B.K. Mehta, J.
1. A short but interesting question arises s to what is the appropriate article of the Limitation Act, 1963 which is applicable to a suit filed by a wife for reopening the partition effected between her husband and sons where-in complete disregard of her right she was not allotted her share in the joint family properties. The question arises in the following circumstances :
2. The pedigree which is necessary to undersrand the dispute involved in this appeal is set out here in below:
Kandha = Maliben (D-l) (Plaintiff)
Shiya Bhima Miyajar=Rupi
(D-2) (D-3) (D-4/1)
Nathi Gigi Sarman
(D-4/2) (D-4/3) (dead)
3. It is common ground that on 4th May 1963 corresponding to Vaishakh Sud 11 of S.Y. 2019, a memorandum recording oral partition effected between Shiya and Bhima, defendants Nos. 2 and 3 herein and Miyajar (now deceased) was executed dividing the joint family properties comprising of as many as seven agricultural pieces of land, four out of which situate within the revenue limits of village Mitrala and the remaining three within the revenue limits of village Lushala within Junagadh district and one house property in each of the aforesaid two villages, by metes and bounds. The four agricultural fields admeasuring acres 25-3 gunthas situate within the revenue limits of village Mitrala went to the share of Miyajar and the remaining three situate within the revenue limits of village Lushala and admeasuring acres 25-4 gunthas went to the share of Shiya and Bhima jointly. Similarly, the house property situate within the limits of village Mitrala went to the share of Miyajar and the one situate within village Lushala went to the share of Shiya and Bhima jointly. There were two other agricultural fields situate within the revenue limits of village Navagam and another agricultural field situate within the revenue limits of village Lushala which were referred to in the said memorandum of partition and were not divided. Apparently no property was allotted to Kandha-defendant No. 1. Admittedly Mali-ben's share was ignored with the result that she was not allotted any property out of the joint family properties. It appears that Miyajar died in about November or December, 1963 and the possession of the agricultural lands allotted to the share of Miyajar was said to have been forcibly taken over by Kandha and bis two sons Shiya and Bhima. Rupi - the widow of deceased Miyajar, therefore, filed a suit on behalf of hersel and her two minor daughters Nathi and Gigi for possession of the agricultural lands allotted to the share of her deceased husband Miyajar and for mesne profits, or, in the alternative, for partition of the joint family properties. It was Special Civil Suit No. 12 of 1965 on the file of Civil Judge (S.D.) Porbandar.
4. It appears that the present plaintiff Maliben had applied in that suit for being joined as a party as she was a necessary party in the suit for partition of the joint family properties. It is not clear as to when she presented the application, or what order was made thereon by the trial Court. However, her claim to be joined as a party to the suit was negatived by the learned Civil Judge (S.D.) in his judgment in the aforesaid Special Civil Suit No. 12 of 1965 in view of the plaintiff of that suit Bai Rupi having elected to press her suit only for possession of the agricultural fields on the basis of her title and foregoing her alternative claim for partition of the joint family properties. The present plaintiff Maliben did not prefer any appeal against the said order of the Civil Judge rejecting her application to be joined as a party in the suit. It is also an admitted position thai Special Civil Suit No. 12 of 1965 filed by Bai Rupi was ultimately decreed in her favour by directing the defendants of that suit to hand over possession of the agricultural lands allotted to the share of Miyajar and for payment of mesne profits earned by them during their unauthorised occupation thereof. The said suit was disposed of by the judgment and decree of November 15, 1971. The defendants of Special Civil Suit No. 12 of 1965, who are the present defendants Nos. 1, 2 and 3, preferred an appeal from the judgment and decree in the said suit by their First Appeal No. 831 of 1971 which was summarily dismissed by this Court on 2-2-1972 after notice to the respondents.
