# SYED SHAH GHULAM GROUSE MOHIUDDIN AND ORS v. SYED SHAH AHMED MOIIIUDDIN KAMISUL QUADRI

- **Citation:** [1971] 3 S.C.R. 734
- **Court:** Supreme Court of India
- **Decided:** 1971-02-17
- **Case number:** Civil Appeal No. 219 of 1967
- **Bench:** G. K. Mitter, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/syed-shah-ghulam-grouse-mohiuddin-and-ors-v-syed-shah-ahmed-moiiiuddin-kamisul-5239
- **Pages:** 14

## Headnote

ldinorit,y and Guardianship-Muslim minor represented in orbitration
proceedings and in Court by brother who was not appointed guardian
by Courll--Award and decree on award are viti'ated.
Limitation Act, 1908, ss. 18 and 144-Renunciation of rights by coOl-Vners 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
1>08-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
udverse to
o~her 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 G'Ware of their rights.
Shah Abdul Rahim wa.S Sajfad~nasheen 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 appertaming 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 gaye their awa'rd on August 1, 1908 partitioning
the properties.
On August 13, 1908 there was a decree in the Darul
Khaza Coust 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
\\>rote a letter to the· Nizam's government again asserting that properties
B-1 to B-10 were his personal properties. The aprellant filed a suit on
24th Julv 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 a
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 ~rial court decreed
the suit holding : ( !) that the award and decree m question were
obtained by fraud; (2) that the letter written by Abdul Hai in 19.38
showed that he was aware of the Mafi'ooka character of the properties
but kept this fact from his brothers and sisters; (3) that the appellant
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SHAH GHULAM v. SRAH AHMED
735
came to know the facts from the said letter of I 931> and the suit was not
therefore barred by limitation. The High Court in appeal held : ( 1 J that
the appellant was a minor and therefore reference to the arbitration and
th.c award thereon were void; (2) that the decree passed by the Darulkhaza 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 prOjJerties 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 mμst 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

## Text

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734
SYED SHAH GHULAM GROUSE MOHIUDDIN AND ORS.
v.
SYED SHAH AHMED MOIIIUDDIN KAMISUL QUADRI
(DEAD) BY L. Rs. AND OTHERS
February 17, 1971
[G. K. MITTER AND A. N. RAY, JJ.]
ldinorit,y and Guardianship-Muslim minor represented in orbitration
proceedings and in Court by brother who was not appointed guardian
by Courll--Award and decree on award are viti'ated.
Limitation Act, 1908, ss. 18 and 144-Renunciation of rights by coOl-Vners 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
1>08-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
udverse to
o~her 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 G'Ware of their rights.
Shah Abdul Rahim wa.S Sajfad~nasheen 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 appertaming 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 gaye their awa'rd on August 1, 1908 partitioning
the properties.
On August 13, 1908 there was a decree in the Darul
Khaza Coust 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
\\>rote a letter to the· Nizam's government again asserting that properties
B-1 to B-10 were his personal properties. The aprellant filed a suit on
24th Julv 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 a
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 ~rial court decreed
the suit holding : ( !) that the award and decree m question were
obtained by fraud; (2) that the letter written by Abdul Hai in 19.38
showed that he was aware of the Mafi'ooka character of the properties
but kept this fact from his brothers and sisters; (3) that the appellant
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SHAH GHULAM v. SRAH AHMED
735
came to know the facts from the said letter of I 931> and the suit was not
therefore barred by limitation. The High Court in appeal held : ( 1 J that
the appellant was a minor and therefore reference to the arbitration and
th.c award thereon were void; (2) that the decree passed by the Darulkhaza 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 prOjJerties 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 mμst 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 wa•
he appointed by the Court. The relinquishment of property by Nooruduin on behalf of the minor was not binding on the minor whose interests
v.cre 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
Jmambandi v. Mursi;ddi, 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
e'tate as tenants in common without dividing it and one of them subsequently brings a suit fdr 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 A~t.
1!4 of Sch. I to the Limitation Act 1908 would be the relevant Article.
[741 H, 742 Al
(iii) The cause of action for partition of properties is a 'pe'rpetually
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 he 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. Goneslz Chandra Chakra1·(1rr_:: &
On .. 17 C.W.N. 521, referred to.
(iv' The decree of the Darul Khaza Court could not be an oh,tacle
10 the· claim of the appellant fdr partition of the properties, becau"' the
poperties were admittedly not Dargah and Khankah properties but
\l atrooka 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 re1toted
to their position as heirs to the Matrooka property.
