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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

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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 &

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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