- (1.) THIS is an appeal by Bhanwarial against the judgment and decree of the Civil and Additional Sessions Judge on Jodhpur in a suit for partition.
(2.) THE plaintiff originally claimed one third share in the property in dispute. Later, on the death of Kanvaria, the plaint was amended, and a claim for half the property was put forward, THE undisputed pendigree of the family is thus - Jethu Dayaram Lalu (issueless) Ghela (issueless) Rambux Bhabut (Pltf) Kanvaria (Deft. 2) Ramratan (Deft. 1) The plaintiff's case was that Rambux, Bhabut and Kanvaria were member of a joint Hindu family, and were owners of the property in dispute. , Bhabut died in Svt. 1982 on Pos Badi 13th. The plaintiff was a posthumous son born shortly after Bhabut's death. The plaintiff and his mother used to live in a part of the house for sometime; but for 10 years before the suit they had been living with the plaintiff's mother's father. The plaintiff on attaining majority wanted that his share of the joint family property be partitioned, but this request was refused and consequently the plaintiff had to bring this suit. Kanvaria, defendant No. 2, supported the plaintiff's claim in his written statement, and in addition wanted that his one-third share in the property should also be separated by metes and bounds. He, however, died during the pendency of the suit, and, therefore, the plaintiff amended the plaint and claimed one-half share. The suit was resisted by defendant No. 1. He denied that Rambux, Bhabut and Kanvaria were members of a joint Hindu family. He also denied that the plaintiff or his father and mother even lived in the house in dispute. He alleged that the suit was time barred, and that he and his father had been in adverse possession of the property. Reliance was also placed on two relinquishment deeds said to have been executed by plaintiff and Kanvaria of their share in the joint family property. The plaintiff also claimed that even if partition was to be allowed, he should be compensated for certain improvements that he had made costing Rs. 15,000/ -. As for the shop, in which also partition was claimed by the plaintiff, Ramratan pleaded that the shop had been sold in order to pay an antecedent debt, and that Ramratan was entitled to Rs. 300/- in that connection. The plaintiff filed a replication to the point raised by the defendant and urged that the relinquishment deeds were not admissible in evidence as they were not registered as required by law, that Ramratan was not in adverse possession of the house and that no improvements had been effected in the house, for which compensation was due to Ramratan. Nine issues were framed by the trial court, of which the following require determination in appeal (the numbering is ours): - (1) Is the suit time-barred ? (2) Did the plaintiff execute a deed of relinquishment in favour of the father of defendant No. 1 on Svt. 2001, Vaisakh Badi 6th, and if so, how will it affect the suit? (3) Is defendant No. 1 in adverse possession of the house in question for the last 20 years and hence the plaintiff is not entitled to any relief ? (4) Is the plaintiff estopped from bringing the present suit ? (5) Did defendant No. 1 spend Rs. 15,000/- in improving the house in ques-tion, and if so, how will it affect the suit ? (6) (a) Was an ancestral shop mortgaged with Mali Ruganath for Rs. 700/- ? (b) Was the shop sold by the father of defendant No. 1 for Rs. 1200/- and were Rs. 900/- paid to Ruganath ? (c) Was the patta of this very shop mortgaged with Bhuri Dhoban and was it redeemed by defendant No. 1 on payment of Rs. 600/- ? (d) Is defendant No. 1 entitled to get Rs. 300/- with interest from the plaintiff? (7) Are the deeds of relinquishment inadmissible in evidence ? The remaining issues framed by the trial court were not pressed before us by either side. The trial court decided most or the issues in favour of the plaintiff; but it came to the conclusion on issue No. 1 that the suit was time-barred under Art. 127 of the Limitation Act, and therefore dismissed it. Issue No. 3 - We shall first consider the issue of obverse possession. The trial court has come to the conclusion that the suit is not barred by the rule of adverse possession. The Limitation Act of Marwar applied to the suit, and under that Act 20 years was the period of limitation in a case of adverse possession. The case of Ramratan was that Bhabut, father of the plaintiff, was never in possession of the property and therefore Ramratan had perfected his title by adverse possession. This position of Ramratan was in essence contradictory to the next position that he took, namely, that the plaintiff had been excluded and therefore the suit was barred under Art. 127. Further, before Art. 144 applies, it has to be shown when the possession of the defendant become adverse to the plaintiff, and 20 years' period of limitation under the Marwar Limitation Act has to be counted from that date. There is no evidence worth the name on behalf of Ramratan to prove that his possession became adverse to Bhabut. It is true that Ramratan denied that the property was joint family property; but the evidence of his own witnesses showed that the plaintiff's mother stayed in this house after the death of Bhabut and performed the period of mourning here. In order to establish adverse possession Ramratan had to show on