A. S. SARELA, N. G. SHELAT, J. ( 1 ) THIS First Appeal is from a preliminary decree passed on 31st December 1960 by the Civil Judge Senior Division Gondal in a suit for partition Special Civil Suit No. 8/59 (old number 47/53) filed by one brother against his brothers and others. The plaintiff Maganlal Vithalji who filed the suit is the youngest of the brothers. He is now respondent No. 1 to this appeal. Defendant No. 1 to the suit Prajaram Vithalji is the eldest of the brothers and defendant No. 2 Bai Labhkunvar is his wife. They are the appellants in this appeal. The defendant No. 3 Chandrakant Prajaram was the son of defendant No. 1. He is respondent No. 2 to this appeal and is more or less a formal party. Defendants Nos. 4 and 5 (Originally defendants 8 and 9 respectively) Trikamlal Vithalji and Chhaganlal Vithalji were the other brothers next to defendant No. 1 in seniority. They are the other respondents to this appeal. Trikamlal having died pending the suit his heirs have been brought on record. The suit as just mentioned was one for partition on the footing that the four brothers formed a joint Hindu family. The suit was filed on 19th October 1953. The properties alleged to be belonging to the joint family on that date are according to the plaint (i) ancestral house at Gondal (ii) the business in paper at Rajkot (iii) two houses at Rajkot one acquired in 1943 and the other in 1951 in the name of defendant No. 2 (appellant No. 2) (iv) one house at Ahmedabad acquired in 1951 also in the name of defendant No. 2 (v) moveable not specified in the plaint. The only contesting defendants were defendants Nos. 1 and 2 who are the appellants here. Their contention was that there was no joint family and that item No. (ii) above mentioned was the exclusive property of defendant No. 1 that items Nos. (iii) and (iv) were the exclusive property of defendant No. 2 and that there was no moveable property of the joint family in their possession as whatever was in their possession was their own. There were other contentions to be presently mentioned particularly the contention of severance of joint status and adverse possession. (iii) and (iv) were the exclusive property of defendant No. 2 and that there was no moveable property of the joint family in their possession as whatever was in their possession was their own. There were other contentions to be presently mentioned particularly the contention of severance of joint status and adverse possession. The case of defendant No. 1 was negatived and the learned trial Judge held that the family continued to be joint and the property in the suit was joint family property and passed a preliminary decree awarding to each of the brothers 1/4th of the property both moveable and immoveable to be duly partitioned through a Commissioner. Against that decree defendants Nos. 1 and 2 have come in appeal. ( 2 ) THE relationship of parties has been already indicated. Some of the broad facts relating to the family which are not in dispute may be first stated. The four brothers who are parties to the suit are the sons of one Vithalji Jaichand of Gondal. Vithalji was the Mahalkari in the Gondal State and he admittedly died in 1922. He left behind him five sons and three daughters. In order of seniority the five sons were Prajaram Vithalji (defendant No. 1) Trikamlal (defendant No. 4) Chhaganlal (defendant No. 5) Umedmal who died in 1930 and Maganlal (the plaintiff ). The three daughters were Dahiben Kashiben and Shantaben all now married. At the time of Vithaljis death defendant No. 1 was about 30 years old defendant Mo. 4 about 24 years old defendant No. 5 about 22 years Umedmal about 17 years old and plaintiff about 15 years old and the three sisters according to the evidence were aged approximately 20 9 and 7 respectively. There is no dispute about the fact that Vithalji and his sons formed a joint Hindu family and that joint family continued after his death. According to the plaintiff it continued till the date of the suit and according to defendant No. 1 it continued only upto 1925 when severance took place so far as he was concerned. There is no dispute about the fact that Vithalji and his sons formed a joint Hindu family and that joint family continued after his death. According to the plaintiff it continued till the date of the suit and according to defendant No. 1 it continued only upto 1925 when severance took place so far as he was concerned. The alternative plea made by defendant No. 1 at a later stage of the suit was that the severance took place in 1941 and that since 1925 or since 1941 as the case may be he being in exclusive possession of all the properties in the suit except the Gondal house which admittedly is in possession of defendant No. 5 the suit as regards the properties in his possession is barred by limitation. [his Lordship after discussing the evidence held that severance of joint status as legally understood under the well settled principles of Hindu Law took place at the end of October 1941. His Lordship further observed :- ] ( 3 ) THAT brings us to the next important question in the suit namely the question of limitation. This question does not require to be considered in respect of the Gondal immoveable property. In respect of the immoveable properties at Ahmedabad and Rajkot we have to consider whether or not they were