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Minority and Guardianship-Muslim minor represented in arbitration proceedings and in Court by brother who was not appointed guardian by Court-Award and decree on award are vitiated. Limitation Act, 1908, ss. 18 and 144-Renunciation of rights by co-owners in property in favour of one co-owner under wrong impression that it was endowed property-Property later discovered to be Matrooka property-Limitation for filing suit is governed by s. 144 Limitation Act 1908-Where knowledge of right to partition is held back by fraud limitation is extended under s. 18. Adverse possession-Possession by one co-owner is not by itself adverse to other co-owners-These must be open denial of title to the parties entitled to the property by excluding and ousting them-Possession is not adverse to parties not aware of their rights. =Shah Abdul Rahim was Sajjadanasheen of a Dargah and Khankah in Hyderabad. He had four sons and two daughters. After his death in 1905 he was succeeded as Sajjadanasheen by his eldest son Abdul Hai Shah Abdur Rahim left Matrooka property apart from the properties appertaining to the Dargah and Khankah. The matter of the partition of Matrooka properties was referred to arbitrators. The appellant who was Abdur Rahim’s youngest son was a minor at the time and was represented in the arbitration proceeding by his brother Nooruddin. The properties Exhibits B-1 to B-10 were acknowledged by the parties before arbitrators to be in the possession of Abdul Hai as Dargah and Khankah properties and any right or claim to them was renounced by Abdul Hai’s brothers and sisters. The arbitrators gave their award on August 1, 1908 partitioning the properties. On August 13, 1908 there was a decree in the Darul Khaza Court confirming the aforesaid award. The properties B-1 to B-10 thereafter remained in the possession of Abdul Hai. In 1927 Abdul Hai got an adjudication from the Nizam’s Government that the Dargah and Khankah properties consisted only of two villages and that properties B-1 to B-10 were not Dargah and Khankah properties. In 1938 Abdul Hai wrote a letter to the Nizam’s government again asserting that properties B-1 to B-10 were his personal properties. The appellant filed a suit on 24th July 1941 for setting aside the decree dated. August 13, 1908, passed by the Darul Khaza Court and for partition of the Matrooka properties left by his father including properties B-1 to B-10. He impeached the award and the decree on the ground that he was not represented by 1 lawful guardian. He claimed that the award and decree should be avoided because they were based on the wrongful representation of Abdul Hai that they were Dargah and Khankah properties. The trial court decreed the suit holding : (1) that the award and decree in question were obtained by fraud; (2) that the letter written by Abdul Hai in 1938 showed that he was aware of the Matrooka character of the properties but kept this fact from his brothers and sisters; (3) that the appellant 73 5 came to know the facts from the said letter of 1938 and the suit was not therefore barred by limitation. The High Court in appeal held (1) that the appellant was a minor and therefore reference to the arbitration and the award thereon were void; (2) that the decree passed by the Damlkhaza Court was not a nullity since the appellant did not file his suit within three years after attaining majority; (3) that the decree was not obtained by fraud; (4) that Abdul Hai asserted in 1927 that the properties in question were his personal properties and this assertion of title adverse to the appellant and his brothers and sisters became known to them in 1927 and for this reason also the suit was barred by limitation. in’ appeal by certificate to this Court, HELD: The appeal must be allowed, (i) The minority of the appellant was a fact found by the trial court and the High Court. The appellant’s brother who represented him in the arbitration and court proceedings was not a legal guardian, nor was he appointed by the Court. The relinquishment of property by Nooruddin on behalf of the minor was not binding on the minor whose interests were not protected. The arbitration proceedings, the award and the decree of the Darul Khaza Court on the award were therefore void. [740 D, 741 E-F] Mohd. Amin & Ors. v. Vakil Ahmed & Ors, [1952] S.C.R. 1133 and Imambandi v. Mutsaddi, 45 I.A. 73, referred to.’ (ii) The estate’ of a deceased Mohammedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants in common in specific shares. When the heirs continue to hold-the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Art. 114 of Sch. 1 to the Limitation Act 1908 would be the relevant Article. [741 H, 742 A] (iii) The cause of action for partition of properties is a perpetually recurring one’. In Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants in common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. In the present case the suit was for partition of properties which were by consent of parties treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties could not stand and the entire partition had to be reopened by reason of fraud in the earlier proceedings. [746 G-747 B] Monsharam Chakravarty & Ors. v. Gonesh Chandra Chakravarty & Ors., 17 C.W.N. 521, referred to. (iv) The decree of the Darul Khaza Court could not be an obstacle to, the claim of the appellant for partition of the properties, because the properties were admittedly not Dargah and Khankah properties but Matrooka Properties. If all parties- proceeded upon a basis that these , were Dargah and Khankah properties and that basis is wiped out by the adjudication by the Government of the Nizam, the parties are restored to their position as heirs to the Matrooka property. The award and the decree by reason of evidence of facts discovered since the judgment and the decree of the Darul Khaza Court could not be allowed to stand because the effect of the discovery of the facts was to make it “reason- ably probable that the action will succeed”. [744 H-745 B] 1100Sup CI/72 73 6 Birch v. Birch, [1902] Probate Division 131, referred to. (v) When a plaintiff has been kept from knowledge by the dependent of the circumstances constituting the fraud, the plaintiff can rely upon s. 18 of the Limitation Act to escape from the bar of limitation. When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters. The existence of the right of the appellant was kept concealed by Abdul Hai. The appellant was not aware of the right nor could he have with reasonable diligence discovered it. There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact. It was only in 1941 that the appellant came to know of the Matrooka character of the properties. [745 E, 746 E] Rolfe v. Gregory, [1964] 4 DeG. J & S 576, Boman Chandra Datta v. Promotha Nath Ghose, L.L.R. 49 Cal. 886 and Rahimboy v. Turner, 20 I.A. 1. referred to. (vi) On the facts of the case it was established that the fraud committed by Abdul Hai relates “to matters which prima facie would be a reason for setting the judgment aside”. [747 E-F] Halsbury’s Laws of England, Third Edition, Vol. 22, para 1669 at p. 790. referred to. (vii) The plea of adverse possession must also fail. It was apparent that until the year 1927 the appellant and the other parties were already kept out of the knowledge of the true character of the properties. Even after 1927 it could not be said on the evidence On record that the appellant had any knowledge of the true character of the properties or of ouster or adverse possession of Abdul Hai. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-oweners and the possession is in hostility to co-owners by exclusion of them. In the present case there was no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them. [745 F-H] =1971 AIR 2184, 1971( 3 )SCR 734, , ,

PETITIONER:
SYED SHAH GHULAM GHOUSE MOHIUDDIN AND ORS.

