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Mt. Khairunnissa Bibi Vs. Mt. Khairunnissa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All478
AppellantMt. Khairunnissa Bibi
RespondentMt. Khairunnissa Bibi and ors.
Excerpt:
- - the learned judge took the bench ruling in a narrow sense that some failure of the assistant collector to follow the procedure prescribed should have been proved. the view taken by the subordinate courts is well supported by authority and i do not think that the case reported in the indian cases lays down any new principle......were, therefore, prevented from attacking a partition to which the brother was a party. in the present case, however, the brother was a minor at the date of the partition and the lower appellate court has held as a finding of fact that it was due to collusion between defendant 1, the appellant here, who was the applicant for partition in the partition suit in the revenue court, and the guardian of the minor that only the minor's name was substituted on the death of his mother and not the names of the plaintiffs. the view taken by the subordinate courts is well supported by authority and i do not think that the case reported in the indian cases lays down any new principle.4. the appeal, therefore, fails and is dismissed with costs.
Judgment:

Dalal, J.

1. The plaintiffs are four daughters of one Khatun Bibi who died during partition proceedings in a revenue Court. Defendant 1 to this suit, Mt. Khairunnissa, was the applicant for partition and on the death of Khatun Bibi the name of her son Shamsul-Huda was substituted on the record. He being a minor his uncle Hafizullah was appointed guardian. The names of the plaintiffs, daughters of Khatun, were not substituted. The partition was completed and the defendant Khairunnissa obtained separate possession of her 13 1/2 annas share and also separate possession of a plot 989. The plaintiffs brought the present suit for recovery of their shares of three pies in the zamindari property and four sihams out of 16 in plot 989. Their suit was decreed and hence defendant 1 Khairaanissa has appealed. The lower appellate Court unnecessarily varied the decree of the trial Court and gave the father and brother of the plaintiffs also a share in plot 989. This, however, does not in any way prejudice further than was done by the trial Court's decree the rights of defendant 1, appellant here, so it is not necessary to note that the interference of the lower appellate Court was unjustified.

2. The main argument in appeal was that the plaintiffs' suit was barred by Section 233-K, Land Revenue Act. The argument does not appear to be sound because the provisions of Sections 1ll and 112 are confined to recorded co-sharers and the plaintiffs not being recorded co-sharers at the time of the partition could not have objected in the revenue Court. The matter is explained at some length in Dr. Agarwala's Commentary on the Land Revenue Act at p. 290. It was held in the case of Shambhu v. Chetram [1914] 12 A.L.J. 1017, by a single Judge of this Court that the provisions of Section 233-K, Land Revenue Act, apply only to the case of recorded co-sharers who are parties to the partition proceedings or who should have been made parties there to and whose claims could be heard under Sections 1ll and 112 of the Act. This pronouncement follows an old Bench ruling of this Court of 1906 in Khasay v. Jugla [1906] 28 All. 432, where a wider principle was laid down that the prohibition contained in Section 233-K, North Western Provinces and Oudh Land Revenue Act of 1901, applies only to suits with respect to partitions in which the plaintiff has had an opportunity of having his objections considered under Section 1ll and has not availed himself of it. Subsequently a learned Judge of this Court in 1912 in Tarifan v. Fateh Din [1912] 15 I.C. 685, distinguished this ruling in a case which ought really to have been covered by this ruling. The case of Tarifan was similar to the present case where the plaintiffs were not recorded co-sharers and could not, therefore, take advantage of the provisions of Sections 1ll and 112; Revenue Act. The learned Judge took the Bench ruling in a narrow sense that some failure of the Assistant Collector to follow the procedure prescribed should have been proved. The learned Judge further went on to say that if the plaintiffs were not recorded it was their business to get their names recorded. Such an argument, however, would narrow the period of limitation for recovery of property by heirs deprived of succession. The plaintiffs in the present case could come within 12 years of the death of their mother to recover their share in property, but in case a partition took place they would be deprived of this period of limitation and their rights would be barred there by. When the provisions of Sections 111 and 112 are confined to recorded co-sharers it is difficult to understand how a person who is not recorded and yet has a right in the property could be deprived there of within the period of limitation by reason of a partition of the property between the recorded co-sharers. Of course, there may be a bar by way of representation as was pointed out by Mukerji, J. in Karim Bakhsh v. Wahajuddin A.I.R. 1924 All. 427.

3. In that case the brother was an adult and the sisters lived with him. The brother had every opportunity of putting forward the claim for himself and on behalf of his sisters. Under the circumstances it was held that the brother fully represented the sisters and the sisters were, therefore, prevented from attacking a partition to which the brother was a party. In the present case, however, the brother was a minor at the date of the partition and the lower appellate Court has held as a finding of fact that it was due to collusion between defendant 1, the appellant here, who was the applicant for partition in the partition suit in the revenue Court, and the guardian of the minor that only the minor's name was substituted on the death of his mother and not the names of the plaintiffs. The view taken by the Subordinate Courts is well supported by authority and I do not think that the case reported in the Indian Cases lays down any new principle.

4. The appeal, therefore, fails and is dismissed with costs.


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