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Bhagwan Das and anr. Vs. Sukhdeo Korie and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All8812; 75Ind.Cas.953
AppellantBhagwan Das and anr.
RespondentSukhdeo Korie and ors.
Cases ReferredMahomed Riasat Ali v. Hasin Banu
Excerpt:
limitation act (ix of 1908), schedule i, articles 62, 123, 127 - hindu joint family--separation--joint-debt realized after separation--suit for share by separated member--limitation applicable--article 127, applicability of. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]......they separated seven years ago; but the bonds evidencing the loans in question remained the joint property of the parties. subsequent to the separation, the defendants are said to have realised the money due on the said bonds to the exclusion of the plaintiffs. the defence was that one of the bonds had fallen to the share of the defendants by partition and that the money due on another bond which was joint was realised by both the parties jointly. it was also alleged that the remaining two bonds were obtained by the defendants after partition and were their exclusive property. the court of first instance decreed the claim, holding that all the four bonds were obtained when the family was joint, that they remained the joint property of the parties after they had separated seven.....
Judgment:

Kanhaiya Lal, J.

1. This was a suit by the plaintiffs-appellants for the recovery of money due on account of their share in four bonds which the defendants are stated to have realised from their common debtors. It appears that if the parties formed a joint family at the time when the loans in question were advanced to those persons. They separated seven years ago; but the bonds evidencing the loans in question remained the joint property of the parties. Subsequent to the separation, the defendants are said to have realised the money due on the said bonds to the exclusion of the plaintiffs. The defence was that one of the bonds had fallen to the share of the defendants by partition and that the money due on another bond which was joint was realised by both the parties jointly. It was also alleged that the remaining two bonds were obtained by the defendants after partition and were their exclusive property. The Court of first instance decreed the claim, holding that all the four bonds were obtained when the family was joint, that they remained the joint property of the parties after they had separated seven years prior to the suit, and that the defendants were liable to pay the plaintiffs their share of the said bonds which they had realised. The lower Appellate Court, however, came to the conclusion in respect of one of the bonds that its money was realised by defendants about five years prior to the suit; and, applying Article 62 of the Indian Limitation Act (IX of 1908), it held that the claim of the plaintiffs in regard to their share of the money due on that bond was barred by limitation. In applying that Article it followed the decisions of this Court, in Amina Bibl v. Najmunnissa Bibi 27 Ind. Cas. 712 : 37 A. 233 : 13 A.L.J. 255 and Abdul Gaffar v. Nur Jahan Begum 29 Ind. Cas. 347 : 37 A. 434 : 13 A.L.J. 686. The learned Counsel for the plaintiffs-appellants relies on the decision in Umardaraz Ali Khan v. Wilayat Ali Khan 19 A. 169 : A.W.N. (1897) 34 : 9 Ind. Dec. (N.S.) 111 but, as explained in the decisions first cited, the main question for determination in the last mentioned case was, whether Article 123 or Article 120 was applicable to the case. Article 62 was not considered because, both under Article 62 and Article 120, the claim was in that case beyond time. It is also contended that Article 127 of the Indian Limitation Act would in any case apply; but that Article does not apply where a family has, as in this case, separated and divided its property prior to the suit. That Article pre-supposes the continuation of the joint family and of the joint family property till the date of the suit and an exclusion from the enjoyment of such joint family property of one party by another. The decision in Mahomed Riasat Ali v. Hasin Banu 21 C. 157 : 20 I.A. 155 : 17 Ind. Jur. 484 : 6 Sar. P.C.J. 374 Rafique & Jackson's P.C. No. 133 : 10 Ind. Dec. (N.S.) 737 (P.C.) is also inapplicable, because that was a suit by one heir against another heir for the recovery of property which the other had appropriated. It was also contended that by virtue of a decision of a panchayat the money realised by the defendants was allowed to remain with them as a deposit and, that the plaintiffs had no knowledge before that panchayat was held as to whether the defendants had realised the same, but the story of the panchayat was disbelieved by the lower Appellate Court. There was no fraud specifically pleaded or alleged. The appeal is, therefore, rejected.


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