(1) The above second appeal has been preferred by the plaintiff against the decree of the learned Subordinate Judge of Tiruchirapalli, who affirmed that of the learned District Munsif Karur.
(2) The suit was one for partition and separate possession, the plaintiff claiming that the suit properties were joint family properties and that he was entitled to a 1/8th share therein. the 2nd defendant in the suit is his father. the 1st defendant is the father of the 2nd defendant and the 3rd defendant is another son of the 1st defendant. Defendants 4 and 5 are the sons of the 2nd defendant by his second wife.
(3) The principal defence in the suit was that the plaintiff was not the son of the 2nd defendant. On behalf of the defendants, it was alleged that though the plaintiff's mother, Ponnammal, has been married to the 2nd defendant in 1930, she was having illicit connections with her sister's husband, Ponnuswami Pillai, that she left the house of the defendants even immediately after the marriage, that the 2nd defendant at no time has access to the said Ponnammal, that the said Ponnammal was divorced according to the caste system, that there was no relationship of husband and wife between the 2nd defendant and the said Ponnammal there after and that he had subsequently taken a second wife. It was also pleaded that the plaintiff was never in joint possession of any of the properties and the claim was barred by limitation.
(4) The learned District Munsif after analysing the oral and documentary evidence in the case, upheld the case of the defendants, that the plaintiff is not the son of he 2nd defendant, that the case of the defendants that Ponnammal left immediately after her marriage was true and that even assuming that the plaintiff was born in 1932, as per the birth register extract, he could not have been born to the 2nd defendant since admittedly the 2nd defendant had no access to Ponnammal after she left the defendant's family.
(5) Proceeding further, the learned District Munsif held that even if the plaintiff is the son of the second defendant his case will have to fail on the ground of limitation, observing that it was admitted in the plaint that the plaintiff and his mother were not in joint possession of the suit properties; and were excluded from possession. It was observed that the suit was clearly barred by limitation, the article applicable to the facts of the case being Art. 127.
(6) On appeal, the learned subordinate Judge, differing from the trial court, upheld the plaintiff's case that he was the son of the second defendant. However, the learned subordinate Judge agreed with the trial court on the question of limitation and holding that it was admitted in the plaint that the plaintiff was excluded from possession ever since his mother was driven out, the decree of the trial court dismissing the suit was confirmed.
(7) Mr. A. V. Narayanaswami Iyer, learned counsel appearing for the plaintiff-appellant contends that having rejected the plea of the defendants that the plaintiff was not the son of the second defendant, the lower appellate court ought to have held that there was no exclusion as contemplated under Art. 127 of the Limitation Act. It is argued that once the plaintiff was found to be a member of the joint family and the case accepted that he lived in the joint family as a member of the household for sometime before he left the house with his mother it was for the defendants to plead and establish that the plaintiff has been excluded from the joint family properties for over 12 years to his knowledge to deprive him of his share, that apart from the absence of any pleading of exclusion there was no evidence of any exclusion and that whether there was exclusion or not was a mixed question of fact and law which this court can go into in second appeal. It is argued that even assuming that there was exclusion in fact, time commenced to run against the plaintiff only when the exclusion was brought home to the plaintiff, that the plaintiff could not be imputed with knowledge of the exclusion during his minority and that time had run against him only after he became a major. He was born on 10-8-1932, and the plaint presented on 7-3-1956 within 12 years of becoming a major. It is also argued that the natural guardian and protector of the minor, the plaintiff's father could not set up the exclusion against his minor son, and that equally the first defendant, the father of the second defendant, who was in management of the family properties on behalf of the family was precluded from setting up exclusion of the plaintiff during his minority.
