Sarakki Abdul Rahiman Taragan and Another vs Muhaidin Pathumal Bivi and Another and Pathummal Bivi

Sadasiva Aiyar, J.—These four connected Second Appeals have arisen out of two connected suits brought by three Mussalman ladies - one

of the suits was brought by two sisters against their two step-brothers and their mother for partition of the properties of their father (including the

accretions to the said properties) and the other suit was by the mother of the plaintiffs in the first suit against her said step-sons (the same

defendants 1 and 2) for her share. The father died in February 1898 and these suits were brought in July 1911.

The Lower Appellate Court modified the order of the Courts First Instance in the plaintiffs'' favour on the plaintiffs'' two appeal and dismissed

the two appeals of the defendants 1 and 2 preferring to the Lower Appellate Court against those portions of the decrees of the District Munsif

which were in the plaintiffs'' favour. Hence the defendants have now filed these four second appeals. The step-sisters and the step-mother of the

appellants have also filed two memoranda of objections in two of the four second appeals because the Lower Courts did not give them their shares

in the house standing on the site in Schedule 1 and also gave certain vague directions regarding the mode of partition of that site.

The second appeals 2276 and 2278 may be disposed of at once. In these two second appeals the defendants 1 and 2 contend that the plaintiffs

ought to have been made liable for their shares of the debts alleged by the defendants to be family debts and also of the expenses alleged to have

been incurred by the defendants out of their own pocket for the marriage expenses of their step-sisters. Both the Lower Courts have found that the

marriage expenses were incurred out of the profits of the plaintiffs'' shares in their father''s properties and the alleged family debts either do not exist

or were not incurred for purposes binding on the plaintiffs. These are findings of fact which are binding upon us in second appeal. Further, the

learned District Judge says that ""the findings of the District Munsif as to the debts were not seriously attacked."" before him. These second appeals

therefore are dismissed with costs.

The two remaining second appeals 2275 and 2277 are directed against the award to the plaintiffs of their shares in two sums of Rs. 1,000 and

900 which were received by the defendants land 2 from the mortgage debtors of their father in 1904 and 1909 respectively. The attack is based

on three grounds:

(1) That as the plaintiffs did not claim any shares in. the amount of Rs. 1,900 in their plaints as originally framed but claimed only shares in certain

immovable properties alleged to have been purchased with the aid of Rs. 1,900 the Lower Appellate Court was wrong in allowing the plaints to be

amended by claiming a share in the sums themselves and in awarding such shares (the plaintiffs having failed to prove that the immovable properties

were purchased with the aid of the Rs. 1,900.

(2) That even if the amendments were properly allowed, the Lower Appellate Court ought to have granted to the defendants 1 and 2 a further

opportunity to meet the plaintiffs'' case after such'' amendment.

(3) That the plaintiffs'' claims for shares in the sum of Bs. 1,900 are barred by limitation.

I think there is nothing in the first two contentions. The amendments were, in my opinion, rightly allowed (Order 6 Rule 17). The defendants 1

and 2 in the 12th paragraph of their written statement contended that much more than the value of the plaintiffs'' shares in these amounts and in the

other properties of their father had been spent for the plaintiffs. The 11th issue also was framed on this plea of the defendants and they let in all

their evidence on that issue. I agree with the remark of the Lower Appellate Court that ""it was quite open to them"" (that is, the defendants 1 and 2)

to have shown already what they did with these moneys and I am afraid it would be nothing but a direct incitement to perjury if I allowed them to

adduce fresh evidence at this stage.

Coming to the third ground of attack, so far as the Bs. 900 received by the defendants 1 and, 2 in 1909 is concerned, the suits cannot be barred

by limitation as they were brought in 1911. Mr. Devadoss therefore fairly admitted during the concluding portion of his arguments that his plea of

limitation should be confined to the sum of Bs. 1,000 received by the defendants 1 and 2 in 1904.

As regards this sum of Bs. 1,000 the Full Bench decision in Khadersa Hajee Bappu v. Puthu Veettil Ayissa Ummah ILR (1910) Mad. 511 :

M.L.J. 288 F.B. is binding upon me. The following observations occur in that judgment. ""In the case of a Mahomedan dying intestate, the estate is

at once vested in the heirs as tenants-in-common.

""The answer to the. question referred"" (namely, what is the article applicable to a suit by one of several Mahomedan heirs for a share of the

intestate''s property in the possession of another sharer) must be that article 120 is the article applicable ""when the property is movable property.

Article 120 provides a period of 6 years'' limitation for a suit for which no period of limitation is provided elsewhere in the first schedule (which

first schedule relates to suits) and the time from which the period begins to run is mentioned as ""when the right to sue accrues.

