JUDGMENT : SAMVATSAR, J. 1. This appeal is filed by the plaintiffs whose suit has been dismissed by the Civil Judge, 1st Class, Dewas. 2. The plaintiffs are real sisters, daughters, of one Kalekhan, now deceased and have brought this suit out of which the appeal arises, in the court of the civil Judge, 1st Class at Dewas against their brothers Munua and Daddu for partition of property left behind by their father Kalekhan. The defendants 3 to 7 and 8 to 11 are respectively the heirs of one Mangal and one Sayakhan, the deceased sons of the aforesaid Kalekhan. 2a. Kalekhan died about the year 1922-23 leaving behind his four sons and three daughters and some property consisting of agricultural land, houses and movables. The parties are Muhammadans and the plaintiffs have claimed that each one of them has got 1/11 share in the property left by their deceased father. 3. The defendant No. 1 filed his written; statement in which he admitted the whole claim of the plaintiffs whereas the defendants 3 to 11 have remained 'ex parte'. The suit is therefore contested by defendant No. 2 alone. The defendant No. 3 has in his written statement alleged that deceased Kalekhan had divided his assets during his life time amongst his sons and had given to the daughters whatever he thought fit to give them. After the assets were divided, Kalekhan's three sons separated from him and Kalekhan remained joint with his youngest son, the defendant No. 2 (who was perhaps a minor) and managed the property which he had retained for himself and for his minor son the defendant No. 2. 4. On Kalekhan's death the land was mutated in joint names of all the sons though each one of them was in separate possession of the portion allotted to him by the deceased. It was alleged that the land that remained in his possession on his father's death and that which he subsequently acquired was his exclusive property and the plaintiffs had no share in it. 5. The defendant No. 2 next contended that the 'Mewatis', though they were Muhammadans by religion, followed Hindu Law of succession and in their community the daughters are excluded from inheritance in the presence of sons. 5. The defendant No. 2 next contended that the 'Mewatis', though they were Muhammadans by religion, followed Hindu Law of succession and in their community the daughters are excluded from inheritance in the presence of sons. It was also alleged that the plaintiff No. 3 had filed a suit, being Civil Original Suit No. 35 of 1948 against the defendant No. 2 in the court of the Munsiff at Kannod, which was dismissed and showed that plaintiffs had no right to claim partition. Finally, it was contended that the plaintiffs should have claimed partition 26 years ago when Kalekhan died and that the suit brought in the year 1949 was clearly barred by time. 6. The trial court framed issues and recorded evidence which the parties offered. In the end the learned Judge dismissed the suit with costs. The plaintiffs have therefore preferred this appeal. 7. Eight issues were initially framed. These issues indicate that the learned Judge had not applied his mind to the pleadings or had perhaps depended on somebody else to frame them. There was to say the least, no issue framed on the main part of the defendants' case that the 'Mewatis' are governed by Hindu Law in matters of succession. This issue was however added later on, on 20-9-1950 as issue No. 8(1). The judgment has added to the confusion. The findings given by the lower Court are not at all clear and consistent. Issue No. 2 is as follows : The finding on this issue given by the trial court is 'yes' and in favour of the defendant No. 2 which is wholly meaningless. It is necessary for the Courts to bear in mind that framing of the issues is an important stage in the trial. The Court has to take care to see that the material points raised by the parties are governed by issues and the controversy between the parties is brought out in a clear cut form. 8. The material issues in this case are issues Nos. 6, 8 and 8(1). The trial court has found that the 'Mewatis' are in matters of succession governed by the principles of Hindu Law and therefore the plaintiffs were excluded from inheritance by the sons of the deceased. 8. The material issues in this case are issues Nos. 6, 8 and 8(1). The trial court has found that the 'Mewatis' are in matters of succession governed by the principles of Hindu Law and therefore the plaintiffs were excluded from inheritance by the sons of the deceased. It has further found that cause of action accrued to the plaintiffs in 1931 when the names of the sons of Kalekhan were mutated on the land and the suit brought in the year 1949 was barred by time. The trial Court gave no clear cut finding on issue No. 8 and left it with the observation that the plaintiffs cannot claim the property acquired by the defendant Daddu after his father's death. 9. The most important issue in the case is however Issue No. 8(1) which rendered in English would read as follows : "Whether the plaintiffs and defendants are 'Mewatis' and inheritance amongst them is governed by Hindu Law i.e. the sisters get no share in the property of their father when there are sons left behind by him." 10. It is not disputed that the parties are 'Mewatis'. The material question is whether they are, in matters of succession, governed by Hindu Law. 11. The 'Mewatis' are by religion Muhammadans and the burden of proving that in matters of succession or inheritance Hindu Law applied to them would be upon the defendant No. 2. 12. The evidence adduced by defendant No. 2 consists of D.W. 1 Surpal, D.W. 2 Hashmatkhan, D.W. 3 Rahimkhan and defendant No. 2 himself. 