(8) To a question from the court, Mr. V. Ratnam, appearing for the defendants, frankly stated that there is no specific plea of exclusion averred in the written statement and that he relied on the admission in the plaint itself. As regards evidence of exclusion, it is admitted that there is no specific evidence of exclusion of the plaintiff as such conceding his status as a member of the family apart from the evidence that the plaintiff and his mother never participated in the profits of the joint family properties and were not maintained from the joint family properties. In the nature of things, there could not be evidence of such exclusion on the side of the defendants as their whole case rested in denying the paternity of the plaintiff. It is no confirmatory of the case of the defendants that the mother of the plaintiff was divorced and that the plaintiff was not born to the second defendant, the second defendant as D. W. 1 states in his evidence that he was not invited for the marriage of the plaintiff and that he had not paid anything to the plaintiff for his education or maintenance and that neither the plaintiff nor his mother made any demands, on him for partition till now.
It is in reference to this case, it is stated that the plaintiff was in Ukkuvarpatte ever since his life, that it was not true that the plaintiff and his mother stayed with him for two or three years after the birth of the plaintiff and that it was not true that he ill-treated her and sent her out at the instance of his mother. The first defendant in the case, the father of the second defendant as D. W. 4 also speaks only to Ponnammal leaving the house of her own accord, her paramour Ponnuswami Pillai coming and taking her when the second defendant was absent. He denied that his son drove her out. He would state that the child was born to Ponnammal only after the second defendant's second marriage and that the plaintiff is not the second defendant's son. It was, however, admitted by the first defendant, that about a year prior to his giving evidence, the plaintiff went to the mandi of their village and asked them to give him a share in the properties, that some people asked him to give a share and that he refused. The plaintiff as P. W. 1 states that he used to go to his father's house on good and bad occasions and that as he married his own uncle's daughter against the desire of the first defendant that he should marry the first defendant's brother-in-law's daughter, ill-feelings arose.
It is elicited from him in cross-examination that he had not gone to the fields of his father or grandfather. Ponnammal, the mother of the plaintiff as P. W. 2 states in her evidence that she was driven from the house six years after her marriage and that she had been in her mother's house for the last 21 years along with the plaintiff. She admits that she was not given anything by the second defendant for her maintenance nor did she claim anything. She states that the plaintiff was aged four when they were driven out. In this state of evidence, the learned counsel appearing for the respondent found it difficult to contend that there was any affirmative evidence of the exclusion required under Art. 127 of the Limitation Act. He, however, strongly relied upon the averments in the plaint which have formed the basis of the judgment of the courts below.
(9) The suit was instituted in forma pauperis. The plaint is in Tamil and in paragraph 3 of the plaint, as originally framed, after setting out the relationship of the parties, it was averred that when the plaintiff was an infant, the second defendant beat and harassed the plaintiff's mother, Ponnammal and drove her out of the house with the plaintiff and that from then, the plaintiff's mother, Ponnammal along with the plaintiff was living and getting on in her mother's house. There was a return of the plaint and the material requisition relevant for the purpose of the present second appeal was to the following effect:
'(i) It may be specifically mentioned in the plaint (petition) whether the petitioner has been excluded from joint possession or continues to be in joint possession and prays for separate possession; and (ii) The sub-section of Court fees Act under S. 37 to be mentioned'.
On this return, to the original paragraph 3 of the plaint, averments were added in Tamil to the following effect:
'From that time, the plaintiff must be deemed to have been excluded from the suit properties. He is not in joint possession of the same with the plaintiff.'
The Tamil words are 'Vilakkappattirupathi Karuthappada vandum'. The averment does not appear to me to state exclusion as a fact, but as an inference. So as the paragraph relating to the cause of action is concerned, there is no material amendment there. The cause of action is stated to have arisen when the plaintiff asked the defendants for partition and subsequently issued notice on 17-9-1955.
(10) The question for consideration now in the second appeal is whether there is only admission of exclusion, 12 years prior to suit, or any evidence of exclusion of the plaintiff from the joint family properties to the knowledge of the plaintiff.
(11) It is settled law that lapse of time is never in itself a bar to partition and the statute of limitation will operate from the time the plaintiff is excluded from his share and such exclusion became known to him. There can be no exclusion without a denial of the coparcener's right to a share and such denial may be express or implied. While partition is demanded and refused or if the coparcener is expelled for the joint family, that would be clear exclusion. Once the plaintiff establishes his claim to a share in the joint family properties by showing that the family was joint and that he was a coparcener entitled to a share in its properties, the onus is on the defendants to establish exclusion to plaintiff's knowledge for over 12 years prior to suit. If authority is required for this proposition, one may refer to the decisions in Jivanbhat v. Anibhat, ILR 22 Bom 259; Ramnath Chatterjee v. Kusum Kamini Devil, 4 CLJ 56 and the decision of a Division Bench of our High Court in Machiraju v. Simhachala, 9 MLJ 129.
