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The Limitation Act, 1963
Section 4 in The Limitation Act, 1963
Article 144 in The Constitution Of India 1949

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Bombay High Court
Fakirgowda Basangowda Patil vs Dyamawa Gowdappagowda Patil on 20 December, 1932
Equivalent citations: (1933) 35 BOMLR 418, 145 Ind Cas 262
Author: Patkar
Bench: Patkar, Barlee

JUDGMENT

Patkar, J.

1. In this case the plaintiff sues to recover by partition one-third share of the suit properties which consist of watan as well as non-watan properties mentioned in the plaint. The defendant contended first that the decision in suit No. 1 of 1905 operated as res judicata, secondly, that the claim of the plaintiff was barred by limitation, and, thirdly, that with regard to the watan lands he was the preferable heir under Bombay Act V of 1886.

2. One Chanbasangauda died in 1877 leaving a widow Basava who died in 1879. They left a daughter Sankava who was married to the defendant. Sankava died in February 1902 leaving three daughters Dyamava, the plaintiff, Savantrava and Gangava. The present suit is brought by Dyamava against her father in respect of one-third share of both watan and non-watan properties which were inherited by Sankava from her parents.

3. The learned Subordinate Judge held that the decision in suit No. 1 of 1905 did not operate as res judicata, secondly, that the father was not entitled to preference in respect of the watan property, and, thirdly, that the plaintiff's suit was within time as there was no adverse possession of the father either in respect of the watan property or non-watan property. The defendant appeals.

4. The first question is whether the decision in suit No. 1 of 1905 operates as res judicata. That was a suit brought by the defendant, on behalf of himself and his three daughters including the plaintiff, who were minors and were represented by the defendant as their guardian, against one Basangauda who belonged to the original watan family of Chanbasangauda. In para. 3 of the plaint the defendant, who was plaintiff No. 1, stated that he and his daughters, who were plaintiffs Nos. 2, 3 and 4, were the heirs of the said Sankava and were enjoying the properties by virtue of their right as owners thereof. The District Judge held that prima facie the daughters, who were plaintiffs Nos. 2, 3 and 4, were heirs to their mother Sankava, and if, as females, they were barred by any special enactment, their father succeeded. The decree declared that the defendant Fakirgowda, who was plaintiff No. 1 in that case, was a watandar and had a preferential right as between himself and the defendants to have his name registered as watandar Patil and Kulkarni of the villages named in the plaint. In Appeal No. 50 of 1907, the decree of the lower Court was confirmed by the High Court on November 13, 1907.

5. It appears from the plaint that there was no conflict between the plaintiffs inter se. Plaintiff No. 1 alleged that he was the heir if plaintiffs Nos. 2, 3 and 4, who were his daughters, were not entitled to the property. Plaintiffs Nos. 2, 3 and 4 were minors and plaintiff No. 1, the present defendant before us, was the guardian of the minors. It does not appear that there was any contest as between the plaintiffs inter se. If that is so, the principle of the decisions of the Privy Council in the cases of Munni Bibi v. Tirloki Nath (1931) L.K. 58 I.A. 151, s. c. 33 Bom. L.R. 979 and Maung Sein Bone v. Ma Pan Nyun (1032) 34 Bom. L.R. 1040, P.C., which related to a dispute between the defendants inter so, would apply. The decision resulted in divesting Basangauda, who belonged to the original watan family, of any right to the watan property, but it did not decide the rights of the plaintiffs inter se. It would, therefore, follow that the decision in that case would not operate as res judicata as between the present plaintiff and the defendant. It also appears that it was not necessary to decide the rights between the plaintiffs inter se in that case for the purpose of granting relief against the defendant. See Rakhmini v. Dhondo (1911) 14 Bom. L.R. 128. The appeal was filed in the High Court by the defeated defendant against the present defendant and the minor daughters, who were represented by the present defendant as their guardian. I think, therefore, that the previous decision does not operate as res judicata in the present litigation.

