Tarkeshwar Nath, J.:— This appeal by the plff. arises out of a suit for partition of 225/1018 share in the properties described in Schedules 1 and 2 of the plaint. He further asked for a declaration that the deed of partition dated 19-4-1917 was null, void and ineffective. Plaintiff wanted a decree for rendition of account against defendant 1 from the date of the death of Sheikh Reazat Hussain till the date of the suit. It appears that Asghar Ali was the father of Sheikh Reazat Hussain and the latter married twice. Reazat Hussain had, from his first wife Tabizunnissa, five sons, viz., Habibul Haque, Amiruddin (defendant 1), Sheikh Gulsan, Sheikh Shakoor, and Sheikh Md. Isa, and one daughter Wahidunnissa, married to Sheikh Sadaruddin (defendant 5). The first wife had died during the life time of her husband and, out of the five sons, four sons as well, died during the life time of their father. Mosammat Bibi Makirunnissa (defdt. 6) is the wife of defdt. 1, and Abdul Rahman, Abdul Aziz, Abdul Rauf, Md. Fazlul Rahman and Abdul Bari (defendants 7 to 11) are the sons of defendant 1.
2. Bibi Sabudan was the second wife of Reazat Hussain and, through her, Reazat Hussain had four sons, viz., Md. Yahia (defendant 2), Md. Ismail (Defendant 3), Abdullah and Abdul Gaffar, besides a daughter Rehunnissa alias Ruhela (defendant 4). Abdullah died issueless without marriage after the death of his father. Plaintiff is the son of Abdul Gaffar. Defendants 1 to 5 have been described as defdts. 1st party, whereas defendants 6 to 11 have been mentioned as defendants 2nd party. Abdul Gaffar, father of the plaintiff, died at the age of 17 years only in the month of December, 1933 leaving behind the plff., who was then aged about a month only. Sheikh Reazat Hussain died leaving behind, his second wife Bibi Sabudan, his son (Defendant 1) and his daughter Bibi Wahidunnissa from his first wife, besides defdts. 2, 3, 4, Abdullah and plaintiffs father from his second wife. Later on, Sabudan also died leaving behind her sons and daughter. Sheikh Reazat Hussain had ancestral properties and he acquired some properties in the name of defendant 1, and others in the name of defendant 6. Reazat Hussain left considerable cash in the custody of defendant 1 and all the properties left by him were joint. The ancestral properties and the properties acquired by Reazat Hussain were specified in Schedule 1, of the plaint, whereas those acquired by defendant 1 on behalf of all either in his name or in the names of his sons and wife, were mentioned in Schedule 2. At the time of the death of Reazat Hussain, all his sons and daughter from his second wife were minors and his widow Bibi Sabudan was an illiterate purdanashin lady and hence, defendant 1 became manager of all the properties. Defendant 1 fraudulently got a deed of agreement (ekrarnama) by way of partition, executed on 19-4-1917, taking advantage of the helplessness of the widow and minor sons. Md. Yahis and Bibi Rahunnisa (defendants 2 and 4) were wrongly described as majors in that deed and Bibi Sabudan was made to represent the two minors, Md. Ismail and Abdul Gaffar, the father of the plff., in that partition. Only some of the ancestral properties were mentioned in that deed and Bibi Sabudan, the grand-mother of the plaintiff, had no right to execute that deed as guardian of her minor sons.
3. No regard was paid to the shares of the sons and daughter of Reazat Hussain from his second wife and the said deed of partition could not bind either the plaintiffs father or the plaintiff. Another fraud was committed in mentionting that all the nanihali (mother's side) properties belonged to defendant 1. The plaintiff further mentioned in paragraph 9 of the plaint, that portions of properties were, however, in possession and occupation of the particular parties but without any knowledge of the said deed of partition. The plaintiff learnt on 6-9-1954 about the fraudulent and collusive deed of partition and later on, he made a demand for partition and rendition of account, but defendant 1 did not pay any heed to it. On these allegations, he instituted this suit on 24-9-1954.