13. The evidence of D.W. Surpal is not at all material on this point. He is a 'pujari of Shriram' temple in the village Dehria and says that 'Mewatis' visit that temple on the occasion of marriages in their families. D.W. 2 Hashmat khan is a nephew of the deceased Kalekhan and a relation by marriage of the defendant No. 2 himself. He has stated that the 'Mewatis' were formerly 'Deswali Minas' and on the death of a person his property is divided amongst his heirs according to Hindu law. Daughters do not inherit in the presence of sons. In reply to a question in cross-examination he has stated that the widow of the deceased would get a share according to law. He has stated that the 'Mewatis' were formerly 'Deswali Minas' and on the death of a person his property is divided amongst his heirs according to Hindu law. Daughters do not inherit in the presence of sons. In reply to a question in cross-examination he has stated that the widow of the deceased would get a share according to law. He however changed his version in the next breath by saying that she would not get any share if he has a son even though she did pull on with him. This witness, as stated above, is a relation of defendant No. 2 who is married to his sister's daughter. 14. D.W. 3 Rahimkhan officiates on the occasion of marriages and deaths among the 'Mewatis'. He has stated that the daughters are excluded by the sons in inheriting their father's property. He does not support the general statement made by the defendant No. 2 that Hindu Law as a whole applies in matters of succession, amongst 'Slewatis'. In cross-examination he has stated that Muhammadan Law is not followed in partition of property amongst the heirs. 15. This evidence by itself is not very satisfactory and does not prove the defendant's main contention that Hindu Law applies to 'Mewatis; in matters of succession. There are no instances of succession amongst the 'Mewatis' given by the witnesses to support the general statement that Hindu Law applies to them in matters of succession. 16. The lower Court has however felt that the evidence of the two 'patwaris' P.W. 1 Narmadaprasad, P.W. 2 Nandlal examined by the plaintiffs corroborated the defendant's case. 17. These witnesses are Hindus and do not know much about the 'Mewatis'. P.W. 1 Narmadaprasad has deposed that he was 'patwari' in Kannod District and had occasion to prepare 'purchas' on the death of 'pattedar' tenants. He always mentioned the names of the sons, as heirs in the 'parchas' and excluded the daughters when the deceased tenant had left behind a son or sons. In cross-examination he was asked if he followed the same practice in case of the death of other Muhammadans and he replied in the affirmative. 18. P.W. 2 Nandlal is another 'patwari' and has followed the same practice. The evidence of this witness is thus of no help to the defendant. No. 2. How the 'parchas' are prepared is not known. 18. P.W. 2 Nandlal is another 'patwari' and has followed the same practice. The evidence of this witness is thus of no help to the defendant. No. 2. How the 'parchas' are prepared is not known. The 'parcha' is at the most a statement, given by the 'patwari' to enable the Revenue Officer to effect mutation of names. P.W. 1 Narmadaprasad has followed the same practice in preparing 'parchas' for Hindus and Muhammadans. The other witness was not asked any question about the other 'pattedars' and therefore he has said nothing about it. The mutation of names is not conclusive and it has been held in several cases that the civil Courts can go behind the 'pattas' issued by the Revenue Authorities. 19. The 'Mewati' community is a very small community consisting of about 3 or 4 hundred houses. There are no definite or specific instances of any dispute between the sons and daughters regarding succession. 20. When women are sought to be excluded from inheritance by custom and its existence is put forward as a ground for depriving them of their right to property, the proof ought not tot consist solely of the fact that they have been ignored but there should be positive instances proving that the women demanded their share and were refused. The reason for this insistence is attributed to the fact that women are very much under the influence of their male relatives. 21. In the case of 'Abdul Hussein Khan v. Bibi Sona Dero', AIR 1917 PC 181 (A) Lord Buck master observed that the position and relationship of the different members of the family must always be considered in determining whether claims are not met because the rights to which they relate do not exist, or whether they are put on one side because, in the circumstances, there is no need that they should be asserted. Their Lordships in this case approved the following statement of Turner C.J. and Hurchins, J. in- 'Mirabivi v. Vellayanna', 8 Mad 464 (B). "It must be admitted that instances have been adduced in which the claims of daughters and sisters to a share have been ignored, or they have been allotted maintenance, though the cases mentioned by the Judge of a partition in the father's lifetime are not inconsistent with Muhammadan Law. "It must be admitted that instances have been adduced in which the claims of daughters and sisters to a share have been ignored, or they have been allotted maintenance, though the cases mentioned by the Judge of a partition in the father's lifetime are not inconsistent with Muhammadan Law. There are also cases in which married daughters have been treated as estranged from the family. But instances of this kind will be found to occur where there is no doubt that the family is governed by pure Muhammadan Law. Indeed, in many parts of the country it is unusual for Muhammadan ladies to insist on their unquestioned rights. They will often prefer being maintained by their brothers to taking a separate share for themselves, and when they rare married the marriage expenses and presents are often, by express or implied agreement taken as equivalent to the share which they could claim. Moreover, Muhammadan females are so much under the influence of their male relations that the mere partition of the property among the males without reference to them cannot count for much". 