5. Bai Maliben, the present plaintiff, thereafter filed suit in the Court of Civil Judge (S.D.) Porbandar being special Suit No. 25 of 1973 praying for a declaration that the decree passed in Special Civil Suit No. 12 of 1965 was not binding to her as she was not a party in the said suit, and that the partition effected between the defendants and deceased Miyajar in respect of the properties mentioned in the Schedule to the plaint was not legal and for reopening of the partition and for possession of the properties falling to her share which may be fixed at l/5th share therein, and for other consequential reliefs that may be thought fit and proper in the circumstances of the case.
6. The suit was resisted effectively by defendants Nos. 4/1 to 4/3 contending, inter alia, that it was barred on the ground of limitation and also because the suit was bad on the ground of laches and acquiescence. Defendants Nos. 1 and 2 have supported the suit of the plaintiff for reopening of the partition of the joint family properties. The written statement on behalf of defendant No. 3, who was lunatic was filed by defendant No. 1 as guardian ad litem supporting the plaintiff's case.
7. The learned Civil Judge raised necessary issues on these pleadings and, on hearing the evidence adduced by the parties, concluded that the plaintiff was entitled to a share in the joint Hindu family properties of defendant No. 1 and his sons, she being wife of defendant No. 1, and she was entitled to reopen the partition effected between the parties in disregard of her right and share and, therefore, the decree passed in Special Civil Suit No. 12 of 1965, which recognised and upheld that partition, was not binding to the plaintiff as she was not a party to the suit therein and, therefore, granted the decree as prayed for in the said suit. The learned Judge rejected the contentions on the ground of limitation and the suit being bad for laches and acquiescence since they were not pressed before him. The learned Judge, therefore, declared that the decree passed in Special Civil Suit No. 12 of 1965 was not binding to the plaintiff who had l/5th share in the joint family properties which were liable to be repartitioned since her share and right was disregarded. It is this order of the learned Civil Judge which has been challenged in this appeal before us at the instance of the original defendants Nos. 4/1 to 4/3.
8. At the time of hearing of this appeal, the learned Advocate, appearing on behalf of the appellants, raised the following two contentions:
(1) The present suit which was filed on 2C-7-1973 was clearly time barred under Article 113 of the Limitation Act, 1963, inasmuch as the suit was filed after expiry of three fours from the accrual of the right to sue for reopening of partition which was effected on 4th May 1963.
(2) In any case,, the suit of the plaintiff-respondent No. 1 herein was bad on the ground of laches and (sic) since she did not take any action in the matter in spite of her knowledge about the impugned (sic) because by the decree of the Court in Special Civil Suit No. 12 of 1965 few equities were created in favour of the present appellants who were granted the decree for possession of the agricultural lands allotted to the share of deceased Miyajar.
9. The pertinent question, therefore, which arises in the present appeal is: what is the appropriate article of the Limitation Act, 1963 which would govern the present suit? On behalf of the appellants, it has been contended that the suit to reopen partition once effected on the ground of exclusion of the plaintiff who being wife was entitled to a share equal to that of a son when the partition is effected between her husband and her sons, would be governed by Article 113 of the Limitation Act, 1963 and, therefore, the suit ovght to have been filed within a period of three years (sic) the right to sue accrued, which, in the present case, accrued when the impugned partition was effected on 4th May 1963, or, in any case, when the plaintiff-respondent No. 1 came to know about the impugned partition, which was, in any view of the matter, before 12th November 1965, when the Civil Judge (S.D.) in the earlier suit, namely, Special Civil Suit No. 12 of 1965, directed the plaintiff of that suit to elect as to which of the reliefs they intended to sue for in that suit.
10. On behalf of the respondents, this contention was sought to be repelled by urging that in the first place this question is not open to the appellants since they had cot pressed the point of limitation in the trial Court and more so because no grievance is made on this ground in the memo of appeal. In any case, the present suit, according to the learned Advocate for the respondent No. l plaintiff, is a suit for possession under Article 65 of the Limitation Act, 1963 and the period of limitation would be 12 years from the date the possession of the appellants became adverse to her right and interest and even if the possession of the appellant-defendants, or the other defendants, could be said to be adverse in pursuance of the impugned partition, which was affected in May 1963, the title of the persons holding adversely would ripe into full ownership only in May 1975, and therefore, the present suit which was filed in July, 1973 was clearly within the period of limitation.