4. Defendants 1 and 6 to 11 filed a joint written statement. Their case was, that the suit was barred by limitation and it was instituted at the instance of defendant 2. According to them, the properties described in Schedule 1 of the plaint were not the properties left behind by Sheikh Reazat Hussain and, in fact, out of the properties described in Schedule 1 of the plaint, the properties which were mentioned in Schedule 1 of the written statement were the only properties which were left by Sheikh Reazat Hussain. The properties described in Schedule 2 of the written statement belonged to Sheikh Asghar Ali, grandfather of defendant 1, but, before the survey operations, Asghar Ali had made an oral gift thereof in favour of defendant 1 and his full brother Sheikh Habidul Haque. The two donees got their names recorded in the record-of-rights. Asghar Ali made another oral gift to defendant 1 in respect of the properties mentioned in Schedule 3 of the written statement Defendant 1 acquired certain properties and they were described in schedule 4 of the written Statement. Lands mentioned in Schedule 5 of the written statement were the nanihali properties of defendant 1 and he was in exclusive possession thereof, other heirs having no concern with them.
5. Those mentioned in Schedule 6 of the written statement were the personal properties of defendant 1 and defendant 6 was the owner of the properties mentioned in schedule 7 of the written statement as her personal properties. Defendant 1 made an oral gift of the properties described in Schedule 8 of the written statement to defendant 6 long after the deed of partition and she was in possession thereof. She had sold proprietary interest in two villages and the remaining properties were in her possession. According to them, Abdullah had died during the lifetime of his father. Abdul Gaffar (plaintiffs father) was born in 1901 and he died in 1933 at the age of 32 years. Reazat Hussain died in 1913 and the plaintiff was born in May, 1928.
6. Plaintiff attained majority long before November, 1951 and he had executed certain documents as major. Reazat Hussain did not acquire any property, either in the name of defendant 1 or that of defendant 6 and, in fact, the properties belonged to Sheikh Asghar Ali, the grand-father, and he had made an oral gift to defendant 1 and his brother on the basis of which their names were entered in the record-of-rights. There was no fraud and deception at the time of the execution of the deed of partition dated 19-4-1917 and, in fact, the partition was fair and equitable. Bibi Sabudan was a very intelligent lady and, having understood the pros and cons of the transaction, she executed that deed on behalf of her minor sons. Parties came in possession of various blocks of land on the basis of that deed and it was operative and binding on the plaintiff. Plaintiffs father had remained in possession of the lands allotted to him and plaintiff had mortgaged and sold certain properties which were allotted to his branch by that deed. Defendant 1 was never the manager and the properties in suit were not at all joint. Defendants 7 to 11 were carrying on some business relating to purchase and sale of tobacco out of their own funds and the plaintiff had no concern with that business.
7. About the properties which came from the mother's side, their case was, that the maternal grand-father of defendant 1 was the owner thereof. He made a gift of the same to the mother of defendant 1 by a registered deed dated 17-8-1889. After the death of the mother, Mostt. Bibi Sajirunnissa, maternal grand-mother of defendant 1, got those properties and she made a gift of the proprietary interest to defendant 1 by another deed of gift dated 1-12-1903. Their alternative plea was, that, even if the plaintiff and defendants 2 to 4 had any title to the properties described in Schedule 1 of the plaint, that was lost and extinguished on account of adverse possession of defendants 1 and 6 for a period of more than 12 years. Defendant 3 also filed a written statement, but he supported the plaintiffs case and he also claimed a share to the extent of 225/1018.
8. Besides the issue of limitation and adverse possession, the other main issues in the suit were, as to whether the taksimnama dated 19-4-1917 was genuine and binding on the plaintiff, and, whether the properties in dispute were jointly owned and possessed by him along with the defendants, according to the shares claimed by him.
9. The Subordinate Judge held that the deed of partition dated 19-4-1917 was invalid, but, in fact, there was a partition between the parties and they were in separate possession of the lands allotted to them by that deed. Plaintiffs father died as major and plaintiff was born earlier than November, 1933. He did not believe the case of the defendants regarding the oral gift by Reazat Hussain, but he found that the contesting defendants were in adverse possession of the lands and the plaintiff's claim was barred by tune. His other finding was, that the plaintiff had no claim to the nanihali properties and the self-acquired properties of defendant 1. Ora these findings, he dismissed the suit on contest with posts to the contesting defendants and ex parte against the rest. Hence, the plaintiff has preferred this appeal.