benami and if they were so whether they came out of the funds belonging to all the brothers and if so how they should be dealt with. We shall consider that aspect later for the present the question of limitation may be dealt with in respect of the main two items in dispute namely the business of paper as a going concern and the assets of that business as existing on the date the severance took place that is to say as existing at the end of October 1941. The Article on which Mr. Mehta relies as one applicable on the question of limitation is Art. 120 of the Limitation Act 1908 Later on in his reply he also tried to rely on Art. 89 of the Limitation Act though he himself felt not very sure about it. On the other hand on behalf of the plaintiff and the contesting defendants reliance was placed on Art. 127 of the Limitation Act. On the other hand on behalf of the plaintiff and the contesting defendants reliance was placed on Art. 127 of the Limitation Act. ( 4 ) BEFORE considering which of these Articles is attracted it would be useful to examine the legal relationship between the parties after the separation. Mr. Mehta submitted and we think rightly that after the severance of the joint status members of the family continue as coowners in respect of the property which was formerly joint family property and which they now continue to hold as tenants in common. In Ratneshwari Nandan v. Bhagwati Saran (A. I. R. 1950 F. C. 142) their Lordships referred to the observations of the Privy Council in Appovier v. Rama Subha Aiyar (11 M. I. A. 75) on the question as to what are the rights of a member of a joint Hindu family to the property of that joint family so long as the family remains joint and what happens when there is a division. On the latter aspect their Lordships of the Privy Council say:-IT is necessary to bear in mind the two fold application of the word division. There may be a division of right and there may be a division of property; and thus after the execution of this instrument there was a division of right in the whole property although in some portions that division of right was not intended to be followed up by an actual partition by metes and bounds that being postponed till some further time when it would be convenient to make that partition Then if there be a conversion of the joint tenancy of an undivided family into a tenancy in common of the members of that undivided family the undivided family becomes a divided family with reference to the property that is the subject of that agreement and that is a separation in interest and in right although not immediately followed by a de facto actual division of the subject matter. This may at any time claimed by virtue of the separate right. THEREFORE the brothers of a joint Hindu family between whom there is a severance of joint status hold the property of the undivided family as tenants in common; each of them has a right to have an actual division made. This may at any time claimed by virtue of the separate right. THEREFORE the brothers of a joint Hindu family between whom there is a severance of joint status hold the property of the undivided family as tenants in common; each of them has a right to have an actual division made. As regards the availability of that right there is no doubt that it is always available till it has been clearly denied for as between tenants in common the possession of one is presumed to be on behalf of the other tenants. As pointed out by the Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy (A. I. R. 1957 S. C. 314):-THE possession of one coheir is considered in law as possession of all the coheirs. When one coheir is found to be in possession of the properties it is presumed to be on the basis of joint title. The coheir in possession cannot render his possession adverse to the other coheir not in possession merely by any secret hostile animus on his own part in derogation of the other co heirs title. THEREFORE the possession of defendant No. 1 in this case both in respect of running business and the assets as on the date of the division would be on behalf of other coheirs. In fact in a suit which a coheir files against another all the properties held as tenants in common by one or the other cotenants must be brought into the hotchpotch and accounts must be taken as in a suit by a member of the joint Hindu family for actual partition. (See Yerukola v. Yerukola XLV I. L. R. Madras 648 ). ( 5 ) WITH this position in mind the applicability of the relevant Article of the Limitation Act may now be considered. There is no doubt that Article 127 would not apply. That article applies to a case where a person excluded from joint family property files a suit to enforce a right to share therein. The period provided for is 12 years from the date the exclusion comes to the knowledge of the plaintiff. Now as pointed out in Yerukola case (supra) Article 127 is inapplicable to cases where at the date of the suit the property has ceased to be joint family property and is held by the sharers as tenants in common. The period provided for is 12 years from the date the exclusion comes to the knowledge of the plaintiff. Now as pointed out in Yerukola case (supra) Article 127 is inapplicable to cases where at the date of the suit the property has ceased to be joint family property and is held by the