KALLANGOWDA NANGANGOWDA PATIL Vs. BIBISHAYA SHAH MAHOMED KHAN

JUDGEMENT

(1.) DEFENDANT No. 1 s husband and defendant No. 3 were entitled to succeed to their father s property according to Mahomedan law. The defendant No. 3 mortgaged his share, or the property representing his share, to the plaintiff s, and eventually sold the equity of redemption to them. The plaintiffs, therefore, are entitled to the share in the estate to which defendant No. 3 was entitled. They are endeavouring now to get possession of that share by partition. They are being resisted by. the second defendant who is a tenant of the first defendant; The lower Court dismissed the suit on the ground that it was barred by limitation, The learned Judge seems to have thought that Article 123 applied with this startling result. Supposing the heirs of a deceased Mahomedan chose to live in community, as is certainly often done in Bombay and even more often up country, for several generations, the rights of each of the Sharers to a partition would be barred twelve years after the death of the original lead of the family. We do not think that that can be the case. We do not think that Article 123 can apply to the facts of this case where two Mahomedans continued to own as tenants-in-common an estate of their deceased father. The ordinary law would apply that time would begin to run against one tenant-in-common when the other tenant-in-common did some act the effect of which was either to exclude his co-tenant from the joint property, or to deny his right to share. It may then be said that time begins to run from the date of such exclusion or denial, and the Article which would be applicable would be 144. It was admitted that even if time began to run in 1905, the suit which was originally filed on the 15th October 1915 will be in time. I think, therefore, that the decree of the lower Court must be set aside and a preliminary decree for partition should be passed. The plaintiffs will be entitled to the costs of the appeal. Heaton, J.

(2.) IT is contended that this suit falls under Article 123 of the Schedule to the Indian Limitation Act. If it does, then no doubt the suit is time-barred. If it does not, then it is not shown that the suit is time-barred, and there is every reason to suppose that it is not. In my opinion Article 123 does not apply. The present suit is certainly not in terms a suit for a distributive share of the property of an intestate. IT is in terms a suit to have partitioned property which two persons are holding in common and to have the partition made so that each of these two persons, shall, be allotted his proper share. The suit is not based on the consistance of anybody s intestacy, or of rights immediately arising out of an intestacy, so I think that in substance also the suit does not come under Article 123. We have here the very common case of Mahomedans who succeed to the property of a deceased relative, and by agreement amongst themselves instead of distributing that property by shares, hold it in common. They are entitled under, our law to do this. They are not under an obligation to at once divide the property according to their shares , They (Ban hold, and continue, to hold, it in common, and having done so they hold it under an agreement. They can continue to do so for an indefinite period, but when they wish they can put aa end to this common holding, and ask that there shall be a partition The ground for asking for a partition in such a case is not that described in Article 123, but it is that one of the parties to the agreement by which hitherto they have held the property in common desires to put an-end to that agreement and have the property partitioned. When he desires to do that he has a, right to came to the Court to get the Court to do it for him. I think, therefore, the decision that this fruit was barred by time was wrong and a preliminary decree for partition should be made as proposed.