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Madras High Court
NATESAN
Marudanayagam Pillai - Appellant
Versus
Sola Pillai (died) - Respondent
Decided On : 04/28/1964
LIMITATION ACT - ART. 127 - EXCLUSION FROM JOINT FAMILY PROPERTY - KNOWLEDGE OF EXCLUSION - MINOR COPARCENER - GUARDIAN'S KNOWLEDGE - ADVERSE POSSESSION AGAINST MINOR - PATERNITY OF PLAINTIFF - FINDING OF FACT - SECOND APPEAL.
Fact of the Case:
Plaintiff, claiming to be the son of the 2nd defendant, filed a suit for partition and separate possession of the suit properties, alleging that they were joint family properties and that he was entitled to a 1/8th share therein. The 2nd defendant was his father, the 1st defendant was the father of the 2nd defendant, and the 3rd defendant was another son of the 1st defendant. Defendants 4 and 5 were the sons of the 2nd defendant by his second wife. The principal defense was that the plaintiff was not the son of the 2nd defendant.
Finding of the Court:
The trial court upheld the case of the defendants that the plaintiff is not the son of the 2nd defendant and that the case of the defendants that Ponnammal left immediately after her marriage was true. The trial court also held that even if the plaintiff was the son of the second defendant his case will have to fail on the ground of limitation, observing that it was admitted in the plaint that the plaintiff and his mother were excluded from possession. On appeal, the learned Subordinate Judge, differing from the trial court, upheld the plaintiff's case that he was the son of the second defendant. However, the learned Subordinate Judge agreed with the trial court on the question of limitation and holding that it was admitted in the plaint that the plaintiff was excluded from possession ever since his mother was driven out, the decree of the trial court dismissing the suit was confirmed.
Issues: 1. Whether the plaintiff was the son of the 2nd defendant? 2. Whether the suit was barred by limitation under Art. 127 of the Limitation Act?
Ratio Decidendi: 1. The court held that the finding of the lower appellate court on the paternity of the plaintiff was erroneous and could not be sustained. The court found that the marriage of the second defendant with Ponnammal being admitted, the learned Subordinate Judge considered whether the defendants had established their case that Ponnammal had been divorced shortly after the marriage. The court held that the learned Subordinate Judge had discussed the evidence on behalf of the defendants generally and pointed out the circumstances in the case which make them unacceptable. The court also held that the learned Subordinate Judge had pointed out the discrepancies in the evidence on behalf of the defendants, and holding that no motive is imputed to P.Ws. 3 to 7 to speak falsely against the defendants, accepted the case of the plaintiff and held that the case of the defendants that the plaintiff's mother left the house of the defendants even immediately after the marriage is not true and that on the other hand she could have left their house 3 or 4 years after the marriage. 2. The court held that the suit was not barred under Art.127 of the Limitation Act. The court held that lapse of time is never in itself a bar to partition and the statute of limitation will operate from the time the plaintiff is excluded from his share and such exclusion became known to him. The court also held that there can be no exclusion without a denial of the coparcener's right to a share and such denial may be express or implied. The court further held that while partition is demanded and refused or if the coparcener is expelled from the joint family, that would be clear exclusion. Once the plaintiff establishes his claim to a share in the joint family properties by showing that the family was joint and that he was a coparcener entitled to a share in its properties, the onus is on the defendants to establish exclusion to plaintiff's knowledge for over 12 years prior to suit.
Final Decision: The second appeal was allowed, and there was a decree in favor of the plaintiff for partition and separate possession of a l/12th share in the properties which have been held to be joint family properties under issues 5 and 6 in the judgment of the trial court.
JUDGMENT :- The above second appeal has been preferred by the plaintiff against the decree of the learned Subordinate Judge of Tiruchirapalli, who affirmed that of the learned District Munsif, Karur.
2. The suit was one for partition and separate possession, the plaintiff claiming that the suit properties were joint family properties and that he was entitled to a 1/8th share therein. The 2nd defendant in the suit is his father. The 1st defendant is the father of the 2nd defendant and the 3rd defendant is another son of the 1st defendant, Defendants 4 and 5 are the sons of the 2nd defendant by his second wife.
3. The principal defence in the suit was that the plaintiff was not the son of the 2nd defendant. On behalf of the defendants, it was alleged that though the plaintiff's mother, Ponnammal, has been married to the 2nd defendant in 1930, she was having illicit connections with her sister's husband, Ponnuswami Pillai, that she left the house of the defendants even immediately after the marriage, that the 2nd defendant at no time had access to the said Ponnammal, that the said Ponnammal was divorced according to the caste system, that there was no relationship of husband and wife between the 2nd defendant and the said Ponnammal thereafter and that he had subsequently taken a second wife. It was also pleaded that the plaintiff was never in joint possession of any of the properties and the claim was barred by limitation.
4. The learned District Munsif after analysing the oral and documentary evidence in the case, upheld the case of the defendants, that the plaintiff is not the son of the 2nd defendant, that the case of the defendants that Ponnammal left immediately after her marriage was true and that even assuming that the plaintiff was born in 1932, as per the birth register extract, he could not have been born to the 2nd defendant since admittedly the 2nd defendant had no access to Ponnammal after she left the defendant's family.
5. Proceeding further, the learned District Munsif held that even if the plaintiff is the son of the second defendant his case will have to fail on the ground of limitation, observing that it was admitted in the plaint that the plaintiff and his mother were not in joint possession of the suit properties; and were excluded from possession. It was observed that the suit was clearly barred by limitation, the article applicable to the facts of the case being Art.127.
6. On appeal, the learned Subordinate Judge, differing from the trial court, upheld the plaintiff's case that he was the son of the second defendant. However, the learned Subordinate Judge agreed with the trial court on the question of limitation and holding that it was admitted in the plaint that the plaintiff was excluded from possession ever since his mother was driven out, the decree of the trial court dismissing the suit was confirmed.
7. Mr. A.V. Narayanaswami Iyer, learned counsel appearing for the plaintiff-appellant contends that having rejected the plea of the defendants that the plaintiff was not the son of the second defendant, the lower appellate court ought to have held that there was no exclusion as contemplated under Art. 127 of the Limitation Act. It is argued that once the plaintiff was found to be a member of the joint family and the case accepted that he lived in the joint family as a member of the household for sometime before he left the house with his mother it was for the defendants to plead and establish that the plaintiff has been excluded from the joint family properties for over 12 years to his knowledge to deprive him of his share, that apart from the absence of any pleading of exclusion there was no evidence of any exclusion and that whether there was exclusion or not was a mixed question of fact and law which this court can go into in second appeal. It is argued that even assuming that there was exclusion in fact, time commenced to run against the plaintiff only when the exclusion was brought home to the pl
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