6. The next question is whether the plaintiff as the daughter claiming to succeed to Sankava is postponed to the defendant by Section 2 of Bombay Act V of 1886. There is no doubt that on the death of Sankava her three daughters would be entitled as heirs to the watan property as well as to the non-watan property in the absence of any enactment postponing their right of inheritance.

7. I will first deal with the watan property as the question under Bombay Act V of 1886 relates only to the watan property. On behalf of the appellant it is contended that after Sankava inherited the property of Chanbasangauda she went by marriage into the family of her husband, the defendant, and became a fresh stock of descent, and the inheritance, therefore, must be traced to Sankava, and if Bombay Act V of 1886 applied, the female would be postponed to the male heir of Sankava. It is contended on behalf of the respondent that if Bombay Act V of 1886 applied, the defendant, the husband, is not entitled to be preferred to the daughter Dyamava on the ground that he did not belong to the family of Sankava, who became the acquirer of the watan, and that the member of the watan family, entitled to inherit, must be a watandar under Section 4 of the Watan Act, and that the word "family" includes each of the branches of the family descended from the original watandar. It is, therefore, contended that only the persons, who are the descendants of Sankava, are entitled to the property, and the husband of Sankava could not be said to inherit the property by descent.

8. Section 2 of Bombay Act V of 1886 runs as follows:-

Every female member of a watan family other than the widow, mother or paternal grandmother of the last male owner, and every person claiming through a female, shall be postponed in the order of succession to any watan, or part thereof, or interest therein, devolving by inheritance after the date when this Act comas into force, to every male member of the family qualified to inherit such watan, or part thereof, or interest therein.

9. The question, therefore, is whether the defendant is a member of the family of Sankava who acquired the watan, and whether he is qualified to inherit such watan or part thereof or interest therein, Sankava got the property by inheritance before Bombay Act V of 1886 came into force. It is common ground that Sankava after she acquired the watan became a watandar and also a fresh stock of descant for purposes of inheritance. After she got the property Bombay Act V of 1886 was enacted and would apply to the succession on her death. The object of Bombay Act V of 1886 is to prevent the property from going from the original watan family into another family. According to Hindu law prevalent in this Presidency women coming into the family by marriage take a limited interest whereas women going out of the family by marriage into another family, such as daughters and sisters, take an absolute estate. In order to prevent the property going into another family Bombay Act V of 1886 was enacted. The genesis of the Act together with the history of the law bearing on the point has been discussed in the case of Hanmant v. Secretary of State (1929) 32 Bom, L.R. 155, 161.

10. Apart from the decided cases, the section itself shows that the widow, the mother or the paternal grandmother are entitled to inherit watan property. A female other than the widow, mother or paternal grand-mother is postponed to a male member of the family. The widow, mother and paternal grandmother is not so postponed because the widow, mother and paternal grandmother take a limited estate and the estate would not go out of the watan family. The widow, mother and paternal grandmother are admittedly members of the watan family according to Section 2. If the contention of the respondent is accepted that a member of a watan family can only be a member if he inherits by way of descent, it is difficult to follow the language of the Act which makes a widow, mother and paternal grandmother members of the watan family, except on the hypothesis that they become members of the watan family by marriage. If a person can become a member of a watan family by marriage, the question in the present case is which is the family to which Sankava belonged. Sankava by her marriage went into the family of the defendant and it is the defendant's family which has become the watandar family. The defendant's family is the watandar family, for the acquirer of the watan was Sankava. The words "devolving by inheritance" are not restricted to inheritance by way of descent.

11. The question in the present case arises in respect of the watan property which was inherited by a daughter before Bombay Act V of 1886 came into operation. In such a case if the daughter succeeds to the property and dies unmarried without any issue, she would remain a member of the original watan family and no difficulty would arise. If she remained unmarried and led an unchaste life and had children, then after the enactment of Bombay Act V of 1886, as between her children the male would be preferred to the female. That point is covered by the decision in the case of Balai v. Subba (1926) 29 Bom. L.R. 246. Where a daughter who has acquired by inheritance watan property before Bombay Act V of 1886 marries, she must be considered to have entered by marriage the family of her husband, and her family is the family of her husband. The question, therefore, is whether the husband is a member of such family qualified to inherit such watan.