(12) The learned counsel for the appellant also relied on the decision of the Privy Council in Radhoba Baloba v. Aburao Bhagwantrao, ILR 53 Bom 699 : AIR 1929 PC 231 . That was a case where the claimant, a member of a joint Hindu family, whose father and mother had both died and was an minor 12 years of age left the family house in 1898 to reside with his maternal uncle and never returned to the joint family. There was no contribution by the joint family for the expenses of his maintenance, marriage or education nor was the family called upon to contribute. He became a major in 1904 and till 1920, he did not sue for partition. The defendants pleaded that the claimant was not a son, that his mother was of wicked nature and driven out of the house by her husband and that the claimant was never joint with the defendants and was not a member of the joint family and the suit was barred by the law of limitation. Adverting to Art. 127 of the Indian Limitation Act, and after referring to the facts, it is observed at page 712 (of ILR Bom): (at p. 236 of AIR) of the report.
'The abovementioned facts are certainly material for consideration, but in their Lordships opinion they are not conclusive of the question of exclusion of Nana (the claimant) from the joint family property. There is no definition of the word 'exclusions' in the Indian Limitation Act, and it is obvious that a question whether a person has been excluded from the joint family property, must depend upon the facts of the particular case which is under consideration. It was admitted in argument of the learned counsel for the defendants that an intention to exclude is an essential element. Their Lordships are of opinion that the abovementioned admission is correct; and that it is necessary for the court to be satisfied that there was an intention on the part of those in control and possession of the joint family property to exclude Nana.' At page 715 (of ILR): (at p. 238 of AIR) it is observed:
'Their Lordships, however, desire to observe that, with regard to the third question, even assuming that the facts relied upon by the defendants could be stated to amount to exclusion, the defendants have failed to prove that Nana was aware more than 12 years before the institution of the suit of any intention on the part of the members of the joint family to exclude him form the joint family property when he should choose to assert his rights'. From the evidence, counsel were able to point out it is difficult to hold that there is any evidence from which an inference could be made that the plaintiff was aware, more than 12 years before the institution of the suit of any intention on the part of the defendants to exclude him from the joint family property when he should choose to assert his rights. In considering this question, it is relevant to take into account that the main defence was that the plaintiff was not a member of the joint family, and that he was not the son of the second defendant and that his mother had left her husband immediately after the marriage and had been divorced by her husband. The exclusion that is contemplated under Art. 127 is a conscious and deliberate act amounting to denial of the right of the particular member concerned to a share in the property analogous to ouster and it must also have been brought home to him. As noticed by the Privy Council in the decision above referred, to bar the plaintiff under Art. 127, three questions will have to be considered namely (i) whether the claimant to a share was excluded from the joint family property; (ii) if so excluded, when the exclusion took place; and (iii) when the exclusion, if any, because known to the claimant. The point to be noticed is that time will not begin to run against the plaintiff until he became aware that he was excluded from claiming a right to a share in the properties.
(13) Mr. V. Ratnam the learned counsel appearing for the respondents referred me to the decision of the Supreme Court in K. S. Nanji and Co. v. Jatashankar Dossa, : 1SCR492 and contended that the burden is on the plaintiff who comes to Court to show that his knowledge of exclusion is within 12 years prior to suit. The case in question referred to Art. 48 of the Limitation , and the observations therein will not apply to sit for petition by a member of a joint family once he establishes that he is a member of a joint family and there are joint family properties. In the plaint, the plaintiff has also stated and given as cause of action his demand for partition and the notice that followed. Ex. facie, the suit is within time, the denial of the plaintiff's right becoming apparent, according to him and when partition was refused and was not acceded to after demand for the same.
