G.C. Mital, J.
1. This is a Letters Patent Appeal against the judgment of a learned single Judge, dated Aug. 25, 1976, in R. F. A. No. 6 of 1964, by which the plaintiffs' appeal was allowed and the case was remanded to the trial Court for further proceedings in accordance with law.
2. Abnashi Singh, Tarlok Singh and their mother Smt. Rajwans Kaur filed a suit for partition of joint properties and for rendition of accounts against Smt. Lajwant Kaur, widow of Bhupinder Singh, and lqbal Singh son of Bhupinder Singh, Bhupinder Singh was brother of Avnashi Singh and Tarlok Singh plaintiffs and their father was Lakha Singh. Bhupinder Singh had died before the institution of the suit.
3. In the aforesaid suit, out of which this appeal arises, the plaintiffs stated that Lakha Singh with his sons formed a joint Hindu family of which he was the Karta and after his death, his eldest son Bhupinder Singh took over the family business of printing press under the name and style of Wazir Hind Press, Hall Hazar, Amritsar and after the death of Bhupinder Singh on September 28, 1952, his widow Smt. Lajwant Kaur took over the business and started running the same. Besides this, the joint Hindu family owned house bearing No. 384/7, situate in Kucha Kahan Singh, Amritsar. The plaintiffs claimed partition of the aforesaid properties as a dispute arose between them about the management and control of the family business. It is pleaded that the plaintiffs earlier brought Civil Suit No. 104 of 1953, for a declaration that the property Wazir Hind Press, its assets and liabilities and family house were the properties of the joint Hindu family and for the grant of a permanent injunction restraining Smt. Lajwant Kaur from interfering in the enjoyment by the plaintiffs of the joint Hindu family property including Wazir Hind Press and also restraining her from refusing to allow the plaintiffs from acting as Karta and Manager of the joint family assets. That earlier suit for injunction was decreed by the trial Court on March 31, 1954, but on appeal, a Division Bench of this Court on April 11, 1960, allowed the appeal and dismissed the suit for injunction on the finding that the joint Hindu family had disrupted in 1944 when Avnashi Singh plaintiff had served notice to separate from the Hindu undivided family and, therefore, the declaration sought for that the properties belong to Hindu undivided family could not be granted. The Division Bench specifically observed as follows:--
'They can if they are so advised, file a suit for actual partition of the property or seek any other appropriate relief.'
That is how the plaintiffs filed the present suit for partition of the joint properties and for rendition of accounts on Aug. 9, 1961.
4. The defence of the defendants, Smt. Lajwant Kaur and lqbal Singh, was that the present suit was barred by the principles of O. 2, R. 2, Civil P. C., inasmuch as the plaintiffs should have included the prayer for partition in the previously instituted suit; that the suit was barred by limitation and raised some other points which are no longer in controversy between the parties. The two relevant issues, which survive for decision, are Issues Nos. 2 and 3, which are reproduced below:--
2. Whether the suit is within time? (Onus objected).
3. Whether the suit is barred by the principles of res judicata and O. 2, R. 2, Civil P. C.?
The learned Subordinate Judge, 1st Class, Amritsar, by his judgment and decree dated Aug. 13, 1963, held under Issue No. 2 that the suit is within limitation. Under Issue No. 3, it held that the suit was barred under O. 2, R. 2, Civil P. C. Consequently, the trial Court dismissed the suit. The plaintiffs filed R. F. A. No. 6 of 1964 in this Court which was allowed by a learned single Judge on Aug. 2, 1976, holding that the suit is not barred by the principles of O. 2, R. 2 as the cause of action in the previous suit was different, as in that suit only declaration and injunction were claimed. He also found that in the previous suit all the properties were not Included and if the prayer for partition had been made in that suit, then that suit would have failed on the ground of partial partition and a fresh suit for the partition of all the properties would not have been barred. On the point of limitation, the suit was held to be within limitation, not on the reasoning adopted by the trial Court but by applying Art. 110 of the New Limitation Act, considering the property to be Hindu undivided family property for which limitation is 12 years from the date when the exclusion becomes known to the plaintiff. It was held on facts that it was in 1953 that Smt. Lajwant Kaur sought to run the business in her own name when she purported to exclude the plaintiffs from part of the family property and the suit could be brought up to 1965 and as such the suit filed on Aug. 9, 1961, was within limitation.
5. In the Letters Patent Appeal, Mr. K. S. Thapar has argued in the first instance that the present suit is barred under the principles of O. 2, R. 2, Civil P. C., as the cause of action in the present suit and the previous suit was one, namely, that the plaintiffs were being deprived of the business by the defendants and that the relief of partition could also be included in the previous suit. In support of his argument, he has relied on some decisions, the underlying rule therein is the same as contained in O. 2, R. 2, Code of Civil Procedure. But, he has not been able to cite any decision either on identical facts before us or something near it. Therefore, we need not refer to those decisions as the rule laid down therein is well known and there is no quarrel with the same. The claim for declaration and injunction which was laid in the previous suit was on the basis that in 1953. Smt. Lajwant Kaur took the licence for running the press in her own name and thereby she wanted to deprive the plaintiffs from getting the benefit of the same. The cause of action for partition is an independent one. The right to file a suit for partition is always available to any member of the joint family and when it is a case merely co-sharers, to any one of the sharers, but it is not necessary t whenever somebody's share is denied a joint property a suit for partition must be filed.