Vs.

RESPONDENT:
SYED SHAH AHMED MORIUDDIN KAMISUL QUADRI(DEAD) BY L. Rs. AN

DATE OF JUDGMENT17/02/1971

BENCH:
RAY, A.N.
BENCH:
RAY, A.N.
MITTER, G.K.

CITATION:
1971 AIR 2184 1971 SCR (3) 734
ACT:
Minority and Guardianship-Muslim minor represented in
arbitration proceedings and in Court by brother who was not
appointed guardian by Court-Award and decree on award are
vitiated.
Limitation Act, 1908, ss. 18 and 144-Renunciation of rights
by co-owners in property in favour of one co-owner under
wrong impression that it was endowed property-Property later
discovered to be Matrooka property-Limitation for filing
suit is governed by s. 144 Limitation Act 1908-Where
knowledge of right to partition is held back by fraud
limitation is extended under s. 18.
Adverse possession-Possession by one co-owner is not by
itself adverse to other co-owners-These must be open denial
of title to the parties entitled to the property by
excluding and ousting them-Possession is not adverse to
parties not aware of their rights.

HEADNOTE:
Shah Abdul Rahim was Sajjadanasheen of a Dargah and Khankah
in Hyderabad. He had four sons and two daughters. After
his death in 1905 he was succeeded as Sajjadanasheen by his
eldest son Abdul Hai Shah Abdur Rahim left Matrooka property
apart from the properties appertaining to the Dargah and
Khankah. The matter of the partition of Matrooka properties
was referred to arbitrators. The appellant who was Abdur
Rahim’s youngest son was a minor at the time and was
represented in the arbitration proceeding by his brother
Nooruddin. The properties Exhibits B-1 to B-10 were
acknowledged by the parties before arbitrators to be in the
possession of Abdul Hai as Dargah and Khankah properties and
any right or claim to them was renounced by Abdul Hai’s
brothers and sisters. The arbitrators gave their award on
August 1, 1908 partitioning the properties. On August 13,
1908 there was a decree in the Darul Khaza Court confirming
the aforesaid award. The properties B-1 to B-10 thereafter
remained in the possession of Abdul Hai. In 1927 Abdul Hai
got an adjudication from the Nizam’s Government that the
Dargah and Khankah properties consisted only of two villages
and that properties B-1 to B-10 were not Dargah and Khankah
properties. In 1938 Abdul Hai wrote a letter to the Nizam’s
government again asserting that properties B-1 to B-10 were
his personal properties. The appellant filed a suit on 24th
July 1941 for setting aside the decree dated. August 13,
1908, passed by the Darul Khaza Court and for partition of
the Matrooka properties left by his father including
properties B-1 to B-10. He impeached the award and the
decree on the ground that he was not represented by 1 lawful
guardian. He claimed that the award and decree should be
avoided because they were based on the wrongful
representation of Abdul Hai that they were Dargah and
Khankah properties. The trial court decreed the suit
holding : (1) that the award and decree in question were
obtained by fraud; (2) that the letter written by Abdul Hai
in 1938 showed that he was aware of the Matrooka character
of the properties but kept this fact from his brothers and
sisters; (3) that the appellant
73 5
came to know the facts from the said letter of 1938 and the
suit was not therefore barred by limitation. The High Court
in appeal held (1) that the appellant was a minor and
therefore reference to the arbitration and the award thereon
were void; (2) that the decree passed by the Damlkhaza Court
was not a nullity since the appellant did not file his suit
within three years after attaining majority; (3) that the
decree was not obtained by fraud; (4) that Abdul Hai
asserted in 1927 that the properties in question were his
personal properties and this assertion of title adverse to
the appellant and his brothers and sisters became known to
them in 1927 and for this reason also the suit was barred by
limitation. in’ appeal by certificate to this Court,
HELD: The appeal must be allowed,
(i) The minority of the appellant was a fact found by the
trial court and the High Court. The appellant’s brother who
represented him in the arbitration and court proceedings was
not a legal guardian, nor was he appointed by the Court.
