1. These two second appeals involve an interesting question of law as to what is the period of limitation applicable to a suit filed by an alienee from a coparcener of an undivided share in joint family property for general partition. There is very little direct authority on the question. The Nayadu J. who referred them for decision by aDivision Bench of this court. These two appealsarise out of two suits for partition, O. S. No. 47of 1946 and O. S. No. 23 of 1945 in the court ofthe Subordinate Judge of Chingleput, filed in thefollowing circumstances. The properties in suitbelonged to a joint family. The following pedigree shows the relationship between members ofthis family.
Varadaraja Mudali Singaravelu Mudali
| | | |
Menka Thangarelu Subbayya Ratnavelu Mudali
Mudali Mudali Mudali (deft 8)
| | (died) |
| Chinnakulandai ______________|______________
| Mudali | |
| (deft 4) Balu Jayaraman
________|___________________ (deft 3) (deft 7)
| | |
Kupaswami Dakshinamurthi Kothandraman
(died) (deft 2) (deft3)
Defendants' 1 to 4 are the descendants of Varadaraja Mudali and form one branch. Defendants 5 to 7 are the descendants of Singaravelu Mudali and form the other branch of the family. The family became heavily indebted and several suits were filed by creditors for the recovery of amounts due to them. One of such suits (O. S. No. 9 of 1916) was filed by one Arunchala Mudali in the District Court of Chingleput. The members of the family who were alive on the day were made parties. At about this time, the third son of Varadaraja Mudali, namely, Subbaraya Mudali filed a suit for partition, O. S. No. 18 of 1916 in the same court. To this suit, not only the members of the family, but also the creditors of the family were .--made parties, including Arunachala Mudali.
A preliminary decree for partition was passed in the suit on 29-12-1917. There was also a decree passed in Arunachala's suit, O. S. No. 9 of 1916. There were appeals to the High Court, which were dismissed. No steps, however were taken in O. S. No. 18 of 1916 for the passing of a final decree and somehow or other, the suit appears to have been dismissed. In the meantime, Ratnavelu became an insolvent. The Official Receiver sold the share of Ratnavelu in items 1 to 8 of B Schedule to Thani Chettiar, the plaintiff in O. S. No. 47 of 1916. Though the sale by public auction was held on 16-3-1925, the sale deed was executed by the Official Receiver on 4-1-1929. Arunachala proceeded to execute his decree in O. S. No. 9 of 1916 and brought to sale the half share in the properties set out in schedule B, excluding items 1 to 9, that is, after excluding the half share of the insolvent Ratnavelu. The purchaser was Rajamanikkam Chetti, the plaintiff in the other suit, O. S, No. 23 of 1945. The sale was held on 28-7-1927; it was confirmed on 14-4-1928 and a sale certificate was Issued on 24-11-1931. There appears to have been a sort of paper delivery through court in March and July 1934. But it is common ground that neither Thani Chettiar nor Rajamanickam Chettiar ever got possession of the properties purchased by them. Both Thani Chetti and Rajamanickam Chetti joined together and filed O. S. No. 64 of 1935 in the court of the Subordinate Judge of Chingleput on 4-11-1935 for possession of the B schedule properties from the present defendants 1 to 7 and others.
This curious procedure was adopted, evidently because the two purchasers claimed to have become co-owners of these properties, each one having purchased a half share in them. They made an allegation in the plaint In that suit that they together were entitled to enjoy the B schedule properties in common without a partition and they had agreed to do so. One of the pleas in defence was that the suit as framed was not maintainable. The learned Subordinate Judge decreed the suit, There was an appeal to the District Court. The learned District Judge allowed the appeal and dismissed the suit on the ground that the suit as one framed for possession of particular items of property was not maintainable and the only remedy was by way of a suit for general partition. The learned Judge also expressed the view that the one-third share in the properties belonging to defendants 6 and 7 remained unaffected by the sales in favour of the plaintiffs. There was & second appeal to this court which was dismissed by Mockett and Kuppuswami Ayyar JJ. Mockett J. observed :
'On one ground it Is inevitable that the appellants must fail. They seek to obtain possession without a prayer for. partition and the authorities are today beyond dispute that such a form of suit does not lie.'