12. Reference was made to the decision in the case of Bai Laxmi v. Maganlal (1917) I.L.R. 41 Bom. 677, s.c. 19 Bom. L.R. 730, where the dictionary meaning of the word "family "was accepted for the elucidation of the point arising in that case. There the dispute was between the daughters who belonged to one branch of the family and a male member belonging to another branch of the family which was not descended from the common watandar, and it was held that as the competing male heir neither belonged to the watandar's family nor was he descended from a common progenitor, he was not a male member of the watan family who would exclude the females. In the present case we are concerned with one family and one family only and that is Sankava's family which for all practical purposes must be considered to be her husband's family, and the male member who is competing with the female member of the family belongs to the family of Sankava which is the family of her husband. I have, therefore, no doubt that the defendant is a member of Sankava's family, and is also qualified to inherit such watan.

13. The property inherited by Sankava was stridhan property and the property would go to her issue and in the absence of any issue it would go to her husband, the defendant, and in the absence of the husband to the nearest sapinda in her husband's family. The heirs to succeed to the stridhan are the heirs of the woman herself, though her heirs in the husband's family: Manilal Rewadat v. Bai Rewa (1892) I.L.R. 17 Bom. 758. I think, therefore, that the defendant is a male member of Sankava's. family qualified to inherit such watan.

14. The word "watandar" which occurs in Section 5 of the Watan Act does not appear in Section 2 of Bombay Act V of 1886. It is, therefore, unnecessary to consider the definition of "watandar" in Section 4 of the Watan Act, which was relied on on behalf of the respondent, that "watandar" means a person having an hereditary interest in a watan. It was contended on behalf of the respondent that "hereditary interest in a watan" means an interest which has come by inheritance by way of descent. In Chinava v. Bhimangauda (1896) I.L.R. 21 Bom. 787, it was held that the expression in Section 4, "person having an hereditary interest in a watan," means a person having a present interest of an hereditary character in the watan, and that "hereditary interest" means an interest acquired by inheritance as distinguished from an interest acquired by purchase, gift or other modes of acquisition. The defendant has an interest by way of inheritance) to the stridhan of Sankava.

15. Reliance is, however, placed on the definition of the word "family" which according to Section 4 includes each of the branches of the family descended from the original watandar, and it is, therefore, contended that the husband is not included in that definition. The definition of the word in Section 4 is an inclusive and not exclusive definition. It does not exclude other persons who can be members of the family, and if, according to the plain reading of Section 2, the widow, mother or paternal grand-mother can become a member of the watan family by marriage, it would follow that Sankava became a member of her husband's family and her family must be considered to be her husband's family. I have already observed that the dictionary meaning which was adopted in Bai Laxmi v. Maganlal (1917) I.L.R. 41 Bom. 677, s. c. 19 Bom. L.R. 730 was for the purposes of that case. One of the dictionary meanings of the word "family" signified "those descended (really or putatively) from the common progenitor." Another dictionary meaning of the word "family" is the collective body of persons who live in one house and under one head or manager, or a household including parents and children and the household would not exclude the husband. It has been held that the word "family" is used in its ordinary meaning according to the decisions in Bai Laxmi v. Maganlal and Balai v. Subba (1926) 29 Bom. L.R. 246.

16. As observed in Bai Laxmi's case the original watandar is the source of title to succession or services according to the scheme of the Act and also a 53 of the Act, The male member under Section 2 of Bombay Act V of 1886 must either be a member of the family of the watandar or a person descended from a common progenitor who was the original watandar. In Bai Laxmi's case Jamietram and his sons, the plaintiffs in that case, were not members of the family of Dinanath, therefore it was necessary to consider whether they were descended from a common progenitor Gopinath whose name appeared in the watan register and it was found that they were not so descended. In the present case the defendant is a member of the family of Sankava, the acquirer of the watan, because Sankava has no family except the family of her husband which she entered by marriage.