10. Learned counsel for the appellant, while-supporting the finding of the trial Judge with regard to the invalidity of the deed of partition submitted, that the said deed was fraudulent and the partition itself was unjust and inequitable. This deed dated 19-4-1917 has been marked exhibit D. It was executed by (1) Sheikh Amiruddin (Defendant 1), (2) Mosammat Bibi Wahidunnissa (wife of defendant 5), Md. Yahia (defendant 2), (4) Bibi Sabudan for self and as private guardian and own mother of Abdul Gaffar and Md. Ismail (defendant 3), minor sons of Sheikh Reazat Hussain and (5) Bibi Ruhela (defendant 4). The names of the various heirs of Sheikh Reazat Hussain and the properties left by him were mentioned in that deed and it was further indicated that Sheikh Amiruddin (defendant 1) had acquired considerable properties from his personal fund, either in his name or that of his wife. Hence, the executants of that deed decided to effect partition of the inherited properties and those acquired by defendant 1, in order to avoid future dispute. This deed gives a complete list of the properties which were allotted to the various parties, including the ancestral lands and the properties acquired by defendant 1.
11. The properties inherited from the mother's side (nanihali) were exclusively allotted to defendant 1 and the other parties had no concern with them. The trial Judge, while referring to this deed has indicated, that, besides 6 bighas and 10 kathas of land allotted to Sabudan and her children (plaintiff's branch), out of the ancestral lands, they were given about another 3 bighas out of the lands acquired by defendant 1, on the basis of various sale deeds. The lands coming from the mother's side (nanihaii) were roughly about 13 bighas and they were given to defendant 1 exclusively. Mr. Ghose for the appellant contended, that Abdul Gaffar and Md. Ismail (father and uncle respectively of the plaintiff) were minors in 1917 and Bibi Sabudan, their mother, being only the de facto guardian, was wholly incompetent to act for the minors and divide the properties. He pointed out that mother could not be the legal guardian of the minor's properties. There can be no doubt about this proposition. According to Mahomedan law, the persons, who are entitled to be guardians of the property of a minor, are in this order: (1) the father; (2) the executor appointed by the father's will; (3) the father's father; (4) the executor appointed by the will of the father's, father. In default of these guardians, the Court has to appoint a guardian for the protection and preservation of the minor's property.
12. The position of Bibi Sabudan, the mother of the two minors, in 1917 was, that she was neither a legal guardian nor a guardian appointed by the Court, but she had voluntarily placed herself in charge of the person and property of the two minors. She was thus, only a de facto guardian being in custody of the person and property of those two minors. A legal guardian only of the property of a minor is competent to deal with immoveble properties of that minor in certain circumstances, but that power does not vest in a de facto guardian. A de facto guardian has no power to transfer any right or interest in the immovable property of the minor and such a transfer is not merely voidable, but void. The leading case on the point is, Imambandi v. Mutsaddi, 45 Ind App 73 : AIR 1918 PC 111 where their Lordships observed, that
“……under the Mahomedan law a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called a ‘de facto guardian,’ has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant; nor can such transferee, if let into possession of the property under such unauthorized transfer, resist an action in ejectment on behalf of the infant as a trespasser.” In Pratap Singh v. Sant Kaur, AIR 1938 PC 181, it was held that where there was no person who had authority either under the law of contract or under the personal law applicable to the minors to make a compromise on their behalf, a compromise entered into by minors settling dispute as regards inheritance between themselves and their father's collaterals was not binding on them, and a transaction of that kind could not be upheld even on the ground of family settlement.
13. In Mobd. Amin v. Vakil Ahmad, AIR 1952 SC 358, a question arose, as to whether a deed of family settlement to which a Muhammadan minor was a party represented by his brother as de facts guardian was void and not binding on the minor. It was held, that under the Muhammadan Law a person who had charge of the person or property of a minor without being his legal guardian, and: who might, therefore, be conveniently called a “de-facto guardian,” had no power to convey to another any right or interest in immovable property. The deed of settlement, in that case, was thus held to be void and, that being so, it was further held, that the deed was void altogether qua all the parties including those who were sui juris. I may refer to one decision of this Court as well, in the case of Kharag Narain v. Mt. Bibi Hamida Khatoon 1955 BLJR 512: ((S) AIR 1955 Pat 475), where it was held that a transfer by a de facto guardian; was not merely voidable but void ab initio under the Mohammadan Law. As a “de facto” guardian, mother is not competent to enter on behalf of her; minor children into an agreement to refer a dispute-to arbitration, if the agreement involves dealings with immovable property (vide Abdul Karim v. Mst. Maniran, AIR 1954 Pat 6).