Kuppuswami Ayyar J. agreed with him and said:
'The appellants are only alienees of the undivided interests of the several members of a joint Hindu family in respect of a particular property of that family. By such purchase they cannot claim a right to have the particular item of property. All that they could seek is to have the equities worked out in a suit for general partition of the family properties in which they may ask the properties purchased by them to be allotted to the share of the persons from whom they claim to be the alienees.'
Mockett J. incidentally held that the first plaintiff in that suit was entitled only to an undivided 1/6 share. It may be mentioned here that in pursuance of the decree for possession passed by the learned Subordinate Judge, the plaintiffs obtained delivery of possession of the properties on 26-3-1942. But after the appellate decree, possession was redelivered to the members of the family on 30-2-1944. Soon after the disposal of the second appeal, the two suits out of which these appeals arose were filed one by Thani Chettiar and another by Rajamanickam Chettiar, in February 1945. Thani Chettiar in his suit was content to claim only one-sixth share, while Rajamanickam claimed a half share. Both the trial Judge, namely, the learned Subordinate Judge of Chingleput and the learned District Judge on appeal, dismissed the suits as barred by limitation. Hence the appeals.
2. The learned Subordinate Judge disposed of the question of limitation thus : The Court sale to Rajamanickam was confirmed finally by the District Court on 15-1-1930. Thani Chettiar got a sale deed executed in his favour on 4-1-1929. So for each of these two persons limitation for a suit for partition and possession would run from the respective dates. Whether Article 120 or Article 144, Limitation Act is applicable, in either view, the suit would be barred. The learned District Judge held that whether Article 120 or 144 was the Article applicable, the suits were barred because the suit by Rajamanickam was brought more than 12 years after 15-1-1930, the date of the confirmation by court, and the suit of Thani Chetty was beyond 12 years from 4-1-1929, the date of the Official Receiver's sale deed. The plaintiffs relied on certain pleas which, according to them, would save them the bar of limitation. But all these pleas were overruled.
3. Mr. K. S. Champakesa Aiyangar, who appeared for the appellant in S. A. No. 1655 of 1949 was unable to formulate his contentions with any definiteness, evidently because of the absence of direct authority on the point. He would not mention any Article of the Limitation Act as applicable to a suit like the present. So far as we are able to understand him, his argument was that so long as the right of the alienating coparcener for partition against the other coparceners could be enforced by him, the right of the alienee also could be enforced. The coparcener's right to obtain partition and separate possession of his share affords a continuing cause of action and it is lost only when there has been exclusion or ouster for the statutory period of 12 years. If by such exclusion or ouster the allenor's right becomes lost, then learned counsel was prepared to concede that the alienee's right would also be lost.' Though this was his main contention, he also put forward alternative contentions assuming that some Article of the Limitation Act should apply.
If Article 144 is the Article applicable, he contended that limitation will commence to run only when the alienee becomes entitled to possession of a definite item of property and that could only be when the alienating coparcener obtains separate possession of his share. Till then, the alienee is not entitled to actual possession of any portion of the family property and therefore the possession of the other coparceners will not be adverse to him. Assuming that Article 120 is the article applicable, his argument was that limitation would not commence till the alienee's right is denied. At this stage we shall not refer to his special pleas put forward to escape from the bar of limitation for example the plea based on Section 14, Limitation Act.
4. It is necessary to remark on one important omission In the plaint and it may be neceessary to consider whether the fact so omitted has any material bearing on the question to be decided. We refer to the omission on the part of the plaintiffs to mention the suit for partition brought by Subbaraya, O. S. No. 18 of 1916 mentioned earlier in the judgment and the preliminary decree passed therein. Not only is there no mention of this On the other hand, throughout the plaint, the defendants are described as being members of an undivided family. It appears, however, that in the courts below the plaintiffs changed their case and indeed relied on the fact that as a result ofthe suit filed by Subbaraya, the family becamedivided in status. The learned trial Judge refused to permit the plaintiffs to change their case,as ail along the plaintiffs had been proceeding onthe footing that the family was undivided instatus.