6. On the other hand, Mr. Bhagirath Dass, the learned counsel for the plaintiff-respondents had cited Duni Chand v. Jagdev, AIR 1949 East Punj 243, which has some bearing on the facts of this case. To our mind, any number of suits may go on between members of the joint Hindu family with regard to the joint family property and between co-sharers with regard to joint property, but a suit, for partition is always based on a separate cause of action and that is when one or more of the co-sharers or members of the joint Hindu family do not want to continue joint any longer. On this principle, we are of the opinion that the learned single Judge was right in holding that the principles of O. 2, R. 2, Civil P. C. are not attracted to this case and the present suit is not barred.
7. As regards the point of limitation, Art. 127 of the old Limitation Act, which is equal to Art. 110 of the 1963 Limitation Act, is as follows:--
Description of suit. Period of limitation Time from which period begins to run.
127. By a person excluded from joint family property to enforce right to share therein. Twelve years. When the exclusion becomes known to the plaintiff.
A reading of this article would show that it would he applicable only in the case of joint family property whenever it, is sought to be partitioned and the limitation of 12 years will run from the date when the exclusion becomes known to the plaintiff. This Article would be applicable only if the property in dispute belongs to joint family. Avnashi Singh plaintiff himself gave a notice in the year 1944 of his intention to separate from the joint Hindu family and the moment he gave the notice, the status of joint Hindu family between brothers came to an end and that is why in the previous suit, which came to the High Court, this Court held that the properties ceased to be joint family property and on that ground the suit was dismissed and it was left open for the plaintiffs to file a suit for partition or to adopt any other appropriate remedy. Mr. Bhagirath Dass, learned counsel for the plaintiff-respondents, could not controvert this point and, therefore, we hold that the learned single Judge was not right in applying Art. 110 to the facts of the present case.
8. If the parties to this litigation are not members of the joint Hindu family, the property which was once owned by their joint Hindu family could also be not joint family property. The moment the status is taken away, they become co-sharers in the property and as such the only Article applicable would be Art. 144 of the old Limitation Act, which is equal to Art. 65 of the 1963 Limitation Act. Article 144 reads as follows:--
'144. For possession in of immovable property or any interest therein not hereby otherwise specially provided for. Twelve years. When the possession of the defendant becomes adverse to the plaintiff.'
The plaintiffs clearly have an interest in the property in dispute which is denied by the defendants and, therefore, they are entitled to maintain the suit within a period of 12 years from the date the possession cl the defendants becomes adverse to the plaintiffs., Admittedly, it was in 1953 when Smt. Lajwant Kaur got the exclusive licence in her favour for the press, that is, she threw a cloud on the title of the plaintiffs and therefore, the present suit brought on Aug. 9, 1961, is clearly Within 12 years. The title of the plaintiffs in other immovable property, that is, the house was never denied and, in any case, the suit with regard to that is within limitation.
9. The above conclusion of ours is true only with regard to immovable properties which are the subject-matter in dispute. Mr. Thapar wanted to apply Art. 120 of the old Limitation Act, which is equal to Art. 113 of the 1963 Limitation Act, to argue that the suit is beyond 3 years and, therefore, is barred by limitation. When faced with Art. 144, he could not controvert the same but went on to argue that Art. 144 will apply only to immovable properties and not to movable properties like press, its assets and liabilities and other business assets, and for such movable properties the limitation would be six years under Art. 120 of the old Act which is equal to Art. 113 of the 1963 Act, under which the limitation is 3 years. For his argument that for movable properties Article 120 is applicable, he has relied on Raghunath Das v. Gokal Chand, AIR 1958 SC 827 and Sirajul Haq Khan v. Sunni Central Board of Waqf, U. P., 1959 SCR 1287, and contends that in any event for the movable properties the suit is clearly barred by time, Mr. Bhagirath Dass, counsel for the plaintiff-respondents had no answer to the law laid down in the aforesaid two decisions but argued that the press, its assets and liabilities and other business assets, are immovable properties and as such this Article would not be applicable and the only Article applicable would be 144. This matter has not been gone into by any of the Courts below as it was never adverted to in the manner it has been argued before us. All that we hold is that the suit with regard to the immovable properties is within limitation under Art. 144 and the suit with regard to the movable properties is clearly barred by limitation under Art. 120. Now it will be open for the, trial Court in post preliminary decree proceedings to decide which of the properties in dispute are immovable properties and to partition the same and to exclude from consideration for purposes of partition the movable properties. This would be done by the trial Court after the case goes back to it for the passing of the final decree.
10. For the reasons recorded above, the appeal is partly allowed to the extent indicated above and a preliminary decree for partition and for rendition of accounts is passed. The share of each of the plaintiffs would he 1/4th and the share of the defendants would be half and half in the remaining 1/4th share. With regard to rendition of accounts, the plaintiffs are entitled to accounts from defendant No. 1 in respect of the immovable properties from Dec. 30, 1944, as found by the trial Court in para 22 of its judgment. The suit with regard to movable properties shall stand dismissed. In view of partial success, there will be no order as to costs. The parties, through their counsel, are directed to appear before the trial Court on April 16, 1979. The records may be sent to the trial Court forthwith.
S.S. Sandhawalia, C.J.
11. I agree.
12. Appeal partly allowed.