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(Natuvanjeri Ismalutty's son) Ahmmadkutty Vs. Cherukava Moidutty and Ors. (31.03.1927 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad952
Appellant(Natuvanjeri Ismalutty's son) Ahmmadkutty
RespondentCherukava Moidutty and Ors.
Cases Referred and Hassan Ammal Bibi v. Ismal Moideen Rowther
Excerpt:
- - and since 12 years have not elapsed since his rights came into existence, his present suit for partition is clearly not barred by limitation......facts of the present case and that the plaintiff is entitled to get mahmmadkhtty's share of the suit properties which he purchased in auction by instituting a suit for partition which is the only remedy that he is entitled to pursue. we must accept this argument. the lower appellate court has misunderstood the nature of the application made by the present defendant 3 in m. p. no. 3101 of 1916. it was not a claim petition put in by a stranger. in o. s. no. 419 of 1911, which, it will be remembered, was instituted by the present plaintiff, and in which he got a decree for the sale of mahmmadkutty's share, the present defendant 3, was a party, viz. defendant 5. ex. k makes that very clear. the application m. p. no. 3101 of 1916, was, therefore, one between parties to a suit under section.....
Judgment:

1. The plaintiff is the appellant. This second appeal arises out of a suit instituted by him for partition. The plaint property belonged to one Moideen. He died leaving a widow and two children, Mahmmadkutty, a son, and Biyyakutty, a daughter. Mahmmadkutty died leaving as his heirs defendant 2, his widow, and defendant 1, his daughter. Defendant 2 instituted a suit for partition (O. S. No. 407 of 1903) and obtained a decree. In the meanwhile Mahmmadkutty had mortgaged his interest to one Kunheen in May 1899 and the plaintiff had purchased that interest. As such purchaser he brought a suit (O. S. No. 419 of 1911) on Mahmmadkutty's mortgage and obtained a decree for the sale of Mahmmadkutty's share in the properties. In execution of that decree he himself purchased the said share in Court auction and obtained delivery of the plaint properties. The defendant 3, in the present suit, having obtained an interest in the properties from some of the defendants in O. S. No. 407 of 1903 put in a petition for re-delivery of the plaint properties alleging that she also had obtained some interest in them: see M. P. No. 3101 of 1916. The Court then ordered re-delivery of the properties to defendant 3, under Ex. K, on the 25th June 1917. Later on the plaintiff in his own turn got symbolical delivery of these properties: see Ex. L., dated the 3rd of October 1918.

2. It was argued by defendant 3, who is the contesting defendant in the suit, that since the present suit by the plaintiff has been instituted more than a year after the order in M. P. No. 3101 of 1916 (Ex. K), the suit is barred under Art. 11-A, Limitation Act, that the order under Ex. K is final under Order 21, Rule 103, Civil P. C., and that the present suit is not maintainable. Accepting the argument the learned Subordinate Judge reversed the District Munsif's decree and dismissed the plaintiff's suit.

3. In second appeal it is argued on behalf of the plaintiff-appellant that the lower appellate Court has totally misunderstood the nature of the proceedings which led to the passing of the order Ex. K., that Art. 11-A has really no application to the facts of the present case and that the plaintiff is entitled to get Mahmmadkhtty's share of the suit properties which he purchased in auction by instituting a suit for partition which is the only remedy that he is entitled to pursue. We must accept this argument. The lower appellate Court has misunderstood the nature of the application made by the present defendant 3 in M. P. No. 3101 of 1916. It was not a claim petition put in by a stranger. In O. S. No. 419 of 1911, which, it will be remembered, was instituted by the present plaintiff, and in which he got a decree for the sale of Mahmmadkutty's share, the present defendant 3, was a party, viz. defendant 5. Ex. K makes that very clear. The application M. P. No. 3101 of 1916, was, therefore, one between parties to a suit under Section 47, Civil P C., and as such it is clear that Order 21, Rule 103, Civil P. C., and Art. 11-A, Limitation Act are altogether inapplicable. In this view, the arguments addressed to us and the cases quoted on the assumption that those provisions of law apply to this case need not be considered.

4. The real question is whether the order Ex. K. in M. P. No. 3101 of 1916, in effect bars the right of the plaintiff to institute this suit. In our opinion, the order read as a whole does not. The case of the present defendant 3 in that petition was, as stated in the order itself, that the counter-petitioner (the present plaintiff)

should sue for partition and possession of Mahmmadkutty's share

and this we think is the result of that order. Paragraph 3 of the order runs thus:

It is clear, if it has not been definitely ascertained what Mahmmadkutty's share was in O. S. No. 407 of 1903 of this Court, the counter-petitioner cannot be entitled to exclusive possession of the property in dispute, and that .he is only entitled to symbolical possession under Order 21, Rule 35 A. I. R. 1926 Mad. 683 Civil P. C.

5. In view of these statements we cannot agree with Mr. Govinda Menon's contention that the operative part of the order contained in para. 7 directing

redelivery of the property to the petitioner

6. means that the plaintiff's right to Mahmmadkutty's share is altogether negatived. We think that his right to present joint possession of the property remains unaffected, by that order and is in substance recognized by it. That order, therefore, is not detrimental to his interests, in any way, and he is not bound to set it aside. On this construction of the order the argument that the plaintiff being a Mahomedan should have sued for the present possession of his share of the property within a year after the passing of the order Ex. K., supported by the decision in Ganapat Rai v. Hussaini Begum A. I. R. 1921 All. 92 referred to in Shanmugham Pillai v. Panchali Ammal A. I. R. 1926 Mad. 683 does not arise for consideration. The plaintiff's right for the recovery of the specific share to which he is entitled is, according to the decisions of this Court in Yelumalai Chetty v. Srinivasa Chetty [1906] 29 Mad. 294 and Hassan Ammal Bibi v. Ismal Moideen Rowther : (1915)28MLJ642 to be enforced not by a mere application for execution, but by instituting a suit for partition; and since 12 years have not elapsed since his rights came into existence, his present suit for partition is clearly not barred by limitation.

7. We, therefore, set aside the decree of the lower appellate Court and restore that of the District Munsif. The appellant will get his costs in the lower appellate Court, and in this Court each party will bear his own costs.


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