17. Having regard to the watan character of the property it is unnecessary to go into the question whether Sankava could have made a gift or bequest of the property inherited by her without the consent of her husband. In the case of any property inherited by a daughter from her parents, it would be her stridhan bat not of saudayik character, and she would not be able to dispose of it without the consent of her husband. See Bhau v. Raghunath (1905) I.L.R. 30 Bom. 299, s.c. 7 Bom. L.R. 936, It is, therefore, difficult to hold that the defendant is not the member of the family which Sankava entered by marriage.

18. In Rahimkhan v. Fatu Bibi (1895) I.L.R. 21 Bom. 118 a watan having devolved on the widow and daughter of a deceased Mahomedan as his heirs, and each having become owner of her share in it, in so far as a watan can be held in ownership, it was held that on the death of the widow in 1890, having no qualified male heirs, the daughter was entitled to succeed as her heir. In the judgment in that case it was observed that on the death of Aisha her heirs were entitled to succeed, males probably in preference to females, but the point under consideration did not arise for decision.

19. The point was, however, considered in Hanmant v. Secretary of State (1929) 32 Bom. L.R. 155, where it was held that the watan which was inherited by the daughter was an absolute estate and the inheritance would be traced to her as she became a fresh stock of descent, i. e., a fresh source of devolution. In the judgments in that case the family of Huchava was considered as the family of her husband Bhimbhat, and it was observed as follows (p. 165):- The property being the stridhan of Huchava, her heirs would be first, her daughters, then daughter's daughters and daughter's sons, sons and son's sons, and in the absence of any issue her stridhan would pass, if married in an approved form, to her husband and her husband's heirs, i. e., those who are nearest to her in her husband's family, and if she was married in an unapproved form, to her parents and those who are nearer to her in her father's family.

20. It was unnecessary to go into the question as to priority between daughters and sons according to Mitakshara and Mayukha as regards non-technical stridhan, In that case the conflict was eventually between one daughter and the sons of a deceased daughter. So far as the competing member of the original family was concerned, his rights were negatived. But so far as the inheritance to Huchava was concerned, the heirs were considered as among the family of Huchava's husband Bhimbhat. It is pertinent to observe that in Hanmant's case reliance was placed on the decision in Chanbasangauda v. Fakirgauda, (1907) V.A. No. 50 of 1907, by Chandavarkar and Heaton decided JJ., on November 13, 1907 (Unrep.) which confirmed the decision of the District Judge, Exhibit 29, and which is relied on as operating as res judicata between the parties to the present suit. I think, therefore, that under Bombay Act V of 1886, Section 2, the daughters are postponed to the father, the defendant, so far as the watan property is concerned.

21. The plaintiff's suit, therefore, with regard to the watan property must be dismissed.

22. The suit of the plaintiff with regard to the watan property having been dismissed, it is unnecessary to go into the question of adverse possession of the defendant so far as the watan property is concerned.

23. The last question is whether the plaintiff's claim with regard to the non-watan property is barred by limitation. It is contended on behalf of the appellant that the plaintiff's claim is time-barred, for in the year 1902, in the application, Exhibit 195, the defendant applied for his name being brought on the record. But it appears that in that application he did not deny the right of the daughters. On the other hand, he stated in that application as follows :-" The Khata and rights should be transferred to my name. If they cannot be transferred to my name they should be transferred to the name of my eldest daughter Dyamava." The litigation of 1905 was conducted by the defendant in his own right and also as guardian of his daughters. There was no conflict between the defendant and his daughters in that litigation. Reliance is placed on behalf of the appellant on an application, Exhibit 200, dated March 14, 1910, and an order, Exhibit 34, dated May 25, 1910, which resulted in the transfer of all the lands including nonwatan lands to the name of the defendant, and it is contended on behalf of the appellant that his possession was adverse since that date.

