JUDGMENT
R.K. Dash, J.
1. Unsuccessful plaintiffs are in appeal against the judgment and decree of the learned Subordinate Judge, Karanjia (as he was designated then) dismissing the suit for petition simpliciter,
2. Plaintiffs case may briefly be stated thus:
Udayanath Mohanty, common ancestor of plaintiffs and defendant No. 1, died sometime in 1948 leaving behind his widow, defendant No. 2 and two sons, namely. Purna and Harish, defendant No. 1. Purna died on 14-11-1957 leaving behind his widow Yasoda. plaintiff No. 1 and daughter Sukanti, plaintiff No. 2. Total extent of lands possessed by Udayanath are set out in Schedule-B of the plaint. According to plaintiffs, item Nos. 1, 2 and 3 were ancestral properties and item No. 4 was the self-acquired property of Udayanath. So far as item No. 3 is concerned, though the sale deed stands in the name of Kamala, defendant No. 2, it was acquired fay Udayanath out of joint family funds defendant No. 2 having no independent source of income to acquire the said property. As to item No, 5, the same was obtained by exchange with one Harihar Misra and after having acquired the same, Udayanath constructed his house thereon and resided there with his family. On his death the said residential, house was possessed by his two sons and his widow, defendant No. 2 and now the same is under possession of defendants 1 and 2 only. . After death of Puma, defendant No, 1 intending to grab all the properties did not treat the plaintiffs well. So after marriage of plaintiff No. 2, plaintiff No. 1 has been residing sometimes in her father’s house and sometimes with her daughter. The further case of the plaintiffs is that defendant No. 2 in whose name property under item No. 3 of the schedule was acquired, disposed of the said property by way of gift to her son defendant No. 1, but since the acquisition was out of joint family funds, they are entitled to a share in it. As regards item No. 6, their case is that defendant No. 1 in the meantime has sold away the same to defendant No. 3 and this transfer being without their knowledge and consent will not bind their interest therein. It is asserted by the. plaintiffs that in whole of the suit properties Purna’s one-third share devolved upon them and to carve out their interest they requested the defendants for amicable partition and the same having been turned down, they filed the present suit. Further case of the plaintiffs is that the joint family possessed of the house as per Schedule-C and movables as per Schedule-D of the plaint and all the moveable and immovable properties should be equally partitioned between them and defendants 1 and 2 according to their share.
3. Defendants 1 and 2, the main contesting defendants while admitting the plaintiffs’ case that the properties described in item Nos. 1, 2, 4. and 6 of Schedule-B are the joint family properties, denied the plaintiffs’ case so far as item Nos. 3 and 5 are concerned and asserted that the properties described therein were the self-acquired properties of defendant No. 2, inasmuch as she purchased item No, 3 out of her own income and with regard to item No. 5, the recorded owner Ayodhya Dei, her God-mother, out of love and affection gave the same to her for construction of a house whereupon a house was constructed which is now being used as residential house by both the defendants. So far as the property in item No. 6 is concerned, the, case of the defendants is that to meet the funeral expenses of plaintiff No. 1’s husband loan of Rs. 600/- was incurred and to repay the said loan, the said item of property was transferred by way of sale to defendant No. 3 and therefore such transfer binds the interest of plaintiffs. The further case of the defendants is that Purna, the predecessor of the plaintiffs, died in 1955 whereafter plaintiff No. 1 left for her parent’s house with her daughter, plaintiff No. 2 and; since then defendant No. 1 has been possessing all the properties as of right and to the knowledge us and in the process, he has perfected his title by way of adverse possession.. So far as the claim of the plaintiffs with regard to Schedules-C and D is concerned, the case of the defendants is that the residential house is their exclusive property and the movables are the self-acquired properties of dendant No. 1 in which plaintiffs have . no share. It is also urged that the suit is is barred by. Art. 110 of the Limitation Act, 1953 (for short, ‘the Act’), inasmuch as the plaintiffs served a registered notice on them informing that if the properties are not amicably partitioned within eight days they will have to approach the Court of law for necessary relief. But after service of the said notice the plaintiffs remained silent for long years till filing of the present suit. In the premises, the suit for partition is barred by limitation, as provided under Art. 110 of the Act. It has been further pleaded that properties described in Schedule-‘X” of the written statement having been left oat by the plaintiffs, the present suit for partial partition is not maintainable.
4. The learned Subordinate Judge though framed as many as 12 issues, but in view of the pleadings of the parties, ,the main issues are-
(1) Is the suit barred by law of limitation?
(2) Is the suit for partial partition maintainable ?
