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TMI Blog1961 (4) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... ately after the marriage, that the 2nd defendant at no time has 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 there after 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 he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recluded from setting up exclusion of the plaintiff during his minority. 8. To a question from the court, Mr. V. Ratnam, appearing for the defendants, frankly stated that there is no specific plea of exclusion averred in the written statement and that he relied on the admission in the plaint itself. As regards evidence of exclusion, it is admitted that there is no specific evidence of exclusion of the plaintiff as such conceding his status as a member of the family apart from the evidence that the plaintiff and his mother never participated in the profits of the joint family properties and were not maintained from the joint family properties. In the nature of things, there could not be evidence of such exclusion on the side of the defendants as their whole case rested in denying the paternity of the plaintiff. It is no confirmatory of the case of the defendants that the mother of the plaintiff was divorced and that the plaintiff was not born to the second defendant, the second defendant as D. W. 1 states in his evidence that he was not invited for the marriage of the plaintiff and that he had not paid anything to the plaintiff for his education or maintenance and that neither th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed, after setting out the relationship of the parties, it was averred that when the plaintiff was an infant, the second defendant beat and harassed the plaintiff's mother, Ponnammal and drove her out of the house with the plaintiff and that from then, the plaintiff's mother, Ponnammal along with the plaintiff was living and getting on in her mother's house. There was a return of the plaint and the material requisition relevant for the purpose of the present second appeal was to the following effect: (i) It may be specifically mentioned in the plaint (petition) whether the petitioner has been excluded from joint possession or continues to be in joint possession and prays for separate possession; and (ii) The sub-section of Court fees Act under S. 37 to be mentioned. On this return, to the original paragraph 3 of the plaint, averments were added in Tamil to the following effect: From that time, the plaintiff must be deemed to have been excluded from the suit properties. He is not in joint possession of the same with the plaintiff. The Tamil words are Vilakkappattirupathi Karuthappada vandum . The averment does not appear to me to state exclusion as a fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a member of the joint family and the suit was barred by the law of limitation. Adverting to Art. 127 of the Indian Limitation Act, and after referring to the facts, it is observed at page 712 (of ILR Bom): (at p. 236 of AIR) of the report. The abovementioned facts are certainly material for consideration, but in their Lordships opinion they are not conclusive of the question of exclusion of Nana (the claimant) from the joint family property. There is no definition of the word exclusions in the Indian Limitation Act, and it is obvious that a question whether a person has been excluded from the joint family property, must depend upon the facts of the particular case which is under consideration. It was admitted in argument of the learned counsel for the defendants that an intention to exclude is an essential element. Their Lordships are of opinion that the abovementioned admission is correct; and that it is necessary for the court to be satisfied that there was an intention on the part of those in control and possession of the joint family property to exclude Nana. At page 715 (of ILR): (at p. 238 of AIR) it is observed: Their Lordships, however, desire to observe that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int family properties. In the plaint, the plaintiff has also stated and given as cause of action his demand for partition and the notice that followed. Ex. facie, the suit is within time, the denial of the plaintiff's right becoming apparent, according to him and when partition was refused and was not acceded to after demand for the same. 14. In my opinion, the facts stated in the plaint cannot amount to an admission of exclusion. The plaintiff was an infant and according to the case of the plaintiff, his mother was driven out of house along with the plaintiff. It does not follow therefrom that there was an admission that the plaintiff was made aware that he would be denied his right to partition when he chose to claim. It was not the case of either party. The courts below have proceeded as if the exclusion of the plaintiff's mother from the family would amount to exclusion of the plaintiff from the joint family properties It has not been made out that even 12 years prior to suit the status of the plaintiff as a son had been questioned to his knowledge. The plaintiff does not claim under his mother and his right is as a coparcener in the joint family. Once it is found th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts and that consequently they intended to exclude them from their birth right. It is further observed that such knowledge cannot be imputed at any time before they attained majority and that they proposition that the knowledge of the guardian is the knowledge of the minor is not free from doubt. 17. In the decision in Narasimha Deo Garu v. Krishnachandra Deogaru, 37 MLJ 256: AIR 1920 Mad 793 this question is left open. Their Lordships observing (of Mad LJ): (at p. 798 of AIR). The argument on behalf of the appellants is that a minor cannot be imputed with any knowledge. It is unnecessary for me in this case to express any opinion on the question. Whether the knowledge can be imputed to a minor direct where there is no guardian to act for him, and if so, under what circumstances . But I have no doubt, that where there is a guardian as here, the knowledge of the guardian must be imputed to the minor. Article 127, to my mind, contemplates that in the case of the minors, the knowledge of the guardian is quite sufficient. There is also an observation in the judgment of Lord Phillimore in Kalyandappa Bin Ayappa Desai etc. v. Chanbasappa Bin Dodappa Desai, 46 MLJ 596 : AIR 1924 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian and the manager and protector of a family plead that they have excluded the minor from the rights. The learned counsel for the appellant contends that it will not be open for the guardian or manager of a family to plead that he had excluded the minor even during his minority and that the cases where guardian's knowledge are imputed to the minor are cases where the action commenced against a stranger and not against the guardian or manager who is in a fiduciary position qua the minor. 18. On this part of the case, reference may be made tot he decision in Mahalakshmamma v. Suryanarayana, 55 MLJ 733: AIR 1928 Mad 1113 where at p. 740 (of Mad LJ): (at p. 1117 of AIR) the principle applicable to the cases of the kind is stated as follows: The law is clear that a person who is either an actual legal guardian or who takes upon himself the guardianship of a minor cannot be heard to say that his possession must be taken to be adverse to the minor. If any authority is needed, I may refer to Vasudeo Atmaram Joshi v. Eknath Balakrishna, ILR 35 Bom 79 where the mistress of a person after his death was protecting his minor sons and managing the property and claimed adverse possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change in the character of possession, which can only be by consent and not by any unilateral act. In the light of the principles emerging from the above decisions, it is difficult to countenance an argument, that time must count in favour of the father or manager of the joint family even during the minority of the infant who is excluded. 19. The learned counsel for the respondents then strenuously contended that the finding of the lower appellate court on the paternity of the plaintiff was erroneous and could not be sustained. It was argued that material evidence had not been considered by the lower appellate court while reversing the decision of the trial court on the point. It is true that the learned Subordinate Judge has not adverted to every bit of evidence on this aspect of the matter. But 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. He has discussed the evidence on behalf of the defendants generally and points out the circumstances in the case which make them unacceptable. He points out the discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re and not 1/8th as claimed by him. As regards the joint family properties available for partition, it has been the subject of consideration by the trial court under issues 5 and 6, and the trial was held that even if the plaintiff was held to be the son of the second defendant, he would be entitled to a 1/12th share in items 1, 6, 9, 12, 13, and 5 acres 9 cents in items 2 and 3 and 27 cents in item 10, 82 cents in item 11 and also item 16 and half of item 17 of the A schedule. The finding of the trial court as regards the share and as regards the properties available for division have not been questioned before me by either side. 21. In the result, the second appeal is allowed, and there will be a decree in favour of the plaintiff for partition and separate possession of a 1/12th 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. It is needless to state that the plaintiff will be entitled to his share of the income form the lands from the date of the plaint. The same shall be ascertained in the final decree proceedings. Considering that he plaintiff had not chosen to make any demand for partition f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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