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Mt. Janki and ors. Vs. Rustam Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1926All748; 97Ind.Cas.139
AppellantMt. Janki and ors.
RespondentRustam Khan and anr.
Excerpt:
- - their lordships clearly laid down that the period within which the plaintiff could bring his claim was that fixed in article 123, lim......case under burmese budhist law, but is distinguishable in principle from that before me. it was a suit brought by the son for his share of the estate against the widow of the deceased and the other heirs and not against an executor or administrator. their lordships clearly laid down that the period within which the plaintiff could bring his claim was that fixed in article 123, lim. act. this privy council case has been construed as setting aside the previous case to the contrary in shirinbai v. ratanbai air 1918 bom 54, where their lordships held that in view of the privy council decision it must now be taken that article 123 applies to every suit in which the plaintiff claims an undistributed share in the estate of a deceased person. a similar view has been taken by a bench of three.....
Judgment:

Daniels, J.

1. The principal point in this appeal, and the only point which in the view which I take it is necessary to decide, is a question of limitation. The suit was one by the plaintiffs, Rahim Khan and Rustam Khan, claiming the share to which they are entitled under Mahomedan Law in the estate of Wazir Khan. The suit is brought against Wazir Khan's widow Mt. Janki, his daughter Mt. Dhora, and Nur Khan, son of Sardar Khan, minor under the guardianship of Mt Dhora. Mt. Janki purported to make a gift of the entire estate on 1st February 1921, in favour of the other two defendants. The question is whether the suit is governed by Article 123 or Article 144. The Courts below have held that Art 144 is applicable and that although the suit was brought more than twelve years after Wazir Khan's death,, it is within time because the possession of Mt. Janki being that of a coheir could not be adverse to the plaintiffs. If Article 123 applies, the suit was brought against a co-heir who is neither executor nor administrator.

2. This view was affirmed in the decisions in Umardaraz Ali Khan v. Wilayat Ali Khan (1897) 19 All 169 and Amina Bibi v. Najmunnissa Bibi AIR 1915 All 12. These decisions are however inconsistent with the decisions of their Lordships of the Privy Council in Maung Tun Tha v. Ma Thit AIR 1916 PC 145. That was a case under Burmese Budhist Law, but is distinguishable in principle from that before me. It was a suit brought by the son for his share of the estate against the widow of the deceased and the other heirs and not against an executor or administrator. Their Lordships clearly laid down that the period within which the plaintiff could bring his claim was that fixed in Article 123, Lim. Act. This Privy Council case has been construed as setting aside the previous case to the contrary in Shirinbai v. Ratanbai AIR 1918 Bom 54, where their Lordships held that in view of the Privy Council decision it must now be taken that Article 123 applies to every suit in which the plaintiff claims an undistributed share in the estate of a deceased person. A similar view has been taken by a Bench of three Judges of the Madras High Court in Sri Rajah Parthasarathy Appa Raov. Venkatadri Appa Rao AIR 1922 Mad 457, where, following the Privy Council decision in Maung Tun Tha v. Ma Thit AIR 1916 PC 145, they hold that Article 123 applies to a suit for a legacy against any persons rightly or wrongly in possession of the estate of the deceased under such circumstances that he is bound to deal with it as the estate of the deceased, following the Privy Council decision I hold that the suit is time barred; and setting aside the decree of the Court below, dismiss the suit with costs in all Courts.


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