SAJJAD ALI SHAH, J.---Abovementioned two appeals with leave c the Court are directed against judgment of the High Court of Sindh dated 7-11-1991, whereby two civil revisions have been disposed of dismiss in the one filed by defendants in the suit and allowing the other filed by plaintiff in the suit and that suit was filed in the background of the facts which are stated as under:---
2. Assandas son of Khetaram died in the year 1957 leaving behind property described in the schedule of the plaint and two widows and children from them. His first wife is Sharimati (hereafter to be referred as Shr.) Bhoji Bai having three sons Ganeshdas, Moolchand and Bhagwandas and two daughters Shr. Sarsati Bai and Shr. Bhori Bai. His second wife is Shr. Pathani Bai having one son Udhamdas and both of them later embraced Islam and adopted names of Mst. Amna and Muhammad Yousuf respectively. It is claimed by Muhammad Yousuf that at the time of death of his father, he was about one year old and because his mother was second wife, his stepbrothers from the first wife excluded him and his mother from having, rights of inheritance in the property and got the records mutated in their names in for shares claiming 4 Annas each as per Hindu law.
Thereafter Ganeshdas died and was succeeded by his son Krishanchand. Muhammad Yousuf (Udhamdas) filed F.C. Suit No.405/79 on 5-11-1979 in the Court of Senior Civil Judge, Mirpurkhas for declaration, partition and possession. It is mentioned by him in paragraph 7 of the plaint that he and his moth j (latter impleaded in the suit as defendant No.7) are lawful heirs of deceased Assandas and are entitled to their lawful share in the - property left. By deceased as co-sharers along with the remaining defendants and exclusion of their names from the record of rights would not affect their rights of inheritance and their status as co-sharers in the said property.
3. It is further mentioned in the plaint by the plaintiff that when he was in the High School he was attracted by Islamic religion and embraced Islam on 27-9-1972 and likewise his mother also became Muslim. Prayer in the plaint is that the 'Court may declare that plaintiff is son of deceased Assandas and is entitled to his full share in the properties mentioned in the schedules and order that share of plaintiff be partitioned by metes and bounds and separate possession be given to him. Costs and any other relief deemed fit and proper have also been demanded in the plaint.
4. Moolchand and others as defendants Nos. 1 to 6 in the suit filed written statement and denied the claim of the plaintiff that late Assandas had two wives and Shr. Pathani Bai was second wife of Assandas and Udhamdas is son of late Assandas. It is averred in that written statement that property in the suit, after the death of Assandas, had devolved upon his three sons with life interest to their mother Shr. Bhoji Bai according to Hindu law and further defendants Nos.4 and 5 being daughters of late Assandas had no share in the suit property. It is stated in paragraph 6 of the written statement that after the death of Ganeshdas his share hid been inherited by his son Krishan and three others. It is further averred in the written statement that Shr. Pathani Bai, against mutation in the record, filed appeal which was dismissed by the Deputy Collector, Naravalley in 1958 after which she filed revision which was dismissed by Additional Commissioner, Hyderabad in August 1959.
5. The trial Court framed as many as 9 issues keeping in view the pleadings of the parties.. In the issues are included whether Assandas had two wives and whether plaintiff is son of Assandas and has right of inheritance in the suit property? Issue No.7 is whether suit is time-barred? Muhammad Yousuf as plaintiff examined himself and produced documents Exhs. 48 to 65 including school identity card, receipt of Union Council, Matric Certificate and other correspondence in support of his. Claim that he is son of Assandas. He also produced copy of the Sindh Government Gazette dated 5th May, 1975 according approval to the change of name from Udhamdas s/o Assandas Khatri to Muhammad Yousuf s/o Assandas Khatri. On the other hand Moolchand examined himself as attorney of defendants Nos. 1 to 6. He denied claim of the plaintiff that he is son of Assandas and his mother Shr. Pathani Bai was' wife of Assandas. Defendant No.7 namely Mst. Amna alias Shr.