(14) In my opinion, the facts stated in the plaint cannot amount to an admission of exclusion. The plaintiff was an infant and according to the case of the plaintiff, his mother was driven out of house along with the plaintiff. It does not follow therefrom that there was an admission that the plaintiff was made aware that he would be denied his right to partition when he chose to claim. It was not the case of either party. The courts below have proceeded as if the exclusion of the plaintiff's mother from the family would amount to exclusion of the plaintiff from the joint family properties It has not been made out that even 12 years prior to suit the status of the plaintiff as a son had been questioned to his knowledge. The plaintiff does not claim under his mother and his right is as a coparcener in the joint family. Once it is found that the case of the defendants that the plaintiff was not the son of the second defendant and that his mother had been divorced is found to be false, in the absence of any alternative plea, the question of exclusion does not arise for consideration. In fact, it is only as an additional issue (issue No. 2 a) that this question of limitation has been discussed in the trial court.
When the plaintiff has specifically given as the causes of action his demand for partition and the notice just prior to the suit, it is rather difficult to accept the contention that he admitted in the plaint that he was excluded even when his mother was driven out. To bar the plaintiff by an admission in his own pleading, the admission must be clear and specific and my reading of the plaint is that to comply with the requisition of the office, an averment is made that he must be deemed to have been excluded. To constitute exclusion under Art. 127, there must be an awareness or acknowledgement of the existence of the right and the claimant must be kept out of it. The defendants have not chosen to elicit from the plaintiff or the plaintiff's mother when they were in the box, any facts from which an exclusion from the joint family property could be inferred. Clear and strong evidence would be required to hold that a person assented to his own exclusion and acquiesced in the continuance of the exclusion without asserting his right. I hold in the circumstances, that the is no admission or evidence of such exclusion as would warrant the rejection of the plaintiff's claim under Art. 127 of the Limitation Act.
(15) In the view I take, it is unnecessary to consider the other question under Art. 127 which have been raised by the learned counsel for the appellant. However, as arguments have been advanced on them, I shall briefly deal with them also. The first question is whether knowledge of exclusion could be imputed during the minority of the claimant. In my view, the question cannot be considered in the abstract as a pure question of law.
(16) Reference may first be made to the Division Bench decision of this court in A. S. No. 182 of 1929: 66 MLJ 11. Therein, it is observed that Art. 127 cannot apply unless the plaintiff is excluded to his knowledge and that it is not possible to impute to minors, 6 or 5 years old, the knowledge that their father and uncle had denied their rights and that consequently they intended to exclude them from their birth right. It is further observed that such knowledge cannot be imputed at any time before they attained majority and that they proposition that the knowledge of the guardian is the knowledge of the minor is not free from doubt.
(17) In the decision in Narasimha Deo Garu v. Krishnachandra Deogaru, 37 MLJ 256: AIR 1920 Mad 793 this question is left open. Their Lordships observing (of Mad LJ): (at p. 798 of AIR).
'The argument on behalf of the appellants is that a minor cannot be imputed with any knowledge. It is unnecessary for me in this case to express any opinion on the question. 'Whether the knowledge can be imputed to a minor direct where there is no guardian to act for him, and if so, under what circumstances'. But I have no doubt, that where there is a guardian as here, the knowledge of the guardian must be imputed to the minor. Article 127, to my mind, contemplates that in the case of the minors, the knowledge of the guardian is quite sufficient.'
There is also an observation in the judgment of Lord Phillimore in Kalyandappa Bin Ayappa Desai etc. v. Chanbasappa Bin Dodappa Desai, 46 MLJ 596 : AIR 1924 C 137 .
'This line of reasoning seems to assume that you cannot impute knowledge to a minor--a view which is certainly not in accordance with the facts of human nature. But it is not necessary to go deeply into the matter.'