5. Before we deal with the question as to which Article of the Limitation Act applies to a case like the present. It is useful to examine the position and the rights of persons like the plaintiffs who purchase a share of some of the coparceners of a Hindu family. The purchaser cannot claim to be put in possession of any definite piece of family property. He does, not even acquire my interest in the property sold. He does not become a tenant-in-common with the members of the family. He is not entitled to joint possession with them. He has only an equity to work out his rights by means of a partition standing in his vendor's shoes. The alienee's suit for partition must be one for partition of the entire property and not for the partition of any specific item, of, or interest in the family property. Such a suit, however will not be technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family. (Mayne on Hindu law, nth Edn. pp. 487, 489 and 491).
6. It is common ground that there is no Article of the Limitation Act which specifically provides for a suit by an alienee from a coparcener for general partition.
7. Article 127 provides for a suit by a person excluded from Joint family property to enforce a right to share therein. But that Article would not apply unless the claim is made by the plaintiff as a member of the coparcenary. The attempt of Mr. Champakesa Aiyangar was to convince us that there was no Article of the Limitation Act which would apply to this case. But this cannot be having regard to the scheme of the Limitation Act. The only exception is Section 10 of the Act which expressly provides that a suit against express trustees shall not be barred by any length of time. That section has certainly no application to the present case. Mr. S. Ramachandra Aiyar for the respondents took up the position that as there is no specific provision for a suit like the present, Article 120 would apply as the residuary article.
There is one decision of the Bombay High Court : in -- 'Shevanti Bai v. Janardan', AIR 1839 Bom 322 (A), which supports this position, to which we shall refer later. In our opinion, a suit like the present would fall within Article 144. Mr. Champakesa Aiyangar contended that this was not a suit for a possession of any particular item of immoveable property, as it was a suit for general partition. This contention is neither sound nor warranted In fact. There cannot be a suit for partition 'simpliciter', that is to say, a suit for a mere division of joint property without more. Partition in the sense 6f division is only a step towards the ultimate goal, namely, separate possession of the share in the joint property to which the plaintiff is entitled.
The prayer in this very suit conclusively demonstrates this. The decree sought by the plaintiff in O. S. No. 47 of 1946 is a decree directing a partition of the one-sixth share of defendant 5 in the properties mentioned in schedules A and B and allotting in equity the one-sixth share of A schedule properties to that sharer free from the claims of other defendants and directing that such one-sixth separate share of the A schedule property may be delivered to the plaintiff. In the other suit also, the prayer is for a decree for delivery of possession after a partition. The suit in each case is therefore one for possession of immoveable property. It is admitted by learned counsel for the appellant that none of the articles like Article 136 etc. provides for a suit for possession of this nature. It follows, therefore, that Article 144 which is the residuary article applicable to suits for possession of immoveable property will apply, so long as the property concerned is immoveable property.
8. On this point, i.e., which is the Article applicable there is no direct authority. Mr. Champakesa Aiyangar cited several decisions, but none of them throws much light on this point. Decisions relating to suits filed by members of the family against alienees from other members of the family which deal with the question if and when the possession of the alienee should be held to be adverse to the non-alienee members of the family are of no assistance and do not demand any discussion. We shall refer only to decisions in which the suit is brought by the alienee.
'Harikrishna Chowdary v. Venkata Lakshmi Narayana', 34 Mad 402 (B), was a case in which the suit was brought by the transferee of a one fifth share of a coparcener in two villages. The suit was brought in 1906. The plea was that the alienor of the plaintiffs who was defendant 5 In the case had no enjoyment of the suit property ever since 1893 and therefore the suit was barred by time. We ascertained from the original papers that the sale to the father of the plaintiffs was in 1900. The learned Judges held that the article applicable to the case was Article 144 and for the plea of limitation to succeed, It was incumbent on the contesting defendant to prove that defendant 5 was in denial of his title excluded - from the enjoyment of his share of the suit lands. It may be observed that the suit was instituted in 1908 only six years after the alienation in favour of the father of the plaintiffs.
There could be no question of the suit beingbarred under Article 144, if the material date wasthe date of the purchase. The plea was that longbefore the plaintiffs' father purchased defendant5's share, adverse possession as against defendant6 had commenced and after the lapse of thestatutory period of 12 years, defendant 5 wouldlose his right in and to the property. This isbecause the alienee cannot claim anything morethan what his alienor could have claimed. If theclaim of the alienor was barred on the date ofthe suit, the claim of the alienee will equally bebarred. This principle is embodied in Article 136,Limitation Act which runs thus :
Description of suitPeriod of limitation.Time from which period begins to ran.
