The Judgment of the Court was as follows:—

Mookerjee, J.:— The subject-matter of the litigation which has resulted in this appeal consists of two parcels of land situated in the town of Ranigunj. The Plaintiffs claim an one-fourth share of a lease-hold interest in the land created by the Bengal Coal Company, the admitted landlords. The contesting Defendants deny the alleged title of the Plaintiffs and claim an independent right in themselves in the entire property. The Subordinate Judge has found in favour of the Plaintiffs on the question of title he has also held that such title was in subsistence at the date of the commencement of the suit and had not been extinguished by adverse possession on the part of the Defendants. In this view, the trial Court has made a decree for possession upon declaration of title and has further directed partition by metes and bounds. On the present appeal, the decree of the Subordinate Judge has been assailed substantially on two grounds, namely, first, that the Plaintiffs have failed to prove the existence at any time of the specific title set up by them; and, secondly, that even if the Plaintiffs had such title at some remote period of time, it had been extinguished long before the date of the suit by adverse possession on the part of the Defendants. For the determination of the questions in controversy which are closely connected and may be conveniently discussed together a brief recital of the history of the devolution of the title to the disputed property is essential.

On the 14th August 1855, the Bengal Coal Company granted a permanent building lease in respect of two plots of land in the town of Ranigunj, at an annual rent of Rs. 24, to one Ram Singh Chaudhury. There was some controversy in the Court below upon the question, whether the two plots covered by this lease are identical with the two parcels now in dispute. The schedule attached to the lease sets out the boundaries of the two plots, but, as might have been anticipated, the Subordinate Judge found it difficult to identify all the boundaries after the lapse of sixty years; there can, however, be little room for reasonable doubt as to the identity of the land. Ram Singh Chaudhury continued in possession upon payment of rent to the Bengal Coal Co., till 1864 when he transferred his lease-hold interest to Mungal hand Baldeodas, who took a half share, Jainarain, who took an one-fourth share, and Panna Lal, who took the remaining one-fourth share. These persons continued in occupation, upon payment of rent to the superior landlords at the rate of Rs. 24 annually for at least a quarter of a century. As there is no indication whatever that they held other lands under the Bengal Coal Co., at the same rate, the Subordinate Judge has, in our opinion, correctly held notwithstanding the difficulty in the identification of boundaries that the land now in dispute is precisely the same land as is covered by the lease of the 14th August 1855 granted by the Company.

We have next to consider the history of the share of Panna Lal which form the subject-matter of this litigation. The relationship of the members of his family is set out in the following genealogical table.

