G. C. JAIN,j. ( 1 ) THE parties to this appeal are Jains ofoswal sect resident in Delhi. Lotan Mal, the common ancestor died on November, 3, 1928 leaving behind a widow Ladbai, two sons Kastur Chand and Suraj Mal, and two daughters. Kastur Chand was married to Tara Bai (respondent No. 2 ). Soon after his marriage he died on 23/03/1936 withoutleaving any issue. His widow adopted Babu Lal (respondentno. 1) as a son ott 3/02/1949. ( 2 ) ON 21/05/1949 Suraj Mal brought a suit agahist hismother Lad Bai, Tara Bai and Babu Lal claiming l/3rd sharein the joint family property by partition. According to theaverments in the plaint he. Lad Bai, and Tara Bai had l/rdshare each in the joint family properties in suit He denied theadoption of Babulal but impleaded him as a party for gettingall the disputes settled. Lad Bai in her written statement disputed the factum as well as validity or the adoption. She. however, had no objection to the partition. Tara Bai allegedthat her signatures on the adoption deed were obtained bymisrepresentation. The deed was to provide that she wouldcontinue to be the owner of her share till her life and Babulal would remain obedient to her and in case of violation ofthese terms she will have the right to repudiate the adoptiondeed. However, no such term was incorporated. When shecame to know of this fact she tore away the deed. She asserted that the adoption could be made in law. Babu Lalaverred that he was validly adopted by Tara Bai. Disputesraised in this case were however not decided because on therequest of Suraj Mal he was allowed to withdraw the suit withpermission to file another suit on the same cause of action byorder dated 4/11/1949 (Ex. P-24 ). ( 3 ) ON 19/07/1965 Babu Lal and Tara Bai, respondentsherein, brought a suit (out of which the present appeal hasarisen) against the appellants, Suraj Mal and Lad Bai (sincedeceased), claiming partition of their l/3rd share in the jointfamily properties and rendition of accounts etc. for a periodof 6 years prior to the institution of the suit. The details ofthe properties have been given in para II of the plaint. According to the averments in the plaint Lotan Mal was a Jainand governed by Hindu Law and custom in the matters ofsuccession and adoption. for a periodof 6 years prior to the institution of the suit. The details ofthe properties have been given in para II of the plaint. According to the averments in the plaint Lotan Mal was a Jainand governed by Hindu Law and custom in the matters ofsuccession and adoption. Babu Lal was adopted by Tarabai on 3/02/1949 in accordance with the custom prevalent in Jains and acquired all the rights of his adoptedfather Kastur Chand in the joint family along with Suraj Mal,lad Bai and Tara Bai. Suiraj Mal and Lad Bai have beenmanaging the family properties and realising rents from thetenants since the death of Kastur Chand in 1936. Suraj Mathad sold two joint family properties and kept sale (procecdswith him. ( 4 ) THIS suit was resisted by Suraj Mal and Lad Bai, According to their pleas Lotan Mal was governed by Hindu Lawand not by custom. Tara Bai was (ha widow of Kastur Chandbut she did not inherit his properties on his death in 1936. Babu Lal was not adopted by Tara Bal She was not competent to adopt a son and in. any case) Babu Lal being olderor equal in age to Tara Bai could not be lawfully adopted. There was no custom recognising such an adoption. Suraj Malhad sold the two properties to pay oft the antecedent debts. Neither Babu Lal nor Tara Bai had any interest or right in theproperties in suit. In any case Suraj Mat had managed the properties as manager and KARTA and no suit for rendition of accounts was competent against him. They were in possessionof the properties in dispute for more than 20 years openlywithout any obstruction and the suit was barred by time. ( 5 ) THE learned single Judge vide his judgemem dated 23/01/1973 recorded the following findings :-- (1) Babu Lal was adopted by Tara Bai on 3/02/1949. (2) A Jain widow of Oswal sect was competent toadopt a son of any age and even married andthe adoption was valid. (3) On the death of Kastur Chand in 1936 his undivided interest in the coparcenery properties-devalued on his coparcener by suirvivalship and noton his widow Tara Bai,the defendants (the present appellants) had failedto prove ouster of the plaintiffs (the present respondents) from the