24. It is further contended that the plaintiff's husband knew of the litigation, and the defendant had been all along paying assessment and taking rents of the non-watan property, and the possession of the defendant was adverse at least from May 25, 1910. It appears that Dyamava was born in 1896. She was married in 1910, some time after the order, Exhibit 34, of May 25, 1910, and she attained majority in 1914, and the present suit was brought on June 25, 1923. It is, therefore, contended on behalf of the respondent that during the previous litigation and the revenue inquiries even if the defendant set up an adverse right in himself, he was also the guardian of the minors including the present plaintiff, and whatever he did or said could not be adverse to the minors unless his adverse right was brought to the knowledge of the minors including the plaintiff after they attains & majority. On the other hand, it is contended that after the marriage the guardianship of the father came to an end and the husband became the guardian of the plaintiff, and the suit ought to have been brought within twelve years from 1910. It appears, however, from the deposition of the defendant that he admitted that he was the guardian of the three daughters till they came of age, and he acted for them in the heirship inquiry. In his first application he applied that the property of Sankava should be entered in his name, and if not in his, then in the names of his daughters. In the litigation he figured as the next friend of the three daughters. He also admitted that he had no documents to show that in any revenue or civil Court he asserted his heirship and that the daughters were not entitled to the heirship or that any inquiry was made on that assertion of his. He had no evidence to show that he ever asserted his title to his wife's property adversely to his, daughters. He also admitted that he was in possession and enjoyment of the property as he was before Sankava's death.

25. In Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite (1910) I.L.R. 33 Bom. 79, s. c. 12 Bom. L.R. 956 it was observed as follows (p. 89):-

But the law is, as pointed out by Lord Hardwicke in Morgan v. Morgan (1737) 1 Atk. 489, `where any person, whether a father or a stranger, enters upon the estate of an infant, and continues the possession, this court will consider such person entering as a guardian to the infant': (see other decisions to the same effect collated in the notes to the case of Taylor v. Horde, Smith's Leading Cases, Vol. II, 10th Edn., pp. 644 and 646). Ambu's possession must, therefore, be deemed to have begun as that of bailiff or agent for the minors and to have continued as such until, after the minors had arrived at the age of majority, she did something to convert it into a wrongful possession on her own account.

26. A similar view was taken in Sriramulu Naidu v. Andalammal (1906) I.L.R. 30 Mad. 145, 147. The facts of the present case are adjacent to the facts in the case of Wall v. Stanwick (1887) 34 Ch. D. 763, where it was held that though on the daughter's marriage the right to receive the rents passed to the husband, this did not change the character of the mother's possession. The presumption is that the possession of the guardian is on behalf of the infant, and it continues in the same character unless something is done to change the character of such possession. See In re Hobbs. Hobbs v. Wade (1887) 36 Ch. D. 553, 557.

27. A distinction has to be drawn between the possession of a father as the guardian of the minors and the possession of a stranger between whom and the minor there is no antecedent relationship. The question has been discussed in Seetaramaraju v. Subbaraju (1921) I.L.R. 45 Mad. 361, in which the English law has been discussed, including the case of Thomas v. Thomas (1855) 2 K. & J. 79, where it was held that where a father entered upon the estate of his infant children the presumption was that he entered as their guardian and bailiff and that limitation would not begin to run against the children until they attained twenty-one.

28. The question in the present case is whether the defendant has established his adverse possession under Article 144 of the Indian Limitation Act. The applications and the orders that were made in 1910 were at a time when the defendant was the guardian of the present plaintiff. Till the plaintiff was married in 1910, she was living with her father, the defendant, who was her guardian. After the order the plaintiff was married. She attained majority in 1914, within twelve years before suit, and there is no evidence in the case to show that after the plaintiff was married or attained majority there was anything done by the defendant in order to give her or her husband notice that he was holding adversely to the present plaintiff till six years before suit when there was an altercation between the plaintiff and the defendant. The learned Subordinate Judge was of opinion that the original trusteeship might very easily have changed into nominal tenancy, and believed the evidence on behalf of the plaintiff' that the land was let to the defendant and she received rents and profits of the land occasionally. It appears from the evidence that she went back to her father's place and resided there for an year or two. Even if the evidence which has been believed by the learned Judge be discarded, I think the evidence on the record fails to show that there was any overt act after the marriage of the plaintiff and before she attained majority, which gave her clear notice that her father was holding adversely to her. The plaintiff attained majority within twelve years before suit. In these circumstances I think the contention of the defendant that he acquired adverse possession with regard to the non-watan lands must fail.

