should not be held to be adverse to him. In short, in the absence of his deposition in this case, it cannot be held that the Plaintiff No.3 has succeeded in saving his claim from the bar of limitation. His conduct shows that he abandoned his claim to this property.
30. The result of the aforesaid findings is that the appeal is dismissed against Plaintiffs Nos. 1 and 2 with costs, and their cross-objections directed against Defendant No. 1 are also dismissed with costs. The costs of the appeal and the cross-objections are to be assessed in proportion to the success or otherwise of the parties. The appeal as against Plaintiff No. 3 is decreed and his suit is dismissed; and under the circumstances without cost as the case against the Plaintiff No. 3 was not separately pressed by the Defendant No. 1 in the Court below. Hearing fee 10 gold mohurs.
31. I agree.