joint family properties for aperiod of 12 years and the suit was not barred bylimitation. (3) On the death of Kastur Chand in 1936 his undivided interest in the coparcenery properties-devalued on his coparcener by suirvivalship and noton his widow Tara Bai,the defendants (the present appellants) had failedto prove ouster of the plaintiffs (the present respondents) from the joint family properties for aperiod of 12 years and the suit was not barred bylimitation. (5) Immoveable properties mentioned in para 1litems (i) to (iii) of the plaint only existed on thedate of suit. Babu Lal was entitled to a decreeof 1/3rd share in these properties by partition andalso to accounts for the period subsequent to thedate of suit only. ( 6 ) A preliminary decree was passed accordingly and a localcommissioner was appointed to partition the properties interms of the judgment and also to examine the accounts. ( 7 ) ASSAILING the findings of the learned single judge acceptthe finding No. 3, the defendants (the appellants) have filedthe present appeal. ( 8 ) TARA Bai plaintiff No. 21respondent No. 2 has preferredcross-objections (C. M. 312173 ). By way of these cross-objections she assails finding No. 3 of the learned single judge. Thisjudgment will dispose of both the appeal and the cross-objections. ( 9 ) THAT the adoption took place as a fact is no longer indispute. This is proved by unimpeachable evidence of Sumerchand Chuttan Lal, Kundan Lal, Bahadur Singh, Tara Baiand Babu Lal, who were all present at the time of the adoption ceremony and have stated in unequivocal terms thatbabu Lal was taken in adoption by Tara Bai. Their evidencestands corroborated from the adoption deed (Ex. P-l) andthe photograph (Ex. P-3) taken on that occasion. . ( 10 ) THE main question which has been seriously argued iswhether the adoption is valid in law, the principal objection toadoption being based upon the fact that Babu Lal, the adopted son, was older or equal in age to Tara Bai, the adopter. ( 11 ) THE parties ale Jains. The Jains, no doubt, do notbelieve that a son, natural or adopted, confers any spiritualbenefit on the father. The dead are forgotten soon after they arecremated. The living do not perform Sharadhs or religiousceremonies for the dead. They, however retain many of thecustoms of orthodox Hindus and have followed substantiallythe broad features of Hindu Law. The Jains, no doubt, do notbelieve that a son, natural or adopted, confers any spiritualbenefit on the father. The dead are forgotten soon after they arecremated. The living do not perform Sharadhs or religiousceremonies for the dead. They, however retain many of thecustoms of orthodox Hindus and have followed substantiallythe broad features of Hindu Law. They do not cease to be-governed by Hindu Law, by lapses from orthodox Hindu practice or by deviation or dissent from orthodox Hindu doctrines. It is now settled law that in matters of adoption, (prior to theenactinent of Hindu Adoption and Maintenance Act) theywere governed by Hindu Law except to the extent it is variedby custom. (See para 613 of Mulla s Hindu Law 15th edition; Rup Chand v. Jambu Prasad 32 Allahabad 247 (1);chottay Lal v. Chunno Lall and Others 6 IA 15; Parshotamganpat Gujar v. Veni and Ganpat Crujar,air 1921 Bombay 147 (2) (3); Hira Chand Gangji v. Bowji Sojpal and Another AIR 1939 Bombay 377 (4); and Sundar Lal v. Baldeosingh and Others, AIR 1932 Lah 426 (5 ). ( 12 ) OTI behalf of the appellant it was argued that theparties were governed by custom a. nd custom only. Learnedcounsel could not show any Law in support of this contention. He Relied on pleadings. In para 5 of the plaint it wasaverred that Babu Lal was adopted according to custom prevailing in Delhi in Jain community In para 5 of the writtenstatement it was averred that there was no custom prevaienin Delhi permitting Tara Bai to adopt Babu Lal. In any casetara Bai could not adopt Babu Lal who was older or equalto her age. Such a custom was unnatural and against publicpolicy. Learned counsel however conveniently forgot to referto para 3 of the plaint where it was pleaded that Lotan Malwas a Jain and governed by the Hindu Law and custom inmatters of succession and adoption. Appellants in para 3 oftheir written statement averred that he was governed by Hindulaw only. Pleadings, therefore, do not help the appellants. This contention has no merit. Appellants