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Azam Bhuyan and ors. Vs. FaizuddIn Ahamed and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal594
AppellantAzam Bhuyan and ors.
RespondentFaizuddIn Ahamed and anr.
Excerpt:
limitation act, 1877, schedule ii, article 141 - suit by person claiming immoveable property on death of hindu or mahomedan female. - .....article applies to the case of a person suing on the very same cause of action which accrued to a hindu female, and who acquires his right to sue as her heir we think that the lower court is right on this point.5. the appeal is dismissed with costs.ghose, j.6. i am of the same opinion. i desire to add that the finding of the lower appellate court amounts to this, that ever since mahomed nazim's death, the possession of mahomed ewaz has been a possession adverse to abirjan, plaintiff's mother, and to the plaintiffs. that being so, the article of the limitation act applicable to the, circumstances of this case is article 144, which runs as follows: 'for possession of immoveable property or any interest therein not hereby otherwise specifically provided for, the period of limitation is.....
Judgment:

Wilson, J.

1. We think it unnecessary to call upon the respondent in this case.

2. The point raised is this: that assuming Abirjan to have been out of possession ever since the death of her brother in 1255 or 1256, nevertheless the present plaintiffs, her sons and others claiming as heirs, are not barred by limitation; and that contention is based upon Article 141 of the second schedule of the Limitation Act. That article must be read with; Article 140, which says that in a suit 'by a remainderman, a reversioner (other than a landlord), or a devisee for possession of immoveable property,' the period of limitation is twelve years from the time 'when his estate falls into possession.' Then Article 141 says, that in a 'like suit by a Hindu or Mahomedan entitled to the possession of immoveable property on the death of a Hindu or Mahomedan female,' the period of limitation is twelve years from the date when the female dies.

3. In the present case it has been argued that the plaintiffs acquired a right to sue with a limitation of twelve years from the time when Abirjan died. Article 140 dealing with remaindermen, reversioners, and others, deals with a class of persons who claim under a title quite independent of the particular limited estate upon which the remainder, reversion, or other estate is dependent. And we think the case is the same under Article 141 which provides for alike suit by a person entitled to possession of immoveable property on the death of a Hindu or Mahomedan female. We think it refers to persons who claim under an independent title on the death of a Hindu or Mahomedan female.

4. It would be straining the language and introducing a rule inconsistent with the principle of the Act, if we were to hold that this article applies to the case of a person suing on the very same cause of action which accrued to a Hindu female, and who acquires his right to sue as her heir We think that the lower Court is right on this point.

5. The appeal is dismissed with costs.

Ghose, J.

6. I am of the same opinion. I desire to add that the finding of the lower Appellate Court amounts to this, that ever since Mahomed Nazim's death, the possession of Mahomed Ewaz has been a possession adverse to Abirjan, plaintiff's mother, and to the plaintiffs. That being so, the article of the Limitation Act applicable to the, circumstances of this case is Article 144, which runs as follows: 'For possession of immoveable property or any interest therein not hereby otherwise specifically provided for, the period of limitation is twelve years from the time when the possession of the defendant becomes adverse to the plaintiff.' I do not think that the present case is specially provided for in Article 141, or any other article of the Limitation Act and it having been found as a matter of fact that the possession of Mahomed Ewaz became adverse to Abirjan so soon as Mahomed Nazim died, I should say that the' plaintiffs are clearly barred.


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