Lokur, J.@mdashThe suit out of which this appeal arises was filed by the plaintiff Siddappa for the partition of, and possession of his half share in,
the family house at Gadag on the ground that it had been excluded from the partition effected by the award decree in suit No. 11 of 1928 by
reason of the fraud of his father Nagappa and his elder brother Shidramappa. That suit was filed by the plaintiff Shiddappa against Nagappa and
Shidramappa for recovering by partition his one-third share in the joint family property. During the pendency of the suit the dispute was referred to
arbitration, and when the arbitrators made the award, a decree was passed in terms of that award. That decree did not include the house in suit,
and it is alleged that the plaintiff himself, who is a resident of Hubli, was not aware of the joint family house at Gadag and that his father and brother
who gave the necessary information to the arbitrators designedly and fraudulently omitted to give information about the suit house. By that award
decree the plaintiff was given his one-third share and Nagappa and his elder son Shidramappa, were given a joint two-thirds share. Nagappa died
in March, 1934, and Shidramappa in August, 1935. Defendants Nos. 1, 4, 5 and 6 are Shidramappa''s sons and defendants Nos. 2 and 3 are the
sons of defendant No. 1. Defendant No. 1, to whose share the house in suit was allotted, sold it on behalf of himself and his two minor sons to
defendant No. 7 for Rs. 2,500 on September 13, 1937, and it is now in his possession. He contended inter alia that the house in suit was the self-
acquired property of Nagappa, that the plaintiff had no interest in it, that no fraud was practised upon him by his father or brother at the time of the
partition, that the plaintiff''s claim was time-barred under Article 95 or 96 of the first schedule to the Indian Limitation Act, 1908, that the plaintiff
was not entitled to one-half share in the house and that, as he was a bona fide purchaser for value, the plaintiff''s claim was barred u/s 41 of the
Transfer of Property Act, 1882.
2. The trial Court held that the house in suit was excluded from partition in 1928 by reason of its fraudulent concealment by Nagappa and
Shidramappa, that it was not Nagappa''s self-acquired property but the joint family property, that the plaintiff was entitled to a share in it, that his
claim was not barred u/s 41 of the Transfer of Property Act, as defendant No. 7, though a purchaser for value, had not made proper inquiry
before purchasing the house from defendant No. 1, and that plaintiff''s claim was in time. The plaintiff was, therefore, given a decree for one-half
share in the house in suit together with future mesne profits and costs.
3. In appeal the learned Assistant Judge accepted the findings of the trial Court on all the issues, except on the issue of limitation, and held that the
suit was barred under Article 95 or 96 of the first schedule to the Indian Limitation Act. He, therefore, allowed the appeal and dismissed the
plaintiffs suit with costs.
4. It is now urged in this Court that the lower appellate Court was wrong in holding the suit to be time-barred under Article 95 or 96 and that the
suit is governed by Article 127 and is, therefore, in time. Article 127 is applicable to a suit by a person excluded from joint family property to
enforce a right to share therein. It presupposes the existence of a joint family and can have no application where there has been disrupture of the
status of jointness, since thereafter the members of the family become tenants-in-common in respect of property left undivided and any exclusion
from it would not be exclusion from joint family property within the meaning of that article.
5. In Isap Ahmed v. Abhramji Ahmadji ILR (1917) 41 Bom. 588 in giving the decision of the full bench, Scott C.J. pointed out that ""joint family
in Article 127 must be read as a compound adjective and the expression ""joint family property"" must be read as property appertaining to a joint
family. The award decree of 1928 effected a severance of the joint family status, and, as observed by Crump J. in Dagadu Govind v. Sakhubai
ILR (1923) 47 Bom. 773
Once it is held that there has been partition (between members of a joint Hindu family), I should myself be inclined to hold that the presumption
must be that as regards that portion of the estate which remained undivided, the members of the family would hold as tenants-in-common unless
and until a special agreement to hold as joint tenants is proved.
6. No such special agreement is alleged in this case; and it could not be alleged, since it has been the plaintiff''s case that the house in suit was
fraudulently concealed from him and from the arbitrators by his father and brother.
7. It must therefore be held that the family having been already divided in status at the date of the suit, Article 127 would not be applicable, even
though the property in suit was left out of the partition. This was the view taken by a full bench in Yerukola v. Yerukola ILR (1922) Mad. 648. In
Govind Rao v. Rajabai (1930) L.R. 58 IndAp 106 the Privy Council observed that (p. 114) ""the effect of that separation was that any immovable
joint, property which continued undivided was no longer joint family property so as to come under Article 127, but came under Article 144"". Thus
Article 127 proceeds upon the hypothesis that there is a joint: family and some joint family property, and provides for the remedy of a member of
that family who is excluded from that property.
