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Mohideen Bee Et Al Vs. Syed Meer Saheb Et Al - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported inAIR1916Mad1122; (1915)ILR38Mad1099
AppellantMohideen Bee Et Al
RespondentSyed Meer Saheb Et Al
Cases ReferredAbdul Kader v. Aishamma I.L.R.
Excerpt:
.....purchased out of profits of joint business--moneys collected by survivor--suit by heirs of the deceased for their share--nature of suit--limitation act (ix of 1908), articles 106, 123 and 127--joint family property, if exists in muhammadan law--exclusion, proof of if necessary. - - ' clearly the allegation is that the two brothers carried on a partnership business which was dissolved by the death of syed oomer and that the properties set out in schedule a are part of the assets. it is perfectly clear that the proper suit against the first defendant on those allegations would be a suit for an account of the partnership as from the date of the death of oomer, and the property that would be divisible would be the assets which remained after the realization of the partnership..........daughters all of whom attained their majority considerably more than three years before this suit. syed oomer had a brother syed meer who survived him and is the first defendant in the case. the plaint itself is very difficult to understand as it appears to intermingle muhammadan and hindu law in a very confused manner; but paragraph 7 sets out that syed oomer carried on business jointly with his brother the first defendant and that the properties set out in schedule a 'were purchased out of the moneys acquired in the said joint business and the sale-deeds thereof were clandestinely secured by the first defendant in his own name.' clearly the allegation is that the two brothers carried on a partnership business which was dissolved by the death of syed oomer and that the properties set.....
Judgment:

1. The plaintiffs in this case are the heirs of one Syed Oomer Sahib who died about nineteen years ago leaving three sons and three daughters all of whom attained their majority considerably more than three years before this suit. Syed Oomer had a brother Syed Meer who survived him and is the first defendant in the case. The plaint itself is very difficult to understand as it appears to intermingle Muhammadan and Hindu law in a very confused manner; but paragraph 7 sets out that Syed Oomer carried on business jointly with his brother the first defendant and that the properties set out in Schedule A 'were purchased out of the moneys acquired in the said joint business and the sale-deeds thereof were clandestinely secured by the first defendant in his own name.' Clearly the allegation is that the two brothers carried on a partnership business which was dissolved by the death of Syed Oomer and that the properties set out in Schedule A are part of the assets. It is perfectly clear that the proper suit against the first defendant on those allegations would be a suit for an account of the partnership as from the date of the death of Oomer, and the property that would be divisible would be the assets which remained after the realization of the partnership property and the payment of the partnership debts. Such a suit would have become barred more than fifteen years ago, under Article 106 of the Limitation Act. Paragraph 8 sets put that after the death of Syed Oomer his two sons, second and third plaintiffs, one Khader Saheb and the first defendant carried on various businesses and the immovable properties set out in Schedule B to the plaint were purchased out of the earnings of the joint business. Here again the alleged partnership was dissolved on the death of Khader Saheb who admittedly died four years ago, and a suit on account of these transactions is likewise barred. Paragraph 14 sets out that the first defendant with the assistance of the funds of the family carried on a business in partnership with one Patel Hussain. This is apparently part of one of the firms mentioned in paragraph 7 or 8. In that case this claim is also barred. It was admitted that this business was carried on in the years 1903-04 and a suit for an account is therefore barred. Paragraph 15 alleges that some fuel depot business was carried on under the management of Syed Khader Sahib. Any suit with regard to this should have been brought within three years from the dissolution of partnership and the claim to this item is likewise barred. Paragraph 16 alleges that the first defendant received the sale-proceeds of a house which was sold by the first plaintiff and another person (now deceased). The moneys were received by him so long ago as 1895 and any claim against him is barred under Article 62 of the Limitation Act. Paragraph 17 alleges that about 1897 the first defendant realised some moneys which had been invested on a mortgage. This claim is barred for the same reason.

2. I think that the suit is due to some confusion in the minds of the plaintiffs as to the applicability of the Hindu law of joint family property to Muhammadans. There is no allegation in the plaint that the parties agreed to retain the property which they inherited from Syed Oomer on his death undivided and to hold it as tenants in common such as appears in the case of Abdul Kader v. Aishamma I.L.R. (1898) Mad. 61. It has been argued that Article 127 of the Limitation Act will apply, under which the plaintiff has twelve years from his exclusion from joint family property. I think it is perfectly clear that in Muhammadan law there is no such thing as joint family property. If the members of a Muhammadan family succeed to property on the death of a relation each of them takes a share of each item of the property; and the article of the Limitation Act which would apply to a suit for a share, would be Article 123 which deals with a suit for a distributive share of the property of an intestate. In the case where one of the heirs has retained part of the inheritance in his possession, the suit must be brought within twelve years at the latest, after the debts of the intestate have been paid and the inheritance has become divisible among the heirs. In my opinion the suit is barred and must be dismissed with costs.


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