The learned counsel for the respondent drew my attention also to the decision in Uppala Sambasiva Rao v. Uppala Kanakamma, : AIR1960AP213 where also this question is left open, their Lordships observing at p. 368 (of Andh WR): (at p. 214 of AIR):
'In our opinion, time begins to run from the date of the exclusion if the plaintiff had a guardian who could be shown to have had knowledge of the exclusion. It is unnecessary for us to consider as to what would happen if the plaintiff did not have a natural guardian. Where there is a guardian, knowledge of the guardian must be imputed to the minor.' The learned counsel for the respondents referred also to the decision in Krishnalal v. Satya Prakash, : AIR1952All105 . It is observed at p. 108:
'I find it difficult to hold that merely because the plaintiff was a minor, he could have no knowledge of his exclusions. A person, who is a minor, during his minority suffers from a disability. He is presumed to be incapable of acting like an adult person. The disability or incapacity cannot affect the use of his mental or physical faculties. He can perceive, see and know what is happening around him. After the age of discretion, he can even visualise and remember things he sees, perceives or learns. If he suffers from any loss or if he is deprived of anything he knows about it all-right and often complaints about the loss. Similarly, if he is excluded from any property, he must know about it.'
If this case has to be decided on this point my of absence of knowledge of exclusion, exclusion being found as a fact, it may be necessary to investigate the matter further calling for a finding as to when the plaintiff became aware of the exclusion assuming that a minor coparcener could be excluded under Art. 127 of the Limitation Act by his father or the manager of the joint family. As it is, I fund it difficult to subscribe to the broad proposition of law contended on behalf of the appellant that in no case could a minor be inputted with knowledge.
(17a) The cases where a guardian's knowledge could be imputed to the minor, may not apply to the facts of the present case where the natural guardian and the manager and protector of a family plead that they have excluded the minor from the rights. The learned counsel for the appellant contends that it will not be open for the guardian or manager of a family to plead that he had excluded the minor even during his minority and that the cases where guardian's knowledge are imputed to the minor are cases where the action commenced against a stranger and not against the guardian or manager who is in a fiduciary position qua the minor.
(18) On this part of the case, reference may be made tot he decision in Mahalakshmamma v. Suryanarayana, 55 MLJ 733: AIR 1928 Mad 1113 where at p. 740 (of Mad LJ): (at p. 1117 of AIR) the principle applicable to the cases of the kind is stated as follows:
'The law is clear that a person who is either an actual legal guardian or who takes upon himself the guardianship of a minor cannot be heard to say that his possession must be taken to be adverse to the minor. If any authority is needed, I may refer to Vasudeo Atmaram Joshi v. Eknath Balakrishna, ILR 35 Bom 79 where the mistress of a person after his death was protecting his minor sons and managing the property and claimed adverse possession, it was held that so long as she acted as guardian or agent she could not do so. It follows that so long as a person is in charge of a minor's property as guardian, that person is only an agent or trustee and cannot set up adverse possession. I may refer in this connection to Howard v. Earl of Shrewsbury, (1874) 17 Eq 378.'
Reference may also be made in this connection to the decision in Seetaramaraju v. Subbaraju, ILR 45 Mad 361: AIR 1922 Mad 12 where dealing with the question of adverse possession, it is observed the question of adverse possession, it is observed at p. 368 (of ILR Mad): (at p. 15 of AIR):
'After referring to the principle that possession is never considered adverse if it can be referred to a lawful title, he held that the entry on the property by the father who was a natural guardian and was maintaining them would be held to be an entry on their behalf and as their guardian, and was totally different from the case of a mere stranger entering upon the property under similar circumstances. We do not think it can be stated as a general proposition that there could be no adverse possession of property which belongs to a lunatic or minor during the continuance of the lunacy or minority of the owner. The question has in each case to be decided with reference to the anterior relationship between the person taking possession and the minor or lunatic, and to whether any circumstances exist which could entitle the court to hold that the person who entered into possession did so under circumstances which would in law make him only an agent or bailiff of the minor or lunatic.'