Pathani examined herself as defence witness and claimed to be wife of Assandas and further that plaintiff is their son. She deposed that before her marriage with Assandas she was widow and Assandas gave her Nath and clothes. From marriage with Assandas she gave birth to two daughters, who died and after a long time gave birth to plaintiff.
6. After evaluation of evidence produced by the parties the trial Court held that since remarriage of Hindu widow is legalised by Hindu Widows Remarriage Act, 1856 and for such marriage no particular ceremony is necessary, hence on the basis of evidence positive finding was given that Shr. Pathani Bai was wife of late Assandas and plaintiff was his son. On the issue whether suit was time-barred, trial Court has held that the suit was not time-- barred for the reason that it was filed by the plaintiff after attaining the age of majority and as being a co-sharer, he is to be deemed to be in possession unless clear ouster to his knowledge is shown within 12 years. Vide judgment dated 25-11-1984, the trial Court has decreed the suit as prayed with costs.
7. Two appeals were filed against the judgment and decree of the trial Court. Civil Appeal No.19/84 was filed by Gauri Shankar and others, who are sons and widow of Ganeshdas, who was son of late Assandas and they claimed that they were also necessary parties and were not joined. This appeal was heard along with Civil Appeal No.84/84 which was filed by Moolchand and others. By common judgment both appeals were disposed of and Civil Appeal No.19/84 was dismissed on the ground that Hindu law permitted plaintiff in partition suit to implead only those defendants who are heads of all the branches and since Krishan, who is son of Ganeshdas, was impleaded it was not necessary to join other heirs of Ganeshdas in the suit proceedings. Civil Appeal No.84/84 filed by Moolchand and others was partly allowed. Finding that Muhammad Yousuf is legitimate son of late Assandas was affirmed. Suit was dismissed to the extent of award of share of plaintiff through the process of the Court for the reason that it was time-barred and to that extent appeal was allowed.
It was held that there was open and outright denial of the rights claimed by the plaintiff is the suit and his mother and against the mutation appeal filed by mother of the plaintiff in the suit was dismissed vide order dated 17-10-1958 Exh.73 passed by the Deputy Controller Naravalley.
Knowledge of guardian was imputable to the minor. Plaintiff was minor at the time of opening of succession after the death of his father but he became major on 5-12-1974 and the suit was filed on 15-11-1979. In the circumstances suit was time-barred as not filed within a period of limitation as prescribed in the First Schedule or within 3 years after cessation of disability of minority as contemplated under section 8 of the Limitation Act.
8. Moolchand and others defendants in the suit, filed Civil Revision No.III/85 in the High Court feeling aggrieved against the finding of the first appellate Court that plaintiff is son of late Assandas and judgment of the trial Court did not suffer from non-joinder of necessary parties. Muhammad Yousuf (plaintiff in the suit) filed Civil Revision No.144/85 in the High Court feeling aggrieved against the decision of the first appellate Court to the extent of allowing the appeal and setting aside judgment and decree of the trial Court on the ground that the suit was time-barred. After a very detailed hearing the High Court has disposed of both revision applications vide impugned judgment by dismissing Civil Revision No.Ill/85 filed by Moolchand and others and allowing Civil Revision No.144/85 filed by Muhammad Yousuf by modifying the decree of the trial Court to include rights and entitlement of Mst. Amna (defendant No.7) as widow of late Assandas to be shared equally with Shr. Bhoji Bai. It is held by the High Court that it is beyond dispute that mother of Muhammad Yousuf was widow when she started living with late Assandas. According to Hindu law for remarriage of widow no ceremony is required and it was enough that Assandas gave `Nath and clothes' to the mother of Muhammad Yousuf. There is no challenge to the fact that Muhammad Yousuf and his mother had been living continuously after the death of Assandas in his bungalow in Village Bandi. On the question of limitation, High Court has concluded that the suit was in time inter alia, on the ground that it was filed within 12 yeas from the date of change of religion as envisaged in Articles 127 and 144 of the Limitation Act.