11. It is in this context of the rival contentions that we have to consider which is the appropriate article which is applicable on the facts and in the circumstances of the case. In order to decide this question of limitation, we shall have to first consider as to what is the nature of the suit like the present one filed by a wife who is not allotted any share from the joint family properties when a paitition takes place between her husband and sons. Can it be urged successfully that it would be in effect and substance a suit for possession based on title against the persons adversely holding against the rights and interests of the person suing. In other words, the crux of the problem would be as to when a wife or for that matter a widow becomes the owner of a property allotted to her in a partition of the joint family properties effected between father and sons in which she is entitled to share. A further question mar also arise as to whether a suit by a wife who has not been allotted any share in a partition effected between her husband and her sons is virtually a suit for partition of the joint family properties. In Mulla's Hindu Law, 14th Edition, under the caption, 'Persons entitled to a share on partition', the principle as to the right of a wife is digested in Note 315 at page 403 in the following terms:
A wife cannot herself demand a partition but if a partition does take place between her husband and his sons, she is entitled to recene a share equal to that I of a son and to hold and enjoy that share separately even from her husband. Where at a partition between a father and his three sons, the wife was not allotted a share, it was held that she was entitled to reopen the partition, there being no waiver merely by her not asking for a share but that in the partition the value of the ornaments taken by her must be taken into account (vide: Radhabai v. Pandharlnath (1924) Nag 534).
12. In Pratcnmull Agarwalla and Anr. v. Dhanbai Ati Bibi and Ors. , where a mortgagee suing on a mortgage on the joint family property, though impleaded all the members of the family as defendants in the suit, did not implead the mother, a question arose whether she is a necessary party and in her absence a decree could be granted against the joint family property. The Privy Council while trying to state the ratio of the decision of Justice Mitter in Sheo Dyal Tewaree v. Judoonath Tewaree (1868) 9 W.R. 61, quoted with approval the following two passages from Justice Milter's judgment:
Division by metes and bounds was necessary to constitute partition under the Mitakshara and that under the Hindu law two things at least are necessary to constitute partition: the shares must be defined and there must be distinct and independent enjoyment of those shares.
Of heirs dividing after the death of the father let the mother also take a share, and proceeded as follows, or in other words, the mother or grandmother, as the case might be, is entitled to a share when sons or grandsons divided the family estate between themselves. But the mother or the grandmother can never be recognized as the owner of such a share, until the division has been actually made. She has no pre-existing vested right in the estate except a right of maintenance. She may acquire property by partition, for partition is one of the recognised modes of acquiring property under the Hindu law. But partition, in her case, is the sole cause of her right to the property.
The Privy Council thereafter reiterated the ratio of the decision in Sheo Dyal's case (supra) in the following terms:
The decision of Mitter J in the abovementioned case 9 W.R. 62, which is material to the matter now under consideration, was that according to the Mitakshara law, the mother or the grandmother is entitled to a share when sons or grandsons divide the family estate between themselves, but that she cannot be recognised as the owner of such share until the division is actually made as she has no pre-existing right in the estate except a right of maintenance.
The Privy Council thereafter referred approvingly to the decision of a Division Bench Allahabad High Court to Betu Kour v. Janaki Kaur (1911) 33 All 118 where it was held that it was only when sons actually divide the property and effect a complete partition that the mother can get a share, and that there is nothing in the Mitakshara from which it can be inferred that upon a mere severance of the joint status of a Hindu family a mother can claim a share. The Privy Council thereafter referred to the decision of the Bombay High Court in Raoji Bhikhaji v. Anant Laxman where the same view as that of Allahabad High Court was taken. The Privy Council thereafter held as under:
In their Lordships' opinion the abovetnentioned decisions correctly represent the Mitakshaia law on the matter now under consideration, for it is not suggested that there is any difference in this respect between the rights of a wife and those of a mother or grandmother.
