1. This is a defendants' appeal from a reversing judgment of the District Judge, Wardha. The following pedigree will serve to elucidate the facts in the present case:
2. The plaintiff Mt. Madki claims, as the daughter of Shrawan, her half-share in certain malik makbuza, absolute occupancy and occupancy lands.
3. These fields devolved on Shrawan and Sakharam on their father's death in 1914. Shrawan died in 1918, subsequent to his wife's death, so that Mt. Madki was left an orphan. She was then a year old and was brought up by her uncle Sakharam. After his death in 1921 she was looked after by her grandmother Mt. Bukhmi who died in 1922. Thereafter she was under the protection of her grand-uncle Bhanji and after him of the defendants. In 1930 she was married to one Vithal who figured as her next friend in the suit. The cause of action was stated to have arisen in 1932 when a demand for delivering possession of her share was refused by the defendants. It is unnecessary to narrate the pleadings in the case as the question which arises upon this appeal is whether the suit was barred by limitation. The suit was dismissed in to by the original Court but succeeded on appeal in respect of the tenancy holdings. The lower Appellate Court held that the defendants' possession did not become adverse to the plaintiff until 1932 when they refused to comply with the demand made on behalf of the plaintiff to hand over her share to her. On behalf of the appellants who are defendants in the case, it is contended that the suit in view of Article 1 of Sch. 2 to the C.P Tenancy Act, 1920, was barred by time. That Article provides two years period of limitation for a suit for possession of a holding of a person claiming to be a tenant from which he has been dispossessed or excluded from possession by any person and says that the limitation runs from the date of dispossession or exclusion.
4. The question in this appeal is whether the plaintiff was ever excluded or dispossessed from her half-share in the tenancy holding. Both the Courts below while repelling the plaintiff's contention as to partition between Shrawan and Sakharam held that Shrawan's half-share in the holdings, both absolute occupancy and occupancy, devolved on Mt. Madki, his daughter. The appellants are also bound by the lower Appellate Court's finding that after Shrawan's death Sakharam became the plaintiff's guardian, after him Bhanji, and after him the defendants. All those who came into possession of the fields happened to be the guardians of the plaintiff under her personal law. Besides being guardians, they were co-owners with the plaintiff. Was there any dispossession or exclusion from possession by them of their ward and co-owner at any time? There is no positive evidence on the point. It is true that there was something like a partition of these fields between Bhanji and defendants 1 to 3. Maruti, defendant 5, is unconcerned and has taken an indifferent attitude in the present case. The mere fact of partition would imply neither denial of plaintiff's title nor her ouster. The exclusive possession of the defendants who were in fact co-owners with the plaintiff could not be adverse to her unless they repudiated her title which it is not proved they did: see, 11 NLR 164.1 It was held in 31 NLR Sup 92 that Article 1 of Sch. 2 to the C.P Tenancy Act has no application to a co-tenant claiming to be in exclusive possession of a holding and that the ordinary law of limitation applies to such a case. Even granting for the moment that there was an ouster by the defendants of the plaintiff in consequence of the partition in 1922, the suit having been filed within 12 years from that date would not be barred by limitation. Neither Sakharam nor Bhanji had ever set up any hostile title against the plaintiff. Consequently if there be any invasion of plaintiff's title, that occurred only in 1922 when the partition took place.
5. Nor can it be overlooked that the defendants and before them Bhanji and Sakharam were in the position of guardians in relation to the plaintiff. During the period of their guardianship, they could not be heard to set up any adverse title: see, 35 Bom 79.3 Their possession would be deemed to have been that of bailiff or agent on behalf of their ward but not hostile to her. In 55 MLJ 7334 it was held that the question of limitation does not arise in a case when guardian is himself in possession of the ward's property. It is not open to a person who takes charge of a minor and his property to plead that as regards his property his possession was adverse to him. It was pointed out in that case that so long as a person is in charge of the minor's property as a guardian, that person is only an agent or trustee and cannot set up adverse possession. This view accords with the common law of England which regards whoever enters on the estate of an infant, enters as a guardian or bailiff for the infant: see, 43 ER 3075 and also 17 Eq 378.6 The lower Appellate Court was therefore right in holding that the suit was not barred by time. This appeal stands dismissed with costs. The cross-objections stand also consequentially dismissed with costs.
D.S/R.K
6. Appeal and cross-objections dismissed.