Judgement Appeal from a decree of the High Court (March 25, 1896) reversing a decree of the District Judge of Ganjam (Oct. 17, 1894) and decreeing the respondents suit with costs. The suit was brought to obtain a partition of two villages in which the respondent claimed to be jointly interested with the appellant. The question for decision was whether a grant made originally in the sole name of the appellants father was made and held for the joint benefit of the grantee and his brother, father of the respondent, or whether it was made and held for the exclusive benefit of the grantee and his descendants. Upon this question the Courts in India differed, the original Court holding in favour of 6 Law. Rep. 28 Ind. App. 81 ( 1900- 1901) Vasudeva Padhi Khadanga Garu v. Maguni Devan Bakshi 17 the appellant, the High Court in favour of the respondent. The plaint filed in 1891 claimed partition of the two main villages in dispute, namely, Rajendrapuram and Brundurana Chandrapuram, and mesne profits in respect of the plaintiffs half-share from the date of his dispossession in 1888. The appellant denied a joint possession up to 1888. He claimed sole title under the grant to his father, and asserted that during his minority the plaintiff had concealed from him the nature of his interest, and had been taking a portion of the income by collusion with the ryots. He alleged that when he came of age he became aware of the fact and entered into sole possession in 1878, which possession was uninterrupted till the present time. He also set up the Statute of Limitations. The District Judge dismissed the suit. He found that the plaintiff had entirely failed to make good his contention as to a joint gift originally to the plaintiffs father and defendants father as alleged; that the documentary evidence was concocted for the purposes of the suit; that the oral evidence was worthless. The High Court remanded the case for further evidence. The first Court again dismissed the suit, finding that the villages were granted to defendants father for his own benefit, that the defendant had been in possession since 1880, that the plaintiff had never acquired any title by possession, and had no right to sue. The High Court remanded the case for further evidence. The first Court again dismissed the suit, finding that the villages were granted to defendants father for his own benefit, that the defendant had been in possession since 1880, that the plaintiff had never acquired any title by possession, and had no right to sue. In appeal this decision was reversed, the High Court saying " Assuming that the cowle was made in the name of the elder brother, who was at the time joint with the other members of the family, we think the evidence of the enjoyment of the property is strong to shew that the family took, and not the one brother exclusively." The case was twice argued before their Lordships. Branson, for the appellant, contended that on the evidence the property in suit should have been held to have been his separate acquisition. There was nothing in the record which could justify the inference that under the conveyance to the elder brother, Bayana Padhi, the family took, and not the elder brother only. The intention of the grant must, be considered, and it was contended that that intention was shewn to have been that the grantee should take separately, and not jointly. It was admittedly a gift—a personal gift to a particular donee. To prove a joint ownership it should be shewn that there had been either a joint acquisition originally, or that, having been separate estate, it had been thrown into joint estate by its owner, or treated as joint estate by those who were , competent so to treat it. Here there was no evidence that the income had been devoted to the use of the joint family. And from 1880 the appellant was in sole possession. He referred to Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick (( 1857) 6 Moores Ind. Ap. Ca. 526,538.) ; Gudadhur Serma v. Ajodheeram Chowdhry ((1794) 1 Sel. Rep. 6, 7.); Kishoree Lall v. Chummun Lall (( 1852) 1 S. D. A. 111.); Gooroochurn Doss v. Goluckmony Dossee (( 1843) Fultons Rep. 164, 169, 171, 175,188.); Narayan Babaji v. Nana Manohar (( 1870) 7 Bomb. H. C. A. C.153,176.) ; Sri Raja Chelikana v. Appa Ran Bahadur Garu (( 1897) Ind. L. R. 20 Madr. 207.); Shin Golam Sing v. Baran Sing (( 1868) 1 Beng. 164, 169, 171, 175,188.); Narayan Babaji v. Nana Manohar (( 1870) 7 Bomb. H. C. A. C.153,176.) ; Sri Raja Chelikana v. Appa Ran Bahadur Garu (( 1897) Ind. L. R. 20 Madr. 207.); Shin Golam Sing v. Baran Sing (( 1868) 1 Beng. L. R. 164, 166.); Dhurm Das Pandey v. Shama Soondri Debiah (( 1843) 3 Moores Ind. Ap. Ca.229,240.); Badul Singh v. Chutterdharee Singh (( 1868) 9 Suth. W. R. 558.); Chand Hurree Maitee v. Rajah Norendro Narain Roy (( 1873) 19 Suth. W. R. 231.); 1 Strange, H. L. 209, and two cases referred to in vol. 2, pp. 363, 365. The High Court ought to have found that the appellant had been in exclusive possession of the two villages for thirteen years next before suit, so as to bar the respondents suit. The respondent had not shewn a title by adverse 6 Law. Rep. 28 Ind. App. 81 ( 1900- 1901) Vasudeva Padhi Khadanga Garu v. Maguni Devan Bakshi 18 possession. Mayne, for the respondent, contended that the original grant in the name of the senior member of the family carried with it no presumption that it was intended for his exclusive benefit. The evidence of joint possession shewed conclusively that the villages were treated by all parties as being joint property. Under the circumstances the legal presumption and the evidence were in favour of the joint title, and consequently of the respondents right to a decree of partition and mesne profits in respect of his share. The evidence of separate acquisition must be overwhelming to displace the case made by the respondent on the law and the facts. Here there was no evidence that the appellant paid for it with his separate money see Dhurm Das Pandey v. Shama Soondri Debiah (( 1843) 3 Moores Ind. Ap. Ca.229.), Soorjeemoney Dossee