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issuridutt Singh and ors. Vs. Ibrahim and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal654
Appellantissuridutt Singh and ors.
Respondentibrahim and ors.
Excerpt:
limitation act (xv of 1877), schedule ii, article 127 - suit for possession and partition--acquiescence in alienation. - .....date or time when the exclusion becomes known to him. now, in this case, upon the finding of the district judge, the plaintiffs became aware of the alleged exclusion on the date of the attachment. the district judge was, therefore, right (under article 127) in holding that the plaintiff's claim was barred by limitation, inasmuch as the suit was brought more than twelve years after the date of the attachment. we have dealt with the question of limitation with reference to the provisions of act xv of 1877, no question as to the applicability of the proviso under section 2 of that act having been raised in the lower courts.2. on the merits we also think that the district judge's decision is correct. he found from the circumstances proved in the case that the plaintiffs, the sons, although.....
Judgment:

Mitter, J.

1. We think that the decision of the lower Appellate Court is correct, although we do not agree with the Judge in holding that Article 126 of Act XV of 1877 applies to this case. This was not a suit to set aside a father's alienation of ancestral property. In the first place, it was a suit for partition; and in the next place, it was a suit not to set aside an alienation made by the father, but to obtain a share by partition of a joint family property, the interest of the father having been sold in execution of a decree. That being so, Article 127 would apply. Under that article, a person excluded from joint family property and bringing a suit to enforce his right to a share therein must bring that suit within twelve years from the date or time when the exclusion becomes known to him. Now, in this case, upon the finding of the District Judge, the plaintiffs became aware of the alleged exclusion on the date of the attachment. The District Judge was, therefore, right (under Article 127) in holding that the plaintiff's claim was barred by limitation, inasmuch as the suit was brought more than twelve years after the date of the attachment. We have dealt with the question of limitation with reference to the provisions of Act XV of 1877, no question as to the applicability of the proviso under Section 2 of that Act having been raised in the lower Courts.

2. On the merits we also think that the District Judge's decision is correct. He found from the circumstances proved in the case that the plaintiffs, the sons, although they were adults at the time when the ticca lease was taken, were consenting parties to the transaction, and not only were they consenting parties to it but that they stood by and remained silent for a long time (nearly twelve years) without questioning the validity of the transaction. Upon these facts, the District Judge came to the conclusion that the original lease was a transaction in which the sons consented to the father acting on behalf of the whole joint family, and that afterwards they acquiesced in the sale of the property.

3. The suit has boon properly dismissed, and the appeal is, therefore, dismissed with costs.


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