29. The result, therefore, is that the decree of the lower Court will be varied by dismissing the plaintiff's suit with regard to the watan lands, namely, items Nos. 2, 4, 5, 6 and 7 in Schedule A. The rest of the claim will have to be allowed. The defendant mast give to the plaintiff one-third share in the non-watan properties in suit after a fair and equitable partition and should pay mesne profits of the said one-third share from the date of suit till the date of delivery of possession. Enquiry as to mesne profits should be held under Order XX, Rule 12. We set aside the order with regard to interest on mesne profits and also interest on costs.

30. Costs must follow the event. The order will be costs in proportion throughout.

Barlee, J.

31. I agree. The plaintiff sued as one of the three daughters of Sankava, deceased, for her one-third share of her mother's property. Sankava was the daughter of a watandar called Chanbasangauda who died in 1877 leaving a widow who succeeded him and died in 1879. On the death of the widow Sankava succeeded to the watan property. That was before the Act of 1886 when there was no bar to the succession of a woman. She was married to the appellant Fakirgowda by whom she had throe daughters. She died in 1902 leaving her surviving her husband, and her three minor daughters, of whom the eldest, the present plaintiff Dyamava, was only six years old. The father applied to have his name entered as heir to both the watan and non-watan properties, which had belonged to his wife, and in the alternative for the name of the eldest daughter Dyamava to be entered. Dyamava's name was entered to the non-watan property but the name of a member of the original watan family, that is Chanbasangauda's family, was entered for the watan property. The father, therefore, sued and joined with him, as co-plaintiffs, his three minor daughters. The suit was No. 1 of 1905. He was successful, and the District Judge made a decree in his favour that he was entitled to be entered as the watandar. On the strength of this decree he applied in 1910 to have his name entered instead of his daughter's name to the non-watan properties.

32. Now all this time he was not only a claimant to his wife's estate but the guardian of his three minor daughters. In 1910, the eldest girl, the present plaintiff, was married, some time after the last application, which I have mentioned, by which the defendant had his name substituted for hers, and she went to live at the village called Harti in the Gadag taluka, which, we are told, is about 100 miles from Ranebennur where the watan property is situate and where her father was and is living. From that day up to 1922 there was no dispute between her and her father. There is no evidence worth the name that she ever received any profits of the properties. 1 agree with my learned brother that the evidence, which she brought at the trial of this suit, of receipt of profits is worthless. In 1922 admittedly there were disputes, and on June 15, 1923, she filed this suit to get a one-third share.

33. The important questions we have to decide are whether she is the rightful heir of the watan properties or whether her father is the rightful heir under the watan law, and, secondly, in view of the fact that the daughters were heirs of the non-watan property, whether the father has acquired title by adverse possession. The law as regards the succession to watan property is contained in Bombay Act V of 1886 which was passed to amend Bombay Act III of 1874, the Hereditary Offices Act, to prevent watan property from leaving the watan family. With that object it provided that every female member of the watan family other than the widow, mother or paternal grandmother (the female heirs who take a limited estate) of the last male owner shall be postponed in the order of succession to any watan to every male member of the family qualified to inherit such watan. Now, according to the decision of the District Court in Civil Suit No. 1 of 1905 which was confirmed by this Court and has since been approved in Hanmant v. Secretary of State (1929) 32 Bom. L.R. 155, when Sankava succeeded to the watan property it left the family of the original watandar Chanbasangauda, and the watan family is, therefore, the family of Sankava the deceased, who became a watandar because she had legally acquired the watan property subsequent to the introduction of the British rule. The defendant claims that he is the only male member of his wife's family and that his daughter must be postponed to him in the succession. The other side denies that ho is the member of his wife's family, and, secondly, denies that he is a qualified member. Now, it is difficult to hold that the husband and wife belong to different families. In fact, the argument on behalf of the plaintiff in this connection goes too far. If only the members of Sankava's family can succeed to her, the plaintiff herself certainly cannot succeed, because it is beyond doubt that a daughter belongs to the family of her father. It is impossible to say that a husband and wife belong to two different families. They belong to the same family and it is just as correct to say that a husband belongs to his wife's family as that a wife belongs to her husband's family.

