JUDGMENT
1. The suit was brought in-November 1911 by the plaintiff, a Muhammadan lady, to recover her share of the property left by her husband, Alli Mallik Mudalia Taraganar, who died on the 14th April, 1889 leaving him surviving his sons by his predeceased wives, and the plaintiff and her son, the 5th defendant.
2. The Subordinate Judge held, that the plaintiff's deceased husband left all his property to his sons with the knowledge and consent of the plaintiff and that these latter had subsequently effected a partition among themselves of the property left by their father, also with the consent of the plaintiff and that the plaintiff's claim, if any, is now barred by limitation.
3. The plaintiff appeals.
4. In 1878 the deceased Mudalia Taraganar effected a partition between himself and his four sons by his second wife then deceased. The property was divided into eight shares, each of the four sons of the second wife getting a share, and Mudalia Taraganar, his third wife, and-his two sons by the third wife (the 3rd and 4th defendants) each getting a share. Mudalia Taraganar seems to have retained in his own hands the shares of the 3rd and 4th defendants and of his third wife. The property that was then divided into eight equal shares was valued at Rs. 64,405-10-6 (Exhibit II). In 1889 there was another partition. See Exhibit III. The 3rd wife had then died. The property which was then estimated to be of the value of Rs. 28,271-15-5 was divided into four shares, the father, the deceased Mudalia Taraganar, his two sons by the third wife (the 3rd and 4th defendants), his son by the plaintiff (i.e, the 5th defendant) each getting a share of the value of Rs. 7,067-15-10. With respect to the share of Mudalia Taraganar, it was settled that after his death the mahar due to his wife less the value of the jewels given to her should be paid out of his share and the remainder should be divided equally between his seven sons. No share was set apart for the plaintiff. On the 8th March that is 14 days after the partition-deed, Exhibit III, the father Mudalia Taraganar, made his will by which he appointed the 4th defendant as the guardian of the 5th defendant, who was then an infant. He was to submit his accounts to the other brothers and maintain the plaintiff out of the income of the 5th defendant's estate. It is the defendants' case that four or five days after making this will he gave all his sons 100 sovereigns each in the presence of the plaintiff, and that he directed a division of the cash kept by him into seven shares after his death and that the plaintiff assented to this. They also allege that some months after their father's death they divided the property left by him in accordance with his directions into seven shares with the plaintiff's knowledge and that the 5th defendant's share was delivered to the 4th defendant. As to the value of the property left by him which is divided into seven shares, there is no dispute. The total value of the properties, including the 600 sovereigns alleged to have been given by their deceased father to his sons, is stated to be Rs. 25,473 in the plaint, and this value is accepted by the defendants. It is the plaintiff's ⅛th share of this amount, Rs. 3,184-2-0 together with interest that she seeks to recover in this suit.
5. The questions for decision are: (1) whether the father gave his sons 100 sovereigns each in his life-time; (2) whether there was a partition of the remaining properties with the knowledge and consent of the plaintiff and whether the plaintiff waived her claim to her share; and (3) whether the plaintiff's suit is barred by limitation.
6. As to the distribution of 100 sovereigns to each of his sons, evidence is given on behalf of the plaintiff to the effect that her husband was unconscious at the time he is alleged to have given the sovereigns to his sons. The burden of proof, however, is on the defendants and we have, therefore, to consider the evidence adduced on their behalf. The 3rd defendant, as defendants' 1st witness, the 4th defendant, as defendants' 2nd witness, and the 1st defendant, as defendants' 10th witness, swear that their father was not unconscious as stated by plaintiff's witnesses, but that he gave to his sons 100 sovereigns in plaintiff's presence and he directed a division of the sovereigns into seven shares after his death and that the plaintiff assented to this. The defendants' 3rd witness, who was a farm servant under the deceased father, and the 4th witness, who is the brother of defendants Nos. 6 and 12 and a cousin of the 1st and 2nd defendants, support this evidence. Except the 3rd witness all the others are interested. The Subordinate Judge refers to a credit entry in the account book kept by the 4th defendant of the 5th defendant's estate showing that 100 sovereigns worth Rs. 1,500 were given to the 5th defendant for his 1/5th share on the 26th Masi (12th March). The first entry relating to this gives no date, the entry above being dated 26th Masi, 1064. But there is another entry which gives the date 26th Masi. That is the date of the execution and registration of the will. But the oral evidence of the defendants is clear that it was not on the day the will was registered, but four days after that, that the sovereigns were given to the defendants by their father. The book itself does not appear to be one kept in the ordinary course of business. These entries do not find a place in the day book. The 1st defendant does not produce his account book: neither does the is 4th defendant. He says he has no account book of his own, but keeps an account book, Exhibit B, for the 3rd defendant whose affairs he manages, and that account book does not contain a similar entry. The story is not probable. Their father had already made his will in anticipation of his death and if he was going to distribute his money amongst his sons, no reason is alleged why he should have distributed a few and reserved the rest. The documentary evidence, far from supporting the defendants' oral evidence, as we have pointed out, rather contradicts it. We are, therefore, unable to accept the story told by the defendants.