The evidence leaves no room for doubt that Mangal Chand Baldeodas, Jainarain and Panna Lal were jointly in enjoyment of the lease-hold property from 1865 till 1882. In the later year, Panna Lal who had lost his son Surajmul and had taken Mahadeo in adoption, retired to Benares. With a view to make provision for the maintenance of his widowed daughter-in-law, Lachmi Bibi, he executed on the 25th June 1882, a deed of gift whereby he gave her a life interest in his share of the disputed property, he further directed that his adopted son Mahadeo would become full owner upon the death of Lachmi Bibi. The document was not registered though it transferred interest in immoveable property of value exceeding Rs. 100. The transaction took place, it will be observed, shortly before the Transfer of Property Act came into force on the 1st July 1882, and was consequently not affected by the operation of sec. 123 which provides that for the purpose of making a gift of immoveable property, the transfer must be affected by a registered instrument, signed by or on behalf of the donor and attested by at least two witnesses. The deed of gift was, however, compulsory registrable under sec. 17 of the Indian Registration Act, 1877, and consequently could not under sec. 49 affect any immoveable property comprised therein or be received as evidence of any transaction affecting such property. It was however admissible in evidence for a collateral purpose, namely, to explain the reason why Lachmi Bibi received the income as if she were a joint owner in possession of the property; Lalla Gopee Chand v. Liakhat Hossain (1), Thakore v. Bamanji (2), Venkatachari v. Rangasam (3) and Varada v. Jeeveratnammal (4). It may also be added that if there had been evidence of delivery of possession, the intended gift might have been validated under the Hindu law which was then in force. Kali Das v. Kanaiyahalal (5), Dharamadas v. Nistarini (6), Lakshimoni v. Nityawanda (7) and Ramchandra v. Ranjit (8). The true position then was that the intended gift by Panna Lal in favour of his widowed daughter-in-law Lachmi Bibi did not take effect in law. But the evidence makes it abundantly clear that the first Defendant Jagannath (the son of Mangal Chand), who managed the property on behalf of the joint owners, regularly, paid to Lachmi Bibi the surplus income in the one-fourth share of Panna Lal. This continued unquestionably during the life-time of Panna Lal who died as we have seen, in 1892. It is, we think, also indisputable that, as the Subordinate Judge finds, Lachmi Bibi continued to receive the income also during the life-time of Mahadeo who might, before his death on the 12th September 1896, have repudiated the unregistered deed of gift but there is no indication that he took such a step, on the other hand, he apparently acquiesced in the arrangement which his father had made for the maintenance of his sister-in-law. In this connection, we may add that the Subordinate Judge had before him ample materials to justify the conclusion that Mahadeo had been duly adopted by Panna Lal and that Ramnibas had in his turn been validly adopted by Mahadeo. As has been repeatedly ruled, it is not necessary to produce direct evidence of the fact of adoption; where it has taken place long since and where the adopted son has been treated as such by the members of the family and in the public transactions, every presumption will be made that every circumstance has taken place which is necessary to account for such a state of things as is proved or admitted to exist; Rajendra Nath v. Jogendra Nath (9), Lal Acchal Ram v. Kazim Hosain (10), Rup Narain v. Gopal Dhur (11), Sabo Bewa v. Nubodhun (12), Hurdwal v. Raj Kristo (13) and Vyas v. Vyas (14). The Subordinate Judge has further found that Lachmi Bibi continued to receive from Jagannath one-fourth share of the surplus income for several years after the death of Mahadeo, down to 1901. He has, however, held that there is no satisfactory proof that thereafter Lachmi Bibi received the income, but under what circumstances, payment came to be discontinued has not been explained by Jagannath, who is the first Defendant in this suit. We next find that dispute broke out between Lachmi Bibi and Chandni Bibi, that is, the widows of Surajmul and Mahadeo, and the daughters-in-law of Panna Lal. Matters in difference were referred to arbitration on the 14th July 1909, and the arbitrators made their award on the 12th June 1912. The substance of the award was that Chandni Bibi and Ramnibas would pay to Lachmi Bibi for her life Rs. 12 per month and Lachmi Bibi would, for a consideration of Rs. 1,000, release whatever right or claim she might have to the Ranigunj property under the deed of gift of the 25th June 1882. This award was confirmed and embodied in a formal memorandum, which was executed by all parties concerned on the 31st March 1913, and was registered on the following day. The present suit was then instituted on the 13th October 1917 by Chandni Bibi and Ramnibas against the representatives of Mangalchand, Baldeodas and Jainarain, the three co-sharers of Panna Lal. Upon the question of title, there can, in our opinion, be no vestige of doubt that the claim is well-founded. The only question which requires consideration is, whether the title of the Plaintiffs as joint owners with the contesting Defendants had been extinguished by adverse possession on their part for the statutory period before commencement of the suit. The Subordinate Judge has pronounced in favour of the Plaintiffs, and after careful examination of the evidence, we have arrived at the conclusion that his view is correct.