By a purchaser at a private sale for pos-session of immoveable property sold when the vendor was out of possessionon the date of sale.Twelve yearsWhen the vendor is first entitled to possession.
9. In -- 'Bhogavalli Venkayya v. Bhogavalli Ramakrishnamma', 9 Ind Cas 495 (C), Article 136 was applied. It was held that to a suit by the purchaser from a member of the joint family who is alleged to have been out of possession at the time of sale, Article 138, Limitation Act applies in terms. It was contended that the possession contemplated under Article 136 is actual possession not such possession as a member of the joint family is presumed to have in the family property until excluded therefrom; but this contention was overruled.
'Fateh Muhammad v. Ghulam Muhammad', AIR 1928 Lah 957 (L), was not a case of transferee from a member of a joint Hindu family. Two Muhammadan brothers jointly owned a house. In 1900 one of the brothers sold his un-divided share in it to his son-in-law, but the other brother continued to be in possession of the whole. The alienee's sons brought a suit for possession of the half share to which his alienor was entitled. The defendants pleaded that as the brother other than the alienor had exclusive possession of the entire house for more than 12 years, the suit was barred, The learned Judge, Tek Chand J. held that the suit was not barred because the possession of the non-alienating brother being the possession by a co-sharer must be presumed to be on behalf of the other co-sharer and his representative, that is, the alienee, in the absence of any denial of title, at a time beyond twelve years from suit. The principle of this decision will have no application to the case of an alienee from a member of a Hindu family.
10. Mr. Champakesa Aiyangar relied on general observations in certain decisions like -- 'Subha Lal v. Fateh Muhammad : AIR1932All393 , regarding the possession of one co-sharer as affecting adversely the rights of other co-sharers. Though among the co-sharers as such the possession of one co-sharer is presumed to be possession on behalf of all the co-sharers there appears to bea difference of opinion as to whether the samerule applies as between a transferee of a co-sharerand the remaining co-sharers (Vide -- 'Udl v. MaruMad : AIR1932All393 .
But we are clearly of opinion that in any eventthis rule cannot, and will not, apply to the purchaser of a share of a coparcener in a Hindujoint family. Such purchaser, as has already been pointed out, is not entitled to joint possession with the other members of the family and therefore, the ordinary rule governing the possession of co-tenants cannot apply. We share with WadiaJ. the view that it may not be very proper oraccurate to call an alienee from a member of aHindu family a tenant-in-common. As he pointsout.
'The alienee never acquires the status of an undivided Hindu member of the coparcenary. All that he generally acquires is the undivided interest of his. alienor, and a right to ascertain that interest by partition: ......Calling him therefore a tenant-in-common by borrowing a technical expression of the English law of property is to lay down a very broad proposition which is not in accordance with any known principle or text of the Hindu law' : AIR1939Bom322 (A).
The position would not be different even if there has been a severance in status. In this last mentioned case, which is the only direct case on the point, it was held by Beaumont C. J. and Wadia J. that Article 120 is the proper Article applicable. This conclusion was arrived at by the following reasoning, which is best expressed in the learned Chief Justice's own words :
'It is, in my opinion, clearly established that a purchaser from a member of a Hindu joint family does not acquire a right to be considered himself a member of the Joint family in place of the vendor, or a right to have joint possession of the family property in place of the vendor, nor, of course, does he acquire any right to possession of any specific part of the property, that being a right which the vendor himself did not possess. The only right which the purchaser has in such a case is a right to sue for partition and procure to be allotted to himself the share which would have gone to his vendor......
Now, two things seem to me necessarily to.follow from the proposition that the plaintiffis not entitled to joint possession of the familyproperty; first, that she cannot rely on the ordinary rule that the possession of one co-tenantis the possession of all; the plaintiff not beingentitled to possession, the possession or the other co-owners cannot help her.
Secondly, that the possession of other parties cannot be adverse to the plaintiff, because adverse possession denotes exclusion of somebody entitled to possession and if the plaintiff is not entitled to possession, she cannot be excluded. Therefore I am not prepared to agree with the learned Judge's view that the plaintiff's case is barred under Article 144, Limitation Act.'