what date there was ouster of Bhabut to his knowledge. No such evidence is available and we are, therefore, not prepared to believe that Bhabut was ever ousted from the house which was unboundedly the residential house of the joint family consisting of Rambux, Bhabut and Kanvaria. So far therefore as Bhabut is concerned, there is no proof of even the start of the period of limitation, and therefore it cannot be held that the suit is barred under Art. 144. As for the plaintiff, he was minor in Svt. 1912, and even if he and his mother had been turned out of the house in Svt. 1982, it could hardly be said that the ouster on that date was to the knowledge of the plaintiff who was a child by only a few months. Further the suit was brought within three years of the plaintiffs attaining majority, and in view of secs. 6 and 8 of the Limitation Act, it would be within time. We, therefore, hold that the suit is not barred under Art. 144 of the Limitation Act. Issue No. 1 - Then we come to the question whether the suit is time-barred under Art. 127. The period of limitation provided under that article is 12 years from the date when the exclusion becomes known to the plaintiff. " The first questions, that arises in this case, is whether there was any exclusion at all. The evidence, that has been produced, only establishes that the plaintiff's mother was turned out of this house soon after the death of Bhabut. We doubt very much whether this alone will amount to exclusion; but even supposing that this amounted to exclusion, the question still remains as to what is the starting point of limitation. This starting point is when the plaintiff has knowledge that he has been excluded. The trial court has held that the period of limitation started from Svt. 1982 from the date on which the plaintiff and his mother were turned out of the house and therefore the suit was barred sometimes in Svt. 1994. It has relied on Gajapati Narasimha Deo Guru vs. Gajapati Krishnachandra Deo Guru (1 ). In that case, it was observed as follows at page 798 by Abdur Rahim. , with whom Spencer J. agreed: - "but I have no doubt that where there is a guardian, such as here, knowledge of the guardian must be imputed to the minor. Art. 127 to my mind contemplates that in the case of minors the knowledge of the guardian is quite sufficient. " The trial court has relied on these observations and held that the guardian certainly had knowledge that she had been excluded from the house in Svt. 1982, and limitation therefore ran against the minor also from that very time. We must say with all respect to the learned Judges of the Madras High Court that if the observations mean that in every case the knowledge of the guardian must be deemed to be the knowledge of the minor for purposes of Art. 127, the proposition is too wide; but if the learned Judges only meant to lay down that, in the case before them, the knowledge of the guardian would be imputed to the minor, the observations may be accepted as correct. It seems to us that this is what the learned Judges meant for we may emphasise the words "such as here" to show that they were confining their remarks to the facts of that particular case. In that case, the guardian knew of the exclusion, because she had been petitioning the Court of Wards, time and again, about the right of her minor sons, and the Court of Wards told her definitely that they were not prepared to recognise that right, and were holding the property on behalf of another son whom alone they considered to be legitimate. In such cases, therefore, where the guardian has been taking step after the exclusion to establish the right of the minor, it may be presumed that the guardian's knowledge would be imputed to the minor. Another case of this kind is Janardan Saraf vs. Nilkantha Saraf (2 ). In that case, the minor plaintiff's mother had surrendered property by means of a relinquishment deed, and it was held that as exclusion took place by virtue of this document, the knowledge of the guardian must be imputed to the plaintiff. But where,as in this case, the plaintiff's natural guardian does nothing on behalf of the plaintiff, we cannot presume knowledge of a minor plaintiff from the mere fact that the guardian had knowledge. The question whe-ther minor plaintiff had knowledge or not would depend upon the facts of each case. In this case, Ramratan defendant wants us to hold that the minor plaintiff had knowledge from the very date of exclusion when he was only a few months old. As knowledge of the guardian cannot be legally imputed to the plaintiff in this case, and as it is obvious that a child, few months old, cannot have any knowledge whatsoever, it cannot be held that limitation began to run in this case from Svt. 1982. In some cases, it has been held that a minor cannot be presumed to have knowledge at all and limitation does not run against the minor during his minority. In Niranjan Prasad vs. Beharilal (3), it was observed as follows at page 305 - "the article of Limitation Act applicable to the suit would be Art. 127 which gives a period of 12 years for enforcing a right to a share in joint family property from the time when the exclusion becomes known to the plaintiff. The plaintiff did not attain majority until about eight years before the institution of the suit and even if it be held that he became aware of