14. Learned counsel for the contesting defendants did not contest this proposition and the principles laid down in these cases, but he contended, that partition by a de facto guardian on behalf of her minor children was something different from, alienation and transfer of any right or interest in immovable property. According to him, the mothers, being, in charge of the properties of the minors, was competent to divide the properties and, in fact there was no conveyance or transfer by her in respect of those lands. Learned counsel for the parties have been able to refer to only one case, in which a question arose, as to whether a deed of partition-executed by mother as de facto guardian was valid and it is Assiz v. Chithamma, AIR 1954 Trav-Co. 370. The appeal there arose out of a suit for partition and delivery of shares in certain properties. Plaintiffs 1 and 2 had attained majority before the filing of the suit, but the third plaintiff attained majority during the pendency of that suit. There was a partition (Exhibit I) of all the properties, during the minority of the plaintiffs. Plaintiffs, impeached that partition, inter alia, on the ground-that under the Mohammadan Law by which they were governed, the mother was not recognised as guardian and she was, therefore, incompetent to represent them, with the result that exhibit T could not be regarded as a transaction to which the plaintiffs were parties.
15. Reliance was placed on a decision of the Supreme Court in AIR 1952 SC 358 and also on another decision in the case of Poonnoose v. Koruthu, AIR 1951 Trav-Co. 118 (FB), and their Lordships came to the conclusion that the deed of partition (Exhibit I) was void and not binding on the minors, irrespective of the considerations that it benefited them or the arrangement was followed for a long period. Learned counsel for the respondents submitted, that a somewhat extreme view had beer taken in this case and, in fact, the two decisions referred to and relied upon did not go to that extent, inasmuch as the point for decision in the case before the Supreme Court was, as to whether a deed of family settlement was valid and binding on the minors; in other words, there was no deed of partition in that case by a de facto guardian. It is true that their Lordships, in that case, were considering the validity of a deed of family settlement, but the principles laid down have been followed in this case, the case in AIR 1951 Trav-Co. 118 (FB) was no doubt concerning the members of the Christian community, but it was held that right to guardianship of the property of a minor rested on an order of Court or on some personal law.
16. The question thus arises, as to whether partition, in the present case, by the mother of the two minors amounted to conveyance or transfer of some sight or interest in the immovable property which belonged to the minors. Section 5 of the Transfer of Property Act provides, inter alia, that
“‘transfer of property’ means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons”.
17. In Atrabannessa Bibi v. Safatullah Mia, ILR 43 Cal 504 : (AIR 1916 Cal 645), it was observed that:
“The object of a suit for partition is to alter the form of enjoyment of joint property by the co-owners; or, as has sometimes been said, partition signifies the surrender of a portion of a joint right in exchange for a similar right from the co-sharer”.
18. A question arose in Waman Ramkrishna v. Ganpat Mahadeo, AIR 1936 Bom 10, as to whether a partition of immovable property among the co-owners by metes and bounds was a transfer within the meaning of Section 53 of the Transfer of Property Act. The observations quoted above, from the case in ILR 43 Cal 504 : (AIR 1916 Cal 645), were referred to and their Lordships held that, for purposes of Sec. 53, partition of the immovable properties among the co-owners by metes and bounds must be held to be “transfer”. It was observed that partition could in fact be adequately described as a mixture of the surrender and the conveyance of rights in property. Barlee, J. observed as follows:
“A partition is not specifically mentioned in the Transfer of Property Act; but if it be a conveyance, it may come under the definition of ‘transfer’ in Sec. 5. If a partition in a joint family be carried into effect so that each member acquires a sole interest in a part of the joint family property, I think the transaction amounts to a conveyance. It is certain that each member loses his interest in the property awarded to the other, and it is difficult to see how there can be a loss without a corresponding gain.”
