Charles Sargent, Kt., C.J.
1. The Assistant Judge was in error in applying to this action the provisions of Article 148, Schedule II of Act IX of 1871. The suit is a suit by a Hindu, excluded from joint family property, to enforce a right to share therein, and for such suits Article 127 provides a period of twelve years, commencing from the date when the plaintiff claims and is refused his share. It is not even alleged by the defendant in the present case that the plaintiff ever claimed and was refused his share. The suit is consequently not barred under the provisions of Act IX of 1871.
2. It was, however, contended before this Court that the suit was barred under the provisions of Act XIV of 1859 before Act IX of 1871 came into operation, and that the right of action, having been once lost, could not be revived. This was not the case made in the Court below, and it is not perfectly clear on the finding of the Assistant Judge that the plaintiff had been out of possession for twelve years when Act IX of 1871 came into operation. But, at any rate, it is certain that twelve years had not then elapsed from the death of the father of the parties. Clause 13 of Section 1 of Act XIV of 1859 provided as the period, of limitation for partition suits 'the period of twelve years from the death of the persons from whom the property alleged to be joint is said to have descended, or from the date of the last payment to the plaintiff, or any person through whom he claims, by the person in the possession or management, on account of such alleged share.' This clause has given rise to many difficulties, and we are aware that in the case of Govindan Pillai v. Chidambara Pillai 3 Mad. H. C R 89 doubts were expressed whether the first provision, of the clause could properly be applied to the case of a family governed by the Mitakshara law, inasmuch as the sons in such a family take by survivorship rather than by inheritance, and, consequently, ancestral property can hardly be said to 'descend' from the father. But it seems to us that this is to put to artificial a construction upon an expression in what the Judicial Committee have called 'this inartificially drawn statute'--Delhi and London Bank v. Orchard L.R. 41. A. 135 We can not believe that in using the words 'the persons from whom the property alleged to be joint is said to have descended there was any intention on the part of the Legislature to make; a rule of limitation which should be applicable to joint families in Bengal, but not in Madras or Bombay. It may or may not be that in Bombay a son can sue for partition during his father's life-time; but we cannot suppose that the Legislature regarded a son who abstained from doing so as sleeping upon his rights. It is very common for one son of a rayat, as in the present case, to go and seek his livelihood, while leaving his father to cultivate and support himself out of the family field; and it would be most unjust to held that by such a proceeding the son rendered himself liable to lose his share in the estate. When the father dies, matters are very different; and if the absent son is excluded for twelve years by his brothers, it might be reasonable to apply the latter provision of Clause 13. But we think that the first provision of the clause would properly have been applied, while Act XIV of 1859 was in force, to persons situated like the plaintiff, and that his suit, if brought within twelve years from the death of his father, would not have been barred by the provisions of that Act.
3. We therefore, reverse the decree of the Assistant Judge and restore that of the Subordinate Judge with costs on defendant throughout.