1. This is a suit brought by the plaintiff for a declaration that the property kept in possession of his father defendant No. 1 for the enjoyment of defendants Nos. 1 and 5 is liable to be equally divided among the plaintiff and his brothers defendants Nos. 2, 3 and 4, and that the sale deeds and deeds of gift passed un authorizedly by defendant No. 1 are null and void. The case on behalf of the defendants was that there was a partition in 1910 and the property was divided into five equal shares and each sharer was absolute owner of the property that fell to his share, It appears that in 1910 there was a partition between the brothers and their father defendant No. 1. The present plaintiff made an application in 1910 for a decree to be passed in terms of an award Exhibit 83 After the presentation of the award the plaintiff contended that there was an agreement in writing to be passed by defendant No. 1 to the effect that the plaint property had fallen to the share of defendant No. 1 and was to be enjoyed by him during his life-time and by the step-mother and mother of the plaintiff during their lives for maintenance, Defendant No. 1 in his written statement, Exhibit 342 dated July 19, 1910, denied the assertion of the plaintiff that the plaint property was joint and asserted that the property allotted to his share by the award belonged to him absolutely. On June 8, 1911, a deed of gift, Exhibit 287, was passed by defendant No. 1, in favour of defendant No. 4 and on January 20, 1913, another deed of gift, Exhibit 288, was passed in favour of defendant No. 2. The present suit was brought on Patiar J. June 13, 1922.
2. Both the Courts held that the present suit was barred under Article 120 of the Indian Limitation Act. The learned Subordinate Judge, however, was inclined to hold that the property in suit was kept joint to be enjoyed by defendant No. 1 and his two wives for their maintenance so that it may be divided equally among all the brothers after the death of defendant No. 1 and his wives. The lower appellate Court has not investigated this important question of fact. If the question had been gone into by the lower appellate Court and found against the plaintiff, the plaintiff's suit would have been liable to be dismissed on the merits. We will assume for the purpose of this appeal that the allegation of the plaintiff is true.
3. It is urged on behalf of the appellant, first, that the proper Article applicable to the suit is Article 127 of the Indian Limitation Act, secondly, that if Article 127 does not apply and even if Article 120 applies, there is a continuing cause of action within the meaning of Section 23 of the Indian Limitation Act, and, thirdly, that Article 144 would apply as it is a suit for possession of an interest in immovable property.
4. The first question, therefore, is whether the present suit is governed by Article 127 of the Indian Limitation Act. Article 127 relates to a suit by a person excluded from joint family property to enforce a right to share therein. It is clear that in this case the members of the family admittedly divided the family property between themselves, and after the division they continued to be tenants-in-common and not joint tenants in the property -which was to be subsequently divided. In Amme Raham v. Zia Ahmad 4I.L.R(1890) . All 282 it was held that 'joint family property' means the property of a joint family and not property in which the contending parties have interest as tenants-in-common. The same view was taken by the Full Bench of this Court in Bhavrao v. Rakhmin I.L.R.(1898) 23 Bom 137. In the case of leap Ahmed v. Abhramji Ahmadji I.L.R(1917) . 41 Bom 588 it was held by the majority of the Judges constituting the Full Bench that the expression 'joint family property' must be read as property appertaining to a joint family, In Yerukola v. Yerukola I.L.R(1922) . Mad 648. it was observed (p. 668):-
The effect of the partial partition of certain properties, and the reference to arbitration as regards the properties undivided, as well as the conduct of the parties subsequently, show clearly that they had become divided in status. At date of the suit the plaintiff was not a member of a joint family.
It was further held that Article 127 is inapplicable to cases where at the date of the suit the property has ceased to be joint family property and is held by sharers as tenants in-common. The same view was taken in Venkatappayya v. Venkata Ranga Row I.L.R.(1919) Mad. 288 The case of Gavriehankar Parabhuram v. Atmaram Bajaram I.L.R(1893). 18 Bom. 611 might lend some support to the contention of the appellant, as been considered, in Dagadu v. Sakubai : AIR1924Bom31 to have been the decision of the Privy Council in Girja Bai v. Sadashiv Dhwndiraj (1916) L.R. 43 IndAp 151. According to the view of Macleod C.J. in Dagadu's case even if the agreement set up by the plaintiff be held proved, the jural relation of the parties inter se might be that of 'joint tenants not as members of a joint family which no longer exists but under a special agreement made after the severance.' It would, therefore, follow that the property in suit is not joint family property.
5. The next question is, whether this is a suit to enforce a right to share therein This is a suit for a declaration that the plaintiff is entitled to a share at some future date in the property in suit. In Baoji v. Bala I.L.R.(1890) 15 Bom. 135 it was held that Article 127 provides for a suit 'to enforce a right' (not 'to establish a right') and by this phrase is intended a claim to obtain actual possession. We think, therefore, that Article 127 cannot apply to the facts of the present case.
6. It is urged on behalf of the appellants that there is a continuing cause of action within the meaning of Section 23 of the Indian Limitation Act and reliance is placed on the case in Ghukleun Lal Boy v. Lolit Mohan Roy (1893) I.I.R. 20 Cal. 906 where it was. held that a suit for a declaratory relief except in cases specially provided by the Indian Limitation Act cannot be held to be barred so long as the right to the property in respect of which the declaration is sought is a subsisting right. That case is dissented from by the Madras High Court in Rajah, of Venkatagiri v. Iaahapalli Subbiahi I.L.R.(1902) Mad, 410 and by the Patna High Court in Maulavi Muhammad Fahimul Huq v. Jagat Ballav Ghosh I.L.R. (1922) Pat. 39In Rajah of Venhatagiri's case it was hold that the cause of action for a declaratory relief is the alleged wrongful denial by the defendant in each case of the plaintiff's title and possession, and the criterion is not whether the right is a continuing one but whether the wrong is a continuing one within the meaning of Section 23 of the Indian Limitation Act. In Maulavi Muhammad Fahimul hug's case it was observed that the declaration obtained in a suit for possession is merely ancillary and is generally unnecessary; but where the cause of action is based upon a shadow cast upon the title of a person, who is not entitled to any consequential relief at the moment, limitation must run from the date on which that challenge to his title commences, A declaratory suit under Section 42 of the Specific Relief Act can be brought when the plaintiff's title is denied by some person, and the denial itself gives a cause of action for a declaratory relief, To such a suit Section 23 of the Indian Limitation Act cannot apply as it refers to a continuing wrong and not to a continuing right.
7. The last question is whether Article 144 of the Indian Limitation Act applies. This is not a suit for possession, but a suit for declaration and to such a suit Article 144 of the Indian Limitation Act cannot apply. In Francis Legge v. Rambaran Singh I.L.R.(1897) All 35 it was held as follows (p. 36) :-
It Seems to us that there is the wideat possible difference between a suit for a declaration such as is asked for in this suit and a suit for actual possession of immovable property. In a suit to which Article 144 would apply, there must be a prayer, express or implied for the dispossession of some one from the pro -party or from the interest in it which the suit claims..., There is no one to be dispossessed from it or from any interest in it.
According to the decision of the Privy Council in Kadoth Arnbu Nairv, Secretary of State the proper Article applicable to such a case is Article 120 of the Indian Limitation Act.
8. We think, therefore, that the view taken by both the lower Courts is correct and this appeal must be dismissed with costs. The costs will be paid to respondents Nos. 1, 2 and 4. The cross objections are dismissed. No order as to costs.