JUDGMENT Banerji and Aikman, JJ.
1. The following pedigree shows the relationship between the principal parties to the suit out of which this appeal has arisen:
Karamat Ali | _____________________________________________________________________________________ | | | | | Hashmat Ali, Altaf Ali, Mubarak-un-nissa, Latif-un-nissa, Sakina Begam, sou. son, died daughter. daughter. daughter, | childless. | | Dft. No. 5.
2. The property in suit originally belonged to Karamat Ali, who died about fifty years ago, leaving him surviving his two sons and three daughters, who were heirs to his estate. The names of his sons alone, however, were entered in the revenue papers, and on the death of Altaf Ali the name of Hash-mat Ali alone was recorded, although the right to his share devolved on his. surviving brother and sisters. Upon Hashmat Ali's death the names of his sons and daughter, who are the first four defendants to the suit, were entered in respect of the whole property.
3. The first and second plaintiff's are the sons of Latif-un-nissa, and the third plaintiff is a daughter of Mubarak-un-nissa. The fourth plaintiff is the purchaser from the other plaintiff's of a portion of what is alleged to be their share of the estate of Karamat Ali and she is evidently financing the suit. The extent of the legal share of the first three plaintiffs is 35 sihams out of 140, i.e., one-fourth.
4. The plaintiffs allege that they have all along been in possession of their share jointly with the other heirs of Karamat Ali, bub the first four defendants now dispute their title. The plaintiffs therefore brought this suit for establishment of their right to a fourth share, for possession of that share and for partition of certain houses.
5. The main defence to the suit was that of limitation. The lower Court has allowed it and has dismissed the claim.
6. As regards a portion of the property claimed, namely, the resumed muafi lands in kasba Khurja, the plea of limitation cannot prevail. Those lands were mortgaged by the ancestor and were in the possession of the mortgagee. The mortgage having been discharged out of the usufruct, it was redeemed by the defendants Nos. 1 to 4 in 1888, when they took possession. The possession of the mortgagee was the possession of all the persons who had the right of redemption, that is, of the persons entitled to the estate. It was only when, after redemption, possession was taken by the first four defendants that their possession became adverse to the plaintiffs. As thesuit was broughtwithin twelve years from the date of the defendants' possession, it was, as regards this part of the claim, within time. The Court below has evidently erred in dismissing this portion of the claim as barred by limitation. There is no question as to the title of the plaintiffs and the extent of their share. So far as the muafi lands are concerned their title has not become extinct by lapse of time, and they are entitled to a decree.
7. With regard to the remainder of the property it is contended that the suit is governed by Article 144 of the second schedule to Act No. XV of 1877, and that the burden of proof was on the defendants to establish the adverse possession alleged by them. In our opinion in every suit for possession, the plaintiff must prove not only a legal title to possession, but a subsisting title not barred by the law of limitation. The effect of that law is not only to bar the remedy on the expiry of the prescribed period of limitation, but to extinguish the right (vide Section 28 of Act No. XV of 1877). It is therefore for the plaintiff to show by some primd facie evidence that he has a subsisting title not extinguished by the operation of limitation before the defendant can foe called upon to substantiate his plea of adverse possession. This was held by this Court in Parmanand Misr v. Sahib Ali I.L.R. 11 All. 432, and Jafar Husain v. Mashuq Ali I.L.R. 14 All. 193.
8. The quantum of evidence which it will be necessary for the plaintiff to adduce will depend on the circumstances of each case. In some instances very slight evidence may be sufficient to shift the burden of proof on the defendant. We agree with the observation of the learned Judges in Fazal Karim v. Umda Bibi Weekly Notes 1884, p. 171, that in dealing with the question of possession as between brothers and sisters in native families regard must be had "to the conditions of life under which such families live " and to the fact that in such families the management of the property of the family is, by reason of the seclusion of the female members, ordinarily left in the hands of the male members. In the case of such families slight evidence of enjoyment of income arising from the property is sufficient prima facie proof of possession. In the suit before us the evidence adduced by the plaintiff hardly amounts to such proof.
[The rest of the judgment in this case deals mainly with the evidence in the case and therefore is not reported--Ed.]