The relinquishment of property by Nooruddin on behalf of the
minor was not binding on the minor whose interests were not
protected. The arbitration proceedings, the award and the
decree of the Darul Khaza Court on the award were therefore
void. [740 D, 741 E-F]
Mohd. Amin & Ors. v. Vakil Ahmed & Ors, [1952] S.C.R. 1133
and Imambandi v. Mutsaddi, 45 I.A. 73, referred to.’
(ii) The estate’ of a deceased Mohammedan devolves on his
heirs at the moment of his death. The heirs succeed to the
estate as tenants in common in specific shares. When the
heirs continue to hold-the estate as tenants in common
without dividing it and one of them subsequently brings a
suit for recovery of the share the period of limitation for
the suit does not run against him from the date of the death
of the deceased but from the date of express ouster or
denial of title and Art. 114 of Sch. 1 to the Limitation
Act 1908 would be the relevant Article.
[741 H, 742 A]
(iii) The cause of action for partition of properties is
a perpetually recurring one’. In Mohammedan Law the
doctrine of partial partition is not applicable because the
heirs are tenants in common and the heirs of the deceased
Muslim succeed to the definite fraction of every part of his
estate. In the present case the suit was for partition of
properties which were by consent of parties treated as
Dargah and Khankah but which were later discovered to be
Matrooka properties in fact and therefore the declaration in
the award and the decree on the award that those were Dargah
and Khankah properties could not stand and the entire
partition had to be reopened by reason of fraud in the
earlier proceedings. [746 G-747 B]
Monsharam Chakravarty & Ors. v. Gonesh Chandra Chakravarty &
Ors., 17 C.W.N. 521, referred to.
(iv) The decree of the Darul Khaza Court could not be an
obstacle to, the claim of the appellant for partition of the
properties, because the properties were admittedly not
Dargah and Khankah properties but Matrooka Properties. If
all parties- proceeded upon a basis that these , were Dargah
and Khankah properties and that basis is wiped out by the
adjudication by the Government of the Nizam, the parties are
restored to their position as heirs to the Matrooka
property. The award and the decree by reason of evidence of
facts discovered since the judgment and the decree of the
Darul Khaza Court could not be allowed to stand because the
effect of the discovery of the facts was to make it “reason-
ably probable that the action will succeed”. [744 H-745 B]
1100Sup CI/72
73 6
Birch v. Birch, [1902] Probate Division 131, referred to.
(v) When a plaintiff has been kept from knowledge by the
dependent of the circumstances constituting the fraud, the
plaintiff can rely upon s. 18 of the Limitation Act to
escape from the bar of limitation. When Abdul Hai got the
properties released by reason of the decision of the
Government of the Nizam in the year 1927 the properties
became divisible among the appellant and his brothers and
sisters. The existence of the right of the appellant was
kept concealed by Abdul Hai. The appellant was not aware of
the right nor could he have with reasonable diligence
discovered it. There was active concealment by Abdul Hai of
the fact that the properties were not Dargah and Khankah
having full knowledge of the fact. It was only in 1941 that
the appellant came to know of the Matrooka character of the
properties. [745 E, 746 E]
Rolfe v. Gregory, [1964] 4 DeG. J & S 576, Boman Chandra
Datta v. Promotha Nath Ghose, L.L.R. 49 Cal. 886 and
Rahimboy v. Turner, 20 I.A. 1. referred to.
(vi) On the facts of the case it was established that the
fraud committed by Abdul Hai relates “to matters which prima
facie would be a reason for setting the judgment aside”.
[747 E-F]
Halsbury’s Laws of England, Third Edition, Vol. 22, para
1669 at p. 790. referred to.
(vii) The plea of adverse possession must also fail.
It was apparent that until the year 1927 the appellant and
the other parties were already kept out of the knowledge of
the true character of the properties. Even after 1927 it
could not be said on the evidence On record that the
appellant had any knowledge of the true character of the
properties or of ouster or adverse possession of Abdul Hai.
Possession by one co-owner is not by itself adverse to other
co-owners. On the contrary possession by one co-owner is
presumed to be the possession of all the co-owners unless it
is established that the possession of the co-owner is in
denial of title of co-oweners and the possession is in
hostility to co-owners by exclusion of them. In the present
case there was no evidence to support this conclusion.
Ouster is an unequivocal act of assertion of title. There
has to be open denial of title to the parties who are
entitled to it by excluding and ousting them. [745 F-H]

JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 219 of 1967.
Appeal from the judgment and decree dated December 16, 1965
of the Andhra Pradesh High Court in C.C-C. Appeal No. 24 of
1969.
M. C. Chagla, R. Y. Pillai and N. Nettar, for the
appellants.
C. K. Daphtary, Rameshwar Nath and Swaranjit Sodhi, for
respondent No. 1 (A).