(3) Whether Purna died in the year 1957 (wrong y mentioned in the impugned judgment as 1951) or in 1955 ?
(4) Whether the property mentioned in item No. 3 of Schedule-B is the self-acquired property of defendant No. 2 ?
(5) Whether the plaintiffs are entitled to a share in the property in item No. 5 of Schedule-B ?
(6) Whether the sale of property in item No. 6 was for legal necessity of the family ?
(7) Whether defendants 1 and 2 have perfected their title by adeverse possession?
(8) Whether the plaintiffs are entitled to one-third share in the suit properties as claimed ?
5. Both the parties in support of their respective cases led oral evidence and in addition thereto, brought certain documents on record. The learned Subordinate Judge on consideration of the evidence decided some issues in favour of the defendants and the rest in favour of the plaintiffs and ultimately dismissed the suit solely on the ground, that the suit was barred by Art. 110 of the Act, Under issue Nos. 8 and 9 he held that the properties described in item Nos. .3 and 5 being; the self-acquired properties of defendant No. 2, plaintiffs are not entitled to have a share In them. As to the question whether the transfer of the property in item No. 6 was for the legal necessity of the. family, the Court under issue No. 10 held that the defendants plea of the same having been sold to meet the funeral expenses of Puma has boon belied by the ever months made In the sale deed. Ext. 11 and so the same will not bind the plaintiffs’ Interest therein and accordingly answered the issue in their favour. Under issue No. 12 the Court held; that though the plaintiffs have claimed one-third share in Udayanath’s] properties, but both ere entitled to 2/9th share. Regarding the question as to when Purna, the predecessor of the plaintiffs, died whether ho died in 1957 as claimed by the plaintiffs or 1955 as asserted by the deferdants the Court on consideration of the evidence came to held that Purna died in 1957.
6. Learned counsel Shri P. Misra appearing for the plaintiffs fairly submitted that he does not challenge the trial Court’s finding in so far as acquisition of the property in item No. 3 of Schedule-B is concerred. In that view of the matter it stands concluded that the said item of property is the self-acquired property of defendant No. 2. Admittedly the properties described in item Nos. 1, 2, 4 and 6 are the ancestral properties of the parties. There is, however, dispute with , regard to the property described in item No. 5. It may be reiterated that the plaintiffs’ case is that the said property originally belonged to one Dhruba Mohanty from whom Harihar Misra got by way of gift and he being the owner, exchanged it with Udayanath, the common ancestor of the parties. On the other hand, the case of the defendants 1 and 2 is that one Ayodhya Dei was the recorded owner and she being the God-mother of defendant No. 2. permitted her to construct a house thereon. Plaintiffs in support of their claim did not file any documentary evidence to show that the land belonged to Harihar Misra and that it was acquired by the common ancestor by way of exchange. On the other hand from the record-of-rights Ext. 7 it appears that the land in question was the raiyati land of one Ayodhya Devi, but evidence is lacking that Ayodhya Devi permitted defendant No. 2 to construct a house thereon. Defendant No. 1 when examined in Court as DW 1 did not whisper a word in “support of it. Rather the denied his knowledge as to how his father acquired the said land. When cross-examined, he admitted that item No. 5, the homestead land, stands recorded in his| name as well as in the names of the plaintiffs and he does not want to give plaintiff No. 1 a share in it since she has left the house for good. This evidence of his regarding joint recording finds support from the record-of-rights, Ext. 8 published in the year 1932, there being no challenge to the correctness of said record-of-rights and defendant No. 1 does not say that joint recording in his name as well as in the names of the plaintiffs is wrong. In that view of the matter, and on consideration of the facts, circumstances and the evidence on record, I would hold that lot No 5 is the self-acquired property of the common ancestor Udayanath in which his widow Kamala and two sons Purna and Harish had one-third share each and on Purna’s death his one-third share devolved on defendant No. 2 and plaintiffs (his mother, widow and daughter respectively) in equal shares.
7. Admittedly the property in item No., 6 of Schedule-B is the ancestral property of the parties and the same has been sold away to defendant No. 3 by defendant No. 1. Defendant No. 1 (DW 1) in his evidence asserted that to meet the expenses of funered ceremony of plaintiff No. 1’s husband he had incurred some loan from defendant No, 3 and to pay up the said loan He sold away the aforesaid property to him. This evidences of his is belied by the averments made in the sale deed, Ext. 11. It is averred therein that the vendor being in need of money to purchase a land transferred the land to defendant No. 3., n view of such admission, it is difficult to accept the case of defendant No, 1, as deposed to by him, that the transfer was made for legal necessity of the family, I would, therefore, hold that the transfer of the aforesaid properly by defendant. No. 1 will not bind the interest. of the plaintiffs.