in para 3 oftheir written statement averred that he was governed by Hindulaw only. Pleadings, therefore, do not help the appellants. This contention has no merit. ( 13 ) IN Mulla s Hindu Law 15th edition para 480 tho IAWon the requirement of age of the adopted person is stated in thesewords : (4) there is a difference of opinion between theschools as to the age when a boy may be adopt-ed : (i) in Bengal, Benares, Bihar ana Orissa, the adoption must be before upanayana that is before theboy is invested with the sacred thread; it tand immaterial that the adopted boy is older than theadopter (ii) the above rule applies also in the Madras State;but if the person to be adopted is of the samegotra as the adopter, the adoption may be madeeven after, upanayana, provided it is made beforemarriage - (ni) in the Bombay State, a person may be adoptedat any age, though he may be older than theadopter and though he may be married and havechildren. The adoption is not- invalid although ittook place after the thread ceremony of the boywas performed. " ( 14 ) THUS in Bengal, Benaras, Bihar and Orissa a personcan be adopted before he is invested with a sacred thread. According to all the schools (except Bombay school) he must notbe married at the time of adoption. The object of adoptionamong Jains, however, is purely secular, i. e. to secure a heirand perpetuate the adoption s name. ft has no religious significance whatsoever. There is, therefore no restriction of ageor marriage and a married man could be adopted among Jains. ( 15 ) IN Lala Rup Chand v. Jambu Prasad (supra) the finding of the High Court that "among the Jains adoption is noreligious ceremony, and that under the law or custom thereis no restriction of age or marriage among them" was confinned. In Sheofcuarbai v. Jeoraj,- (XXV Calcutta Weeklynotes, 273) (6) the Privy Council held that in Sitambari sectof Jains the adopted son may, at the time of his adoption, boa grown up and a matried man. In Manohar Lal v. Banarsidoss (29 Allahabad 495) (7) the High Court of Allahabad heldthat according to the law and custom prevailing amongst thejain community a married man may lawfully be adopted bya widow. In Manohar Lal v. Banarsidoss (29 Allahabad 495) (7) the High Court of Allahabad heldthat according to the law and custom prevailing amongst thejain community a married man may lawfully be adopted bya widow. ( 16 ) THE evidence of Muna Lal (PW-2) and Chuttan Lal (JPW-4) disclosed that they both belonged to Oswal Jains andwere married the time of their adoption. DW-5 Megh Rajadmitted that one Paima Lal at the time of his adoption was married and had children. It was thus clear that amongst Jainsthere was no restriction as to age and even a married roancould be adopted. ( 17 ) THERE being no restriction as to age amongst the Jainit was immaterial if the adopted person was older or equal inageto the adopter. In Manak Chand v. Munna Lal 1909pumjab Record 95 (8) the parties were Oswal Jams ofdelhi. It was held that among Jains adoption was a purelysecular transaction designed, inter alia, to perpetuate the name-and family of the adopter without any religious meaning. Nospecial ceremonies were necessary to give legal effect to adoplion. A widow of a deceased Jain may adopt without anyauthorisation from her husband. A married man having children of his own may be adopted and it was not necessary thathe must be younger than the adoptive fathers widow adopting him. This authority, in our judgment, proves that amongjains there was no restriction of age and a person equal orolder in age to the adopter could be adopted. It may be mentioned here that in Chandreswar Prosad Narain Singh v. Bisheshwar Pratap Narain Singh (1927 Indian Cases 289 (9), Patna High Court had held that even Hindu Law imposed DOrestriction as to age and whatever be the age of the adoptedon the adoption was valid if made befcie Upanayana if hebelonged to any of the regenerate classes and before marriagethe adoption was not liable to be set aside if the boy adoptedwas older to the adopter. In Balabai Tukaram Baban v. Mahadu Krishna Babar AIR 1924 Bombay 349 (10) the adoption of a boy older than the adoptive father in Bombay Presidency was held valid. In Punjabai v. Shamrao (AIR 1955nagpur 293) (ll) it was held that even a minor widow couldvalidly adopt aperscon older in age than herself provided shehad attamed the age of