The result of the above-mentioned conclusion is that inasmuch as the preliminary decree in the partition suit was not carried out and no actual division of joint family property was made, Dhanabati did not become the owner of the share mentioned therein..., Ohanabati at that time was not the owner of any share in the joint property and had no right of redemption. The decision therefore of Buckland 3, that the suit was maintainable under Section 42 Specific Relief Act, was correct.
13. A Full Bench of Allahabad High Court in Sri Gopal and Ors. v. Mt. Janak Dulari following the decision of the Privy Council in Pratapmull's case (supra) held that even though a mother is entitled to a share on partition, no right to such a share is conferred upon her by a mere serverance of the joint status of the family and she becomes entitled to a share only when the members of the joint family divide the family estate between themselves by metes and bounds.
14. However, this position as enunciated by the Privy Council as to when a wife or widow is entitled to a share on partition is altered by the Hindu Succession Act, 1956 being put on the statute Book.
15. In R.B.S. S. Munnatal and Ors. v. S.S. Rajkumar and Ors. , a question arose in the context of Section 14(1) of the Hindu Succession Act, 1956. A preliminary decree in a suit for partition of a joint family property declaring the share of a Jain widow before the commencement of the Hindu Succession Act was passed in the case before the Supreme Court and the question was whether such a share could be said to be 'possessed' by her within the meaning of Section 14 of the Act so that if she died before actual division of the estate, the interest declared in her favour could devolve upon her son to the exclusion of her grandson. In that context, the Supreme Court referred to the decision of the Privy Council in Pratapmull's case (supra) and conceded that undoubtedly the Privy Council laid down therein that till actual division of the share declared in her favour by a preliminary decree for partition of joint family properties, a Hindu wife or mother was not recognised as the owner. However, that rule in the opinion of the Supreme Court cannot apply after the enactment of Hindu Succession Act, since it was a codifying enactment which made far reaching changes in the structure of the Hindu law on inheritance and succession and conferred upon Hindu female full rights of inheritance sweeping away the traditional limitation of her powers of disposition inherent in the widow's estate. Shah J. speaking for the Court, held as under:.It is true that under the Sastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Women's Right to Property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severally of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that is enacting Section 14 of the Hindu Succession Act the Legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmull's case . Section 4 of the Act gives an overriding effect to the provisions of the Act.... Manifestly, the Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which Section 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of Section 14. In the light of the scheme of the Act and its avowed purpose it would be difficult without doing violence to the language used in the enactment to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded as property. The High Court was therefore, in our judgment, in error in' holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned Counsel for Rajkumar that it was not property within the meaning of Section 14 of the Act.
16. It is in the context of this legal position that Mr. Vyas, appearing on behalf of the appellants-original defendants Nos. 4/1 to 4/3, contended that the learned trial Judge committed an error of law in holding that the suit was within limitation. In submission of the learned Advocate for the appellants, the suit was clearly time barred since it sought declaration that decree passed in Special Civil Suit No. 12 of 1965 was not binding to respondent No. 1-plaintiff and for reopening of partition said to have been effected between Shiya and Bhima on the one hand and deceased Miyajar on the other in May, 1963, and for the share in the joint family properties. Having regard to the nature of the suit, it was contended by the learned Advocate for the appellants, that the suit would be governed clearly by Article 113 of the Limitation Act, 1963 and the period of limitation would be three years from the right to sue accrued or from the accrual of the right to sue, in the present case, would be admittedly the day on which the respondent No. 1-plaintiff made an application to the court of the learned Civil Judge (S.D.) in Special Civil Suit No. 12 of 1965 for being joined as a party. In any view of the matter, it was urged that even after granting the grace period of limitation, as prescribed under Section 30 of the Limitation Act, 1963, the plaintiff could not have filed the suit after expiry of seven jears from the date of coming into force of the Limitation Act, 1963, and which limitation would have expired in any case in January, 1971 and, therefore, the suit which was filed in July, 1973 was clearly time barred. This contention about limitation was sought to be repelled by the learned Advocate for respondent No. 1-plaintiff by urging that