9. This Court has granted leave to examine the following two questions:--- "(i) That in view of section 8 of the Limitation Act, the High Court was . Not justified in holding that the suit of respondent No. 1 for the reliefs, other than declaration, was not barred by time, as admittedly respondent No. 1 attained the age of majority on 5-12-1974 and the suit was filed on 5- i1-1979 i.e. After the expiry of more than three years provided in above section 8.
(ii)That on no legal principle a decree in favour of respondent No. 2 could have been passed by the High Court."
10. On the issues relating to paternity of plaintiff in the suit and marriage .f his mother with late Assandas, findings of three Courts below are on current and in favour of plaintiff in the suit, hence we need not go into hose issues which have attained finality, particularly when leave is also not 1 ranted by this Court in respect of those questions. Scope of the leave is permitted and has been narrowed down as confining to two questions reproduced above.
11. Before we go into the questions mentioned in the leave granting order would be necessary to turn back and see pleadings of the parties which gave rise to Issue No.7 framed by the trial Court to the effect whether the suit was me-barred. Heading of the plaint shows that suit was filed for declaration, partition and separate possession with positive assertion in paragraph 7 that plaintiff and his mother defendant No.7 are lawful heirs of deceased Assandas and became entitled to their lawful share as co-sharers along with other heirs in the property left by the deceased. Written statement contains denial of claim pat plaintiff is son and his mother is widow of Assandas.
Second plea in the written statement is that after death of Assandas in 1957, property devolved upon defendants Nos. 1 to 3 with life interest to defendant No. 6 (Shr. Bhoji ai). Third plea in the written statement is that against mutation in favour of defendants Nos.1 to 4, mother of plaintiff filed appeal and revision before .Revenue Authorities claiming share which were dismissed.
12. In the evidence plaintiff examined himself and produced a large umber of documents showing his parentage as son of Assandas and address of sience in the house of Assandas in Village Bandi.
Mother of plaintiff as defendant No. 7 examined herself in the trial Court and supported the claim ofplaintiff. Moolchand examined himself as attorney of other defendants excepting defendant No. 7) and denied claim of the plaintiff but in the cross-- examination stated that he did not know whether plaintiff and his mother lived I the bungalow of deceased in Village Bandi. Ownership of this bungalow of deceased was not denied and disputed in the written statement and no claim as made that plaintiff and his mother did not live in that bungalow or the tine was in possession of defendants minus defendant No. 7, to the exclusion f plaintiff and his mother. There is no dispute about the facts that plaintiff was born in 1956, Assandas died in 1957, record-of-rights was mutated in 1958, plaintiff became major in 1974 and the suit was filed on 5-11-1979. On the issue f limitation, trial Court has held that suit was not barred as it was filed after plaintiff became major and limitation would not run against plaintiff, who aimed to be co-sharer.
13. The first appellate Court held that relief of declaration was not barred limitation and is dependent upon recurring cause of action but the other saver with regard to the award of share from property by metes and hounds could not be granted as the same was hopelessly time- barred. The main reason assigned for such conclusion is that there was complete ouster of plaintiff and his mother from the joint property of late Assandas.
14. Mr. Abdul Hafeez Pirzada learned ASC for defendants in the suit except defendant No. 7 submitted before us that the suit was patently time --barred and should have been dismissed under section 3 of the Limitation Act straightway as having been filed in 1979 which was after 12 years from mutation which took place in 1958 when mother of plaintiff failed in her appeal and revision before the Revenue Authorities which were dismissed in 1958/1959. He has also referred us to paragraph 2 of written statement filed by mother of plaintiff as defendant No. 1 in the suit proceedings (page 124 of paper book in CA. No. 48/92). It is stated in that paragraph that she being illiterate and domestic lady was confined to the house and was given assurance by deceased Ganeshdas son of Assandas that she has a share in the property of her deceased husband. In her evidence also she has admitted that she approached the Revenue Authorities. In our view this fact alone is not sufficient to conclude that suit is barred by limitation for the reasons firstly, that mother of plaintiff has not filed the suit as under section 315 of Hindu Law, a widow cannot demand partition but if partition takes place can have share equal to son. Secondly, knowledge of mother with regard to mutation cannot be imputed to son who was minor at the relevant time as she could be IC termed as guardian of person of minor but not of his property. Thirdly, after the death of owner, devolution under Hindu Law connotes perception of joint property in which all legal heirs inherit equal shares.