8. Mr. Moropanth referred to the rulings in Ramchandra Narayan v. Narayan Mahadev ILR (1886) 11 Bom. 216 and Raoji v. Bala ILR (1890)
15 Bom. 135. In those cases on the occasion of the previous partition a portion of the joint family property was reserved from partition and
therefore it was still regarded as joint family property and Article 127 was held to be applicable. But it would not be applicable where the joint
family has been completely disrupted by severance of status between the various members as in this case. In such a case the property left
undivided either through inadvertence, ignorance, mistake or fraud cannot be styled ""joint family property"" and therefore the plaintiff''s suit to
recover his share in it is not governed by Article 127.
9. The lower appellate Court has held that the suit is time-barred under Article 95 or 96. Article 96 would not be applicable as it is no one''s case
that there was a mistake. The plaintiff asserts that his father Nagappa, who supplied information about the family property to the arbitrators,
deliberately omitted to mention the house in suit, taking advantage of his ignorance about its existence. The arbitrator Hirji, exhibit 67, says the
same thing. The defendants contend that the house was the self-acquired property of Nagappa and do not allege that there was any mistake or
fraudulent concealment by Nagappa. It is now held by both the Courts below that the house in suit was joint family property and should have been
included in the partition. The plaintiff does not ask for any relief on the ground of mistake. Moreover, Article 96 does not apply to a suit for
possession of Immovable property. In Slier v. Piara Ram AIR [1924] Lah. 324 the plaintiffs were allotted an area at a partition which fell short of
what they were entitled to, and when they sued for possession of an additional area to make up the shortage in respect of a field which was
omitted from the partition, it was held that no relief on the ground of mistake such as is contemplated by Article 96 was claimed and hence the
article did not apply. It was observed (p. 325) :-
...Article 96 is intended to apply to those cases in which the Courts are asked :,to relieve parties from the consequences of mistakes committed by
them in the course of contractual transactions and we doubt whether a suit for possession of Immovable property or for a declaratory decree with
respect to such property comes within the purview of the article.
10. This clearly shows that Article 96 is intended to apply only to cases where the plaintiff seeks to be relieved of a mistake committed in the
course of contractual transactions, such as a suit for rectification of deeds of rescission of contracts Panna Lal Ghose Vs. The Adjai Coal Co. and
Others, . The plaintiff''s suit is, therefore, not barred under that article.
11. Article 95 is equally inapplicable. It prescribes for suits to set aside a decree obtained by fraud or for other relief on the ground of fraud a
period of three years from the date when the fraud becomes known to the party wronged. On behalf of the plaintiff it is argued by Mr. Moropanth
that the plaintiff has not based his claim on the ground of fraud and that the wording used in the plaint does not impute fraud either to the plaintiff''s
father or his brother. But in paragraph 4 of the plaint he has definitely alleged that his father and brother had ""designedly omitted"" to include the
property in suit in the partition and that on account of their deception he had not been given his share in it. This leaves no doubt that the plaintiff did
want to impute fraud to his father and brother. But Article 95 is applicable only when the relief is claimed solely on the ground of fraud. In Abdul
Rahim v. Kirparam Dajij ILR (1891) 16 Bom. 186 though there was a clear allegation in the plaint that the defendants, into whose hands the lands
had passed, had obtained them by fraud, yet Parsons J. held that Article 95 had no application as the plaintiff did not ask for any relief on the
ground of fraud, but sued for possession by partition of the share to which he claimed to be entitled, This case was followed in Jamsetji
Nassarwanji v. Hirjibhai Naoroji ILR (1912) 37 Bom. 158 where Scott C.J. observed that Article 95 had no application where on the face of the
plaint no equitable relief was claimed on the ground of fraud. In the present case fraud is mentioned in the plaint only as a reason for the omission
of the house from the partition decree of 1928, but the plaintiff''s right to recover his share in it is quite irrespective of that fraud. He has discovered
that a house which was joint family property at the date of the partition was not included and wants it to be partitioned now. The effect of the
exclusion of some joint family property at a partition is thus summarised by Mayne in his treatise on Hindu Law and Usage (tenth edition) (p. 576):
Where at a partition intended to be final some part of the property has been overlooked, or fraudulently concealed, but. is afterwards discovered,
it will be the subject of a like distribution among the persons who were parties to the original partition, or their representatives. But the former
distribution will not be opened up again.