the suit was in effect and substance a suit far possession on title and, therefore, governed under Article 65 of the Limitation Act, 1963, which prescribes a period of limitation of twelve years from the date when the possession becomes adverse to the plaintiff and even assuming that on the partition effected between Shiya and Bhima on the one hand and Miyajar on the other en 4th May 1963, the possession of Miyajar becomes adverse, the suit for reopening the partition and possession of a share of the plaintiff could have been filed within the period of twelve years from the date of the partition and, therefore the suit filed in July 1973, was clearly within the period of limitation. The question, therefore, which is to be decided in the context of these rival contentions is whether the suit of the plaintiff is a suit for possession on the basis of title? We are afraid we cannot agree with the contention advanced by the learned Advocate appearing on behalf of respondent No. 1-plaintiff that a suit by a wife, who is excluded from being allotted a share on partition taking place between father and his sons, would be a suit for possession of the property according to her legal share, on the basis of a title. It cannot be urged successfully that a Hindu wife during the life time of her husband when he is joint with his sons has a right in the joint family property. Her right is a personal right of maintenance against her husband irrespective whether he possesses property or not. The maintenance of wife by her husband is a matter of personal obligation arising during the very existence of relationship and has no nexus with the possession by the husband of any property, ancestral or self-acquired. It is also beyond dispute on matter of principle that a wife is not entitled during her husband's life time to be maintained either by her relations or by her husband's relations even if she has been deserted by him unless they have in their possession property belonging to her husband vide: Article 554 Wife's right of maintenance at page 597 of Mulla's Hindu Law, 14th Edition). This inchoate right of maintenance of a Hindu wife would materialise and become choate and enforceable right only when it is charged on a particular specific property or a property is allotted in lieu thereof. Till Then it is the right against the property and not a right in a property. In V. Tulasamma v. V. Shesha Reddi AIR 1977 SC 1944, Bhagwati J., speaking for the Court, considered the nature of a right, which Hindu widow has, to be maintained out of the joint family estate. He ruled on behalf of the Court that the right of the widow to be maintained is of course not a jus In rem since it does not give her any interest in the joint family property but it is certainly jus ad rem, i.e. a right against the joint family property. This principle has been reiterated and affirmed in Bai Vajia v. Thakcrbhai . This principle will apply propria vigore in case of a Hindu wife because she has no interest or right in the property which can materialise and ripen into the full enforceable right when some property is allotted to her at the time when the partition takes place between the father and his sons. The property which is allotted to her would become her property. It may be that where the right to share in an estate is declared in favour of a wife or a widow by a Court in a suit for partition under a preliminary decree it may become her property and will devolve on her heirs as absolute estate under Hindu Succession Act as happened in the case of Munnalal v. Rajkumar (supra). Till that position arises, either by recognition and declaration of her share in the joint family property by a decree of a Court or where the property is allotted to her on partition taking place by metes and bounds, she cannot successfully claim herself to be the owner of the property and till she becomes the owner of property, her suit for reopening of the partition cannot be said to be a suit for possession on title. In the ultimate analysis for application of Article 65, it must be a suit on the basis of the title and a Hindu wife cannot claim a title in the property till she is allotted a specific property on partition taking place by metes and bounds between the father and his sons as happened in Pratapmull's case (supra), or till her share has been declared along with the shares of other co-parceners by a preliminary decree as it happened in MunnalaJ's case (supra). We, therefore, cannot agree with the learned Advocate for the respondent No. 1-plaintiff that the moment a partition is affected between the father and his sons without any allocation of a specific property to the share of a wife, she can successfully claim the ownership in any particular property. The learned Advocate for respondent No. 1-plaintiff, therefore, attempted to persuade us that the moment a partition is effected between the father and his sons, the wife is entitled to receive a share equal to that of a son and that right is a right in the property and, therefore, the suit for reopening of partition and for reallocation of the properties would be in effect and substance a suit based on title. In support of his contention reliance was sought to be placed on the decision of the single Judge of the Madhya Pradesh High Court in Bhawarsingh and Anr. v. Pilabai AIR 1972 MP 224.
