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Ahmad Ali Khan Vs. HusaIn Ali Khan - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All109
AppellantAhmad Ali Khan
RespondentHusaIn Ali Khan
Excerpt:
.....such property. - - how the balance now claimed could be said, under those circumstances, to be joint family property, i fail to see. but having once so come to him and having been separately appropriated and enjoyed by him, i fail to see anything of joint family property in it. it was the result of his having enjoyed the family property, and the fact of his having received it and then deposited it in the hands of the manager of the joint property would cause it to cease to retain the status of a joint family property, just as much as if it had been deposited in the hands of a third person not connected with the estate. i may say that i do not think that article 127 applies at all to a cause like this. in any way looking at this case as launched before this court on behalf of the..........127 applies to this case, and that the plaintiff in the present action is a person excluded from joint family property who is suing now to enforce a right to share therein. there are two or three answers to that contention. in the first place, according to the plaintiff's own case, the account was settled, the share of the three brothers was appropriated, and the money representing that share was deposited with the defendant, and the plaintiff's two brothers subsequently drew out their portion of the common share of the three. that is the plaintiff's case. how the balance now claimed could be said, under those circumstances, to be joint family property, i fail to see. if the plaintiff's case was a true one, according to his plaint that balance would represent the-moneys which had come.....
Judgment:

John Edge, Kt., C.J.

1. The question of limitation has been argued in two ways before us. It has been argued that Article 60 of the 2nd schedule of the Limitation Act applies to this case on the basis that it has been proved that there was a deposit within the meaning of that article, and that we must infer an agreement to pay on demand and that there was proof that the first demand was made on the 25th October 1883. I see no evidence of deposit within the meaning of that article or at all, so far as the plaintiff is concerned; As I have said, it is very probable that these parties intended to defraud, and did probably in that transaction of May 1875, defraud, the plaintiff. But that is not his case now. The plaintiff relies of course on para. 3 of the defendant's written statement, but that paragraph would not assist the plaintiff, even if it were not absolutely at variance with the finding of this Court in the previous action. That paragraph makes no admission that any money was deposited by the plaintiff or by the plaintiff's brothers on the plaintiff's behalf with the defendant.

2. The other question which has been argued with regard to limitation is based on Article 127 of the 2nd sch. of the Limitation Act. It is contended that Article 127 applies to this case, and that the plaintiff in the present action is a person excluded from joint family property who is suing now to enforce a right to share therein. There are two or three answers to that contention. In the first place, according to the plaintiff's own case, the account was settled, the share of the three brothers was appropriated, and the money representing that share was deposited with the defendant, and the plaintiff's two brothers subsequently drew out their portion of the common share of the three. That is the plaintiff's case. How the balance now claimed could be said, under those circumstances, to be joint family property, I fail to see. If the plaintiff's case was a true one, according to his plaint that balance would represent the-moneys which had come to him out of the joint family property; but having once so come to him and having been separately appropriated and enjoyed by him, I fail to see anything of joint family property in it. It was the result of his having enjoyed the family property, and the fact of his having received it and then deposited it in the hands of the manager of the joint property would cause it to cease to retain the status of a joint family property, just as much as if it had been deposited in the hands of a third person not connected with the estate. I may say that I do not think that Article 127 applies at all to a cause like this. There has never been, so far as we know, a denial of the plaintiff's right to share in the family property. What has been denied is the plaintiff's right to recover the specific money. I cannot see how it can be said that he was excluded. If he has been excluded from the proceeds of his share, he was excluded either by fraud on the part of the defendant and his brothers, which is not the case which he attempts to make out here, or he was excluded in this sense, that he did not exercise his right of asking for the money from his agent. In any way looking at this case as launched before this Court on behalf of the plaintiff, we fail to see from the plaintiff's own case how Article 127 can possibly apply.

3. Under these circumstances, I come to the conclusion that the judgment and the decree of the Court below was a proper one and that this appeal ought to be dismissed with costs.

Tyrrell, J.

4. I concur.


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