22. In this case also there are no definite instances of daughters having made a claim to a share in their father's property which was refused by their brothers. The defendant No. 2 had claimed that the 'Mewatis' are governed in matters of succession by Hindu Law, but there are no instances given to support this contention even by reference to succession amongst males. The 'patwaris' who have been examined by the plaintiffs and on whose testimony, reliance has been placed by the trial court, have not been asked anything in regard to succession of males and there is nothing on record to show that devolution of interest on the death of a 'Mewatis' is determined according to the principles of Hindu Law. The whole case of defendant No. 2 rests on vague statements of the witnesses examined by him and this at the most shows that the daughters have been ignored in matters of succession by their male relations. 23. In my opinion it is not proved that Hindu Law applies to succession among the 'Mewatis'. 24. The parties are Muhammadans and are presumed to be governed by the Muslim Law. Under that law a daughter is entitled to one-half of what is taken by a son. Kalekhan had left be find three daughters and four sons. 23. In my opinion it is not proved that Hindu Law applies to succession among the 'Mewatis'. 24. The parties are Muhammadans and are presumed to be governed by the Muslim Law. Under that law a daughter is entitled to one-half of what is taken by a son. Kalekhan had left be find three daughters and four sons. Each daughter is, therefore, entitled to 1/11th share in the property left by him. 25. The next question is whether the suit is barred by time. On my finding on issue No. 8(1), the plaintiffs are co-owners with the defendants and there is no evidence to show that they were excluded by the defendants from enjoyment of property, or that they had claimed a share which was refused more than 12 years ago. The findings of the trial court which are material for the decision of this question are, (i) that Kalekhan had during his lifetime divided the lands and houses amongst his sons; (ii) that in 1931 these sons secured mutation of their names on portions of land held by them. According to the learned Civil Judge the limitation for this suit commenced running from 1931, the names of the sons were recorded. Now as stated above, the mutation of names is not conclusive and there is no evidence to show that the names of sons of Kalekhan were mutated with plaintiffs' consent. The division of land was effected by Kalekhan during his life-time but it does not appear that a partition was effected. The sons enjoyed the land in separate parcels but the land remained recorded in the revenue papers in Kalekhan's own name and the sons acquired no interest by reason of the separate enjoyment of the land. 26. The plaintiffs are married girls and excepting the plaintiff No. 3 lived with their husbands. The plaintiff- No. 3 was a discarded wife and usually stayed with one of her brothers. The other two plaintiffs visited only occasionally and stayed with any one of the living sons of Kalekhan. It cannot be said that they were ousted from possession or the sons of Kalekhan held the lands adversely to their interests. It is settled law that possession of any one of the co-owners is presumed to be for and on behalf of all others and cannot be adverse unless a clear case of ouster is made out. It cannot be said that they were ousted from possession or the sons of Kalekhan held the lands adversely to their interests. It is settled law that possession of any one of the co-owners is presumed to be for and on behalf of all others and cannot be adverse unless a clear case of ouster is made out. Mere non-participation in profits or rents or even in enjoyment of property is not sufficient to prove adverse possession. To make the possession adverse, there must be evidence of ouster or exclusion. There is no such evidence in this case and it cannot, be said that the defendants' possession of the property was adverse to the plaintiffs. In my opinion the lower court was wrong in holding that the suit was barred by time or that the defendants were in adverse possession. 27. The last question which remains to be determined is as to the extent of property available for partition. The trial court has found that the property acquired by Daddu cannot be available to plaintiffs for partition and there could be no quarrel with this finding. The question is what is this property in which the plaintiffs can claim a share. No finding has been given by the trial court on this point though Issue No. 8 was specifically raised to cover this point. The case must, therefore, go back to the trial court for recording finding on this issue. 28. The learned counsel for both sides agree that the case should be remanded and that the trial court should be directed to decide issue No. 8 afresh. 29. I allow the appeal, set aside the decree of the lower court and send the case back for disposal according to law in the light of findings given in this case. The costs of the appeal will abide by the result. 30. NEVASKAR, J. :- I agree. Appeal allowed.