V. A. Seyid Muhammad and S. P. Nayar, for respondent No.
3.
7 3 7
The Judgment of the Court was delivered by
Ray, J.-This is an appeal by certificate against the judge-
ment dated 15 December, 1965 of the Andhra Pradesh High
Court dismissing the appellants’ suit and setting aside, the
decree in favour of the appellant passed by the Additional
Chief Judge, City Civil Court, Hyderabad on 18 October,
1958.
Shah Abdul Rahim a resident of the pity of Hyderabad died on
26 September, 1905 leaving behind him four sons Abdul Hai,
Ghulam Nooruddin, Abdul Razak and Ghulam Ghouse Mohiuddin
and two daughters Kamarunnissa Begum and Badiunnissa Begum.
Shah Abdul Rahim had large movable and immovable properties.
‘Me sons and the daughters entered into two agreements in
the month of July, 1908 and appointed arbitrators to
partition the Matrooka properties of Syed Shah Abdul Rahim.
On 1 August, 1908 the arbitrators made an Award
partitioning, the properties. On 13 August, 190 8 there was
a decree in the Darul Khaza Court, Hyderabad confirming the
Award of 1 August, 1908. The appellant filed the suit out
of which the appeal arises on 24 July, 1941 for setting
aside the decree dated 13 August, 1908 confirming the award
and for partitioning certain Matrooka properties. In 1942,
the suit was dismissed. An.. appeal was preferred to the
High Court of Hyderabad. During the pendency of the appeal
Abdul Hai died in 1950 and his legal representatives were
brought on the record of the suit in the month of February,
1952. The appeal filed in the year 1943 was disposed of by
the High Court of Andhra Pradesh in April 1957 remanding the
case to the City Civil Court, Hyderabad. On 18 October,
1958 the Additional Chief Judge, City Civil Court, Hyderabad
decreed the suit in favour of the appellant and cancelled
the decree of the Darul Khaza Court dated 13 August, 1908.
On appeal the Andhra Pradesh High Court on 15 December, 1965
set aside the decree passed by the Additional Chief Judge.
The undisputed facts are these When Abdul Rahim died in 1905
Abdul Hai the eldest son was major. The appellant was a
minor. There were two references to arbitration . Before
the arbitrators the appellant a minor was represented by his
brother Ghulam Nooruddin as the guardian. The parties to
the arbitration agreements were Abdul Hai, Ghulam Nooruddin,
Abdul Razak the appellant represented by his guardian
Nooruddin, Qamarunnissa Begum and Badiunnisa Begum. It will
appear from the award that before the arbitrators there was
no dispute ,between the parties and the arbitrators did not
think it necessary to frame any issues. Before the
arbitrators the plaintiffs marked
738
with the letter ‘F’ a plan showing properties attached to
the Khankah and Dargah and those properties were market as
Exhibits B-1 to B-10 and the plaintiffs relinquished their
title-to properties marked Exhibits B-1 to B-10 and further
stated “neither at present nor in future will they have any
share and right in the said property”. As to properties
marked B-1 to B-10 the parties stated ,before the
arbitrators that Abdul Hai was the Sajjada Nashin of the
Dargah and was in possession of, the Dargah and khankah
properties.
The award was made a rule of court within a short time upon
a plaint filed by Nooruddin, Abdul Razak, the appellant
represented by Nooruddin as the guardian and the two sisters
Qamarunnisa Begum and Badiunnisa Begum. The defendant was
Abdul Hai. The facts recited in the decree are these. Syed
Shah Nooruddin a pious person of Hyderabad had his Khankah
situated at Nampalli. The Dargah of the said pious man was
also situated in the same locality. After Syed Shah
Nooruddin’s death his son-in-law, Abdur Rahim became the
Sajjada of the Khankah and the Dargah Shariff. The Sajjada
had control over all the expenses ,of the Dargah and Khankah
and the entire property attached to the Dargah and Khankah
remained in possession of the Sajjadana,sheen and all the
expenses of the Dargah and Khankah were met from the income.
After the death of Abdur Rahim, Abdul Hai became the
Sajjadanasheen and was having control over the Dargah and
Khankah. Abdur Rahim left three adult sons and one minor
son and also two adult daughters. Apart from the property
attached to the Dargah and Khankah Abdur Rahim left personal
Matrooka properties. There might have been a dispute
between the parties regarding the partition of these
properties. But the parties settled the dispute by mutual
consent and by agreement referred the matter to arbitration
for the settlement of the dispute. ‘The arbitrators made an
award. The decree recited that the properties marked with
the letter ‘F’ in the plan annexed to the award were Khankah
and Dargah Shariff properties in the possession of the
defendant Abdul Hai for meeting the expenses of the Khankah
and no one has any right or claim over the property ‘at
present’ or ‘in future. The decree concluded by stating
that the bargah and Khankah properties were not liable to
partition and none ,of the plaintiffs “shall have any right
or claim regarding the same”.