15. Mr. Pirzada also contended that suit is barred against the plaintiff, who filed it after attaining the majority. According to learned counsel after mutation in 1958 there was complete ouster and plaintiff had taken inconsistent pleas in the plaint with regard to the knowledge of ouster. In paragraph 8 of the plaint he stated that he passed his Matric Examination in June 1972 and embraced Islam on 27-9-1972 and simultaneously his mother also embraced Islam. In paragraph 9 of the plaint it is stated that plaintiff after passing Matric Examination and acquiring understanding became aware of his rights of inheritance in the properties left by deceased Assandas and approached defendants Nos.1 to 6 and deceased Ganeshdas for portion of his share but they did not listen to him. He made inquiries and learnt that mutation of -record had taken place in favour of defendants. He sent application to the Governor of Sindh who forwarded the same to the Commissioner, Hyderabad Division for disposal, which was kept in cold storage and later notice was issued by the Commissioner but in the name of his mother. Mr. Pirzada also defended vehemently judgment and decree, of first appellate Court which gave finding that suit was time-barred on the ground that there was complete ouster of plaintiff and his mother from disputed property and suit was filed beyond time as allowed under the provisions of the Limitation Act.
16. After the death of Assandas, plaintiff and his mother became co--sharers in the property of deceased along with other legal heirs. There is no cavil with proposition that if property is joint, possession of one co-heir is sufficient to be considered as possession of all co-heirs. Some co- heirs on the ground of exclusive possession cannot defeat the claim of other co-heirs by taking plea of adverse possession. Persons taking such plea have to produce positive evidence to show exclusion and ouster of other co-heirs. This question came up for consideration in the case of Mst.
Omai and others v. Hakeem Khan and others 1970 SCM R 499 and this Court has held that when property is inherited by co-heirs of deceased, then possession of one co-heir is in law possession of all the co-heirs and mere non-participation in profits of property by one co-heir and exclusive possession by others would not be sufficient to F constitute adverse possession. Persons making such claim have to show that they were in hostile possession of the property in dispute to the exclusion and ouster of others.
17. It has become well known by now that mutation proceedings are not judicial in that sense and do not provide starting point of limitation. It is held in the case of Thakur Nirman Singh and others v.
Thakur Lal Rudra Partab Narain Singh and others AIR 1926 Privy Council 100 that orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense to the exclusion of other members of H the family as Revenue Authorities have no jurisdiction to pronounce upon the validity of such a claim. In the case of Noor Ahmad v.
Mst. Hubab Jan and others PLD 1974 SC 78 this Court has held that against co-heir, mutation is not enough and to justify inference of adverse possession some definite act of I ouster from disputed property has to be established. In the case of Mst. Aftaba and another v. Raza Khan and others 1984 SCMR 906, mutation of inheritance was obtained on the basis of Will of deceased which was challenged on the ground that it was contrary to the Shariat. Such objection was rejected by the Revenue Officer and appeal was dismissed by the Collector. No further steps were taken giving touch of finality to the decision of Collector. After 15 years suit was filed for declaration and in the context of Article 144 of the Limitation Act it was held by the Court that there could be no question of adverse possession amongst the co-sharers and submission based on technicality could not be allowed to prevail to defeat the ends of justice.