The award and
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the decree by reason of evidence of facts discovered since the judgment
and the decree of the Darul Khaza Court could not he allowed to siand
because the· effect of the discovery .of the facts was to make it "reasonably probable that the action will succeed". [744 H-745 BJ
3-1 JOOSup Cl/72
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736
SUPREME COURT REPORTS
[1971] 3 S.C.R.
Birch v. Birch, [1902] Probate Division 131, referred to.
A
. (v) 'Yhen a plaintiff has been kept from knowledge by the defendent
o[ the crrcumstances 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
Governmel).t 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
B
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 aild Khankah having full
"
kr.owledge of the fact. It was only in 1941 that the appellant came to
know of the .Matrooka character of the properties. [745 E, 746 BJ
Rolfe v. Gre11ory, [1964] 4 DeG. J & S 576, Boman Chandra Dalla
Y. Promotha Nath Ghose, L.L.R. 49 Cal. 886 and Rc.himboy 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]
c
Halsbury's Laws of England, Third Edition, Vol. 22, para 1669 at
D
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 l 'l,27 it could not be said on the evidence
on record that the appellant had any knowledge of the true character
E
of the properties or of ouster or adverse possession of Abdul Hai. Possession by one ~o-owner is not by itself adevrse 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 coowner is in denial of title of co-owners and the possession is in hostility 10
ru-owners by exclusion of them. In the present case there was no evidence
fo ·support this conclusion.
Ouster is an unequivocal act of asselrtion of
title. There has to be open denial of title to the parties who are entitled
F
to it oy excluding and ousting them. [745 F-H]
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 219 of
1967.
Appeal from the judgment and decree dated December 16,
1965 of the A;ndhra Pradesh High Court in C.C-C. Appeal No.
24 of 1969.
M. C. Chagla, R. V. Pillai and N. Nettar, for the appellants.
C. K. Daphtary, Rameshwar Nath and Swaranjit Sodhi, for
respondent No. 1 (A).
V. A. Seyid Muhammad a,nd S. P. Nayar, for respondent No.
3.
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SHAH GHULAM v. SHAH AHMED
737
A
The Judgment of the Court was delivered by
Ray, J.-This is an appeal by certificate against the judgement dated 15 Dec,bmber, 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,
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City Civil Court, Hyderabad on 18 October, 1958.
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Shah Abdul Rahim a resident of the city of Hyderabad died
on 26 September, 1905 leaving behind him four sons Abdul Hai,
Ghulam Nooruddin, Abdul Razak and Ghulam Ghousie Mohiuddin and two daughters Kamarunnissa Begum and Badiunnissa
Begum. Shah Abdul Rahim ha<kjarge movable and immovable
properties. The sons and the daughters entered into two agreements in th'e 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, 1908 there was a decree in the
Darul Khaza Court, Hyderabad confirming ilie Award of
1
August, 1908. The appellant filed the suit out of which the
appeal arises on 24 July, 1941 for setitng aside the decree dated
13 August, 1908 confirming the award and for partitioning certain Matrooka properties. In 1942, the sui_t was dismissed. An
appeal was preferred to the High Court of Hyderabad.
During
the pendency of the appeal Abdul Hai died in 1950 and his0 .wgal
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 Hjgh 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 Wdre 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
app~ar
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
SUPREME COURT REPORTS
[1971] 3 s.c.R
with the letter 'F' a plan showing properties attached to
the
Khank:ah and Dargah and those properties were market as Exhibits
B-1 to B-10 and the plaintiffs relinquished their title 'to pro~ies
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
lhe 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
.tlai.
The facts recited in the decree are these. Syed Shah Nooruddin a pious person of Hyderabad had his Xhankah situated at
Nampalli. The Dargah of the said pious man was also situated
.in the same locality.
After Syed Shah Nooruddin's death hi>
son-ia-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 Sajjadanasheen and all the expenses of the Dargah and Khankah were met
from the income. After the death of Abdur Rahim, Abdul Hai
beame the Sajjadanasheen and was having control over the Dargah
and Khankah. Abdur Rahim left three adult sons and onb minor
son and also two adult daughters.