In the decision of the Supreme Court, Padma Vithoba Chakkayya v. Mohd. Multani (1963) 2 SCJ 172 : AIR 1963 SC 70 it is observed as follows:
'We agree that if Rajanna was a minor when he entered into this arrangement, that would not operate to alter the character of the possession of the first defendant as mortgagee. The respondent contended that there could be adverse possession against a minor in certain circumstances and relied on the decision in ILR 45 Mad 361: AIR 1922 Mad 12, in support of this position. That is not questioned, but the point for decision is whether possession lawful at the inception can become adverse under an arrangement entered into by a minor. Now a minor is in law incapable of giving consent, and there being no consent, there could be no change in the character of possession, which can only be by consent and not by any unilateral act.' In the light of the principles emerging from the above decisions, it is difficult to countenance an argument, that time must count in favour of the father or manager of the joint family even during the minority of the infant who is excluded.
(19) The learned counsel for the respondents then strenuously contended that the finding of the lower appellate court on the paternity of the plaintiff was erroneous and could not be sustained. It was argued that material evidence had not been considered by the lower appellate court while reversing the decision of the trial court on the point. It is true that the learned Subordinate Judge has not adverted to every bit of evidence on this aspect of the matter. But the marriage of the second defendant with Ponnammal being admitted, the learned Subordinate Judge, considered whether the defendants had established their case that Ponnammal had been divorced shortly after the marriage. He has discussed the evidence on behalf of the defendants generally and points out the circumstances in the case which make them unacceptable. He points out the discrepancies in the evidence on behalf of the defendants, and holding that no motive is imputed to P. Ws. 3 to 7 to speak falsely against the defendants, accepts the case of the plaintiff and holds that the case of the defendants that the plaintiff's mother left the house of the defendants even immediately after the marriage is not true and that on the other hand she could have left their house 3 or 4 years after the marriage.
In the determination of the question as to the paternity of the plaintiff, one material even is as to when Ponnammal left the house of the defendants. On this, the trial court has no doubt referred to certain statements of the plaintiff's witnesses from them deduces that on the evidence, the case of defendants that Ponnammal left immediately after her marriage, is true. The trial court relied in this connection upon the evidence of P. W. 3 with reference to this, it is stated that while in cross-examination P. W. 3 admits that the second marriage of the second defendant for four years. His evidence is discredited in he view that after his admission in the cross-examination, the court was not prepared to believe his evidence in re-examination. It is overlooked that even in chief-examination. P. W. 3 has stated that Ponnammal stayed in he 2nd defendant's house for 4 years. The trial court has taken into consideration also certain sale deeds in favour of Ponnammal by various persons including her alleged paramour, Ponnuswami Pillai. But the learned Subordinate Judge had considered them not germane to the question whether the plaintiff was or was not the son of the second defendant, the documents being of later years. The question whether the plaintiff is the son of the question whether the plaintiff is the son of the second defendant and whether Ponnammal had been divorced by her husband immediately after the marriage are questions of fact. The learned Subordinate Judge, has adverted to the evidence which he considered material and has come to the conclusion that the plaintiff is the son of the second defendant. I do not find anything vitiates the finding within the scope of S. 100 C. P. C.
(20) Now that I hold that the suit is not bared under Art. 127 of the Limitation Act, then will have to be a decree in favour of the plaintiff for partition. The trial court has held that the plaintiff would be entitled only to a 1/12th share and not 1/8th as claimed by him. As regards the joint family properties available for partition, it has been the subject of consideration by the trial court under issues 5 and 6, and the trial was held that even if the plaintiff was held to be the son of the second defendant, he would be entitled to a 1/12th share in items 1, 6, 9, 12, 13, and 5 acres 9 cents in items 2 and 3 and 27 cents in item 10, 82 cents in item 11 and also item 16 and half of item 17 of the A schedule. The finding of the trial court as regards the share and as regards the properties available for division have not been questioned before me by either side.
(21) In the result, the second appeal is allowed, and there will be a decree in favour of the plaintiff for partition and separate possession of a 1/12th share in the properties which have been held to be joint family properties under issues 5 and 6 in the judgment of the trial court. It is needless to state that the plaintiff will be entitled to his share of the income form the lands from the date of the plaint. The same shall be ascertained in the final decree proceedings. Considering that he plaintiff had not chosen to make any demand for partition for years after becoming a major, I think this is a fit case where the parties must bear their respective costs themselves throughout. No leave.
(22) Appeal allowed.