18. Plea of adverse possession as contemplated under Article 144 of Limitation Act came up for consideration in the case of Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1. In the said case three sons of deceased in order to deprive their sister of her Islamic share in the property got the mutation changed with omission of her name in the Pedigree-table with the result that she was not treated as heir of the deceased. Act of omission was sought to be explained by three brothers that they had spent a large sum of money on two marriages with divorce in between of their sister and a murder case connected therewith. It was averred that in such circumstances their sister had relinquished her share. Suit filed by the sister was dismissed, inter alia, on the ground of relinquishment. Appeal was allowed against which revision filed was dismissed. In this Court it was contended on behalf of brothers, who were petitioners that evidence had been misread and their sister could not succeed on the ground of co-heir ship in the face of successful ouster and adverse possession. Main argument raised was that mutation was sanctioned in 1963 against their sister which was not challenged by her for a very long time and her such conduct would render the possession adverse to her. It was observed by this Court that adverse entry and non-participation in the profits of the property would not amount to an ouster as the controversy is finally settled by recent judgment of this Court in the case of Haji v. Khuda Yar PLD 1987 SC 453. It was further observed that wrong mutation confers no right in property as Revenue Record is maintained only for the purposes of ensuring realization of land revenue. Co- sharers and co-owners are not obliged to file suit to seek declaration to the affect that a mutation had wrongly been sanctioned. Suit filed due to denial of rights of the co-sharer for declaration would be within time and the Revenue Authorities on success of such suit would be required by law to correct the wrong mutation.
19. In the instant case plaintiff has proved the title which is claimed by him by showing that he is son of deceased Assandas and his mother was his widow. He has produced documents to show his parentage. He has also shown that he and his mother had been living in the house of Assandas in Village Bandi which was his residential address as shown in the documents. According to the objections filed by the plaintiff in this Court, bungalow in Village Bandi was given by them in permissive possession of Muslims when they shifted to Hyderabad in the year 1972-73. Defendants in the suit have not raised the plea that plaintiff and his mother were ousted from the bungalow at Bandi or the same remained in their possession at any point of time. Defendants in the suit have failed to prove adverse possession as contemplated under Article 144 of the Limitation Act. It is held by this Court in the case of Shamsur Rehman v. Mst. Sher Bano and others 1974 SCM R 427 that plea of adverse possession cannot be raised against co-heir unless there is express repudiation of title by N such co-sharer. In the case of Mst. Daulan and another v. Noora and another 1987 SCM R 54 no interference was made and leave was refused on the ground that question of limitation does not arise in the case of joint possession as co- sharers.
20. Keeping in view the guidelines enunciated in the case-law mentioned above and after careful consideration of the facts of this case, we have come to the conclusion that defendants in the suit (minus defendant No.7) have failed in their attempt to prove that they hold possession of the disputed property to the exclusion of plaintiff and his mother with open assertion of hostile title which is in the knowledge of plaintiff and his mother. Starting point of limitation is not 1958 when mutation took place with alleged exclusion of 0 plaintiff and his mother for the reason that according to Hindu Law after death of Assandas, all his legal heirs become co-sharers. Mere omission of name in the mutation. Of one or two co-sharers is not enough to prove exclusion. Even non-participation in the taking of profits is not adequate to prove adverse possession. In this case there is evidence to the effect as mentioned above, that plaintiff and his mother after the death of Assandas lived in his bungalow in Village Bandi which never remained in possession of defendants minus defendant No.7. Knowledge of mother of plaintiff and dismissal of her appeal and revision before the Revenue Authorities cannot be imputed to the plaintiff who was at the relevant time minor.
21. Since this is a case of joint family property, in the ordinary course Article 127 of the Limitation Act would have applied if defendants minus defendant No.7 had succeeded to show that plaintiff and his mother had been P excluded from the joint property to their full knowledge and in that case period of 12 years is allowed as limitation to file the suit. This suit is filed by the ~' plaintiff who was minor at the time when, according to the claim of defendants, m 1958 plaintiff and his mother were deprived of joint ownership in the disputed property. Under the law minor plaintiff can claim the benefit and concession of section 6 of the Limitation Act which is to the effect that he may file suit after cessation of legal disability within the same period as is allowed under the provisions of the Limitation. Act as prescribed in the First Schedule or in section 48, C.P.C. Section 8 of the Limitation Act a envisages that nothing in section 6 or in section 7 applies to suits to enforce rights of pre- emption or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period within which any suit must be instituted or ,application made.
