Article 110: (Art. 127 of the Act of 1908):
The period of limitation for a suit by a person excluded from a joint family property to enforce a right to share therein is twelve years and the limitation starts to run from the date when the exclusion becomes known to the plaintiff.
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ADVERTISEMENTS:
The words “joint family property” means the property of joint family and not the joint property of the family. As per Explanation 2 to Section 7 of the Limitation Act, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.
In a case where property is jointly held by the members of a family, in order to prove separation it is not sufficient to show that there has been separation in mess only; there must be proof of separation in estate as well.
‘Joint family property’ is peculiar to Hindu Law and would not apply to a Mohamedan or any other person who is not a Hindu or who is not proved to have by custom adopted the Hindu law of joint family property.
In Isap Ahmed v. Abramji, [41 Bom.LR 588 (FB)], it has been observed that the change by substituting the word ‘person’ for the word ‘Hindu’ (of Art. 127 of the Act of 1908) was in fact to provide for persons like Khojas and Memons who although not Hindus have adopted the system of joint family in Hindu sense.
ADVERTISEMENTS:
In Hangseshwar v. Promodini, (ILR (1951) 2 Cal. 168), it has been held that Art. 110 (Art. 127 of the Act of 1908) did not apply to a suit for partition and accounts by a Dayabhoga co-sharer excluded from such possession of the joint family property because the members of Dayabhoga joint family take definite shares and the element of fluctuations in regard to quantum being the characteristic of Mitakshara joint family is not present.
A suit ‘to enforce a right to a share’ means a suit to obtain actual possession of a share.
The question whether a person has been ‘excluded from the joint family’ must depend upon the facts of the particular case. In P. Lakshmi Reddy v. L. Lakshmi Reddy, (AIR 1957 SC 314), it has been made clear that there must be open assertion of hostile title coupled with exclusive possession and enjoyment by one of co-owners to the knowledge of the other so as to constitute exclusion of one co-sharer by the other.
The question whether a member is excluded is a question of fact and the intention to exclude is an essential element. It is necessary for the Court to be satisfied that there was an intention of those in possession to exclude the member concerned. The exclusion contemplated by the Art. 110 must be total exclusion of the plaintiff co-sharer from all the interests of the joint family property.
ADVERTISEMENTS:
The onus is upon the defendant to prove that the plaintiff has been excluded from the share of the joint family property and that too for a period of 12 years or more and to the knowledge of the plaintiff if he wants to succeed in his plea that the right of the plaintiff has been barred by limitation.
The limitation under Art. 110 commences to run from the date when the exclusion becomes known to the plaintiff.