It is plain that Panna Lal was originally a joint-owner of the disputed property along with his three co-sharers, the predecessors of the Defendants. Even before his retirement to Benares, he did not usually reside at Ranigunj. From 1865 to 1882 the property was looked after by Baldeodas, one of the co-sharers, from whom Panna Lal regularly received his proportionate share of the surplus income, after payment of rent to the superior landlord, the cost of repairs and other incidental charges. The evidence establishes clearly that there was great intimacy between Panna Lal, Baldeodas, Mangul Chand, and his son Jagannath, the first Defendant, and that the wives of Panna Lal and Mangul Chand treated each other as if they were sisters. The management by Baldeodas during this period was plainly on behalf and for the benefit of all the joint-owners, and Panna Lal must be deemed to have been in possession. At the end of the period just mentioned, Panna Lal retired to Benares. At that time, his family consisted of his wife, his widowed daughter-in-law Lachmi Bibi, and his adopted son Mahadeo. He was naturally anxious to make suitable provision for Lachmi Bibi, and on the 25th June 1882, he executed in her favour the deed of gift under which she was to take a life interest in his share of the Ranigunj properly and Mahadeo was to take a vested remainder. The deed was neither registered nor accompanied by delivery of possession with the consequence that it did not take effect in law. But it has been proved beyond doubt that the parties acted on the assumption that a valid gift had been made. Panna Lal, at the time of his retirement to Benares, requested the first Defendant Jagannath, the son of his intimate friend Mangul Chand, to look after the property to realise rent from the tenants, to make necessary repairs, to pay rent to the superior landlord and then to give Lachmi Bibi her proportionate share of the profits. Jagannath appears to have faithfully carried out the trust reposed on him and to have regularly paid to Lachmi Bibi her dues down to 1901. Here it may be stated that down to 1890, the property had stood in the books of the landlord in the names of the four persons who had got themselves substituted on their purchase from the original tenant Ram Singh Chaudhury. But in 1891, Jagannath managed to have the names of Panna Lal and Joynarain removed from the books of the landlord. It seems probable that this was done in pursuance of a design to appropriate the entire property on a convenient opportunity. But even if he did entertain such a dishonest purpose at the time, he did not venture to carry it into immediate execution and continued to pay the surplus profits to Lachmi Bibi down to 1901. The Subordinate Judge has held that the evidence of payment during the period subsequent to 1901 is not reliable. It is a matter for comment that the account books produced by Jagannath for this period could not be scrutinised in the trial Court, as they were written in the peculiar script used by marwari merchants. We are thus left with the finding of the Subordinate Judge that receipt of surplus in-come by Lachmi Bibi has not been proved for the period subsequent to 1901. On these facts, the contesting Defendants have argued that the title of the Plaintiffs has been extinguished by adverse possession for the statutory period. We are of opinion that this contention is not well-founded. The evidence clearly establishes that Jagannath was not only a joint-owner, but that he undertook to look after the share of Panna Lal at his express request. The burden lies upon him to establish when he became faithless to the trust imposed upon him and asserted a hostile title in himself to the knowledge of the rightful owner. He has not ventured upon an explanation of his conduct; on the other hand, he has repudiated the title set up by the Plaintiffs as altogether unfounded and has falsely denied that he had ever paid a proportionate share of the usufruct to Lachmi Bibi as claiming title through Panna Lal. The two circumstances relied upon by the Defendants in proof of assertion of hostile title to the knowledge of the rightful owner are by no means conclusive. The fact that a substantial building has been erected on one of the plots by the Defendants is clearly not conclusive proof of ouster. As was pointed out in Dwijendra Narain v. Purnendunarayan (15) the erection of a substantial building on joint property by one co-owner cannot be regarded as conclusive evidence of ouster, and this accords with the view indicated in Ananda v. Parbati (16) and Upendra v. Umesh (17). The fact that the surplus profits, if any, have not been received by Lachmi Bibi since 1901 is equally inconclusive, in view of principles settled beyond controversy by recent decisions of the Judicial Committee [Corea v. Appuhami (18), Muttu v. Brito (19), Hardit v. Gurmuk (20) and Varada v. Jeevarathnammal ]. Reference may also be made in this connection to the observations of Lord Denman in Culley v. Taylerson (21), which were quoted with approval in the judgment of the Judicial Committee in the case last mentioned.