19. In Sadhu Ram v. Pirthi Singh and Co., AIR 1936 Lah 220, Backet, J. held that it was generally accepted that a partition was a transfer as defined in the Transfer of Property Act. In Raman Pillai Gopala Pillai v. Madhavan Pillai Aiyappan Pillai, AIR 1959 Ker 235 as well, it was held that where an immovable property was partitioned among co-sharers by metes and bounds, there was a transfer. The matter can be considered from another aspect. A document which, by itself, effects a partition and is signed by the parties and witnesses, in order to be binding on the parties as a deed of partition and to be the evidence of the terms of the partition, requires registration. Such a document comes within the purview of Section 17(1)(b) of the Indian Registration Act, inasmuch as that document creates, declares, assigns, limits or extinguishes any right, title or interest in immovable property. I would now consider, what is partition. According to Mohammadan law, each member of a Mohammadan family has even, when the family remains undivided, a certain definite share in the joint property of which he is the absolute owner; in other words, the property is held in defined shares, though possession is the joint possession of the whole family. Partition, in such a family, will mean separation of the shares of each member and assignment of specific portions of the property. Partition, in such cases, consists in splitting up joint possession and assignment of specific portions of the properties to several members.
20. I would confine myself to the facts of this case in order to determine, as to whether there was any declaration, creation and extinguishment of any right or interest in immovable property by the present deed of partition (exhibit D). It is not a case of that kind where there was already a partition and only a list was prepared of the various properties allotted to one party or the other by way of a memorandum of partition. On the other hand, find that partition was effected by this deed itself. The relevant recitals of the partition deed (exhibit D) are these:
“Hence it is necessary for us, the executants to effect partition of the inherited properties and the property acquired by executant No. 1, by virtue of this deed of partition, in order to avoid dispute in future. Accordingly, the well wishers of the parties, with the consent of the parties, have partitioned the above mentioned ancestral property and the property acquired by executant No. 1, as per details given below, and we the executants have accepted and approved the same. Hence, we the executants, in sound state of our body and mind of our own accord and free will, without pressure and undue influence and instigation by anybody, execute this deed of partition and declare that from this day the parties separately should enter into and shall remain in possession and occupation of their respective share allotted by partition, as per details given below without having any concern with the others and shall appropriate the produce thereof. One party neither has nor shall have any claim to and concern with the partitioned property of the other party.”
21. Another recital was, that executant Nos. 3 and 4 of that deed were to vacate the house, which was allotted to executant No. 1, on a particular date. About the properties inherited by executant No. 1 from his mother's side, the other executants gave up all interest in those lands and agreed that those properties will remain in exclusive possession of executant No. 1 (defendant 1). The ancestral house was given to defendant 1 and, in lieu of that, he gave to members of the plaintiffs' branch another piece of land. These recitals make it clear, that the mother of Gaffar (plaintiffs father) and Md. Ismail (defendant 3) declared, conveyed and extinguished rights and interests in immovable property belonging to those minors by this deed of partition (exhibit D), which she was not competent to do, unless she was a legal guardian. The principles laid down in 45 Ind App 73 : (AIR 1918 PC 11) that a “de facto” guardian has no power to convey to another any right or interest in immovable property are applicable to the facts and circumstances of the present case. I am, therefore, of the view, that Bibi Sabudan, not being the legal guardian of the properties of the minors, she was not competent to act for the minors and divide their properties.
(Here, His Lordship considered the contention of the appellant that the deed was fraudulent and after discussing the evidence (Para 6), affirmed the finding of the trial Court that no fraud was committed at the time of the partition. The judgment continued):
22. Parties are at variance with regard to the year of birth of Gaffar, as well as that of the plaintiff. (Here His Lordship discussed the evidence (rest of Para 7 and Para 8) and affirmed the finding of the trial Court that Abdul Gaffar had died ad least at the age of 25 years in December, 1933 and that the plaintiff was major even on 21-4-1951 though the exact month, and year of his birth could not be fixed safely on the oral evidence and it was not necessary to do so.)
