Exclusion of time taken for court proceedings and the nature of possession in a partition suit.

Vepa Ramesam, J.

1. The facts out of which this second appeal arises may be thus stated. One Ali Saheb died on 20th February, 1912, leaving him surviving his widow Kathu Bibi and three daughters, Rahimat Bibi, Asmath Bibi (1st defendant) and San Bibi (the plaintiff). The record does not show when Rahimat Bibi died but it is immaterial. Her son is the 5th defendant. The plaintiff brought this suit for partition and recovery of her share of her fathers properties alleging that the 2nd defendant, husband of her sister Rahimat Bibi, trespassed upon the properties in 1917. The suit was originally filed in the District Munsifs Court of Udumalpet on the 24th July, 1918. On 20th October, 1919, the Mansif returned the plaint for amendment on the ground that it was bad for partial partition. The plaint was represented in the same Munsifs Court on 20th February, 1924, with the old Court fees plus some additional Court-fees and with some amendments. The District Munsif again returned the plaint on 28th October, 1924, for presentation to the proper Court. The next day, i.e., 29th October, 1924, it was filed before the Subordinate Judge of Coimbatore by whom it was tried and decreed. There is an appeal by the 2nd defendnat to the District Judge of Coimbatore who dismissed the appeal. The present appeal is by the second defendant.

2. The point argued before me is that the suit is barred by limitation. Before I deal with the argument on this question a few further facts will have to be stated. The second defendants plea on the merits was that Kathu Bibi took possession of all Ali Sahebs properties in satisfaction of the mehar of Rs. 7,500 due to her and was enjoying them as absolute owner from the time of Ali Sahebs death and that the properties were given by her to him in 1917. The plea of limitation was made the subject of the first issue. The 6th issue raises the question, "Is the gift by Kathu Bibi valid and true and if so, binding on the plaintiff?" The learned Subordinate Judge in dealing with the 6th issue found that the gift relied on by the second defendant is false, that the plaintiff has been living in item No. 5 after the death of her father and was getting the income from her mother and that all the daughters received their share in rent. He also found that there is no evidence that Kathu Bibi entered into possession as full owner or that she enjoyed the whole estate absolutely and adversely to the heirs. This finding amounts to saying that Kathu Bibis possession was not adverse to the heirs but that that was only as co-owner. On the first issue he also found that the time taken by the plaintiff between 24th July, 1918, and 20th October, 1919, in the District Munsifs Court of Udumalpet and again between 20th February, 1924, and 20th October, 1924, should be excluded and, therefore, the suit is not barred. He also observed that the suit being within 12 years of the death of the widow Kathu Bibi also no question of limitation arises. In para. 15 he says that the mother was in joint possession with the daughters of some property and leased it. In appeal before the District Judge the learned Advocate for the second defendant, Mr. C.S. Samba murthi Iyer again mentioned the question of limitation. It is now clear after the finding of the Subordinate Judge, that any Advocate who wants seriously to argue the question of limitation before the Appellate Court has to argue it on two grounds; first that the time taken up on two occasions before the District Munsifs Oourt of Udumalpet, ought not to be excluded, and secondly, apart from that Kathu Bibis possession was adverse to the plaintiff and that somehow the cause of action for the plaintiff arose not at some later date after Ali Sahebs death as found by the Subordinate Judge but the date of the death of Ali Saheb himself. It is impossible to imagine that the Advocate can successfully argue the former point but in the present case it seema to me that the latter point is almost impos