“Generally speaking one tenant in common cannot maintain an ejectment against another tenant in common, because the possession of one tenant in common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party Complaining. But, where the claimant and tenant in common, has not been in the participation of the rents and profits for a considerable length of time and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster; as to which see the cases of Doe Dem Fisher v. Prosser (22), Doe Dem Boilings v. Birds (23) and Doe Dem White v. Cuff (24).”

Among the cases in this Court, reference may be made to the decisions in Jogendra Nath Rai v. Baladeo Das (25), Ayenenussa Bibi v. Shaikh Isuf (26), Loke Nath Singh v. Dhakeswar Prosad Narain Singh (27), Narendra Bhusan Roy v. Jogendra Nath Roy (28) and Balaram v. Shyama Charan (29).

The fundamental rule is that in order to establish adverse possession as between co-sharers, there must be evidence of an open assertion of a hostile title by one of them to the knowledge of the others; mere non-participation in the profits by one party and exclusive occupation by the other is not conclusive. Apart from this, we have the important circumstance that in this case the rightful owner, the second Plaintiff Ramnibas, who, when a child a few months old was taken in adoption in 1892, was a minor till at least 1910; it is thus difficult to appreciate how the contesting Defendants began to hold adversely to the knowledge of the infant in 1901. Indeed, before this action was brought, there was no attempt on the part of the Defendants to rely on adverse possession, their pretence was that they were the rightful owners, and one of them, the first Defendant, has pledged his oath in support of that untrue allegation in the witness box in this suit; they cannot consistently urge that from 1901 the first Defendant began to hold adversely to the knowledge of the rightful owner. [See the observations of Lord Macnaghten in Corea v. Appuhami ]. Reliance may further be placed on the judgments of Lord Buckmaster in Hardit v. Gurmuk , of Lord Dunedin in Mutter Nayagam v. Brito and of Viscount Cave in Varada v. Jivaratnamal , which emphasise the principle that if possession may either be lawful or unlawful, in the absence of evidence, it must be assumed to be the former or in the language of Wood, V.C in Thomas v. Thomas (30) possession is never considered adverse, if it can be referred to a lawful title, reference may also be made to the decision of this Court in Loke Nath v. Dhakeswar , where the cases on the subject were reviewed and the doctrine deducible therefrom formulated. Every co-tenant has the right to enter into and occupy the common property and every part thereof, provided that in so doing he does not exclude his fellow-tenants or otherwise deny to them some right to which they are entitled as co-tenants; and they on their part, may safely assume, until something occurs of which they must take notice and which indicates the contrary, that the possession taken and held by him is held as a co-tenant, and is in law the possession of all the co-tenants, and not adverse to any of them. It cannot be questioned, however, that one co-tenant may oust the others and set up an exclusive right of ownership in himself; and an open, notorious and hostile possession of this character for the statutory period will ripen into title as against the co-tenants who were ousted. Thus, although as a general rule, 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 and though the co-tenant enters in the first instance without claiming adversely, his possession afterwards may become adverse. In order to render the possession of one co-tenant adverse to the others, not only must the occupancy be under an exclusive claim of ownership, in denial of the rights of the other co-tenants, but such occupancy must have been made known to the other co-tenants, either by express notice or by such open and notorious acts as must have brought home to the other co-tenants' knowledge of the denial of their rights. The same principle is involved in the familiar statement that to enable one of several co-tenants to acquire title by adverse possession as against the others, his possession must be of such an actual, open, notorious, exclusive, and hostile character as to amount to an ouster of the other co-tenants, that is, must have been such as to render him liable to an action of ejectment at the suit of the co-tenants. No comprehensive formula can be framed to test whether the possession of a co-tenant in a particular case is adverse to the other co-tenants. But it has been stated that evidence to show adverse possession by one co-tenant must be much