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Napu Alias Rahman Khan Saheb Vs. San Bibi and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in131Ind.Cas.461a
AppellantNapu Alias Rahman Khan Saheb
RespondentSan Bibi and ors.
Cases Referred and Narayana Sah v. Sankar Schedule
Excerpt:
.....court of udumalpet on the 24th july, 1918. on 20th october, 1919, the mansif returned the plaint for amendment on the ground that it was bad for partial partition. he also found that there is no evidence that kathu bibi entered into possession as full owner or that she enjoyed the whole estate absolutely and adversely to the heirs......may be thus stated. one ali saheb died on 20th february, 1912, leaving him surviving his widow kathu bibi and three daughters, rahimat bibi, asmath bibi (1st defendant) and san bibi (the plaintiff). the record does not show when rahimat bibi died but it is immaterial. her son is the 5th defendant. the plaintiff brought this suit for partition and recovery of her share of her father's properties alleging that the 2nd defendant, husband of her sister rahimat bibi, trespassed upon the properties in 1917. the suit was originally filed in the district munsif's court of udumalpet on the 24th july, 1918. on 20th october, 1919, the mansif returned the plaint for amendment on the ground that it was bad for partial partition. the plaint was represented in the same munsif's court on 20th.....
Judgment:

Vepa Ramesam, J.

1. The facts out of which this second appeal arises may be thus stated. One Ali Saheb died on 20th February, 1912, leaving him surviving his widow Kathu Bibi and three daughters, Rahimat Bibi, Asmath Bibi (1st defendant) and San Bibi (the plaintiff). The record does not show when Rahimat Bibi died but it is immaterial. Her son is the 5th defendant. The plaintiff brought this suit for partition and recovery of her share of her father's properties alleging that the 2nd defendant, husband of her sister Rahimat Bibi, trespassed upon the properties in 1917. The suit was originally filed in the District Munsif's Court of Udumalpet on the 24th July, 1918. On 20th October, 1919, the Mansif returned the plaint for amendment on the ground that it was bad for partial partition. The plaint was represented in the same Munsif's Court on 20th February, 1924, with the old Court fees plus some additional Court-fees and with some amendments. The District Munsif again returned the plaint on 28th October, 1924, for presentation to the proper Court. The next day, i.e., 29th October, 1924, it was filed before the Subordinate Judge of Coimbatore by whom it was tried and decreed. There is an appeal by the 2nd defendnat to the District Judge of Coimbatore who dismissed the appeal. The present appeal is by the second defendant.