Apart from the property
attached to the Dargah and Khankah Abdur Rahim' left personal
Mati:ooka properties. There might have been a dispute betw~n
the parties rtgarding 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 pla,n annexed to the award
were Khankah and Dargah Shariff properties in th'e 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 tllat the Dargah
and Khankah properties were not !iabk to partition and' none
·of the plaintiffs "shall have any right or claim regarding ihe same'·
The appellant impeached the award and the decree upon the
·award inter alia o.n the grounds that the award was void by reason
of lack of lawful 1guardian on behalf of tlie appellant to protect
·and represent the rights and interests of the minor in the arbitra-
·tion proceedings and in the prodeedings resulting in the decree
'Upon the award. The appellant also claimed that the award and
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SHAH GHULAM V. SHAH AHMED (Ray, /.)
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the decree should be avoided
bec~use 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 deer~ to be Dargah
and Khank;ah on the wrongful representation of Abdul Hai. The
appellant in the year 1938 discovered for the first time tHo 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 on
lhe evidence that Abdul Hai was in full possession and enjoyment
of the whol.e of the property of Abdul Rahim. including tire property marked as Exhibits B-1 to B-10. In t)le letter dated 13August, 1938 Exhibit P-8 Abdul Hai denied that the property wa~
waqf property belonging to the Dargah and asserteq that it was;
owned and possessed by him and relinquished by his relatives.
Tht letter was held by the trial Court to indicate that Abdul Hai
~new that the property was the property of his father which he
inherited along with his brothers and sisters and i,n spite of such
knowledge and belief he caused it to be represnted before the
:1rbitrators that the property belongeP. to the Dargah and that the
;ame was in his possession as Sajjaaanasheen.
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 cancellatiO!ll of the decree passed
upon lhe 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
dispuie which could be· referred to arbitration.
Sec~nd, whether
there was proof that at the time of the arbitration agreement and
the award Abdul Hai made a fraudulant and false representation
:o his brothers and sisters and made them believe that the pror"rties 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 clairrled
the properties as the ancestral properties of the Sajjadanasheen
earlier than the time when the appellant said he had knowlec!ge
and whether the suit was barred by limitation. Fourth, what would
be the effect of the filing of the written slatement by the defendant
740
SUPREME COURT REPORTS
[ 1971] 3 s.c.R.
No. 6 in thll year 1958 and the omission of defendant No. 7 to
file any written statement to obtain partition of the properties in
the event of the decree and the award being set aside.
TlJ/:l High Court held that the appellant was a minor but the
other parties were not minors.
The Hi~ Court held that the
reference to the arbitration and the award thereon were void. The
High Court held that !he 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 Cou.rt
was not obtained by fraud. The 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 a.nd t.1ie other plaiQtiffs 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 th~ 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 proceeding• aiid ~ the time of the decree on the award.
The brother is not a lawful guardian under thie Mohammedan
Law. The legal guardians are the father, the executor appointed
by the father's will, the father's 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 tliough 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 th'e minor's property is of t!i-e court on proper
application. It was held by this Court in Mohd. Amin & Ors. v.
Vakil Ahmed & Ors.(1 ) relying on the dictum in Imambdndi v,
Mutsaddi(•) that where disputes arose relating to succes~ion to
the estate of a deceased Mohammedan between his three sons, one
of whom was a minor, and other relations, and a deed Qf settlement embodying an agreement in regard to the distribution of the
properties belonging to the estate was executed by and betv.leen
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; 'a;nd the deed was void not
only qua 1he 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 agrelement and the a:-vard and the decree
(I) [1952]S.C.R, l!33.
(2) 45 I.A. 73
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SHAH GHULAM V. SHAH AHMED (Ray,/.)
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 patriles 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 proce~gs
for passing the decree upon the award in support of the contention
that tl!e court appointed Nooruddin as the guardian of the ap~l
lant. It is stated in the application that the defendant No. 3 ( ~1c)
meaning thereby plaintiff No. 3 the present appellan! is a mmor
and Nooruddin is the real brother and the appellant 1s under the
guardianship of Nociruddin. The applicati?n was for permi~ion
to file the suit. There is no order for appomtment of a guardian.
Furtl:ler, the Court in appointing the guardian of property .of a
minor is guided by circumstances for. the welf~re of th~ mmor.
There is no justification to hold that N9oruddin was either the
legal guardian or a guardian appointed by the Court.
Tht decree which was passed on the award appears on an
exaniination of the pleadings and the decree itself that tl!e 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 resulting in a decree upon tlie award. There was no legal guardian.
Tht rights and interests of the minor were also not protected particularly when there was conflict of interest between th'e minor and
Abdul Hai. The arbitration agreement, the award and the decree
of the Darul Khaza Court on the award are therefore void.