17. The facts of the case before the Madhya Pradesh High Court were that a suit for partition was filed by a widow of a deceased son against her father-in-law and the grand-son of her husband's brother. A preliminary decree was passed in the suit by which the plaintiff was declared to have 1/3rd share in the property. The preliminary decree was confirmed by the first appellate court with the result that the father-in-law, who happened to be the defendant, curried the matter in second appeal. The only contention urged in the memo of appeal was that the mother-in-law of the plaintiff was not impleaded in the suit and, therefore, the suit was defective. At the time of hearing of appeal, it was pointed out that the (sic) other-in-law had died. It was, therefore, contended that though the preliminary decree for partition did not declare any share in favour of the mother-in-law as she was not a party, yet in law she became entitled to 1/4th share in the property on the date of the preliminary decree which on her death passed on to her husband i.e. the father-in-law and, therefore, the share should be varied. In this set of facts the learned Single Judge of Madhya Pradesh High Court, following the decision of the Supreme Court in Munnalal's case (supra) held that the right of wife to share must be taken to accrue immediately on a partition is made, although in that partition, she is not assigned any share and as decided in Mannalal's case (supra) this right to share has not to wait for its accrual till the property is actually divided, but arises even at the stage when shares in property are declared by a preliminary decree. In that view of the matter, the learned Single Judge held that the moment preliminary decree for partition was passed in the suit, right to share in the property accrued in favour of wife and this right was itself property which on her death passed by inheritance to her husband under Section 15(1) of the Hindu Succession Act. He, therefore, allowed the appeal. We are of the opinion that this decision of the learned Single Judge of the Madhya Pradesh High Court, even assuming that it lays down correct law, will not be of any assistance to the case of the respondent-plaintiff before us for the simple reason that the partition with which we are concerned in the present case was by agreement and not by any decree or order of the Court. It should be recalled that what weighed with the Supreme Court in the holding that the moment the shares of coparceners including the share of a widow of a coparcener are declared by preliminary decree, the persons in whose favour the decree is made would have interest and right in property which will devolve on his or her death on legal heirs. The Supreme Court reached this conclusion because it did not find any distinction between the rights of the coparceners who have a share or interest in the property from birth and those of other persons who are entitled to a share on a partition taking place between specified parties under Sha-stric Hindu law. Justice Shah has brought out this reasoning which weighed with the Court in reaching the conclusion as it did in Munnalal's case (supra) in the following terms:
Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which Section 14 occurs or in the phraseology used by the legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of Section 14. In the light of the scheme of the Act and its avowed purpose it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of Hindu female must also be regarded as property. 1
(Emphasis supplied by us).
18. It is this reasoning which had weighed with the Supreme Court in reaching the conclusion that the moment shares are declared by a preliminary decree in favour of coparceners as well as other persons entitled to a share under law, that would constitute his or her right to share as right in the property. We are afraid that this reasoning cannot be projected to and applied in a case where there is a partition by agreement between the coparceners in which a peison entitled to share has not been declared as a sharer or for that matter to whom no property has been allotted. In that view of the matter, therefore, we are of the opinion that the present suit cannot by any stretch of imagination, be said to be a suit based on title without violence to the language. The only article which would be applicable, in our opinion, is Article 113 of the Limitation Act, 1963, since it cannot be contended successfully that it would fall either within Article 110 which provides limitation for a right to enforce a share in the joint family property since admittedly no joint family was in existence when the present suit was filed. The present suit would also not fall under Article 59 of the Limitation Act, 1963 which now takes within its sweep the suits for obtaining a relief on the ground of fraud or mistake under Articles 95 and 96 of the Limitation Act, 1908 since admittedly the respondent-plaintiff was not a party to that instrument and does not want to absolve herself of the consequences on the ground of fraud or mistake. The only appropriate Article which would apply on the facts and in the circumstances of the present case is Article 113 of the Limitation Act, 1963, and the limitation of three years prescribed therein would commence from the accrual of the right to sue. It is an admitted position in the present case before us that the respondent-plaintiff had made an application to be joined as a party in Special Civil Suit No. 12 of 1965 and that application was rejected by the Civil Judge concerned because the present appellants who were the plaintiffs there were put to election of the relief between the reliefs claimed in the suit, namely, relief for possession of the property allotted to the share of deceased Miyajar or the partition of the joint family properties and by the order of the Civil Judge concerned of 12th November 1965, the relief for partition was deleted as prayed for by the present appellants who were plaintiffs in that suit. The learned Civil Judge in that suit, therefore, did not think that the present respondent plaintiff was a necessary party in the suit and in that view of the matter, her application was dismissed, because, the plaintiffs of that suit who are the appellants before us, had made their application for the relief of possession only. The conclusion is, therefore, inescapable that the present respondent-plaintiff must have made her application to be joined as a party before the aforesaid date, when the Civil Judge concerned permitted the deletion of the relief on 12th November 1965.
