JUDGMENT

1. The property in dispute, which consists of a 16-anna proprietary share in mauza Bodegaon with 43.24 acres of sir, 2.58 acres of khudkasht and 16.71 acres of occupancy land, and a house therein, 47.19 acres of malik-makbuza land and a house in mauza Dighori, and 22.18 acres of malik-makbuza land in mauza Arher-Nawergaon in the Brahmapuri tahsil of the Chanda District, belonged at one time to Jairam, the natural son of Vinayak Bhat and the adopted son of Ganesh Bhai, whose family trees are as below:.

2. Jairam admittedly adopted Janardan, the natural son of Sheoram, on 21-3-1910 and died on 10-11-1910. On his death, his entire estate devolved on Janardan by survivorship.

3. It is alleged and has been held by the lower Court that Jairam made a will (Ex. 1-D-39) on 20-3-1910 by which he devised the property in dispute to Waman (defendant 1), the son of his natural brother Sheoram, 167.39 acres of malik-makbuza land in mauza Mangli to his wife Gangabai for her lifetime, and the rest of his considerable estate to Janardan, whom he had decided to adopt. On the death of Jairam, Waman obtained mutation of the proprietary share of mauza Bodegaon and of the malik-makbuza lands in mauzas Dighori and Arher-Nawergaon in his name, and he was appointed lambardar of Bodegaon. Janardan was then a minor. It is immaterial for the purposes of this case whether Janardan came of age in 1913, as alleged by the defendants, or in 1918, as alleged by the plaintiff, and the lower Court's finding that he came of age in 1913 has not been challenged in this Court. Janardan died in 1921, and his estate then devolved on his widow Maltibai, the plaintiff. At the settlement in 1921 the property in dispute was recorded in the name of Waman, shortly after the death of Janardan. Maltibai came of age in 1926, and she brought this suit in December 1936 to recover possession of the property in dispute. The other defendants are transferees of small portions of the property in dispute from Waman.

4. The plaintiff contended that the will was a forgery. It was apparently attested by five respectable witnesses, and there is ample evidence, as the learned Subordinate Judge has pointed out, to prove their signatures. The will was produced by Waman before the revenue authorities when he applied for mutation of the property in dispute in his name after the death of Jairam in 1910, and a certified copy of the will was retained with the revenue records. The will was mentioned in a mortgage executed by Gangabai and Waman in favour of Sir Gangadhar Chitnavis in 1911 (ex. 1 D-17). Purshottam (P.W 1), who said that he had never heard of any will, was obviously aware that the land in Mangli had been given to Gangabai for her maintenance, as will appear from his letter (Ex. 1 D-31) written in 1929. There is direct evidence, as the lower Court has shown, to prove that Janardan was aware of this will after he came of age, and the authenticity of it was never challenged until 1933 when Maltibai sued the transferees of Gangabai for possession of the Mangli malik-makbuza land. All the evidence one way or the other has been carefully considered by the lower Court, and we agree with it that there is no reason to doubt the authenticity of this will.

5. The will was admittedly invalid in the sense that it could not defeat Janardan's right by survivorship to the entire estate, but it has-been contended by the defendants that Janardan after attaining majority ratified this will and thereby validated it. We have no doubt that Janardan was aware of the existence of this will and that he tacitly acquiesced in it, either because he was ignorant of his rights or because he was willing to allow his natural brother Waman a share, which we are told was about a quarter, in a very considerable estate. On the death of Jairam the entire estate vested in Janardan, and nothing occurred during Janardan's minority to divest him of it. The question is whether he could subsequently divest himself of it by tacitly acquiescing in the will. The dispositions in an invalid will of this sort may be treated as valid, not by virtue of the will but by virtue of a subsequent family settlement, if there is such a settlement. Whether a subsequent tacit acquiescence in the will can be said to amount to an effective family settlement is a point which we do not propose to decide, as we consider that the plaintiff's suit must fail on the ground of adverse possession.

6. The will directed that if Janardan were a minor at the time of Jairam's death, Waman should manage the whole of Janardan's propertor in accordance with the opinions and directions of Gangabai, who was of course the legal guardian of Janardan. Gangabai appointed Waman as one of her agents. Waman applied to the revenue authorities to have the estate mutated according, to the dispositions of the will, and that was done. The proprietary share of Bodegaon and the malik-makbuza land in Dighori and Arher-Nawergaon were recorded in his name and he was appointed lambardar of Bodegaon. Janardan was appointed lambardar of mauza Minthur and presumably of any other villages in the estate, and Waman was appointed lambardar-gumashta. At the settlement of 1921, as we have said, Waman was recorded as the proprietor of Bodegaon and the malik-makbuza land in Dighori and Arher-Nawergaon, and he has ever since 1910 been in open and undisputed possession of this property. The plaintiff and Purshottam (P.W 1), her agent and apparently her principal adviser, admittedly assumed until 1934 that this was Waman's property. The suit was not brought until December 1936.