The appellant impeached the award and the decree upon the
award inter alia on the grounds that the award was void by
reason of lack of lawful guardian on behalf of the appellant
to protect ,and represent the rights and interests of the
minor in the arbitration proceedings and in the proceedings
resulting in the decree upon the award. The appellant also
claimed that the award and
739
the decree should be avoided because the properties marked
Exhibits B-1 to B-10 were not Dargah and Khankah properties
in fact and were treated in the award and the decree to be
Dargah and Khankah on the wrongful representation of Abdul
Hai. The, appellant in the year 1938 discovered for the
first time the true and correct facts that the same were not
Khankah and Dargah properties and therefore claimed the same
as divisible upon partition amongst the heirs of Abdul
Rahim.
The trial Court held that the award and the decree thereon
were obtained by fraud and the decree was to be set aside.
The reasoning given by the trial Court was that it was
established one the evidence that Abdul Hai was in full
possession and enjoyment of the whole of the property of
Abdul Rahim including the property marked as Exhibits B-1 to
B-10. In the letter dated 13, August, 1938 Exhibit P-8
Abdul Hai denied that the property was waqf property
belonging to the Dargah and asserted that it was. owned and
possessed by him and relinquished by his relatives. The
letter was held by the trial Court to indicate that Abdul
Hai knew that the property was the property of his father
which be inherited along with his brothers and sisters and
in spite of such knowledge and belief he caused it to be
represnted before the arbitrators that the property belonged
to the Dargali and that the same was in his possession as
Sajjadanasheen. The trial Court further held that the
appellant came to know the real state of affairs from the
letter of, Abdul Hai dated 13 August, 1938 and therefore the
suit was not barred by limitation. The trial Court
therefore passed a decree for cancellation of the decree
passed upon the award and passed a preliminary decree for
partition of’ the Matrooka properties including the
properties marked as. Exhibits B-1 to B-10 in the award.
In the High Court four questions were considered. First,
whether apart from the appellant any other party was a minor
at the time of the arbitration agreement and whether there
was a dispute which could be referred to arbitration.
Second, whether there was proof that at the time of the
arbitration agreement and the award Abdul Hai made a
fraudulent and false representation to his brothers and
sisters and made Them believe that the properties belonging
to the Sajjadanasheen were the properties of Dargah and
Khankah which were not partible and by representation and
fraud prevented the partition of those properties. Third,
whether the appellant had knowledge that Abdul Hai had
claimed the properties as the ancestral properties of the
Sajjadanasheen earlier than the time when the appellant said
he had knowledge and whether the suit was barred by
limitation. Fourth, what would be the effect of the filing
of the written statement by the defendant
740
No. 6 in the year 1958 and the omission of defendant No. 7
to Me any written statement to obtain partition of the
properties-in the event of the decree and the award being
set aside
The High Court held that the appellant was a minor but the
,other parties were not minors. The High Court Held that
the reference to the arbitration and the a ward thereon were
void The High Court held that the decree of the Darul Khaza
Court upon the award was not a nullity and the present suit
should have been filed within three years of the appellant
obtaining majority. The High Court also held that the
decree of the Darul Khaza Court was not obtained by fraud.
‘Me High Court held that Abdul Hai ,asserted in the year
1927 that the Dargah and the Khankah properties were his
personal properties and from that date Abdul Hai asserted
his title adverse to the appellant and the other plaintiffs
and the appellant and the other plaintiffs knew in 1927 of
the adverse claim of Abdul Hai. Therefore, the suit was
barred by limitation.
The minority of the appellant is a fact found both by the
trial ,Court and the High Court. It is an admitted fact
that the appellant’s guardian was his brother Nooruddin at
the time of the arbitration proceedings and at the time of
the decree on the award. The brother is not a lawful
guardian under the Mohammedan Law. The legal guardians are
the father, the executor appointed by the fathers will, the
fathers father and the executor appointed by the will of the
father’s father. No other relation is entitled to the
guardianship of the property of a minor as of right.
Neither the mother nor the brother is a lawful guardian
though the father ,or the paternal grand father of the minor
may appoint the mother, brother or any other person as
executor or executrix. In default ,of legal guardians a
duty of appointing guardian for the protection and
preservation of the minor’s property is of the court on
proper application. It was held by this Court in Mohd.
Amin & Ors. v. Vakil Ahmed & Ors.(1) relying on the dictum
in Imambandi v. Mutsaddi(2) that where disputes arose
relating to succession to the estate of a deceased
Mohammedan between his three sons, one of whom was a minor,
and other relations, and a deed of settlement embodying an
agreement in regard to the distribution of the properties
belonging to the estate was executed by and between the
parties, the eldest son acting as guardian for and on behalf
of the minor son the deed was not binding on the minor son
as his brother was not his legal guardian and the deed was
void not only qua the minor, but with regard to all the
parties including those who were sui juris. It is clear on
the authority of this decision that the arbitration
agreement and the award and the decree
(1) [1952] S.C.R. 1133.
(2) 45 T.A. 73
741
are all void in the present case by reason of lack of legal
guardian of the appellant. There is intrinsic evidence in
the award, that the parties effected a settlement.
