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NurdIn NajbudIn Vs. Umrav Bu - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case Number Second Appeal No. 45 of 1919
Judge
Reported inAIR1921Bom56; (1920)22BOMLR1429
AppellantNurdIn Najbudin
RespondentUmrav Bu
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1908), article 123 - suit for a share in the property of a mahomedan intestate-members of a mahomedan family living as tenants-in-common.;wher the members of a mahomedan family continue to live as tenanta-in-common without dividing the estate of a deceased ancestor, a suit by one of the members to recover his share in the family property need not necessarily be instituted within twelve years of the death of the intestate. such a suit is not governed by article 123 of the indian limitation act 1908.; kallangawda v. bibishaya (1920) 22 bom. l.r. 936 - - there are strong reasons for that view, and i do not think the privy council judgment relied upon gives any sufficient basis for our differing from it......with costs.fawcett, j.4. i agree. the learned pleader for the appellants has relied upon the privy council case of maung tun tha v. ma thit i. l. r (1916) cal. 379. where their lordships, refer to article 123 of the indian limitation act as prescribing the period within which a claim must be made for a share of property on the death of an intestate. it is to be noted with regard to that case that it was one from burma and, as the report at page 381 shows, there was already a decision of the chief court that the period of limitation for the recovery of a share by an eldest son is twelve years from the date of his parent's death under article 123. the appellant's counsel also referred to that article as being the one applicable in such a case. their lordships' attention does not.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to recover her share in the property of her grand-mother, Gulbai who died in 1892. It is admitted that she would have been entitled to half her mother's share, and she has been held entitled to one-twelfth of the estate of Gulbai.

2. It is contended that the suit is barred by limitation and that Article 123 applied. But we decided in Kallangowda v. Bibiahaya : (1920)22BOMLR936 that where the members of a Mahomedan family continued to live as tenants-in-common without dividing the estate of a deceased ancestor, limitation will not run from the time of his death. Here on the findings of fact by the appellate Court we cannot say that facts were proved to establish adverse possession against the plaintiff. Therefore we see no reason to differ from the finding of the learned Judge.

3. The appeal must be dismissed with costs.

Fawcett, J.

4. I agree. The learned pleader for the appellants has relied upon the Privy Council case of Maung Tun Tha v. Ma Thit I. L. R (1916) Cal. 379. where their Lordships, refer to Article 123 of the Indian Limitation Act as prescribing the period within which a claim must be made for a share of property on the death of an intestate. It is to be noted with regard to that case that it was one from Burma and, as the report at page 381 shows, there was already a decision of the Chief Court that the period of limitation for the recovery of a share by an eldest son is twelve years from the date of his parent's death under Article 123. The appellant's counsel also referred to that Article as being the one applicable in such a case. Their Lordships' attention does not appear to have been drawn to the Indian rulings regarding the scope of this particular Article, and it was not a point in issue in the case. The reference to this Article is merely incidental, and there may be special reasons for its applicability to the case of Buddhist law there under consideration. I do not, therefore, consider that it is a pronouncement of the Privy Council which should necessarily be held to conclude the question, especially as a contrary opinion appears to me to have been expressed by their Lordships of the Privy Council in the case of Mahomed Riasat Ali v. Hasin Banu I. L. R (1893) Cal. 157.. No doubt it is arguable that Article 123 could not apply on the particular facts of that case. But the view there taken seems to be based on proper force being given to the word 'distributive' in this Article 123. We are practically asked by the appellants' pleader to construe Article 123 as if that word had no force and the Article was meant to cover the case of any claim for a share of the property of an intestate. This word 'distributive' has always been in this Article, since its enactment in Act IX of 1871 where the Article further inserted the word 'moveable' before the word 'property'. I think the latter fact explains how the word 'distributive' came to be in this particular Article. The word 'distribution' has under English law a very particular meaning. In the case of real or immoveable property the term 'descent' was applied to the division of the property among those legally entitled to it, whereas the term 'distribution' was applied to the division of the personal estate of an intestate. And it is also part of the English law that, whereas the title to real estate vests at once in the heirs of the deceased owner, the legal title to his personal property vesta in the executor or administrator and is transferred to the persons beneficially interested by the distribution. It has, therefore, a peculiar meaning of distribution of an estate which has vested in an executor or administrator and in several cases the Article has been so construed as limited to such a case. There are strong reasons for that view, and I do not think the Privy Council judgment relied upon gives any sufficient basis for our differing from it.


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