sharers as tenants in common. It was argued before their Lordships that the Article 127 should be so read as if the words joint family property meant property which at one time was joint family property and ought not be confined to cases where the property at the date of the suit but to property in which the plaintiff has a share and which is not divided by metes and bounds. The argument was rejected. It was pointed out that such a reading would be inconsistent with the language Of the Article itself. The same view has been taken by the Bombay High Court in Krishnaji v. Annajee (A. I. R. 1930 Bom. 61) where the Madras decision just mentioned has also been referred to. In the Federal Courts decision (Ratneshwari Nandans case) His Lordship Fazl Ali J. has observed:-ARTICLE 127 presupposes the existence of a joint family and joint family property and can be invoked only when the suit is brought to enforce a right to a share therein by a person excluded from such property. THEREFORE if there is no joint family or joint family property in the sense normally understood at the time the suit was filed Article 127 would not be attracted. ( 6 ) BEFORE going to the question of applicability of Article 120 it is necessary to deal with the argument of Mr. Mehta that Art. 89 may also apply for if that Article applies the residuary Art. 120 would not apply. Article 89 deals with a suit by a principal against his agent for moveable property received by the latter and not accounted for and the period of limitation is three years when the account is during the continuance of the agency demanded and refused or where no such demand is made when the agency terminates. Article 89 deals with a suit by a principal against his agent for moveable property received by the latter and not accounted for and the period of limitation is three years when the account is during the continuance of the agency demanded and refused or where no such demand is made when the agency terminates. From the very words of this Article it would be attracted if the suit is by the principal against his agent it is in respect of moveable property received by the agent obviously as an agent for the principal and the property has not been accounted for. Mr. Mehta was unable to explain how the relationship between the co sharers or co tenants is of this character. It is not his contention that by some agreement defendant No. 1 was appointed as an agent of the other co sharers for the purpose of property held by him on behalf of other co sharers. His argument appears to be that as a matter of law defendant No. 1 would be an agent. He has not been able to sustain that argument by reference to any principle of law or any authorities. Nor has he been able to point out how the property in this case namely the assets and the business can be said to have been received by defendant No. 1 as an agent for the principal namely the plaintiff and defendants Nos. 4 and 5. The property remained with him in possession as a co sharer and was not received by him as an agent. But Mr. Mehta says that there are some authorities which support his submission as to the applicability of Article 89 and he invited our attention to two decisions of the Bombay High Court and one decision of the Privy Council. The Privy Council decision to which he invited our attention was Virayya v. Adenna (A. I. R. 1930 P. C. 18) where at page 21 the question of limitation has been dealt with. The Privy Council decision to which he invited our attention was Virayya v. Adenna (A. I. R. 1930 P. C. 18) where at page 21 the question of limitation has been dealt with. After pointing out that no issue of limitation was raised before the trial Judge nor was the Point taken up at the Bar in the trial their Lordships said that in the circumstances they did not think that the point was open on appeal and added :-IF however it was open their Lordships are of opinion that the Article of the Limitation Act applicable is Article 89. THESE observations by themselves do not show that in a suit by one cosharer against another for division of the property held in common Article 89 applies. It is possible that having regard to the facts of that case their Lordships came to the conclusion that the relationship as contemplated by Article 89 had come into existence. Of the two Bombay decisions referred to by Mr. Mehta one is Gabu v. Zipru (22 B. L. R. 1289 ). In that suit the properties of three brothers were divided and certain securities were by consent kept in the custody of one of the brothers the idea being that brother (Ramsing) was to realise the securities and to divide the proceeds equally amongst the brothers. One of the brothers filed a suit after Ramsings death against his son for his share of the proceeds of the securities. After Ramsings death the plaintiff asked the defendant for an account but he refused to give it. The suit was dismissed by both the lower courts as barred by Article 62 of the Limitation Act which deals with a suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiffs use. The contention before the High Court was that Article 89 applied and that contention was accepted and the suit was held in time. The question whether Article 180 applied was not raised or considered. On the facts of that case their Lordships pointed out that according to the learned