Counsel on behalf of the respondent relied on a copy of an
application in the Court of the Darul Khaza in the
proceedings for passing the decree upon the, award in
support of the contention that the court appointed Nooruddin
as the guardian of the appellant. It is stated in the
application that the defendant No. 3 (sic) meaning thereby
plaintiff No. 3 the present appellant is a minor and
Nooruddin is the real brother and the appellant is under the
guardianship of Nooruddin. The application was for
permission to Me the suit. There is no order for
appointment of a guardian. Further, the Court in appointing
the guardian of property of a minor is guided by
circumstances for the welfare of the minor. There is no
justification to hold that Nooruddin was either “the legal
guardian or a guardian appointed by the Court.
The decree which was passed on the award appears on an
examination of the pleadings and the decree itself that the
parties proceeded to have the decree on the basis of the
award without any contest as and by way of mutual
settlement. It will, appear from the decree that it was
admitted by the parties that Abdul Hai was in possession of
the Dargah and Khankah and that Abdul Hai alone was the
Sajjadanasheen of the Khankah. The relinquishment of
property by Nooruddin on behalf of the minor is not binding
on the minor. There was no legal sanction ‘behild such
compromise in the arbitration and in the proceedings result-
ing in a decree upon the award. There was no legal
guardian. The rights and interests of the minor were also
not protected particularly when there was conflict of
interest between the minor and Abdul Hai. The arbitration
agreement, the award and the decree of the Daral Khaza Court
on the award are therefore void.
The High Court held that the appellants suit was barred by
limitation by reason of knowledge of the appellant that
Abdul Hai was in adverse possession since the year 1927 or
1928. In regard to the properties which the appellant
claimed in the suit as liable to partition, it is
established that all parties proceeded on the basis that
Exhibits B-1 to B-10 in the award were not Matrooka pro-
perties but Dargah and Khankah properties. If, in fact,
they are not Dargah and Khankah properties but Matrooka
properties, these should be available to co-owners for
partition unless there are legal impediments. The estate of
a deceased Mohamedan devolves on his heirs at the moment of
his’ death. The heirs succeed to the estate as tenants in
common in specific shares. Where the heirs continue to hold
the estate as tenants in common without
742
dividing it and on of them subsequently brings a suit for
recovery of the share the period of limitation for the suit
does not run against him from the date of the death of the
deceased but from the date of express ouster or denial of
title and Article 144 of Schedule 1 to the Limitation Act,
1908 would be the relevant Article.
Counsel on behalf of the respondent submitted that there
were two impediments to the appellant’s claim for partition
of the properties. One was that the decree passed by the
Court of Darul Khaza upon the award was not obtained by
fraud and could not be set aside by reason of limitation.
The other was that the appellant came to know in the year
1927 that Abdul Hai adversely claimed properties as his own
and therefore the appellant’s claim was barred by
limitation. The High Court held that the appellant was
aware of the attachment of the personal and the Dargah and
Khankah properties by the Government of the Nizam in the
year 1927 as also release in the same year of the properties
attached. The High Court had that when parties had
knowledge of the attachment of the properties it could not
be postulated that they would have no knowledge of the
contentions of Abdul Hai as to release of the Dargah and
Khankah properties on the ground that those were not Dargah
and Khankah but personal properties of Abdul Hai. Knowledge
of release of properties would not amount to ouster of the
appellant from the property or of abandonment of rights.
The evidence of the appellant was that in 1350 Fasli corres-
ponding to the year 1941 the appellant came to know that a
letter had been written by Abdul Hai to the Ecclesiastical
Department of the Government of the Nizam in the year 1938
to the effect that the properties shown as Dargah and
Khankah in the award F. and the decree were not Dargah and
Khankar properties. The appellant also came to know from
the same letter that all the properties including those
stated to be Dargah and Khankah properties in the award were
attached by the Government of Nizam in the year 1927 and
after enquiry by the Government of the Nizam all the
properties were :released in the year 1927. The appellant
further came to know from that letter that Abdul Hai claimed
the properties as his own. Thereupon the appellant demanded
from Abdul Hai partition of the property as Matrooka. Abdul
Hai asked the appellant to consult lawyer.
On the evidence it would be utterly wrong to speculate that
the appellant knew of the contentions advanced in 1927 by
Abdul Hai for the release of the properties by stating that
they were not Dargah and Khankah properties. There was no
sub section at the.
743
time of the examination of the appellant that he was aware
in,. 1927 of the contentions of Abdul Hai. The High Court
relied on Exhibit A-38 a letter dated 19 October, 1927
written by the,, appellant to Abdul Hai to impute knowledge
of the attachment. and release of the properties. The
appellant was never confronted with at letter. it was
never suggested to the appellant that the letter could be
construed as attributing to the appellant the knowledge of
any adverse claim made by Abdul Hai with” regard to the
properties. In that letter the appellant stated that. be
was indebted to the elder brother Abdul Hai for his
kindness… The appellant also stated that the expenditure
incurred in connection with the litigation would be divided
into four parts and the amount incurred on behalf of the
appellant could be recovered from his account. This letter
dated 19 October, 1927 does not at all have the effect of
establishing that the appellant had knowledge of any adverse
claim of the appellant. The appellant was never shown the
letter to explain what litigation he referred to. No
inference can be drawn against the appellant without giving
him an opportunity to have his say in that matter. It is
unfortunate that Abdul Hai died during the pendency of the
suit and before the, trial. Not only his oral evidence but
also the correspondence that Abdul Hai had with the
Government of the Nizam in the year 1927 did not find way
into the record of the suit. It would be totally misreading
the appellant’s letter of the, year 1927 as impressing the
appellant with the knowledge of’ ouster by Abdul Hai of the
appellant from the properties forming the subject matter of
the suit.