his exclusion from the date of his attaining majority the suit is still clearly within time". Without going to the length to which the Allahabad case goes,it can in our opinion, be safely laid down that a minor may be imputed with the knowledge of exclusion during his minority; but it is for the defendant in such a case to show on what date the minor came to know of his exclusion, and the period of 12 years limitation would run from that date. In the present case, no attempt has been made to show from what date the minor come to now of the exclusion. At the best there is evidence that when the plaintiff was about 13 or 11 years of age, he was married from the ancestral house, but that he had to take permission of Ramratan for that. Accepting that to be correct the earliest date on which the exclusion is established to the know ledge of the plaintiff in this case is when he was 14 years of age. The present suit was filed when the plaintiff was about 21 years of age and being thus within seven years would be within time. There is yet another reason why the suit cannot be barred by time under Art. 127. At the best the plaintiff was excluded when he was few months old. Therefore, the period minority. Under sec. 7 of the Limitation Act where a person entitled to institute a suit is, at the time from which the period of limitation is to be reckoned, a minor, he may in-stitute the suit or make the application within the same period after the disability has ceased as would otherwise have been allowed under the time prescribed therefor in the third column of the First Schedule. Under this section, therefore, where a period of limitation starts when a person is a minor, he gets the same period of limitation from the date he attains majority. But this section is subject to sec. 8 under which the maximum period to which a minor is entitled in any case, on attaining majority, is three years. Therefore, as the period of limitation in this case would start, on whatever view one takes during the minority of the Plaintiff he was entitled to three years' time within which to bring the suit from the date he attained majority. It is not disputed that this suit was brought within three years of the plaintiff attaining majority, Thereafter, whatever view one takes, the suit is within limitation. Issue No. 5 - This issue raises the question of compensation for improvements. It is admitted by the plaintiff and his witnesses that some new constructions have been made in this house. These constructions were made after demolishing a part of the old house, but they are much more then what the demolished portion was. There is no doubt that these must have cost something. The question is as to how much they cost and whether Ramratan is entitled to half share of the cost in case the plaintiff succeeds. Ramratan claimed Rs. 15. 000/- as the cost of these constructions, The evidence, however which was produced to prove the cost, is, in our opinion, unreliable. Shermohammad D. W. 1 and Walimohammad D. W. 5 say that they were told by Rambux that the construction had cost Rs. 15,000/- or Rs. 16000. It was admitted by the Shermohammad, however, that accounts used to be kept by Rambux, but no such accounts are forthcoming. Wali-mohammed D. W. 5, merely valued the constructions at Rs. 10,000/-, but he is not an expert and his evidence cannot relied upon. Ramratan defendant said that his father had told him that the constructions had cost Rs. 15,000/ -. He admitted that some account was kept by the Mistry who was in charge of the constructions, but that amount is also not forthcoming. Mst. Tulsi D. W. 8, mother of Ramratan D. W. 9, said that Rs. 7,000/- were borrowed for the constructions. The statement, however, of Mst. Tulsi, on this point was contradictory because at one place she said that the sum was borrowed because the constructions were incomplete, while at another place she said that the sum was borrowed for paying off an earlier creditor.
(3.) IN any case, the mere fact that in borrowed for constructions is no proof that the money was spent on the construction. The trial court has held, on the basis of two pro-notes, which recited that money was borrowed for constructions, that Rs. 3,074/- were spent on the constructions. But the trial court forgot that these pro-notes were of Svt. 1941 and 1942, while, according to Mst. Tulsi, the constructions were complete in Svt. 1996 which is equal to 1939-1940. The position, therefore, is that though some money must have been spent on the constructions, the plaintiff has failed to prove the actual amount so spent. IN this connection, reference may be made to Bhai Asuram vs. Bulaqi Das (4) in which is was held there were the defendant did not produce accounts of the income he derived from the property during the period of possession, and there was nothing on record to show the present value of the improvements elected by him, the defendant was not entitled to any compensation for the improvements. Learned counsel for Ramratan prayed that a commission may be issued for valuing the constructions. This course was open to Ramratan while the case was pending for so many years in the trial court and was never taken. We are not prepared to allow Ramratan to fill up the gaps in the evidence now. Learned counsel for the appellant also urges that these constructions were made