discretion. In Balabai Tukaram Baban v. Mahadu Krishna Babar AIR 1924 Bombay 349 (10) the adoption of a boy older than the adoptive father in Bombay Presidency was held valid. In Punjabai v. Shamrao (AIR 1955nagpur 293) (ll) it was held that even a minor widow couldvalidly adopt aperscon older in age than herself provided shehad attamed the age of discretion. ( 18 ) APPELLANTS learned counsel urged that the decision inmanohar Lal s case Was based on evidence recorded in thatcase. However, in the present case none of the witnesses examined by the respondents could cite a single instance whereadoptee was older or equal in age to the adopter; the said decision, therefore was of no help. We do not agree. Thisjudgment, keeping in view the object of adoption among Jainsand also the fact that even among orthodox Hindus there wasno such general restriction, conclusively proves that amongoswal Jains the adoption, where adopted person was older orequal in age to the adopter, was valid. ( 19 ) THE plea that such a custom was immoral or. againstpublic policy is devalid of any merit. It has been repeatedlyrecognised by the courts. ( 20 ) THE contention, that the respondents had failed toprove the act of giving and taking and free consent of Babulal and, therefore, the adoption was invalid, has also no merit. Sumer Chand, Chuttan Lal, Kundan Lal Parekh, Babadursingh, Tara Bai and Babu Lal have stated that Babu Lal wasgiven by his natural father Kapur Chand and taken in adoption by Tara Bai. Their evidence finds corporation from thephotograph Ex. P-3 and the adoption deed Ex. P-l. ( 21 ) TARA Bai in cross-examination deposed that she. hadno talk with Babu Lal before she took him in adoption. Shedid not consider it necessary to obtain his consent for beingadopted as her son because she had already obtained the con-sent of his natural father. Babu Lal also admitted that therewas no talk between him and Tara Bai regarding adoptionactually took place. From this evidence it cannot beinferredthat Babu Lal was not consenting party. The fact that heallowed himself to be given in adoption by his father and thecircumstance that in photograph Ex. P-3 taken at the time ofadoption ceremony he was sitting just close to Tara Bai proveshis free consent. From this evidence it cannot beinferredthat Babu Lal was not consenting party. The fact that heallowed himself to be given in adoption by his father and thecircumstance that in photograph Ex. P-3 taken at the time ofadoption ceremony he was sitting just close to Tara Bai proveshis free consent. ( 22 ) IT was also argued that the adoption was a result offraud and misrepresentation and had been repudiated bytara Bai. Reliance was placed on Ex. D-l, certified copy ofthe written statement filed by Tara Bai in the suit whichhad been filed by Suraj Mal for partition of his I /3rd share inthe joint Hindu properties in 1949. In her written statementtara Bai had stated that Kapur Chand had obtained the signatures on the adoption deed by playing a fraud. The adoption deed was to contain a term that she would remain the owner of her share till her life and Babu Lalwould be obedient to her. No such term was included. Whenshe came to know about this fact she tore it away. In cross-examination in the present suit she admitted that this writtenstatement had been prepared under the instructions. She,however, explained that two or three months after his adoptionbabu Lal wanted to go back to his natural father at Bombay. She stopped him from doing so and threatened that-if he wentback to his natural father against her wishes she would destroy the deed of adoption. Babu Lal tried to snatch the deedfrom her in that process it was torn. In the written statementshe took the said plea with the object of frightening Babu Lalso that he remained obedient to her. In view of this statementthe version in Ex. D-l is of consequence, ln any case she hadno right to cancel the adoption. ( 23 ) TARA Bai in her cross-examination deposed. that shewould not have adopted Baba Lal had she known that hewas cider in age to her. This part of her statement again isof no significance especially when there is no cogent evidenceto prove that Babu Lal was older in age to Tara Bai. Moreover we are of considered opinion that these picas were notopen to the appellants. ( 24 ) FOR all these reasons we hold that the adoption wasvalid. ( 25 ) THE last question