34. Then the question comes whether Fakirgowda is qualified, and it is suggested by Mr. Coyajee and Mr. Nilkant, who have argued the case for the plaintiff, that only those persons are qualified, who are the descendants of the original watandar. This argument is based on the definition of "family" which is given in Section 4 of the Act and runs, "'family' includes each of the branches of the family descended from an original watandar". It is contended that the family of an original watandar includes none but his or her descendants. But I am unable to accept this view. The definition is an inclusive one. It says that the branches of the family descended from the original watandar are to be included in the watan family ; it does not say that the family of the original watandar himself is to be excluded. I am unable then to agree with the learned advocates when they argue that the husband of the deceased lady does not belong to her family or that he is not qualified to succeed to her and to the watan estate.

35. The appeal, therefore, succeeds as regards the watan property.

36. The other question of importance is whether the father has obtained a good title by adverse possession. The suit was filed, as I have said, on June 15, 1923, and therefore, he had to show that his possession became adverse before June 15, 1911. Mr. Thakor relies on various adverse acts done by his client prior to 1910. He distinguishes the cases such as those of Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite (1910) I.L.R. 30 Bom. 79, s. c. 12 Bom. L.R. 956 and Sriramulu Naidu v. Andalammal (1906) I.L.R. 30 Mad., 145, by saying that the father did not enter on the property as guardian but all along was claiming as heir and entered on his own behalf. This may be conceded because apparently he was in possession at the time of his wife's death, and after his wife's death he claimed to be her heir. Nevertheless, he had a dual capacity. He was not only a claimant but was at the same time the guardian of his minor daughters, and he continued to be and to act as their guardian up to the date of the marriage of Dyamava, and after that date he was the guardian of the other daughter. I am unable to agree, then, that any acts done by him in the years 1902 to 1910 can be reckoned as adverse in the sense that they were overt acts of adverse possession.

37. Next, for the purposes of this case we can assume that Dyamava got married some time about the middle of 1910. She had a daughter born at the end of 1911, so it appears safe to accept 1910 as the year of her marriage. Therefore, we have a period between the middle of 1910 and the middle of 1911, that is the date which I have mentioned as within twelve years before the suit, during which period some adverse act must be shown, and no definite overt act is alleged to have been done during this period. Mr. Thakor has to fall back on the negative conduct of his client in not sending the produce of the land or any profits of the property to Dyamava or her husband during this period. I agree with my learned brother that we cannot say that the mere non-receipt of profits for that period amounted to a notice to Dyamava or her husband that her father was claiming the property adversely to her. We must remember that the property was at Ranebennur about 100 miles from Harti and that, after he ceased to be the guardian of his daughter Dyamava, he was still the guardian of the other daughter and the natural manager of the property. It was quite natural, then, that he should remain in management, and, though the failure to send profits for a very considerable period might amount to notice, I do not think that the period was long enough in this case. Mr. Thakor relies also on the fact that her husband knew at the time of the marriage of the decision in the suit No. 1 of 1905. That is admitted, but the decision in the suit of 1905 referred to the watan property and not to the property with which we are now concerned.

38. Lastly, the learned counsel has laid stress on the fact that the uncle of the plaintiff's husband attested an endorsement on a document on behalf of Fakirgowda the father. In 1904 the latter had mortgaged some of these properties as belonging to himself, and in 1913 he paid off the mortgage, and the endorsement of payment was attested by an uncle of Dyamava's husband. But apart from the fact that this attestation took place outside our period, i. e., within twelve years, it is difficult to hold that a man has notice of the contents of a document which he attests in this manner.

39. For these reasons I agree with my learned brother that the defence of adverse possession has not been made out, and that the appeal must fail to this extent.