Judgement

Appeal (No. 98 of 1927) from a decree of the High Court (February 17, 1925) reversing a decree of the Subordinate Judge of Poona (January 22, 1923).

The suit was brought by the appellants in 1920 against the respondents for a ninth share of property which was in their possession as joint family property. They claimed part through the third appellant Nana. The respondents denied that Nana was a member of their joint family, but on appeal to the High Court they withdrew that defence and relied on the Indian Limitation Act, 1908, Sch. I., art. 127, alleging that they had excluded Nana from the joint family and that that exclusion was known to him

29 Law Rep. 56 Ind. App. 316 ( 1928- 1929) Radhoba Baloba Vagh V. Aburao Bhagwantrao Shirole

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more than twelve years before the suit.

The Subordinate Judge made a decree for the plaintiffs, but the High Court (Macleod C.J. and Coyajee J.) held that the suit was barred by art. 127.

1929. May 2, 3, 6. Dunne K.C. and E. B. Raikes for the appellants. The onus was upon the respondents to prove an intention by them to oust Nana from the joint family, and that Nana knew of that intention more than twelve years before the suit. No act or statement definitely refusing Nana his rights was proved. The facts that Nana chose to live apart, and that he had received no benefit from the joint family property, did not show an exclusion within art. 127. There is no obligation to allow maintenance to a member who chooses not to live with the family. [Reference was made to Hari v. Maruti (( 1882) I. L. R. 6 B. 741.) ; Krishnabai v. Khangowda (( 1893) I. L. R. 18 B. 197, 202.) ; Jivanbhat v. Anibhat (( 1896) I. L. R. 22 B. 259.) ; Sellam v. Chinnammal. (( 1901) I. L. R. 24 M. 441.)]

De Gruyther K.C. and Parikh for respondents Nos. 1 to 5. A definite exclusion of Nana in 1906 was proved. But in any case the undisputed facts show an intention to exclude him, and it is a necessary inference that he knew of that intention more than twelve years before the suit. " When a person is not in possession of any joint property, and does not receive any of the proceeds of the property, he may be said to be excluded from the joint property " Jaganatha v. Ramabhadra. (( 1888) I. L. R. 11 M. 380, 392.) That view accords with the judgment of the Board in Rai Raghunath Bali v. Rai Maharaj Bali. (( 1885) I. L. R. 12 I. A. 112, 115.) A comparison of the Limitation Act of 1877 with earlier Limitation Acts shows that proof that a claim was made and refused is now not essential to establish an exclusion. [Reference was made also to Ram Lakhi v. Durga Charan Sen (( 1885) I. L. R. 11 C. 680, 682.) ; Ramcharan Narayan v. Narayan Mahadev (( 1886) I. L. R. 11 B. 216.); Muttakka v. Thimappa. (( 1891) I. L. R. 15 M. 186, 192.)]

Dunne K.C. replied.

June 14. The judgment of their Lordships was delivered by

SIR LANCELOT SANDERSON. This is an appeal by the plaintiffs against a decree of the High Court of Judicature of Bombay, dated February 17, 1925, which reversed a decree of the Subordinate Judge of Poona, dated January 22, 1923.

The plaintiffs brought the suit for a declaration that the immovable and movable properties mentioned in the plaint were the ancestral properties of the joint family of the third plaintiff, Nana Ramrao, and the defendants, and that the plaintiff Nana had a one-ninth share in the said properties, for partition and other consequential reliefs.

It appears that by a deed, dated June 6, 1910, Nana sold his one-ninth share in certain of the properties mentioned in the plaint for Rs. 1500 to the father of the first and second plaintiffs. The father of these plaintiffs died, and it was alleged that after his death—namely, on or about August 13, 1919—Nana obtained a further sum of Rs. 500 from the first and second plaintiffs, and that the first and second plaintiffs had thus become the owners of Nanas one-ninth share of the property described in schedule B of the plaint. Con sequently the first and second plai