19. In that state of affairs, therefore, the period of limitation would at least begin to run from that date because obviously the application for being joined as a party must have been made before the said date, by the present respondent-plaintiff. The period of limitation of three years would, therefore, expire, somewhere in November, 1968 and the suit having been filed in July, 1973, is clearly time barred. In that view of the matter, therefore, we must agree with the learned Advocate for the appellants before us that the trial Court had no jurisdiction to try the suit as the suit was clearly time barred and no satisfactory explanation has been advanced to satisfy the Court about the cause of delay. It is no doubt true that before the trial Court the Advocate appearing on behalf of the present appellant-defendants at the time of final arguments of the suit had stated that he did not press the point of limitation. In other words, in his submission he could not satisfy the court that the suit was time barred. The fact remains that the parties went to issue on question of limitation and, therefore, we do not think that it can be successfully urged before us that the plea of limitation was waived, if at all it is legally permissible to do so. We, therefore, hold that the suit was clearly time barred and, therefore, should have been dismissed. In this view of the matter, it may not be necessary to decide the second contention urged on behalf of the present appellants. We must, however, mention here that the present respondent-plaintiff was guilty of laches and acquiescence inasmuch as she did not prefer any appeal or revision against the order of the Court in Spl. Civil Suit No. 12 of 1965 when her application for being trade a party was rejected and allowed the suit to be decided on merits where the partition which has been challenged before us in the present suit was found to have been established and recognised by the Court as legal and valid and on that basis a decree for possession was granted to the present appellants who were the plaintiffs there. The principle of laches and acquiescence is not an empty principle and if as a result of laches and acquiescence on the part of a party some equities have come into existence the party guilty of laches would be estopped from agitating the question again and laying the matter open once again for the decision of the Court. The respondent-plaintiff must be held to be guilty of laches and acquiescence and, therefore, also she is estopped from reagitating this question. It is a settled legal position that a wife can waive her right to a share when a partition takes place between father and his sons. In Radhabhai's case (supra) where at a partition between father and his three sons the wife was not allotted a share it was held that there being no waiver on her part, she was entitled to reopen the partition and the waiver cannot be inferred from mere omission to ask for a share. In the present case the respondent-plaintiff before us not only failed to ask for a share on a partition but also failed and neglected to agitate and establish her right by taking the matter to higher court even after her application to be joined as a party was rejected, and she waited for about two years after the Special Civil Suit No. 12 of 1965 was ultimately disposed of by rejecting First Appeal from that order summarily on 2-2-1972.
20. In that set of evidence, it must be held that the present respondent-plaintiff was not only guilty of laches and acquiescences but she has by her-conduct waived her right to a share and, therefore, she is estopped from filing the present suit. On both the counts, therefore, her present suit is liable to be dismissed. The result is that this appeal is allowed and the judgment and decree of the trial Court are set aside and the present suit is dismissed with costs of this appeal. Since the appeal is filed in forma pauperis, a copy of this order will go to the Collector for recovery of the Court fees from the appellant.