7. That the defendants divided the property left by their father among themselves is true. But that would not affect the plaintiff's claim, unless it is shown that she is estopped from putting it forward. No estoppel is pleaded. Assuming that she was aware of the fact of partition among themselves, mere knowledge alone will not create an estoppel.
8. The next question is whether the plaintiff's claim is barred by limitation. The plaintiff's claim is alleged not to be barred on two grounds. First, it is alleged that the defendants are guilty of fraud secondly, it is said that the possession of the defendants was that of tenants-in-common. We are not satisfied that the defendants have been guilty of any fraud and that the plaintiff was accordingly kept by them in ignorance of the facts.
9. The plaintiff states that after her husband's death she found his door open, that she asked the defendants, whether he had left any property and that the defendants assured her that he had left none. This statement by the plaintiff is uncorroborated and we are not prepared to find, on her unsupported evidence, any fraud on the part of the defendants. The evidence shows that her property was in the hands of the defendants. She did not care to press her claims and she was willing to leave everything in the hands of the defendants. She knew she was entitled to get her dower. She was aware that the defendants were bound to pay it to her and yet she did not make any effective demand for nearly 20 years. It is not likely, therefore, that though she must have known that her husband had left properties and though she also must have known that these defendants were in possession of them, she would have claimed any. All that can be said against the defendants is that they were under a moral obligation to pay to her her share of the property left by her husbandand that they did not either inform her of her interest or take the trouble to give her share to her, but that, on the other hand, they distributed it among themselves, and that they had committed a fraud which would bring the case under Section 18 of the Limitation Act. It has now been decided that in suits brought by one of the heirs to recover his share of the estate left by a Muhammadan who dies intestate, Article 123 of the Limitation Act does not apply as the estate is at once vested in the heirs as tenants-in-common. It was pointed out that Article 123 only applies to suits against executors and administrators or other persons whose legal duty it is to distribute the estate among certain persons. This has been held by a Full Bench of this Court. In the case of immovable property Article 144 is applicable, and in the case of movable property Article 120 is applicable. See Khadersa Hajee Bappu v. Puthen Veettil Ayissa Ummah(1). We are bound by this decision and accordingly hold that Article 120 applies to the case before us. The defendants having taken possession of the property as tenants-in-common, they must be deemed to have been in possession of such property on behalf of themselves and of the plaintiff and it lies on them to show that so far as the plaintiff is concerned, the character of their possession was changed six years before the date of their suit. The judgment of the Judicial Committee in Corea v. Appuhamy(2) would show that mere intention on their part is not enough to change the character of that possession. Nor is it sufficient to show that if the plaintiff had inquired, she might have found out that they had divided the property among themselves. When the plaintiff's husband died she was about 18 years of age. One of these defendants was appointed by her husband as her son's guardian. They were her relatives under whose protection and control she was living and who were supporting her. She was, therefore, entitled to assume that her interests would be looked after by them. In these circumstances, we cannot assume there was sufficient notice to her that her property was being dealt with by the defendants as their own, even assuming that such knowledge would be sufficient. Applying the principle laid down by their Lordships we must hold that the plaintiff's claim is not barred.
10. The plaintiff, however, has not proved that she had made any demand for her share; nor is it proved that the defendants have realised any interest on the property left with them. The plaintiff is not, therefore, entitled to recover any interest before the date of the suit. The plaintiff is entitled to get Rs. 3,184-2-0 for her ⅛th share. The 1st, 2nd, 3rd, 4th hand 5th defendants must each pay her one-seventh of the amount payable to her. Defendants Nos. 6 to 11 as the representatives of Kunjoor Taraganar must pay her one seventh, and defendants Nos. 12 to 16 as the representatives of Muhammad Moideen Taraganar must also pay her one-seventh. The plaintiff is entited to her proportionate costs throughout.
S.N/R.K
11. Appeal partly allowed.