2. The point argued before me is that the suit is barred by limitation. Before I deal with the argument on this question a few further facts will have to be stated. The second defendant's plea on the merits was that Kathu Bibi took possession of all Ali Saheb's properties in satisfaction of the mehar of Rs. 7,500 due to her and was enjoying them as absolute owner from the time of Ali Saheb's death and that the properties were given by her to him in 1917. The plea of limitation was made the subject of the first issue. The 6th issue raises the question, 'Is the gift by Kathu Bibi valid and true and if so, binding on the plaintiff?' The learned Subordinate Judge in dealing with the 6th issue found that the gift relied on by the second defendant is false, that the plaintiff has been living in item No. 5 after the death of her father and was getting the income from her mother and that all the daughters received their share in rent. He also found that there is no evidence that Kathu Bibi entered into possession as full owner or that she enjoyed the whole estate absolutely and adversely to the heirs. This finding amounts to saying that Kathu Bibi's possession was not adverse to the heirs but that that was only as co-owner. On the first issue he also found that the time taken by the plaintiff between 24th July, 1918, and 20th October, 1919, in the District Munsif's Court of Udumalpet and again between 20th February, 1924, and 20th October, 1924, should be excluded and, therefore, the suit is not barred. He also observed that the suit being within 12 years of the death of the widow Kathu Bibi also no question of limitation arises. In para. 15 he says that the mother was in joint possession with the daughters of some property and leased it. In appeal before the District Judge the learned Advocate for the second defendant, Mr. C.S. Samba murthi Iyer again mentioned the question of limitation. It is now clear after the finding of the Subordinate Judge, that any Advocate who wants seriously to argue the question of limitation before the Appellate Court has to argue it on two grounds; first that the time taken up on two occasions before the District Munsif's Oourt of Udumalpet, ought not to be excluded, and secondly, apart from that Kathu Bibi's possession was adverse to the plaintiff and that somehow the cause of action for the plaintiff arose not at some later date after Ali Saheb's death as found by the Subordinate Judge but the date of the death of Ali Saheb himself. It is impossible to imagine that the Advocate can successfully argue the former point but in the present case it seema to me that the latter point is almost impossible of argument, because, it is found not only by the Subordinate Judge in other parts of his judgment in dealing with the merits on other issues that the second defendant in a litigation of 1925 admitted that the other daughters were entitled to shares. Now the importance of this observation lies in this, namely, that Mr. Sambamurthi Iyer never seriously argued the question of limitation before tha District Judge, who says, 'The learned Vakil for the appellant has not argued this question, contenting himself with the observation that he does not press it though he does not abandon it.' If it ia a mere question of law that has to be argued, a statement of this kind no doubt may enable the point to be re-argued in the Appellate Court. But if it involves a question of fact and one does not press the point, merely saying that he does not abandon it is of no avail and as already observed the facts are scarcely capable of being denied'. In my opinion up to 1917 Kathu Bibi's possession was that of a coheir and all the heirs of Ali Saheb must be regarded as in possession. In fact the Subordinate Judge expressly found that the other daughters were even getting rent. It is true that because the plaintiff had alleged dispossession she must show prior possession within 12 years of suit. But I think on the findings of the Subordinate Judge which were not attacked before the District Judge the reservation being useless the plaintiff has successfully shown that, she was in possession up to 1917, that is, within 12 years of suit. In this view of the caae the other question, namely, whether the time taken twice before Munsife Court should be excluded does not arise. I may, however, observe that the cases i iied ca this point by Mi T.R. Ramachanrira Iyer, the learned Advocate for the appeilart, namely, Murugessa Kudaliar v. Jattaram Davy 23 M. 621, Rajavendra Row v. Venkitamna Iyer 45 Ind. Cas. 460 : 33 M.L.J.682, Ganpathi Mudaliar v. Mnihnamiehari 70 Ind. Cas. 743 : 43 M.L.J. 184 : 16 L.W. 173 : 31. M.L.T. 135 : (1922) M.W.N. 514 : A.I.K. 122 Mad. 417 and Narayana Sah v. Sankar Schedule 121 Ind. Cas. 1 at p. 7 : 57 M.L.J. 685 : 30 L, W. 751 : A.I.R.1929Mad.865 : 53 M. 1 (F.B.), are all distinguishable and in ay opinion do not apply to the facts of this case and the lower Court having exercised its discretion in favour of excluding those periods I am not inclined to interfere with that discretion in second appeal. The second appeal fails and is dismissed with costs of plaintiff.

3. This second appeal coming on for further hearing as directed regarding the contentions of respondents Nos. 4 to 6 (defendants Nos. 6 to 8) the Court delivered the following.

4. Judgment.--The respondents Nos. 4 to 6 (defendants Nos. 6 to 8) claim their share viz., one, seventy-second for each or one twenty-fourth for all the three. They now pray for a decree to be passed in their favour on their paying the Court-fee. A similar decree was passed for the 2nd respondent by the District Judge. These parties perhaps did not make such a request by oversight. But I do not see any objection to the passing of the decree prayed for. The appellant's Advocate has not instructed either to agree or to oppose. There will be a decree for one seventy-second share in favour of each of the 4th, 5th and 6th respondents but there will be no order as to costs.


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