8 Now turning to the question as to what would be the shares of the plaintiffs and defendants 1 and 2 in the ancestral properties, it is necessary to find as to when Purna died, that is, whether he died in 1955 as claimed by the defendants or in 1957. As pleaded by defendants 1 and 2 he died in 1955, but the plaintiffs assert that he died in 1957. Learned trial Court although framed an issue to that effect, but he did not give any finding on the said issue. However this being First Appeal it is desirable to scrutinise the available evidence to find as to when Purna died. in this context, reference may be made to the copy of the Death Register, Ext. 12, correctness of which has not been assailed by the defendants, where it is mentioned that Purna died on 14-11-1957. in that view of the matter, Purna’s death being after coming into force of the Hindu Succession Act, 1958, his one-third interest in the ancestral properties devolved on his mother, defendant No. 2 as well as his widow and daughter the plaintiffs.
Shri Misra, learned counsel for the plaintiffs, has conceded and it is also the finding of the learned trial Court that both the plaintiffs have 2/9th and Kamala defendant No. 2 has 4/Sth and Harish defendant No. 1 has 1/9th Interest In the ancestral properties as described in item Nos. 1, 2, 4 and 6.
9. The next and vital question is whether the suit for partition is barred by law of limitation. As i have already stated earlier, learned Subordinate Judge has although answered some of the issues in favour . of the plaintiffs, but ha dismissed the suit holding that it was barred by Art. 110 of the Act. It appears from the impugned judgment that to arrive at such finding he derived support from the lawyer’s notice, Ext. A dated 28-1-1969 where the plaintiffs asked defendant No. 1 to give them their share in the joint family properties within 8 days from the date of receipt of the said notice. Relying upon the said notice the Court held that since the plaintiffs knew that from 1969 they were denied of their share, the suit was barred by limitation. The learned counsel Shri Misra appearing for the plaintiffs vehemently urged that there is no positive evidence on record that 3fter receipt of the said notice defendant No. 1 denied the plaintiffs of their right to enjoyment of the ancestral properties and onus being on the defendants to prove the same which having not been discharged. Art. 110 of the Act cannot be applied. For better appreciation, Art. 110 of the Act is extracted :
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Description of suit Period of Time from which period
limitation begins to run
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110. By a person excluded Twelve When the exclusion
from a joint family years. becomes known to the
property to enforce plaintiff.
a right to share
therein.
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A bare reading of the aforesaid Article-clearly shows that the party who wants to take benefit thereof must prove by leading cogent and con incing evidence that the member of the joint family who seeks partition has been excluded from enjoyment of the property to his knowledge. The exclusion contemplated by the Articles Is a conscious and deliberate act amounting to a denial of the right by the member concerned to have any benefit from the common property. So where a partition is demanded and It is, refused or where plaintiff has been expelled from joint family. It would be clear exclusion. Mere absence of the member from the joint family by itself would not amount to exclusion though it may be for long years. In the present case the plaintiffs by serving notice Ext. A demanded a share by amicable partition. ‘On receipt of the said notice’ defendant No. 1 did not appear to have replied refusing to give them a share. Although he has stated in his evidence that he refused the plaintiffs to give them share, but there is no clinching evidence as to when and in what manner he informed the plaintiffs that they have no right in the joint family properties. Besides, such evidence of refusal is belied by the fact that in the current settlement record-of-rights published in I982 the ancestral properties stand jointly recorded in his name as well as in the names of the plaintiffs. In the circumstances, therefore, I am not inclined to accept the plea of the defendants 1 and 2 that they had excluded the plaintiffs to enforce their rights in the ancestral properties and in that view of the matter, the finding of the trial Court that the suit is barred by Art.-110 of the Act is not acceptable.
10. In view of discussions made above, the judgment and decree passed by the trial Court dismissing the plaintiffs suit is set aside. Consequently the suit is decreed in part. It is ordered that the plaintiffs are entitled to one-ninth share each and defendant No. 1 one-third share and defendant No. 2 four-ninth share in the suit properties described in-item Nos. 1, 2, 4, 5 and 6 of Schedule-8. Since defendant No. 1 has transferred the whole of the properties described in item No. 6, the same will be adjust from his share. Parties are directed to amicably partition the aforesaid properties with two months hence, failing which either party may approach properties partitioned through Civil Court Commissioner. Since there has been no apprearance of the defendant 1 to 3 the present appeal there shall be no order as to costs.