clearer than between strangers to the title and the hostile intent of the co-tenant in possession must be shown by unequivocal conduct. It is indisputable that acts which might properly be held to show adverse possession as between strangers do not necessarily have such effect as between tenants in common; acts of ownership by one co-tenant may not in themselves amount to the disseizin of the other co-tenants, and may, indeed, be so explained as to show a consistency with the joint title. But the ouster of the other co-tenants in order to render the possession adverse, need not be violent or intimidating expulsion or repulsion: nor need notice of the adverse holding be actually brought home to the other co-tenants by personal or formal communication; it is sufficient, if the contrary is not proved, that the circumstances show that such knowledge may reasonably be presumed. From this point of view, it has been maintained that sole possession by a co-tenant becomes adverse to his fellow-tenants by his repudiation or disavowal of the relation of co-tenancy between them; and any act or conduct signifying his intention to hold, occupy and enjoy the premises exclusively and of which the tenant out of possession has knowledge or of which he has sufficient information to put him upon enquiry, amounts to an ouster of the co-tenants; but what is essential is that the overt acts which constitute a definite and continuous assertion of an adverse right must be of an unequivocal character, clearly indicating an assertion of ownership of the premises to the exclusion of the right of the other co-tenants. Tested in the light of these principles, the contention of the Defendants must be deemed unsubstantial. In 1882, the first Defendant undertook, at the request of his co-sharer Panna Lal when he left for Benares, to manage his share of the property and carried out his obligations for a period of twenty-years. He has never explained why, when, and how he cast off his character as co-sharer manager and asserted a hostile title in himself to the knowledge of the rightful owner. If he renounced the trust in 1901, he is met by the difficulty that the rightful owner at the time was an infant who continued to be a minor for at least nine years thereafter. He may be pertinently asked, when did his repudiation take place when was his hostile intent manifested by such overt and notorious acts of an unequivocal character, to the denial and exclusion of the right of his co-sharer, as could not be misunderstood by the latter? It may be conceded that a co-sharer cannot close his eyes and ears, nor by wilful inattention obtain an advantage from his lack of diligence. For this reason, it has been, held sufficient that the acts of adverse possession are such in their character and attendant circumstances that a man reasonably attentive cannot but realise that an adverse right is asserted against him. But if no notice is given to the co-sharer of the denial of his right, the occupant must make his possession so visibly hostile and notorious and so apparently exclusive and adverse as to justify the inference of knowledge on the part of the co-owner sought to he ousted and of laches if he fails to discover and assert his rights. Tested from the point of view thus indicated, the defence of adverse possession for the statutory period to the knowledge of the rightful owner cannot possibly be deemed to have been established in this case and it has been rightly negatived by the Subordinate Judge.

We may add finally that much stress was laid by the Appellants on the fact that they have built a costly structure on the parcel known as the marwaripati property. This however, does not create any real difficulty. The Subordinate Judge has not overlooked the equitable considerations which have been held applicable in such circumstances, as was explained in the cases of Upendra v. Umesh and Narain Lal v. Chulhan Lal (31), where the rule recognised in Leigh v. Dickeson (32) and Brichwood v. Young (33) was applied. In such cases, if a joint owner has in good faith effected valuable improvements upon the common property at his own expense, equity takes that fact into consideration upon a partition and in some suitable way makes an allowance to him therefor, in addition to his rateable share of his property. The Subordinate Judge has given directions in this behalf which will adequately protect the Defendants when the partition is actually effected.

The result is that the decree made by the Subordinate Judge must be affirmed and this appeal dismissed with costs. The cross-objection has not been pressed and is dismissed. Hearing fee Rs. 200.

Buckland, J.:— I agree and have nothing to add.

S.C.M