There are two letter of great importance. One is dated 13
August, 1938 and marked Exhibit P-8 written by Abdul Hai to,
the Director of Endowment, Government of Hyderabad and the
other is dated 7 September, 1938 written by the
Ecclesiastical Department of the Government of Hyderabad to
the Secretary of the Endowments, Ecclesiastical Department
of the Government of’ Hyderabad. The letter of Abdul Hai
was written in answer to an application made about that time
to the Government of the Nizam by One Sheikh Abdur Rahim a
tenant against whom Abdul Hai bad filed a suit for recovery
of rent. Abdur Rahim made an allegation that the properties
in respect of which Abdur Hai filed a suit were Dargah and
Khankah properties. The complaint of Abdur Rahim was
however dismissed and the matter was not allowed to be
reopened on the strength of the orders of the Government
recited by Abdul Hai in, his letter. In answer Abdul Hai
recorded these facts. The Nizaim in the month of April,
1927 appointed the Secretary of the Ecclesiastical
Department and the Commissioner of Police to enquire and
report as to which of the properties were attached to the
Dargah and which were per-
744
sonal private properties. Another Commission was appointed
by the Nizam to enquire into the proper use of the endowed
properties. The Ecclesiastical Department by Letter dated
28 December, 1927 held that only the villages Debser and
Sangvi were found to be under the Dargah. All properties of
the parties which had been attached by the Nizam were
released by letter dated 3 January, 1928 excepting the two
villages. Abdul,Hai by letter dated 16 January, 1928 to the
Government of the Nizam stated that the properties marked
Exhibits B-1 to B-10 in the award and the decree of the
Court of Darul Khaza did not belong to the Dargah and
Khankah. Abdul Hai further pointed out that the Nizam by a
firman dated 11 November, 1927 had issued orders ,saying
that according to the opinion of the Council the Govern-
ment’s supervision should be lifted from the ‘maash’
referring thereby to the properties which had been attached
by the Nizam and the same should be given over into the
possession of Abdul ‘Hai.
The other letter dated 5 January, 1939 from the Government
,of the Nizam stated that only two villages were held to be
Dargah and the Government of the Nizam had made thorough
enquiries and held that there was no other Dargah and
Khankah properties and the question could not be re-opened.
It is established in evidence that the properties which wore
,described as. Dargah and Khankah properties before the
arbitrators and the decree of the Darul Khaza Court are not
Dargah and Khankah properties. Abdul Hai obtained an
adjudication and an order of the Government of the Nizam in
the year 1927 that only two villages of Debser and Sangvi
belonged to the Dargah and the rest were not Dargah and
Khankah properties. The appellant knew that there was
litigation about the year 1927 about the properties. It is
not in evidence as to what that litigation was or which
properties were concerned there with because the letter was
not shown to the appellant. Even if it be assumed that all
parties treated the properties marked Exhibits B-1 to B-10
as Dargah properties upto the year 1927 and thereafter there
was an adjudication on the representation of Abdul Hai that
the properties were not Dargah and Khankah the parties would
be entitled to tile same. The only way in which the parties
could lose their rights to the property would be on the
finding that there was adverse possession or ouster.
The decree of the Darul Khaza Court will not be an obstacle
to the claim of the appellant for partition, of the
properties, because the properties are admittedly not Dargah
and Khankah properties but Matrooka properties. The
arbitration proceedings were void by reason of lack of legal
guardian of the appellant to enter into
745
a compromise. The decree of the Darul Khaza Court is also
invalid and not binding on the appellant for the same
reason. If all parties proceeded upon a basis that these
were Dargah and Khankah properties and that basis is wiped
out by the Government of the Nizam the, parties to their
position as heirs to the Matrooka property. The award and
the decree by reason of evidence of facts discovered since
the judgement and the decree of the Darul Khaza Court cannot
be allowed to stand because the effect of the discovery of
the facts is to make it “reasonably probable that the action
will succeed. In Birth v. Birch(1) the Court of Appeal held
that a judgment will be set aside on the ground of fraud if
evidence of facts discovered since the judgment raise a
reasonable probability of the success of the action. The
principle can be stated in the words of Westbury, L.C. in
Rolfe v. Gregory(2) “when the remedy is given on the ground
of fraud, it is governed by this important principle, that
the right of the party `defrauded is not affected by
lapse–of time, or generally speaking by anything done or
omitted to be done so long as he, remains, without any fault
of his own, in ignorance of the fraud that has been
committed . This decision was referred to by the Calcutta
High Court in Biman Chandra Datta v. Promotha Nath Ghose(3)
where the dictum of Westbury, L.C. was restated by holding
that where a plaintiff had been kept from knowledge, by the
defendant, of the circumstances constituting the fraud, the
plaintiff could rely upon section 18 of the Limitation Act
to escape from the bar of limitation. In the present case,
it is apparent that until the year 1927 the appellant and
the other parties were clearly kept out of the knowledge of
the true character of the properties. Even after 1927 it
cannot be said on the evidence on record that the appellant
had any knowledge of the true character of the properties or
ouster or adverse possession of Abdul Hai. The reasons are
that Abdul Hai never alleged against the appellant and the
other parties openly that he was enjoying the properties to
the total exclusion of the appellant and the other brothers.