Wadla J. follows the same line when he says:
'Both these articles (Article 142 and 144) are articles applicable to suits for possession and it is admitted that an alienee of the undivided interest of a Hindu coparcener is not entitled to possession. It cannot be said that the possession of any person is adverse to that of a person who is not entitled to any possession at all.'
The learned Judges, therefore held that the residuary Article 120 applied and that the cause of action arose from the death of the alienor-co-pareener. With great respect to the learned Judges, we are unable to agree with this reasoning. In discussing the application of any article of the Limitation Act, to a particular suit, the most important fact to. be considered is the relief prayed for. A discussion of the legal rights on which relief is sought may be helpful to a certain extent, but ultimately the decision depends on the actual relief sought. It is true that an alienee of an undivided interest of a Hindu coparcener is not entitled to joint possession with the other coparcener arid he is also not entitled to separate possession of any part of the family property. But the alienee is entitled to obtain possession of that part of the family property which might fall to the share of his alienor at a partition.
Therefore it is that he institutes a suit for general partition with the prayer that he may be put in possession of that part of the family property which may be allotted to his altenor. The suit is, therefore, a suit for possession of immoveable property or an interest therein. Indeed, it is not a suit for anything else. It is wrong to consider his suits as a suit for mere partition. Mere partition will only result in division, but a mere division would not satisfy the plaintiff. What he wants is actual delivery of possession. In our opinion, we cannot, therefore, with great respect follow the decision in this case.
11. If Article 144 is the proper Article applicable, when does time commence to run? According to column 3 of Article 144, time begins to run from the date when the possession of the defendant becomes adverse to the plaintiff. As we have already pointed out, the possession of the non-alienating members of the family cannot be deemed to be possession on behalf of the alienee also. We have not come across any case in which it has been held so. As pointed out so early as in -- 'Muttuswami v. Ramakrishna', 12 Mad 292 (G), by Muttuswami Aiyar J. :
'Coparcenary as recognised by Hindu law, canonly subsist between the members of a jointHindu family, and the contention that the possession of one coparcener is the possession ofall for purposes of limitation can have no application as between a purchaser from one of thecoparceners and the other members of thefamily.'
In our opinion, in the absence of a clear acknowledgment of the right of the alienee or participation in the enjoyment of the family property bythe alienee the possession of the non-alienatingcoparceners would be adverse to the alienee fromthe date on which he became entitled to sue forgeneral partition and possession of his allenor'sshare. The fact that the alienee is the purchaser of an undivided interest is not inconsistent with the conception of adverse possession of that interest. As Lord Radcliffe observed in -- 'Sudarsan Das v. Ram Kripal Das AIR 1850 Pc 44 (H),
'What is in question here is not adverse possession of the block of property in which the various undivided interest subsists but adverse possession of one undivided Interest. Article 144 certainly extends the conception of adverse pos-session to include an interest in immoveable property as well as the property itself; nor was it disputed in argument by the respondents that there could be adverse possession of an un-divided share, given the appropriated circum-stances.'
We may add that not only will possession of the non-alienating members of the family be adverse, even the possession of the allenor himself would be adverse to the alienee from the date of the sale. It was not even suggested that the plaintiffs in the two cases before us ever participated in the enjoyment of any part of the family property. Nor has any case been set up of an express acknowledgment of their right under their purchase. There was a late attempt before us to raise a plea of acknowledgment, but we did not permit learned counsel for the appellants to do so, as it was not raised in the courts below nor even in the memorandum of appeal to this court. We, therefore hold, agreeing with the courts below, that the suits, were barred by limitation under Article 144.
12. Though the above discussion has proceeded with reference to an alienation of a share of the family property by an undivided coparcener, there will be no material difference in law even if there had been a disruption of the joint status, so long of course, as there has been no division by metes and bounds. Though severance in status may render the rule of survivorship inapplicable and deprive the eldest male member of his rights as karta, so far as possession and enjoyment are concerned, no change occurs. The result is that a purchaser of the share of a divided member of the family would not be entitled to joint possession with the other members. For instance, a divided member will be entitled to reside in the family house. But his transferee, certainly will not be so entitled. The remedy of the alienee of the undivided share of a divided member is also a suit for general partition.