without the plaintiff's consent, and even if the amount spent had been proved the plaintiff was not bound to reimburse the defendant. In this connection, reliance is placed on two cases-Jantapuram Subbiah vs. Gundalapudi (5) and Solaiman Moosaji Asmal vs. Jatindra Nath Mondal (6 ). In Janatapuram's case (5) it was held that one tenant-in-common, who makes improvements on the property of the co-tenancy without necessity or without the concurrence of the other co-owners, is ordinarily nor entitled to compensation for doing so. In Solaiman Moosaji's case (6) Rankin C. J. , While dealing with the case of a co-owner or co-sharer in a partition suit, observed as follows at page 556 in connection with improvements. "i am prepared to assent to the proposition that where a person has expended money upon a joint property and a time comes to partition it, it is reasonable and right to endeavour "to give him such an allotment as may enable him to read the advantage of what he has expended upon improvements. But when we are asked to go beyond that and to say that it is the prima facie right of such a co-owner expending money to improve the whole or a greater portion of the joint land to have in one way or another recouped to him by his co-owners the value of the improvements which they got in the shares which are allowed to them, then I say that that is not the law. " These principles, in our opinion, apply in the present case also. The matter might have been different if Ramratan pleaded that his father Rambux was the Karta of the family and had to spend his money from his own pocket in order to save the family property. What we find, however, is that part of the ancestral house was demolished and in its place certain new constructions were made which were, of course, more valuable than the part demolished. We are, therefore, of opinion that the lower court was wrong in allowing a sum of Rs. 3,074/- to Ramratan defendant for improvements. All that Ramratan defendant is entitled to is that, when the partition is made by metes and bounds; the Commissioner will, as far as possible, give him his share out of the new constructions. Issue No. 6.- This issue relates to an ancestral shop which was formerly the property of the family and is also longer so. The plaintiff contends that he is entitled to get half share in that shop also even though it has been sold, and that his share in the shop might be made up from the house. The trial court, however, has not accepted this contention. It has found that the ancestral shop was mortgaged long ago to one Rughnath Mali. Rambux, father of Ramratan defendant, sold it for Rs. 1200/- in order to pay off Rs. 900/- to Rughnath for the mortgage. The trial court has not accepted the contention that this shop was mortgaged with Bhuri Dhoban, and that Ramratan. defendant No. 1, redeemed it, and has, therefore; held that the plaintiff was entitled to one-half share out of Rs. 300/- which was the amount over and above the mortgage money paid to Rughnath Mali. Learned counsel for the appellant contends that the trial court was wrong in allowing Rs. 900/- as the mortgage money to Rughnath Mali, as neither the mortgage deed in favour of Rughnath Mali nor the endorsement of payment had been proved, and the trial court was wrong in assuming that the document being more than 30 years old was admissible under sec. 90 of the Indian Evidence Act. The mortgage deed is dated 17th June 1918, and it was produced in court on 17th March, 1947. Thirty years were not obviously over by then, and the contention on behalf of the appellant is that the period of 30 years is to be counted only up to the date of production of the document. We find, however, that the evidence of the defendant No. 1 began on the 3rd of December, 1947, and finished on the 9th March, 1950. By that date the mortgage dead in favour of Rughnath Mali was certainly more than 30 years old. There is difference of opinion among various High Courts as to the date on which 30 years should be counted. In one case it was held that 30 years should be over on the date of production, vide Chiranji Lal vs. Kallo (7 ). In another case, it was held that 30 years should be over on the date of arguments, vide Mahadeo Pra-shad vs. Mst. Nasiban (8 ). Generally however it has been held that the period of 30 years should be counted not from the date upon which the document is produced, but from the date on which, having been tendered in evidence, its genuineness or otherwise becomes the subject of proof. It seems to us that as sec. 90 is about the proof of documents, the proper date to take is the date by which the party who produced the document, finish his evidence. The reason is that up to the time when the party, who has produced such a document finish the evidence, it is open to him to produce witness to prove it, If, by that time, the document is more than 30 years old, the party may very well not produce witnesses and rely upon the presumption under sec. 90, In the present case, the mortgage deed was produced by defendant No. 1 whose evidence finished on the 9th March, 1950. The defendant could, therefore, produce evidence to prove that document up to the 9th March, 1950. By that date, the document was well over 30 years, and in the circumstances we are of opinion that the lower court was right in presuming it to be genuine. ;