The next question, therefore, which has to be considered is whether the right of the plaintiffs to sue their Mussalman co-heirs for their (the

plaintiffs'') share of the intestates'' properties accrued within 6 years of this suit. If the phrase ""the right to sue accrues,"" be interpreted as meaning

the right to sue first accrues,"" there can be, no doubt, that the plaintiffs'' right to recover their shares in the Rs. 1,000 accrued in 1904 as soon as

the defendants 1 and 2 received the money from the debtors and the present suits brought in 1911 would therefore be barred In Mohabharat

Shaha v. Abdul Hamidkhan (1905) CRI.L.J. 78 Mookerjee, J. says at page 76 ""if we are called upon in any concrete case to decide the question

(namely, whether the provisions of the Limitation Act do or do not apply to suits for partition, administration construction of wills, public charities

and apportionments of rent) ""we might possibly hold that such suits are not beyond the scope of the Limitation Act, but that in each case the right

to sue accrues every moment during the whole of the time, that the right to the property continues to exist; for instance, the liability to be partitioned

is one of the incidents of joint property and a co-owner has the right to sue for partition at every moment of the whole period during which he

continues to be co-owner. Indeed, it has been held in more than one case to be found in the books that, Article 120 and Section 23 may have to

be simultaneously applied to determine whether or not a suit is barred by limitation."" These observations are, no doubt, obiter; for, the question

which had to be decided in that case was whether a declaratory suit brought more than 6 years after the denial of the legal character sought to be

declared by the suit was barred or not; and it was held that where the suit is based on a wrong or injury which is in the nature of a completed act,

that is, where the wrong is not a continuing one in the eye of the law, limitation begins to run from the date of the wrong and the question whether

the right to sue is a continuing one is irrelevant. However, it is clear from that case that the learned judges did make a distinction between suits for

partition, administration and the like suits which do not necessarily arise out of any wrongful act on the part of the defendant and other suits which

are necessarily based, upon such a wrong. In the former class of suits, the right to sue accrues day by day so long as the right to the suit property

exists. In the recent case reported in Marian Beeviammall v. Kadir Meera Sahib Taragan 29 Ind.Cas. 275, decided by Sankaran Nair and

Oldfield, JJ. the following remarks occur : ""The defendants having taken up 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 say that so far as the plaintiff

is concerned the character of their possession was changed 6 years before the date of the suit."" That was a similar case to the case before us and

the learned Judges held that the plaintiff''s claim was not barred though the movables, (namely cash and sovereigns of the value of more than Rs.

25,000), in which she (the plaintiff) claimed a share had come into the defendants'' (co-heirs'') hands more than 20 years before suit.

This question of limitation is not, however, at all free from difficulty. The Allahabad High Court in the case reported in Abdul Ghaffur v. Nur

Jahan (1915) 13 A.L.J. 686, has taken the view that Article 62 applied to a similar case. See also Amina Bibi v. Nagin-un-nissa Bibi ILR (1915)

A. 283. But I think I am bound by the decision in Khadirsa Hajee Bappu v. Puthen Veettil Ayissa Ummah ILR (1910) M. 511 20 M.L.J. 288.

and Marian Beviammal v. Kadir Meera Sahib Taragan 29 Ind.Cas. 275. I would therefore hold that the claims of the plaintiffs for their shares in

the Rs. 1,000 are not barred by limitation. The result is that these two second appeals 2275 and 2277 should also be dismissed with costs.

Coming to the memoranda of objections, we must accept the finding by the Lower Courts that the houses on the sites in Schedule 1 were built

with the self-acquired funds of defendants 1 and 2 and that the plaintiffs acquiesced in the erection of the building found on that site.

The objections are, however, maintainable in so far as they attack the vague reference in the District Munsif''s decrees to the Partition Act. The

decree in each suit says that ""as regards house site in Schedule 1, steps be taken under the Partition Act 4 of 1893 in execution."" What precise

steps were intended to be taken or directed to be taken is not clear. In the Munsif''s judgment, the following vague words occur : ""Under these

circumstances and especially as the defendants 1 and 2 own more than a half share in the items"" (that is, the house site in Schedule 1). ""and it is

inconvenient to divide the sites after removing the buildings. I decide to take action under the Partition Act as requested by the learned vakil for the

defendants 1 and 2."" The Partition Act contains only 10 sections. The provisions of the Act empower a Court to direct a sale of properties sought

to be divided if a division of the property itself by metes and bounds cannot reasonably or conveniently be made. It seems to me that in this case, a

sale of the sites alone without the house would lead only to further litigation between the purchaser at such a sale and the defendants 1 and 2 and

that it is not the most convenient way of effecting a partition. But the CPC in Order 26, Rule 14, Clause 1 empowers the Court to authorise the

Commissioner who is appointed before a final decree for partition is passed to award sums to be paid to one or more of the sharers for the

purpose of equalising the value of the shares. Order 20, Rule 18, Clause 2 further empowers the Court in its preliminary decree to give such further

directions as may be required to effect the most equitable partition. I would therefore modify the decrees of the Lower Courts in suit 259 of 1911

by omitting the clause ""that as regards the house sites in Schedule 1 steps be taken under the Partition Act 4 of 1893 in execution and"" and by

substituting for the clause, ""and the plaintiffs do recover 14/48th share of the value of the house sites abovesaid"" the following namely, ""that the

Commissioner to be appointed before the final decree is passed be authorised to award 14/48th share of the value of the house sites in Schedule 1

to the plaintiffs for the purpose of equalising the value of the shares, allowing the defendants 1 and 2 to take the sites themselves exclusively."" A

similar modification with the necessary variation as to the fractional share will be made in the decree in the other suit. There will be no order as to

costs in the memoranda of objections.

Napier, J.

I agree. I think that we must give a broad construction to the words ""right to sue accrues"" in an ""omnibus"" article like 120. The specific articles

contain various different starting points of limitation and doubtless if the Legislature had succeeded in providing for every class of suit, words more

suited to each suit would have been used and not this general language. In this case we are entitled to treat this right as a continuing right to sue

from day to-day. Any other construction would work the greatest injustice.