12. Thus, whether the exclusion be due to mistake, accident or fraud, the property excluded continues to be the joint property of the family and it
must be divided amongst the persons who were parties to the partition. The foundation of the plaintiff''s suit is this right to enforce a partition of the
house in suit which was excluded from partition and not the fraud of his father or brother which made such exclusion possible. Fraud or no fraud,
that house continued to be the joint property even after the partition of the remaining joint family property, and the plaintiff, who was excluded from
it, is entitled to recover his share in it without the original partition being reopened. Hence the plaintiff''s suit is not time-barred under Article 95.
13. Thus there remains the residuary Article 144, which would govern this case, there being no other article specially applicable to a suit for
possession by one of the tenants-in-common against the others, and time begins to run from the date of his exclusion or ouster. In the Privy Council
case cited above, Govind Rao v. Rajabai (1931) L.R. 58 IndAp 106 their Lordships held that to such a suit Article 144 and not Article 127 would
be applicable. Under Article 144 time begins to run from the date when the possession of the defendant becomes adverse to the plaintiff, and in the
case of co-owners or tenants-in-common it becomes adverse when it amounts to an ouster or exclusion. In this case even the partition of 1928
took place within twelve years before suit. Hence the plaintiff''s claim is not time-barred.
14. The next question is whether it is barred u/s 41 of the Transfer of Property Act. That section provides that where, with the consent, express or
implied, of the persons interested in Immovable property, a person is the ostensible owner of such property and transfers the same for
consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it : provided that the transferee, after
taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. It is not disputed that defendant No.
7 is a transferee of the house in suit for valuable consideration. But the plaintiff never knowingly allowed defendant No. 1 to represent himself as
the ostensible owner of the house. On the other hand, he himself was ignorant of the existence of the house in suit until his brother Shidramappa
made an application to the Mamlatdar of Gadag that, as his father was dead, his name should be entered against the house in suit in the city survey
records. When the plaintiff was asked about that application, he gave in writing below it that Shidramappa should be shown as the manager of the
joint fatally"". The plaintiff says that he first discovered that the house was joint family property when he came to know about this application and,
instead of giving his consent to the entry of Shidramappa''s name as the sole owner of the house, he wanted that his name should be entered only
as the manager of the joint family, thus indicating that the other members also had an interest in it. Accordingly in the property register
Shidramappa''s name was entered on May 14, 1934, as the eldest son of Nagappa, suggesting that there were other sons of Nagappa who might
have an interest in it. Thus one of the essential ingredients of Section 41 is absent in this case. Defendant No. 7 never cared to find out who were
the other joint members that might be interested in the house. In his deposition he admitted that, although he made inquiries in the City Survey
Office, he did not inquire whether there were other sens of deceased Nagappa in spite of the entry of Shidramappa''s name as the eldest son of
Nagappa. The lower appellate Court has held that defendant No. 7 did not make any proper inquiry before purchasing the house, and that is a
finding of fact. He is, therefore, not entitled to the benefit of Section 41 of the Transfer of Property Act.
15. It follows that the plaintiff has a right to recover his proper share in the house in suit. He has claimed one-half share on the ground that after his
father''s death he and his brother Shidramappa alone became entitled to it. But it appears from the award and the partition decree that the suit was
filed by the plaintiff alone for his one-third share in the family property and the arbitrators separated his one-third share and gave it to him, but the
remaining two-thirds share was given jointly to his father Nagappa and his. brother Shidramappa. Hence the plaintiff alone separated and Nagappa
and Shidramappa continued as coparceners. On Nagappa''s death, his undivided share devolved upon Shidramappa by survivorship. The plaintiff,
therefore, is not entitled to Nagappa''s share and can recover only his one-third share in the house. Even if the house had not been excluded from
partition, the arbitrators would have awarded him only one-third share, and the remaining two-thirds share would have been allotted to Nagappa
and Shidramappa, and on Nagappa''s death his undivided one-third share out of that two-thirds share would have gone to Shidramappa.
16. I, therefore, allow the appeal and pass a preliminary decree for the partition of the house in suit and possession of his one-third share in it in
favour of the plaintiff, together with mesne profits from the date of suit to be determined under Order XX, Rule 12(1)(c), of the Civil Procedure
Code, 1908. The plaintiff shall recover proportionate costs from the defendants throughout.