The High Court held that the appellant's 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 properties 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 dedeased Mohamedan
uevolves 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
SUPREME COURT REPORTS
(1971]} S.C.R.
dividing it and on of them subsequently brings a suit for recovery
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of the share the pj:riod of !imitation 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 deniaf of title and Article 144 of
Schedule I 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 pro'
perties. 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
chiiined 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 192 7 as also ire lease in the same year of the properties
attached. The High Co;,rt' 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 .i:<asli 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
and the ®cree were not Dargah and Khankar properties.
The
appellant also came fo know from the same letter that sll the proparties including those stated to be Dargah and Khankah properties in the award were· attaclled by the Government of Nizan1
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 conti!ntions 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 suggestion at the
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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 dalled 19 October, 1927 writteμ by the
appellant to Abdul Hai to impute knowledge of the attachment
and release of the properties.
The appellant was never _confronted with tl!at letter. lt was never suggested to the appellant
1ilat the letter could be construed as attributi;ng to the appellant
the knowledge of any adverse claim made by Abdul Hai with
regard to the properties.
In that letti:r the appellant stated that
he 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 1'9 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 d~ring 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 Jettier of the
year 192 7 as impressiri_g 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 Abdu\Hai to
the Director of Endov.(ment, Government of Hyderabad and the
other is dated 7 September, 1938 written by the Ecclcsia~tical
Department· of the Government of Hyderabad to the Secretary of
the Endowments, Ecclesiastical Department of the Government of
Hyderabad. Thie 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
had filed a suit for recovery of rent.
Abdur Rahim made an
allegation that the propertiles 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 thle strength of the orders of the Government recited by Abdul Hai in his letter.
In answer Abdul
Hai recorded these facts.
The Nizam 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
SUPREME COURT REPORTS
[1971] 3 S.C.R.
sonal private properties. Another Commission was appointed by
the Nizam to enquire int\) 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 Government's supervision should ble 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 Xhankah properties
and the question could not be re-opened.
It is established in evidence that the properties which were
·described as Dargah and Kha:nkah properties before the arbitrators and the decrele 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 th.<:
properties. It is not in evidence as to what that litigation was or
which properties were concerned therewith because the letter was
not shown to the appellant. Even if it be assumed that all p_arties
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 entitloo to
the 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
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SHAH GHULAM v. SHAH AHMED (Ray, /.)
7 45
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 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 ·judgement and the decree of the Darul Khaza Court cannot
lie 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(') 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(') "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 thlo Calcutta High Court in Biman Chandra)
Datta v. Promotha Nath Ghose(') where the dictum o{ Westbury;
L.C. was restated by holding that where a plaintiff had been kept
from knowledge, by the defendant, of the circumstances constitut·
ing 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
thevother 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 adwrse 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 cantrary. possession by one
co-owner is presumed to be the possession of all tile 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 case there is 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.
(I) IQO~ Pr<>batc Division 1)1
Cl [IS6~] ~ DcG. J.& S. 576
(3) I.LR. ~Q Cal. s%
746
SUPREME COURT REPORTS
[1971] 3 S.C.R.
Section 18 of the Limitation Act, 1908 provides that when ·a· ; A
person h;aving a right to institute a suit has by means of fraud '
bqen kept from the knowledge of such. {ight 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 whlen the . fraud first became known to the person affected
!hereby. In Rahimboy v. Turner( 1) Lord Hobhouse said "When
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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
thO!;e 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 wliereon 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 Nii.am 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 Khenkah 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 kiept the charac•
ter of properties concealed from the parties and entirely misstated and misrepresented the character of the properties by misleading the parties and obtaining by consent an award and
a
decre.e thereon without any contest.
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The cause of action for partition of properties is said to be a
"perpetualiy recurring: one" See Monsharam Chakravarty & Ors.
v. Ganesh Chandra Chakravartv & Ors. ( 2 ). In Mohammedan Law
the doctrine of partial partition is not applicable because the heirs
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are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of .every part of his estate. The shares
of heirs under Mohamedan Law are definite and known before
actual partition.
Therefore on partition of properties blelonging
to a deceased Muslim there is division bv metes and bounds in
accordance with the specific share of each heir bleing
already
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deterinined by the law.·
(!) n T.A. I
(2) 17 C.W.N.521
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SHAH GHULAM V. SHAH AHMED (Ray, J.)
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Jn 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 pro~rties cannot
stand and the entire !_)artition is to be re-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 decreie 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 w~re 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 inforn1 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 kno_w the real character of the properties even then Abdul Hai
was not willing to have partition.