7. The plaintiff's contention that the suit is not barred by limitation rests almost entirely on the contention that there can be no adverse possession against a minor. That question was considered at length in 45 Mad. 361,1 and the conclusion of the learned Judges was that it cannot be stated as a general proposition that there can be no adverse possession of property which belongs to a lunatic or minor during the continuance of the lunacy or minority of the owner, and that the question has in each case to be decided with reference to the anterior relationship between the person taking possession and the minor or lunatic and to whether any circumstances exist which would entitle the Court to hold that the person who entered into possession did so under circumstances which would in law make him only an agent or bailiff of the minor or lunatic. That decision has been followed or cited with approval in A.I.R 1932 Bom. 23,2 57 Bom. 488,3 A.I.R 1915 Bom. 634 and A.I.R 1928 Oudh 481.5 Mr. Mangalmurti for the plaintiff-appellant referred us to certain remarks in A.I.R 1940 Cal. 5896 and 57 Bom. 488 where it was said that adverse possession would not run against the plaintiffs during their minority; but those statements must be read in relation to the facts of those cases, and we do not think that there was any intention to lay down any general proposition. In ILR 1940 KAR 5347 Lobo, J., after an analysis of the case-law deduced the proposition that minority is no bar to the acquisition of title by adverse possession if the person claiming such adverse possession does not bear to the person against whom he claims it any anterior relationship such as that of agent, bailee, trustee, etc. Subsequently, however, he went on to say that he could not see how title by adverse possession could originate during the minority of the owner as no knowledge of the assertion of a hostile title could be attributed to him. It is not necessary that ouster should be brought to the notice of the competitor, and it is sufficient if the possession is overt and without concealment so that the competitor, if he exercised due diligence, ought to be aware of the ouster; and in 48 Bom. 411,8 Lord Phillimore remarked that to assume that you cannot impute knowledge to a minor is a view which is certainly not in accordance with the facts of human nature. We, therefore, respectfully agree with the view taken in 45 Mad. 361 that there may be adverse possession against a minor.

8. After Jairam's death, Waman, Janardan and Gangabai all lived and messed together, and Waman managed all the family property. The accounts for the various villages were kept separately, but all the income was treated as common. The lower Court has held that Janardan after he left school in 1917 took part in the management of his estate end made-entries in his diary showing that the will was apparently taken to Sayagata on 28-1-1921, that Rs. 150 was entered in the account of Waman on 4-2-1921 on account of the establishment of the Arher-Nawergaon fields, and that Waman was the owner of the fields in Dighori: see Exs. 1 D-35, 40, 41, 42, 43 and 44. The small items of 0-3-0 and 0-1-6 shown in the diary (Ex. 1-D-35), as expenditure incurred when the will was taken to Sayagata, appear also in the account books produced by the plaintiff, but a small portion has been eaten or cut out so that the purpose for which this money was spent is not shown there. The plaintiff contends that this portion was eaten by white ants. It is a curious coincidence that just this portion should be missing, and it does not look to us as if white ants were responsible for this. There is the evidence of Prabhakar to (D.W 8) and Vishwanath (D.W 18), as well as that of Waman himself (D.W 1), to show that these entries in the diary of Janardan were made by Janardan, and we see no reason to suspect otherwise. There is considerable evidence, as the lower Court has pointed out, to show that Janardan took part in the management of his property, and it was natural enough that he should show Waman as the owner of the Dighori land.

9. Janardan as a lambardar would naturally have been summoned before the Settlement or Assistant Settlement Officer, and there is the evidence of a very respectable witness, Wamanrao (D.W 2), a Tahsildar and landlord, that he and Janardan both appeared before the Assistant Settlement Officer of Brahmapuri in the beginning of 1921. Janardan must also have been well aware that he was not the lambardar of Bodegaon. It has been argued that possession can never be adverse if it can be referred to a lawful title, and that Waman was in a fiduciary position in regard to Janardan, as he was the agent of Janardan's, guardian. In accordance with the terms of the will Waman looked after the property left to Janardan by that will, and in so far as that property was concerned it may be said that he stood in a fiduciary relationship to Janardan. Waman was the natural brother of Janardan, but Janardan had passed into another family, and Waman was not his guardian, and as regards the property left by the will to Waman, Waman was under no obligation to Janardan. Waman clearly entered into possession on his own account, and the possession cannot be referred to a lawful title. It is said that because the income from all the family property was thrown into the hotchpot Waman's possession is not adverse; the mere fact, however, that they happened to live together and treated the income as common property as a matter of convenience while they lived together would not show that Waman's possession was permissive and not adverse to Janardan. In 1922, after Janardan's death Waman left the house and had no further connexion with Gangabai and Maltibai and thereafter his possession was adverse beyond all dispute because he was recorded at the settlement of 1921 as the owner of the property in suit. Once it is held that there can be adverse possession against a minor, it follows that, whatever the position was before 1922, the possession was adverse from 1922 onwards and that any suit would be barred after 1934. Therefore, whether Article 142 or Article 144 applies, the position is the same and the suit must fail as barred by limitation.

10. The appeal fails and is dismissed with costs.

11. Appeal dismissed.