which requires determination inthe appeal is whether the appellants had become owners ofthe properties in suit by adverse possession. Moreover we are of considered opinion that these picas were notopen to the appellants. ( 24 ) FOR all these reasons we hold that the adoption wasvalid. ( 25 ) THE last question which requires determination inthe appeal is whether the appellants had become owners ofthe properties in suit by adverse possession. ( 26 ) IT is admitted that the suit properties were joint familyproperties. It has further been admitted that since the deathof Kastur Chand in 1936 the appellants had been managingthe family properties and enjoying all the rents realised fromthe tenants. It has also been admitted that Suraj Mal hadsold one property in 1951 and kept the sale proceeds with him,does thisconduct amount to adverse possession? In our opinion, answer must be in the negative. ( 27 ) THE expression adverse possession means a hostilepossession, that is, the possession which is in denial of thetitle of the true owner. It must be adequate in continuity, inpublicity and in extent to show that it was possession adverse tothe real owner. It is well settled principle of law that thepossession of a co-parcener or co-heir is deemed in law to bepossession on behalf of all the co-parceners or co-heirs. By itselfit cannot be considered adverse because possession is neveradverse if it can be referred to a lawful title. ( 28 ) NO doubt, if there is an ouster the possession of a coparcener can be adverse. However mere management of thejoint family properties or realisation of rent would not amountto ouster. Suraj Mal was Karta of the family and as suchhad a right to manage properties and realise the rent. Thisconduct was not inconsistent with his character as a Karta. In Hardit Singh and others v. Gurmukh Singh and others AIR1918 Privy Council page 1 (12) it was held that "if by exclusive possession of Joint estate is meant that one member ofthe Joint family alone occupies it. that by itself affords no evidence of exclusion of other interested members of the familyuninterrupted sole possession of such property, without more,must be referred to the lawful title possession by the joint holder to use the joint estate and cannot be regarded as an assertion of the right to hold it as separate, so as to assert anadverse claim against other interested members. " In Gajapatinarasimbha Deo Garu and another v. Gajapati Krishnachandradeo Guru and Anr. " In Gajapatinarasimbha Deo Garu and another v. Gajapati Krishnachandradeo Guru and Anr. (AIR 1920 Mad 793) (13) the Madrashigh Court held that the mere fact that a co-parcener had not enjoyed any portion of the property for 12 yearsor more cannot deprive him of his rights. Possessionof one co-parcener is deemed in law to be possessionon behalf of all co-parceners, although other co-parceners maytake no part in the management and may not even enjoy anyof the income of the property. ( 29 ) THE contention that the appellants had denied the titleof the respondent while withdrawing the suit filed by Suraj Malin 1949 has no merit. Firstly in para 10 of the written statement the plea taken was that Suraj Mal was managing theproperties as an absolute owner after attaining majority in 1950. No hostile title prior to 1950 was thus pleaded. Secondlyisuraj Mal in his statement as DW-5 deposed that he withdraw the earlier suit as he had been advised by his counselthat he had no right of partition and also that Tara Bai hadonly a right of maintenance. He no where stated that he denied the title of the respondents or pleaded ouster or exclusion. The averment made in Ex. P-4, certified copy of theapplication under Order 23 rule I, for permission to withdraw the suit, are of no help. In para 4 of the said application, on which reliance was placed, all what was pleadedwas that because of the statement of counsel for the defendantsand written statement it was clear that defendants Babulal and Tara Bai were not in possession of properties and,therefore, he (Suraj Mal) did not want to get the propertiespartitioned. The learned counsel urged that the averment wasthat Babu Lal and Tara Bai had no share in the properties andnot that they were not in possession of the properties, Thishas not been made out. Suraj Mat has not supported this version in his statement. In the written statement of Babu Lal ortara