23. Learned counsel for the respondents submitted, that the fact that there was a partition and that it was acted upon by the parties was fully established by the dealings and conduct of the members of the plaintiff's branch. (After discussing the evidence (rest of Para 9 and Paras 10 and 11) the judgment proceeded:)
24. On a review of the evidence, I find that she parties were in separate possession of the lands which were allotted to them in the partition of 1911 and the plaintiff and his uncles had dealt with some of those lands from time to time, treating them as their own. As regards the other set of properties, which defendant 1 inherited from his mother's side, his exclusive possession has been established and he had paid rent and revenue in respect of those lands. Learned counsel for the appellant submitted, that since the plaintiff and defendant 1 were co-sharers, mere possession of defendant No. 1, payment of rent and revenue by him and participation of profits did not amount to an ouster of the plaintiff. He relied on the decision in the case of Jagdeo Narain Singh v. Ram Lagan Gope, 1958 BLJR 111. It was held, in that case, that in order to establish ouster as between co-sharers, there must be evidence of an open assertion of a hostile title by one of them to the knowledge of the others and that mere non-participation in the profits by one party and exclusive occupation by the other was not conclusive. There cannot be any dispute about this proposition of law and it is well-settled, but the question, as to whether ouster has been proved to the knowledge of one party or the other would depend upon the facts and circumstances of each case.
25. In the present case, sons of Reazat Hussain, from his first wife, only were recorded in the record-of-rights sometime nearabout 1898 (exhibits M to M (2)). Ismail (defendant 3) admitted, that defendant 1 had come in possession of the properties inherited from his mother's side, but his other plea, that his possession was on behalf of all the heirs, is not acceptable. Later on, in 1917, defendant 1 asserted his exclusive title in respect of those properties and that was mentioned in exhibit D. On the basis of that division, plaintiff's father and defendants 2 and 3 realised debts in respect of certain mortgage bonds which were allotted to their share and made the various endorsements (exhibit G series).
26. Later on, reference to that partition deed was made in Sudhbharna mortgage bond, exhibit E (14) dated 15-1-1941, executed by Yahia for self and as guardian of the plaintiff. The evidence and the circumstances point out to the irresistible conclusion that the guardians of the plaintiff and the plaintiff were aware of the hostile title asserted by defendant 1 in respect of those properties and he (defendant 1) was in adverse possession thereof to the knowledge of the plaintiff. This state of affairs has continued from a very long time and the plaintiff's claim, in that respect is much too belated.
27. The Subordinate Judge further found, that the plaintiff's suit was barred by limitation, as he failed to institute it within three years of his attaining majority. He held, that Gaffar was at least 25 years' old at the time of his death in December, 1933. The contesting defendants were thus, in exclusive possession of the lands allotted to them by the partition for about seven or eight years after attainment of majority of Gaffar and their possession continued even after the death of Gaffar, but plaintiff was minor for several years. The result was, that the defendants began to prescribe and a cause of action had accrued to Gaffar, but he did not institute a suit. Section 9 of the Indian Limitation Act provides, that where once time has begun to run, no subsequent disability or inability to sue stops it. Section 8 provides, that, in certain cases, period of limitation can be extended but not for more than three years from the cessation of the disability. Defendants remained in possession for a period of more than 12 years, but that period expired during the minority of the plaintiff.
28. The trial Judge took the view, that plaintiff was major even on 21-4-1951 when he executed a sudbharna mortgage bond, exhibit E(6), and, accordingly, the suit instituted by him more than three years after attaining majority was barred by time. Section 6 of the Indian Limitation Act provides, inter alia, that if a person entitled to institute a suit is, at the time from which the period of limitation is to be reckoned, a minor, then he may institute the suit within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule. The person who had a right to sue at the time from which the period of limitation is to be committed can take advantage of this section. This section would apply only to a person who was entitled to sue or apply for execution at the commencement of the limitation. In other words, the plaintiff must be a minor when the cause of action first accrued to him and in case, the cause of action accrued to his father, the minor son cannot choose to wait till he attains majority after his father's death.
