MT. FARDOSJAHAN BEGUM W/O. SYED ALAY RASUL AND OTHERS Vs. KAZI SHAFIDDIN S/O. KAZI SHUJATALI MUSALMAN AND OTHERS

JUDGEMENT

(1.) THIS is a second appeal by the plaintiffs in a suit which is really of the nature of an administration suit but is cast in the form of a suit for partition and separate possession of the property belonging to the plaintiffs, the estate that it is sought to administer or partition being one derived from one Babar Ali who died in 1882. It is a second appeal and there are findings of fact which would conclude the matter against the appellants if those findings of fact were arrived at on any evidence. In order to understand this case, it is necessary to set out the genealogical table which gives the relationship of all the parties and to make certain observations. BABAR ALI alias PEER ALI (Died 1882) | | __________________________________________________________ | | | Shamsher Ali (died 1885) Shujat Ali (died 1888) Munawar Begum (died 1897) | | | _______________________ Shafiuddin _________________________ | | | (defendant 1) | | Amir Ali Wazid Ali Zahida Begum Fazal Ahmad Bane Saheb=Miriyan Bi (died 1922) (died) 192S (died 1920) | | (defendant 3) =Shahnubl | | | (defendant 2) | ___________________ | | | | _____________________ Gulam Hasham Ghulam Ahmad | | | ______________________ (plaintiff-8) (plaintiff 9) Tasru Rabeya Bilqis | | | (defen (defen (defen- Khaliluddin= Rashiduddin Aziz Begum dant 4) dant 5) dant 6) Shahjehan Begum (plaintiff 6) (plaintiff 7) (plaintiff 5) | ________________________________________________ | | | | Fardos Jahan Begum Abbas Ali Gori Begum Mohamad Ali (plaintiff 1) (plaintiff 2) (plaintiff 3) (plaintiff 4).

(2.) DEFENDANT 6 has died and is replaced by respondents 6 (a), (b), (o), (d). They appear and support the appellants. The respondent who is most concerned and who strongly opposed the appellants in this Court is respondent 1 who is defendant 1. The other respondents-defendants were not represented before us so that, so far as this Court is concerned, the contest is between the appellants and respondent 1, i.e., defendant 1. The plaintiffs claim a share through two women, plaintiffs 1 to 7 through Zahida Begum and plaintiffs 8 and 9 through Munawar Begum. Their case is that right through the years this estate has never been administered so that the various share-holders had allocated to their share any particular property. The estate went first of all to Shamsher Ali, Shujat Ali and Munawar Begum, but, as is so usual in Mohammadan families, Shamsher Ali and Shujat Ali, the two men, managed this property and so forth. They all in turn died without any administration of the estate; and the part that Shamsher Ali was looking after, 8 annas share, was next looked after by Amir Ali and Wazid Ali, Zahida Begum being excluded; the other half being looked after by Shafiuddin.

(3.) THE legal position as regards Mohammedans is prima facie that when the owner dies leaving a number of heirs those heirs take the estate as tenants-in-common. They have each a separate right and at any moment any one can demand administration of the estate so as to demarcate the property that falls to that one's share. But until that is done they hold, not as joint tenants as will be the case were they Hindus which joint tenancy is broken up by partition, but as tenants-in-common which cotenancy is broken up by severance of the shares normally done by means of administration or by partition. Administration is normally the better course because then a! 1 questions of indebtedness of the deceased, priority of claims and so forth can be r properly adjusted. However, no such point here really arises. What we are concerned with is whether the appellants have, as a consequence of the operation of law relating to ouster, lost the title which they have prima facie established. In our opinion, a Mohammedan prima facie establishes title when he shows that the estate in question was in A, that he is in the line of heirs from A and nearer heirs are dead and that there has been no administration which starts a new line of descent not from A but from (say) X, in which case he will then have to establish that he is in the line of heirs from X. He, though establishing that prima facie case, may be defeated by his opponent (say) M if M can establish that the claimant has been ousted. Here therefore the plaintiffs having shown that they are in the line of descent from Babar Ali, having shown that there has never been an administration of this estate or a splitting of the co-tenancies into a number of separate shares demarcated and assigned, have established a prima facie case. It is then for the defence to establish that the prima facie title has been lost as a consequence of ouster. Thus case has hitherto been approached along the lines that that defence is established once it is shown that there has been adverse possession for 12 years. In our opinion that is a misunderstanding of the legal position. As Mr. Rustomji points out in his Law of Limitation (Edn. 5) at page 1473, Although the possession of one co-tenant is not deemed adverse to the other co-tenants, the existence of the relation of co-tenants does not preclude one co-tenant from establishing an adverse possession in fact as against the other co-tenants. Much stronger evidence is required to show an adverse possession held by a tenant-in-common than by a stranger; a co-tenant 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 dicission are intended to be asserted; in other words, "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. 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.