Bai there was no averment made by them that thoy hadno share in the properties. No such statement was made before issues by their counsel. As a matter of fact Babu Lal wasasserting his rights as an adopted son. ( 30 ) THERE is no evidence on record to show that in 1950or thereafter the appellants or any of them asserted any hostiletitle. No such statement was made before issues by their counsel. As a matter of fact Babu Lal wasasserting his rights as an adopted son. ( 30 ) THERE is no evidence on record to show that in 1950or thereafter the appellants or any of them asserted any hostiletitle. Suraj Mal has not stated a word about it. Babu Lal incross-examination said "rent from all the tenants has throughout been recovered by Lala Suraj Mal, defendant. He did notgive any share from the rent recovered eithe to me or tosmt. Tara Bai. We orally demanded our share of the rent onsome occasions but he did not pay anything and said that weshould have recourse to a Court of law. I cannot say whetherit was ten years or more when Suraj Mal refund to pay anyshare out of teh rent and asked us to approach a Court of law". This evidence is worthless. A bare denial of a right is not anassertion of adverse ownership. To say "you go to court"merely means that only under a Court decree the appellantwill pay to the respondent his due share in property and nototherwise. The appellants answer may amount to refusalto pay but not an assertion of a hostile title. Thereis not a scientilla of evidence to support the case of adverse posession which may have ripened into adverse ownership. Adverse possession is a possession that is hostile, under a claimbr colour of title, actual, open, notorious, exclusive, and continuous, continued for the required period of time thereby giving an indefeasible right of possession or ownership to the possessor by operation of the limitation of actions. None of theelements is present in this case. ( 31 ) THE decisions in Chhotelal Babu Lal v. Premlalgirdhari Lal and Smt. Samundra Devi v. Chand Singh, turn on their own peculiar facts and are of no help. ( 32 ) ARTICLE 57 of the Indian Limitation Act provides aperiod of three years for a suit to obtain a declaration that analleged adoption is invalid, or never in fact took place, limebegins to run from the date when the alleged adoption becomes known to the plaintiff. This Article is however restricted to declaration in a suit In respect of adoption and not toa suit for possession, notwithstanding the fact that the Courtin granting the relief was obliged to give a finding on thevalidity or invalidity of the adoption. This Article is however restricted to declaration in a suit In respect of adoption and not toa suit for possession, notwithstanding the fact that the Courtin granting the relief was obliged to give a finding on thevalidity or invalidity of the adoption. ( 33 ) FOR these reasons the appeal has no merit and is dismissed with costs. CROSS-OBJECTIONS (C. M. 312173) ( 34 ) IT is admitted that Kastur Chand husband of Tarabai died in March 1936 leaving bebind his widow, motherand brother Suraj Mal. It is also not disputed that they weremembers of a joint family and the properties in suit were jointfamily properties. The rule of Hindu Law then prevalentdeprived a widow of any right in such properties of her husband and gave her only a right of maintenance. Kasturchand s undivided interest in the co-parcenery property willpass to his brother Suraj Mal as surviving co-parcener. Thehindu Women s Rights to Property Act (Act XVTTI of 1937)was enacted to give better rights to women in respect of property. Under Section 3 (2) a widow was to have same interestin joint family property as her husband had, though her interest was a limited interest, i. e. Hindu Women s Estate. Thisact, however, came into force on 14/04/1937 i. e. , afterthe death of Kastur Chand. It had no retrospective operation. See Moni Devi v. Hadibandhu The provisions contained in Section 14 of the Hindu Succession Act, 1956 wouild apply to property possessed by a Hindufemale and to which she had some kind of title, however restricted the nature of her interest may be. This Section wouldhave no application to a case where a widow had no rightwhatsoever in the properties and had only a right of maintenance. Cross-objections, therefore, fail and are dismissed leaving the parties to bear their own costs.