Authored By : Richard Garth, S.C. Ghose

Richard Garth, C.J.

1. The only point in this case, upon which we had any doubt,was with regard to limitation.

2. The suit was brought by the plaintiff to recoverpossession of a one-third share of a property, which consisted of the dwellinghouse of the defendants Nos. 8, 9 and 10. There is no doubt that this houseformed part of the joint family property of a Hindu family, of which there wereseveral co-sharers. The plaintiff was not one of the family, but bought theshare in question on the 17th of Pous 1288 from one Shiba Durga, who was thewidow and sole heiress of Ram Moni, who was one of the co-sharers.

3. So far as the plaintiffs title is concerned, the lowerAppellate Court has found in his favour. But it was contended, on the part ofthe defendants, that the plaintiff is barred by limitation.

4. The defendants say that, after the death of Ram Moni,which occurred some 25 or 30 years ago, Shiba Durga left her husbands house,and has since lived with her father.

5. But the Subordinate Judge says that this of itself doesnot show that she was excluded from the joint family property; and he has heldthat the plaintiff, who purchased the property from her, is as much entitled tothe benefit of Article 127 of the Limitation Act as Shiba Durga would have been.That article provides that "a suit brought by a person, excluded fromjoint-family property, to enforce a right to share therein, must be broughtwithin twelve years from the time when the exclusion becomes known to theplaintiff." The Subordinate Judge considers that this rule not onlyapplies to members of the joint family but to any stranger who may purchase ashare in the joint property from any member of the family.

6. That is not, in my opinion, the intention of Article 127;and I think that any stranger purchasing joint-family property from a member ofthe family is in the same position as regards limitation as the purchaser ofany other property.

7. Under Article 136 "the purchaser of a property, whenthe vendee was out of possession at the time of the sale, must sue to recoverit within twelve years from the time when his vendor was first entitled topossession." If then the plaintiff purchased when his vendor was out ofpossession, he comes within that Article 136; if his vendor was not out ofpossession when he purchased, the question of limitation does not arise.

8. I conceive that in Article 127 the Legislature intendedto make an exception from the general rule of limitation in favour of Hindusand others, to whom the law of joint-family property more specially applies inthis country.

9. Those persons often leave their houses for long periodsof time to seek employment in some distant place, and their relatives may takesteps to exclude them from their family property without their knowing it. Ithas, therefore, been considered right to allow them to bring a suit under suchcircumstances to enforce their right within twelve years from the time whenthey first know of their exclusion.

10. But this reasoning would not apply with equal force tostrangers, who purchase joint-family property, and ought to make enquiries intothe title of their vendors before they make their purchase.

11. That Article 127 does not apply to such persons isshown, I think, by the fact that the limitation is to run from the time whenthe exclusion becomes known to the plaintiff. Now, who is meant by theplaintiff in this sentence The plaintiff there, I conceive, must mean themember of the joint family who has been excluded from possession, and theexpression would not be applicable to a person purchasing from such member. Ifit was intended to apply to a purchaser from that member, this strange resultwould follow: that the member of the joint family who sold to the strangermight have known of his own exclusion more than twelve years before thestranger brought his suit, and yet the stranger would not be barred if he, thestranger (who would be the plaintiff), was not aware of the exclusion of hisvendor. The stranger would then have twelve years to sue from the time when hewas first aware of the exclusion.

12. The Subordinate Judge in this case appears to haveconsidered that the onus is upon the defendants, in the first place, to showwhen Shiba Durga was excluded from possession; and in the next place, to showthat the plaintiff heard of the exclusion within twelve years before suit. Ithink this is wrong. The plaintiff, in my opinion, is bound to show, that hebrought his suit within twelve years from the time when Shiba Durga wasexcluded from possession; and consequently from the time when she was firstentitled to bring a suit to recover it. It may turn out, of course, that Shibawas never excluded from possession; and in that case the plaintiff may be intime. But the issue which the lower Court will have to try is this, whetherShiba was excluded from possession, and, if so, when, and the onus will be uponthe plaintiff to show that she was excluded, if at all, within twelve yearsbefore this suit.

13. The case will be remanded for retrial upon this point,and both parties will be entitled to adduce further evidence upon it. The costsin both Courts will abide the result.

S.C. Ghose, J.

14. I concur in the judgment delivered by my lord. I desireto add that the article of the Limitation Act truly applicable to this case isNo. 144 of Schedule II, and in this view it will be necessary for the lowerAppellate Court to determine when did the possession of the defendant becomeadverse to the plaintiff or the person under whom he claims by purchase.Whether the case is dealt with under Article 144 or Article 136 referred to inthe judgment of the Chief Justice, the enquiry will be one and the same, viz.,when was Shiba Soondari excluded.

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Durga Charan Sen vs.Sen and Ors. (17.06.1885 - CALHC)