SOWDAGAR SHEIK ABDUL GAFUR Vs. ASHAMATH BIBI

JUDGEMENT

(1.) THIS is a suit by a Muhammadan sister for partition against her brother and for setting aside alienations made in favour of the other defendants by that brother. The alienations in question were made more than 12 years before suit. Both the lower Courts have held that, as it had not been proved that the plaintiff had knowledge of those alienations, her claim was not barred by limitation. Apparently the view which found favour with them was that, as a co parcener cannot be prescribed for exclusive possession without setting up notoriously and to the knowledge of other members of the family his intention to hold adversely, the alienee from the co-parcener is affected by the same disability. In this Court also Mr. Madhavan Nair forcibly argued in support of this contention. But in the very case relied on by him and by the Courts below, namely Jogendra Nath Bai v. Baladeo Das 35 C. 961 at p. 968 : 12 C.W.N. 127 : 60. L.J. 735 Mr. Justice Mookerjee points out the distinction between the possession of a co-parcener and that of a stranger. In Muttusami v. Ramakrishna 12 M. 292. Muthusami Aiyar and Wilkinson, JJ. decided this very point. They say that the entry of an alienee from a co-parcener is adverse to the other co-parceners from the very moment of that entry. THIS and the observations in Secretary of State v. Vira Rayan 9 M. 175 at p. 183. [which though distinguished by the Judicial Committee on certain points follows the decision of Fry, J. in Rains v. Buxton (1880) 14 Ch. D. 537 : 49 L.J. Ch. 473 : 43 L.T. 88 : 28 W.R. 954. is very explicit and direct. A Full Bench of the Bombay High Court has taken the same view: see Bhavrao v. Rakhmin 23 B. 137 (F.B.). We must, therefore, hold that the view taken by the Courts below is untenable.

(2.) THE further question is, whether the case must be sent back. Mr. Prakasam drew our attention to statements in the two judgments indicating that there was no participation in the income after 1892 by the sister. Mr. Madhavan Nair, on the other hand, referred to the statements of the District Judge that the plaintiff recovered her share of the profits upto 1914. This latter statement by itself would not be effective to save limitation but may be some evidence of the alienation having been concealed from the plaintiff. However, as the question of adverse possession has proceeded on a wrong view of the law, we think the safe course is to reverse the judgments of the Courts below and remand the suit to the Court of 1st instance for disposal in the light of our observations. THEre will be no fresh evidence. Costs will abide, Refund Court-fees, THE memo, of objections are dismissed with costs.