Judges of the lower Courts the defendant was acting on behalf of the other cosharers as their agent in realising the money. The question whether Article 180 applied was not raised or considered. On the facts of that case their Lordships pointed out that according to the learned Judges of the lower Courts the defendant was acting on behalf of the other cosharers as their agent in realising the money. Therefore it would appear that on the facts of that case it was found that the brothers who realised the money did so as an agent of the other brothers. The authority is therefore not applicable to the facts of this case. The other Bombay case on which reliance is placed is Karsondas v. Surajbhan (A. I. R. 1933 Bom. 450 ). In that case the plaintiffs were suing the defendants as their agents in respect of moneys due on account of various transactions of cotton wheat linseed etc. Having regard to the relationship of the parties the Court held that in law the defendants were appointed as agents for the plaintiffs in respect of each particular transaction committed to them and it was on that footing that Article 89 was held to be applicable. That case also therefore is not applicable to the facts of this case. ( 7 ) ON the other hand there are several decisions which go to show that in respect of a suit by one cosharer against another for division of moveable property the proper Article to apply would be Art. 120. Mr. Mehta at one stage argued that even in respect of immoveable property the proper Article to apply would be Art. 120 but he did not pursue that argument and therefore it is not necessary to discuss it as the point does not immediately arise beyond referring to two decisions of the Supreme Court which go to show that in respect of immoveable property the proper Article to apply would be Article 144. Those decisions are Chenabasavan v. Mahabaleshwarappa (A. I. R. 1954 S. C. 337) and P. Lakshmi Reddy v. L. Lakshmi Reddy (A. I. R. 1957 S. C. 314 ). Mr. Mehta however pointed out that this suit is not merely for immoveable property or merely for moveable property but it is a suit for division of both and for such a composite suit for division between cotenants he argued no specific article being attracted Article 120 would be attracted. Mr. Mehta however pointed out that this suit is not merely for immoveable property or merely for moveable property but it is a suit for division of both and for such a composite suit for division between cotenants he argued no specific article being attracted Article 120 would be attracted. He invited our attention to the decision of the Supreme Court in Union of India v. Watkins (A. I. R. 1966 S. C. 275 ). The Supreme Court was there concerned with a suit claiming different items of expenses arising out of a transaction of bailment and the Court pointed out that though they were incurred on different dates they all arose out of one single and indivisible transaction of bailment and the claim of compensation made by the plaintiff cannot be split up into different items for applying the bar of limitation and as no specific article was attracted Article 120 would apply. It is not necessary to consider whether the same reasoning would apply to the present case as the claim for adverse possession in the present case relates to moveable property only and as regards that property the article applicable as we shall presently point out is Article 120. Articles 127 and 89 which have been relied on by the learned advocates are not as we pointed out earlier applicable and no other Article specifically dealing with the matter on this point is pointed out. Therefore prima facie Article 120 would be attracted. This conclusion is supported by authorities. We have referred to one of them already namely Yerukola v. Yerukola (supra ). That suit related to accounts and share of moneys of rents and profits collected by the defendants from different properties in their respective possession since the partition. It was held that the Article applicable was 120 unless from the facts of the case it could be inferred that the person receiving the moneys and rents and profits acted as the agent of the others in which case Article 89 would apply. It is necessary to refer now only to the decision of the Supreme Court in Raghunath Das v. Gokal Chand (A. I. R. 1958 S. C. 837 In that case the joint family consisted of the two sons and the widow of the deceased. It is necessary to refer now only to the decision of the Supreme Court in Raghunath Das v. Gokal Chand (A. I. R. 1958 S. C. 837 In that case the joint family consisted of the two sons and the widow of the deceased. The dispute as to division of immovable and moveable properties was referred to arbitration and the arbitrators made an award on 21st June 1936. Under that award G. P. notes of Rs. 26 500 were left with one of the sons but it was awarded that he was to be entitled to G. P. notes of Rs. 13 300 and the other brother to Rs. 13 300 but that till the death of the widow he was to get an income from the entire G. P. notes of Rs. 26 600 The suit was filed on 6-6-1946 by the brother who was not in possession of the G. P. notes for his share of G. P. notes from the other brother and the contention raised by the defendant was that the suit was barred by limitation. The trial Court found in favour of the plaintiff