v. Denobundoo Mullick (6 Moores Ind. Ap. Ca. 526.), and Badul Sing v. Chutterdharee Singh. (19 Suth. W. R. 231.) The strong presumption in the circumstances of this family is in favour of the estate being joint estate; the onus lies heavily on the party asserting separate acquisition. If any joint estate exists and is used in the acquisition of other property, the property so acquired is also joint. The onus is on the other side to shew that no joint estate was used in the acquisition. If any joint estate exists and is used in the acquisition of other property, the property so acquired is also joint. The onus is on the other side to shew that no joint estate was used in the acquisition. In the case of a gift it must be shewn with what intention it was given and received; the onus being, in the case of a member of a joint family, to shew that a separate acquisition was contemplated by both parties. It is material to ascertain the object the donor had in view in giving, and the manner in which the gift was dealt with by the donee see Mitakshara, c. 1, s. 4, vv. 6, 7, 8; Manu, ix., v. 206; 1 Strange, H. L. 215, 209; 2 Strange, H. L. 365. The grant here was not made for any peculiar purpose of the individual. The circumstances shew that it was intended for the family, and there is no presumption t the contrary. There was nothing in the terms of the grant or its intention to shew that it was for other than joint purposes. As a gift there was no personal reason for it irrespective of the family, no motive specially applicable to the appellants father see Manu, vii. s. 79, xi. s. 6. With regard to the evidence of possession, it was contended that nothing was shewn as to the manner in which the property was dealt with from 1847 to 1858. After that date it was shewn to have been dealt with as joint estate, all of those interested in it concurring in so dealing with it. An obvious consideration is that if it had been separate it would have been known to be so, would have been so dealt with as long as the donee live£, and would have descended as his separate estate. Immediately on his death the property was dealt with as part of the general joint estate of the family, and this would never have been allowed if it had been known or claimed as separate. With regard to limitation that runs from the date when the right of action accrues see ss. 4, 7, and 18 of Act XV. of 1877. The appellant was dispossessed of his separate property in favour of those claiming jointly. With regard to limitation that runs from the date when the right of action accrues see ss. 4, 7, and 18 of Act XV. of 1877. The appellant was dispossessed of his separate property in favour of those claiming jointly. According to the true construction of those sections, he had only three years from the date on which he came of age in order to bring his suit to recover the villages as separate. He did not do so, and accordingly his right to them as separate estate, if it ever existed, was extinguished. That extinction enured to the benefit of the respondents title, and he is entitled to avail himself of it as evidence in his favour, Branson replied. The judgment of their Lordships was delivered by LORD DAVEY. This is an appeal against a judgment of the High Court of Madras, dated March 25, 1896, reversing a decree of the District Judge of Ganjam of October 17, 1894. The appellant, who is defendant in the action, is the only son of Bayana Padhi, who died shortly before the year 1858. The appellant was then seven or eight years of age. The respondent, the plaintiff in the action, is the first cousin of the appellant, and is the son of Gurunatha Padhi, who died in the year 1858. The respondent was about two years older than the appellant. The two brothers, Bayana Padhi and Gurunatha Padhi, were members of a Hindu family joint in property. 6 Law. Rep. 28 Ind. App. 81 ( 1900- 1901) Vasudeva Padhi Khadanga Garu v. Maguni Devan Bakshi 19 The question in the case is whether the two villages in suit are joint or separate property. It is admitted that these villages were granted to Bayana Padhi by the zemindar of the Chikati Taluk. The deed is not forthcoming, and the only information their Lordships have as to the grant is contained in two orders from the Collector of Ganjam to the zemindar. The first order is dated August 10, 1847, and is in these words " I have approved of the permanent cowle you have granted to one Bayana Padhi Khadanga of Jayantipuram under s. 15 of Regulation XXX. of 1802 in respect of the forest land called Rajendrapuram attached to your taluk, fixing a kattubadi of Rs.45 a year, and defining the boundaries (chekubandi). of 1802 in respect of the forest land called Rajendrapuram attached to your taluk, fixing a kattubadi of Rs.45 a year, and defining the boundaries (chekubandi). But you are informed that there should be no disputes by the Jalanthra people regarding the boundaries thereof." The other order of the Collector was dated July 22, 1848. It states that the Collector has."under s. 15 of Regulation XXX. of 1802 approved of the gift of 840 bharanams of forest land which was granted to Bayana Padhi Khadanga by the late zemindar of the taluk, Sri Brundavana Chandra Rajendra Dev Garu after fixing the kattubadi, and the boundaries thereof. You shall inform the said Khadanga that he might improve the said land, and make it fruitful, and collect from him every year, commencing from the current year, the kattubadi fixed at Rs.50 a year." There is no evidence of the circumstances under which this grant was made, or of the manner in which the property was enjoyed, or whether it was treated as joint or separate property from the date of the grant until the death of the survivor of the two brothers in the year 1858. On that event the widows of the two brothers concurred in appointing a manager of the property, and it is not disputed that during the appellants minority it was treated or enjoyed as joint family property; and after he attained his majority in or about the year 1870 it continued to be so treated by the appellant and