29. In the present case, the cause of action accrued to Gaffar (plaintiffs father) in 1917 after the partition during his minority, but there was no suit, either by his guardian during his minority or by him after the cessation of his disability. After Gaffar's death, plaintiff got the right to sue, but he was minor for several years. The plaintiff was not born in 1917 when the cause of action first accrued and, as such, he cannot, on coming of age, avail himself of the benefit of Sec. 6 (see Ranodip Singh v. Parmeshwar Prasad, 52 Ind App 69 : (AIR 1925 PC 33). Section 6 is subject to the provisions of Sec. 8 and the former section not being applicable, the question of extending the period of limitation to a period of three years from the cessation of disability does not arise. In this view of the matter, the trial Judge was not right in counting the period of three years from the date when the plaintiff attained majority and giving him the benefit of Secs. 6 and 8. The position thus, is that the contesting defendants having remained in possession of the properties allotted to them by the partition and no suit having been instituted till 24th September, 1954, it is barred by time. The conclusion of the trial Judge in this respect is correct, but on slightly different considerations.
30. Learned counsel for the appellant referred to Article 127 of the Indian Limitation Act and submitted, that the present suit came within the purview of that Article. He contended, that the plaintiff was excluded from possession of the joint family property and the period of 12 years was available to him from the time when the exclusion became known to him. This contention cannot be accepted for two reasons. The first reason is that there was neither a joint family nor a joint family property, which also are the two essential factors for application of the provisions of Article 127. The second reason is, that this Article does not apply to a suit by members of a Mohammadan family for recovery of shares in immovable property of a deceased Mohammadan ancestor.
31. It was held in Amme Raham v. Zia Ahmad, ILR 13 All 282 (FB), that the period of limitation prescribed by Article 127 of the Limitation Act would not apply to a case in which members of a Muhammadan family were suing for possession by right of inheritance of shares in immovable property alleged to have been that of the deceased common ancestor of themselves and some of the defendants, and of which they alleged to have been dispossessed by the defendants. John Edge, C.J observed in that case that “……‘joint family property’ means in Article 127 the property of a joint family and that would be strictly speaking ‘joint family property’”.
32. The view taken, in this case, was adopted in other cases as well, and would refer only to one case more, Mahomed Akram Shaha v. Anarbi Chowdhrani. ILR 22 Cal 954. It was held, in that case, that Article 127 did not apply to a suit by Mahomedans for possession by right of ??? of shares in the property of their deceased ancestors and their Lordships held, that, strictly speaking there was no joint family and no joint family property under Mahomedan law in the sense in which those expressions were understood in the Hindu, system of law. I am thus, of the opinion, tea the provisions of this Article are not applicable tattle facts of the present case, and the Court below was right in holding, that the suit was barred by limitation.
33. Plaintiff wanted partition of lands described in Schedule 2 of the plaint and his case was, that defendant 1 had acquired those lands, either in his name or those of his sons and wife with the joint income of the family. Without going to the details of these acquisitions, as to when they were acquired and for how much, learned counsel for the appellant submitted, that the family being joint, acquisitions in the name of one or the other member of the family should be held to be joint and divisible amongst all the members. This proposition would not be correct in the present case, as the position in case of a Mohammadan family is different, and although the members of a Mohammadan family might live in commensality, yet they do not form a joint family in the sense in which that expression can be used according to Hindu Law. This position was clarified by a Division Bench of the Allahabad High Court in the case of Abdul Rasbid v. Shirajuddin, AIR 1933 All 206, and their Lordships observed as follows:
“We wish to make it perfectly clear that we are alive to the fact that the presumptions that hold good in the case of acquisitions in the names of individual members of a joint Hindu family have no application to acquisitions made in the names of individual members of a Mahomedan family. We farther note the fact that the law does not recognize the existence of a joint Mahomedan family of tenancy in common so far as a Mohamedan family is concerned. If is further to be borne in mind that in a case like the present the burden lies on the plaintiff to substantiate his allegation that certain acquisitions that were made in the name of particular persons were acquisitions for the benefit of persons other than those in whose names the acquisitions were made.”
34. Appellant has not established that the properties acquired by defendant 1 were in his (plaintiff) possession. The result is that he is not entitled to a decree in respect of the lands described to Schedule 2 of the plaint. (The rest of the judgment is not material for this report, as it deals with pure matters of evidence—Ed.)
Mahapatra, J.:— I agree.
LF/V.B.B
35. Appeal partly allowed.