22. Mr. Pirzada has submitted that sections 6, 7 and 8 of. The Limitation Act are to be read together and if it is done then it would appear clearly that section 8 controls section 6 which means that after attaining majority plaintiff can file suit within three years and if limitation had started running against him and remainder of the limitation is less than three years, then also, suit could be filed within three years without any further extension of time. In support of the contention reliance is placed by him on the cases of Kolandavel Gounder and another v. Chinnappan and others AIR 1965 Mad. 541, Sk. Md. Zafir v. Sk. Amiruddin and others AIR 1963 Pat. 108, Allah Ditta and another v.
Muhammad Azeem PLD 1953 BJ 1, Lal Bano etc. v. Hasseen Akhtar etc. NLR 1980 AC 134, Mst. Hanifa Begum v. Muhammad Afzal Khan and others 1981 CLC 1156 and Batuk Prasad Bhagat and another v.
Rudra Das Chakravarty and others AIR 1950 Pat. 206.
23. After reading the case-law mentioned in the preceding paragraph and language used in sections 6 and 8 of the Limitation Act, we feel inclined to form the view that combined .Effect of sections 6 and 8 is to enable a person ~R who has been dispossessed during his of his attaining majority or within usual period of time ordinarily allowable to a major, which is longer. If minor attains majority after three years of cause of action he can sue within nine years from the date of attaining majority if period of limitation is 12 years. In the instant case this question cannot be decided for the reason that defendants have failed to prove that plaintiff and his mother were excluded from joint property and dispossessed from the date of the mutation in 1958 or any other date thereafter. In other words they have not been able to establish:, ouster against the plaintiff and his mother or substantiate plea of adverse possession.
24. However, there is one other notable feature of this case, which is to the effect that plaintiff embraced Islam and became Muslim on 27-9-1972 and about the same time his mother also accepted Islam. Prior to that both of them belonged to Hindu religion. Section 334 of Hindu Law (by D.F. Mulla, 12 Edition) envisages that on conversion of a member of joint Hindu family to Islam or any other religion there takes place automatic break-up of status of joint Hindu Family which extinguishes the rights of survivorship as between the convert and co-parceners. Such convert ceases to be co-parcener from the moment of his conversion and is entitled to receive his share in the joint family property as it stood at the date of his conversion. In such circumstances on account of change of religion Articles 127 and 144 of the Limitation Act would be attracted and in each of these provisions period of limitation allowed is 12 years.
25. Going back to leave granting order, it appears that the second point mentioned therein is whether on no legal principle a decree in favour of respondent No.2 (mother of plaintiff) could have been passed by the High Court. There is no dispute about the fact that under section 315 of Hindu Law, widow cannot demand partition as a matter of right but if and when partition takes place, she becomes entitled to share equal to son. Mst. Amna (Shr. T Pabhani), who is mother of plaintiff, has not filed suit and was impleaded as defendant No.7 in the suit filed by Muhammad Yousuf (Udhamdas). High Court has directed that decree in the suit filed by Muhammad Yousuf be modified to include grant of rights and entitlement to defendant No.7 as widow of late Assandas to be shared'equally with Shr. Bhoji Bai. Muhammad Yousuf appearing in person in support of the action of the High Court has relied upon the case of Muhammad Qasim.Khan and others v. Mst.
Mehbooba and others 1991 SCM R 515. In that case it is held by this Court that if pro forma defendant is found entitled to inherit property along with plaintiff then such relief can be granted notwithstanding the fact that pro forma defendant was not joined as plaintiff. Such relief can be granted by the trial U Court and any other higher forum including Supreme Court. For these reasons we do not take exception to the grant of relief to Mst. Amna by the High Court.th
26. For facts and reasons stated above, impugned judgment and decree are hereby upheld and both appeals are dismissed.