Possession by one co-owner is not by itself adverse to other
co-owners. On the contrary, possession by one co-owner is
presumed to be the possession of all the co-owners unless it
is established that the possession of the co-owner is in
denial of title of co-owners and the possession is in
hostility to co-owners by exclusion of them. In the present
there is no case to evidence to support
this conclusion. Ouster is an unequivocal act of assertion
of title. There has to be open denial of title to the
parties who are entitled to it by excluding and ousting
them.
(1) 1902 Probate Division 131 (2) [18 64] 4 DeG. J.& S. 576
(3) I.L.R. 49 Cal. 886
746
Section 18 of the Limitation Act, 1908 provides that when a
person having a right to institute a suit has by means of
fraud been kept from the knowledge of such right or of the
title on which it is founded, the time limited for
instituting a suit against the person guilty of the fraud
shall be computed from the time when the fraud first became
known to the person affected thereby. In Rahim boy v.
Turner(1) Lord Hobliouse said “When a man has committed a
fraud and has got property thereby it is for him to show
that the person injured by his fraud and suing to recover
the property has had clear and definite knowledge of those
facts which constitute the fraud, at a time which is too
remote to allow him to bring the suit”. Therefore if the
plaintiff desires to invoke the aid of section 18 of the
Limitation Act he must establish that there has been fraud
and that by means of such fraud he has been kept from the
knowledge,of his right to sue or of the title whereon it is
founded. In the present case, he have with reasonable
diligence discovered it. There was active properties were
Matrooka and not Dargah and Khankah. When Abdul Hai got the
properties released by reason of the decision of the
Government of the Nizam in the year 1927 the properties
became divisible among the appellant and his brothers and
sisters. The existence of the right of the appellant was
kept concealed by Abdul Hai. The appellant was not aware of
the right nor could lie have with reasonable diligence
discovered it. There was active concealment by Abdul Hai of
the fact that the properties were not Dargah and Khankah
having full knowledge of the fact. It was only in 1941
(1350 Fasli) that the appellant came to know of the Matrooka
character of the properties. It was then that the appellant
also came to know that Abdul Hai had kept the character of
properties concealed from the parties and entirely misstated
and misrepresented the character of the properties by mis-
leadin the parties and obtaining by consent an award and a
decree thereon without any contest.
The cause of action for partition of properties is said to
be a perpetually recurring one” See Monsharam Chak-ravarty &
Ors. v. Gonesh Chandra Chakravarty & Ors. (2). In
Mohammedan Law the doctrine of partial partition is not
applicable because the heirs are tenants-in-common and the
heirs of the deceased Muslim succeed to the definite
fraction of every part of his estate. The share,,, of heirs
under Mohamedan Law are definite and known before actual
partition. Therefore on partition of properties belonging
to a deceased Muslim there is division by metes and bounds
in accordance with the specific share of each heir being
already determined by the law.
(1) 20 I.A.1 (2) 17 C.W.N.521
747
In the present case the suit is for partition of properties
which were by consent of parties treated as Dargah and
Khankah but which were later discovered to be Matrooka
properties in fact and therefore the declaration in the
award and the decree on the award that those were Dargah and
Khankah properties cannot stand and the entire partition is
to be lie-opened by reason of fraud in the earlier
proceedings.
In the present case, the overwhelming evidence is that
because of the representation of Abdul Hai that he was the
Sajjadanasheen and the properties marked Exhibits B-1 to B-
10 were Dargah and Khankah properties, that all the parties
treated the properties as Dargah and Khankah before the
arbitrators and in the decree upon the award. The very fact
that there was never any contest indicates that the
compromise and settlement between the parties was on the
basis that the properties were Dargah and Khankah. It was
absolutely within the knowledge of Abdul Hai as to what the
true character of the properties was. The other parties did
not have any opportunity of knowing the same. Abdul Hai
knew the real character, concealed the true character and
suggested a different character and thereby mislead all the
parties. Again, when Abdul Hai approached the Government of
the Nizam and got the properties released by asserting that
they were not Dargah and Khankah properties in the year
1927. Abdul Hai did not inform the same to any of the
parties. The unmistakable intention of Abdul Hai all along
was to enjoy the properties by stating these to be Dargah
and Khankah. When the parties came to know the real
character of the properties even then Abdul Hai was not
willing to have partition. On these facts it is established
that the fraud committed by Abdul Hai relates “to matters
which prima facie would be a reason for setting the judgment
aside”. That is the statement of law in Halsbury’s Laws of
England, Third Edition, Volume 22, paragraph 1669 at page
790.
For these reasons we accept the appeal and set aside the
judgment of the High Court and restore the judgment and
decree of the trial court. The appellant will be entitled
to costs of this Court. The parties will pay and bear their
own costs in the High Court.
G.C Appeal allowed.
748

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