13. It only remains to consider the other special pleas put forward by the plaintiffs to escape from the bar of limitation. One is common to both the suits, namely, the plea based on Section 14, Limitation Act. The plaintiffs seek, in computing the period of limitation, deduction of the time taken in the prosecution of the prior suit for possession That suit was originally filed on 4-11-1935 and finally disopsed of by this court on 30-10-1944.
We have no hesitation in holding that Section 14 has no application to the facts of this case and the plaintiffs are not entitled to the benefit of that section. Before that section can apply, the prior proceeding must have been founded upon the same cause of action as that on which the latter suit is founded and should have failed because of a defect of jurisdiction or other cause of a like nature. It has been held that though a liberal constructionshould be placed on the words 'or other causes of a like nature' they cannot obviously apply to a cause where the prior suit failed because it was totally misconceived. (Vide -- 'Murugesa Mudaliar v. Jattaram Devy', 23 Mad 621 (I); --Ganapathi Mudali v. Krishnamachari', AIR 1922 Mad 417 (2) (J) and -- 'Siddalingana v. Bhimana', AIR 1935 Mad 731 (K). The prior suit was dismissed because it was wholly misconceived andnot because of any defect of jurisdiction or any ground similar to it.
Learned counsel for the appellants relied upon a decision of the Privy Council in -- 'Nrityamoni Dassi v. Lakhan Chandra Sea', AIR 1916 PC 90 (L), which affirmed the decision of the Calcutta High Court in -- 'Labhan Chandra Sen v. Madhusudan Sen, 35 Cal 209 (M). That was not a case really falling under Section 14, Limitation Act. Indeed. It was contended before the High Court that Section 14 covered the case, but Maclean C. J. expressly observed that they felt grave doubt whether the case fell within that section. It was not necessary to decide that point, as the case could be disposed of on another point.
In 'Kuthi Kuttilal v. Peetikayil Kunhammad AIR 1923 Mad 347 (N), on which also reliance was placed by learned counsel for the appellants, it was held that the dismissal of a suit on the ground of non-joinder of necessary parties is a dismissal for a cause of a like nature with defect of jurisdiction within the meaning of Section 14, Limitation Act. That decision has no direct application to the present case.
14. Another contention which arises only in S A No. 2781 of 1949 is based on the fact that in pursuance of the sale certificate issued to Rajamanicka on 24-11-1831, there was a symbolical, delivery to him through court on 31-3-1934 and that gives rise to a fresh cause of action to sustain a suit for possession. The decision of Anantakrishna Aiyar J. in -- 'Sethuratnam v. Chinna Solan : AIR1930Mad206 , was cited in support of this contention. It was held by that learned Judge that even if the decree-holder did not obtain actual possession a fresh cause of action would arise from the date of the symbolical delivery made in execution. That was a case, however, in which there could be a symbolical delivery. In our opinion, the principle of that decision cannot apply to a case where there can be no delivery, either symbolical or actual, in pursuance of the sale of an undivided interest in joint family property. It is not competent to a court on a mere application for execution by a purchaser of such an undivided share to pass an order directing Delivery of possession -- '(Yelumalal Chetti v. Srinivasa Chetti', 29 Mad 294 (P)). The appellant cannot get the benefit of a fresh cause of action by any symbolical delivery which could not in law have been made to him.
15. There is no substance in the contention based on the fact of the possession which the plaintiffs obtained in execution of the decree of tile trial Court in O. S. No. 20 of 1940 which they enjoined till 30-2-1944 when they lost possession by reason of the appellate decree. As pointed out by the learned District Judge, even by that date, 26-3-1942, the rights of the plaintiffs had become barred as more than 12 years had elapsed since the date of the sale from the official Receiver in the one case and the date of the court sale in the case of the other.
16. In the result, the second appeals fall and are dismissed with costs.
17. 'C. M. S. A. No. 76 of 1950;' This appeal relates to the claim for mesne profits and damages in regard to some of the suit properties for the period between 26-2-1942 and 29-2-1944, during which period the defendants were in wrongful possession under the decree of the trial Court in O. 8. No. 20 of 1840. No question of law arises in this appeal. It is dismissed.