the respondent for several years. The Subordinate Judge fixed the date up to which that state of things lasted as the year 1880; and their Lordships assume that date for the purpose of their judgment. A quarrel took place between the two cousins, and the appellant thereupon asserted his right to the villages as the separate property of his father to which he was entitled as his heir, and ousted the respondent. Hence this suit, which was instituted by the respondent on November 11, 1891. The Subordinate Judge held it to be the separate property of the appellant; but his decree was reversed by the High Court, who held it to be joint family property, and decreed a partition. Hence this suit, which was instituted by the respondent on November 11, 1891. The Subordinate Judge held it to be the separate property of the appellant; but his decree was reversed by the High Court, who held it to be joint family property, and decreed a partition. Their Lordships find the question whether the property way the separate property of Bayana, or had been acquired and held by him in his own name for the benefit of the joint family, to be one of some difficulty, owing to the absence of any direct evidence as to the circumstances under which the grant was made, or the manner in which the property was treated during Bayanas lifetime; and they accordingly desired that the case should be argued a second time. On the second argument counsel for the respondent raised the question of limitation, and their Lordships have come to the conclusion that the respondent ought to succeed on that ground. The 7th section of the Act of Limitation is in these terms " If a person entitled to institute a suit, or make an application, be at the time from which the period of limitation is to be reckoned a minor, or insane, or an idiot, he may institute the suit, or make the application within the same period, after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the Second Schedule hereto annexed." Then there is provision as to double and successive disabilities, and a provision for the case of the continuing of the disability up to the death of the person under disability; and the end of the section is in these terms "Nothing in this section applies to suits to enforce rights of pre-emption, or shall be deemed to extend for more than three years from the cessation of the disability, or the death of the person affected thereby, the period within which any suit must be instituted, or application made." The effect of that section, therefore, is this—that a person under disability may institute a suit within the same period after the disability has ceased as he would otherwise have been allowed under the schedule, but subject to a proviso that the time shall not in any case be extended for more than three years from the cessation of the disability. Illustration (b) exactly illustrates the present case. Their Lordships, for the purpose of their judgment, will make the assumption which is most favourable to the appellant, and they will assume in his favour that up to the year 1858, the date of the death of the surviving brother, it was treated as and was separate property of Bayana, to which the appellant was 6 Law. Rep. 28 Ind. App. 81 ( 1900- 1901) Vasudeva Padhi Khadanga Garu v. Maguni Devan Bakshi 20 -entitled to succeed as his heir. But on that assumption the appellant was dispossessed, or discontinued his possession of his separate property, in favour of the joint estate at least on the death of his uncle in the year 1858; and the case comes within No. 142 in the 2nd schedule; but if that be not so, the possession of the joint family was at any rate adverse to his separate estate from the same date ; and it thus comes within No. 144. It is immaterial for the present purpose which article it comes under. That being so, the appellant could not have brought an action after the expiration of three years after he attained his majority (say) 1873. Then comes in s. 28, by which his right to the property is extinguished at the determination of the period limited for bringing a suit for possession of it. The point does not require to be expressly pleaded, as it is only evidence of the respondents title; but that question does not arise in this case, as it undoubtedly was a matter of controversy in the Court below, and in fact forms the subject of the third issue Whether the plaintiff has acquired any title by possession. The Subordinate Judge finds against the plaintiff on that issue, but it does not appear on what grounds. The same point is also raised in the sixth reason for appeal to the High Court, though it was unnecessary for that Court, in the view they took of the case, to express any opinion upon it. The only answer which could be made to the argument would be one founded on s. 18, namely, that the existence of the original grant was fraudulently concealed from the appellant. The only answer which could be made to the argument would be one founded on s. 18, namely, that the existence of the original grant was fraudulently concealed from the appellant. This answer is perhaps sufficiently pleaded by paragraph 3 of the defence, although there is no mention in that paragraph of fraud; but their Lordships do not think that any such case is proved with such precision as is necessary in a charge of fraud. There is, undoubtedly, some evidence that the original grant found its way into the respondents possession; and it is not produced by him. On the other hand, the defendant gave evidence on his own behalf, but merely put in a copy of another document, and did not even say that he was ignorant of the original grant, or when he first discovered it, or say anything about it. Their Lordships do not think that this is sufficient to support a charge of fraud. They are, therefore, of opinion that the appeal ought to be dismissed, on the ground that the defendants right of possession (if it ever existed) has been extinguished by limitation ; and they will humbly advise His Majesty accordingly. The appellant must pay the costs of the appeal.