JUDGMENT
1. We are unable to support the judgment of the District Judge in this case. The 1st defendant parted with her woman’s estate in the property by Exhibit II in 1877. It was not contended in the lower Court that that document was a sham one and not intended to be operative in law. Certainly, no reason was given for the execution of a sham instrument. The first issue, whether the 1st defendant was entitled to sell the suit property to plaintiff, was framed in very vague terms. Apparently, the contention was that after the execution of Exhibit II, effect was not given to it for some reason or other. This can only mean one of two things, i.e., that the parties by mutual consent rescinded it. But there is no evidence of such rescission, and oral evidence of rescission would be inadmissible under the provisions of Section 92 of the Evidence Act. See Umedmal Motiram v. Davu bin Dhondiba 2 B. 547. Or the contention must be taken to be that possession was not given to the 2nd defendant’s husband in accordance with the terms of Exhibit II. In other words, the title acquired under Exhibit II was lost by limitation and the 1st defendant acquired a title by prescription. But this case does not seem to have been raised in either of the Courts below. Although the District Munsif found that the management of the property by the 1st defendant was on behalf of 2nd defendant, no ground was taken in the memorandum of appeal to the lower Appellate Court that the 1st defendant’s possession was adverse and exclusive. We find that one of plaintiff’s witnesses, P. W. No. 3, admitted in his deposition that the 2nd defendant’s husband was in joint enjoyment of the property with the 1st defendant after the execution of Exhibit II. It is, therefore, impossible to say that no effect was given to Exhibit II at all. The 1st defendant lived with the 2nd defendant’s husband and subsequently with the 2nd defendant. When members of a family live together, the ordinary presumption will be that the legal possession is in the person who had the title. In a case like this, it was incumbent on the plaintiff to allege clearly that the 1st defendant acquired a title by prescription after the execution of Exhibit II. We do not find that such a contention was put forward in the lower Appellate Court, and we do not think we should allow it to be raised here. The District Judge says nothing more than that she was managing the property. This does not amount to a finding that her possession was adverse to the 2nd defendant. We cannot now frame an issue on the question of acquisition of prescriptive right by the 1st defendant. The result is, there is nothing to displace the title acquired by the 2nd defendant’s husband under Exhibit II. We are unable to follow the District Judge when he says that Exhibit II is not a sale-deed. His observation that it is not a valid surrender of the 1st defendant’s right such as would accelerate the succession of the reversioner is absolutely irrelevant. We reverse the decree of the District Judge and restore that of the District Munsif with costs here and in the lower Appellate Court.
