Conscious exclusion in coparcenary partition suits triggers limitation only when denial of right is proved and brought home to the claimant.

In a coparcenary partition suit, limitation under Article 127 of the Limitation Act runs only when exclusion from joint family property is consciously denied and that denial is brought home to the coparcener; mere lapse of time or exclusion of another family member is insufficient. The defendants failed to prove that the plaintiff knew of any such exclusion for more than 12 years, so the limitation defence failed. The finding that the plaintiff was the son of the second defendant was a factual one and showed no perversity warranting interference in second appeal. With coparcenary status established and no limitation bar, the plaintiff was entitled to partition and separate possession of a 1/12th share.

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Issues: (i) whether the suit for partition was barred under Article 127 of the Limitation Act on the footing that the plaintiff had been excluded from the joint family properties to his knowledge for more than 12 years before suit; (ii) whether the finding that the plaintiff was the son of the second defendant could be interfered with in second appeal and, if so, whether the plaintiff was entitled to partition and separate possession of his share.

Issue (i): whether the suit for partition was barred under Article 127 of the Limitation Act on the footing that the plaintiff had been excluded from the joint family properties to his knowledge for more than 12 years before suit.

Analysis: Exclusion under Article 127 requires more than lapse of time; there must be a conscious denial of the coparcener's right and the exclusion must be brought home to him. Where the plaintiff establishes that the family was joint and that he had a coparcenary claim, the burden lies on the defendants to prove exclusion and knowledge of such exclusion for the requisite period. The pleadings and evidence did not show any clear and specific admission of exclusion, and the defendants had no affirmative evidence that the plaintiff knew of any denial of his right more than 12 years before suit. The averment added to the plaint to comply with the court office was only an inference, not a clear admission of fact. Exclusion of the mother could not by itself amount to exclusion of the plaintiff from his own coparcenary right.

Conclusion: the suit was not barred by limitation, and the defence under Article 127 failed.

Issue (ii): whether the finding that the plaintiff was the son of the second defendant could be interfered with in second appeal and, if so, whether the plaintiff was entitled to partition and separate possession of his share.

Analysis: The finding of the lower appellate court on paternity was one of fact based on appraisal of the evidence, including the circumstances relating to the mother's stay in the house and the alleged divorce. No legal infirmity or perversity warranting interference in second appeal was shown. Once the plaintiff's coparcenary status was accepted and limitation was held not to bar the suit, he was entitled to partition. The trial court's determination of the properties available for division and the plaintiff's share was not disputed before the Court.

Conclusion: the finding on paternity stood, and the plaintiff was entitled to partition and separate possession of a 1/12th share.

Final Conclusion: the second appeal succeeded, the dismissal of the suit was set aside, and a decree for partition and separate possession of a 1/12th share was directed in favour of the plaintiff.

Ratio Decidendi: in a coparcenary partition suit, limitation under Article 127 begins to run only when there is a conscious exclusion of the coparcener from the joint family property and that exclusion is proved to have been brought home to him; mere absence from possession or exclusion of another family member is insufficient.

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