holding that Article 120 of the Limitation Act was attracted and not Article 49 which was relied on by the defendant. Certain period was excluded in the computation of the period laid down in Article 120 and there was no dispute about the exclusion of that period. The High Court held that Article 49 applied and held the claim barred. The plaintiff came in appeal to the Supreme Court. After pointing out that Article 49 was not applicable because this was not a suit for specific moveable property the Supreme Court said :-IT is now well established that a suit by an heir against other heirs to recover his share of the moveable estate of a deceased person is not one for specific moveable property wrongfully taken such as is contemplated by Article 49 but is governed by Article 120. See Mahomed Riasat Ali v. Mt. Hasin Bana 20 Ind. Appl. 155 (PC ). The only difference between the facts of that case and those of the present case is that here the rights of the parties had been declared by the decree upon the award but that circumstance does not appear to us to make any material difference in the application of the principle laid down by the Judicial Committee. 155 (PC ). The only difference between the facts of that case and those of the present case is that here the rights of the parties had been declared by the decree upon the award but that circumstance does not appear to us to make any material difference in the application of the principle laid down by the Judicial Committee. The substance of the plaintiffs claims in both cases is for separating his share out of the estate and for allotment and delivery to him of his share so separated. In short such a suit is nothing but a suit for partition or division of the moveable properties held jointly or as tenants in common by the parties and there being no specific Article applicable to such a suit it must be governed by Article 120. ( 8 ) IF Article 120 applies as we hold it does in respect of the moveable property to be divided the question then is what is the starting point of limitation For that Article. The staring point of limitation. is when the right to sue accrues. Dealing with this expression Their Lordships of the Supreme Court in Rukhmabai v. Laxminarayan (A. I. R. 1960 S. C. 335) quote the following observations of the Privy Council in Mt. Bolo v. Mt. Koklan (A. I. R. 1930 P. C. 270 at p. 272):-THERE can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. AND later on (in para 33) they set out the legal position in these words:- the right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right however cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right. Every threat by a party to such a right however cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right. THEREFORE in considering whether a right to sue accrues and has been effectively threatened the nature and the relationship of the parties have to be taken into account along with the other facts of the case. The relationship of the parties as we have earlier pointed out is that of co-owners or COtenants. In that case as earlier stated there is a presumption of law that the possession of defendant No. 1 as coowner was on behalf of other coowners. When there is such a presumption the mere non participation in the enjoyment or the profits of the properties does not give rise to a starting point of limitation under Article 120. The right of a cosharer will not be effectively threatened so long as he is not excluded. The expression exclusion has been explained by the Privy Council in Radhoba v. Aburao (A. I. R. 1929 P. C. 231) as implying an intention to exclude as an essential element but it is pointed out that a mere intention to exclude is not enough. There must be a starting point of exclusion and the party excluded must have knowledge that he was being excluded. No doubt this decision has reference to Article 127 of the Limitation Act but the same principles have been applied by the Supreme Court in respect of cotenants in the case of P. Laxmi Reddy to which reference has earlier been made where it is stated:-BUT it is well settled that in order to establish adverse possession of one coheir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing coheir by the coheir in possession should be made out. The possession of one coheir is considered in law as possession of all the coheirs. Then one coheir is found to be in possession of the properties it is presumed to be on the basis of joint title. Ouster of the non-possessing coheir by the coheir in possession should be made out. The possession of one coheir is considered in law as possession of all the coheirs. Then one coheir is found to be in possession of the properties it is presumed to be on the basis of joint title. THEREFORE limitation under Article 120 would begin from the date when the coheir claims to be in adverse possession has openly asserted title to the property has continued in possession of the property to which he so asserted his title and this claim on his part has come to the knowledge of the party excluded. It may be that the open assertion in title need not be by declaration but may be by conduct but it should be sufficiently clear to amount to an open assertion and it should come to the knowledge of the other side. [the rest of the judgment is not material for the reports] .