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Sourab Bibi and ors. Vs. Abbas Ali Biswas and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in91Ind.Cas.725
AppellantSourab Bibi and ors.
RespondentAbbas Ali Biswas and ors.
Cases ReferredIssur Chunder Doss v. Juggut Chunder Shaha
Excerpt:
limitation act (ix of 1908), schedule i, article 123, applicability of - muhammadan law--suit by co-heir to recover possession of his share--possession of co-heirs, whether adverse--ouster, proof of. - .....the result of a compromise ijjatulla got 6 1/2 annas and the heirs of madhab the remaining 9 1/2 annas. madhabs three sons in the year 1919 transferred their interest in the property to defendant no. 1 in the suit. up to that time the heirs of madhab, that is to say, his three sons had been in possession of the property.2. the first court decreed the plaintiffs' suit which was to establish their title to 4 annas of the property and for joint possession thereto. the lower appellate court has reversed, the decision of the first court.3. it seems to us that the judgment of the learned subordinate judge is founded upon a misapprehension of the law. he says that the suit is barred by the provisions of article 123 of the limitation act it, having been brought more than 12 years after madhabs.....
Judgment:

Ewart Greaves, J.

1. It is necessary first of all to state the facts which arise in this appeal. There was a raiyati holding which was the property of two brothers Molam and Madhab. Molam died without leaving any issue and the whole 16 annas there upon passed to Madhab who died in the year 1904 or 1905 leaving him surviving three sons and two daughters one of whom is the plaintiff No. 1 in the suit, the plaintiffs Nos. 2 to 4 being the heirs of the 2nd daughter. In 1914 the holding was attached at the instance of one Ijjatulla. As the result of a compromise Ijjatulla got 6 1/2 annas and the heirs of Madhab the remaining 9 1/2 annas. Madhabs three sons in the year 1919 transferred their interest in the property to defendant No. 1 in the suit. Up to that time the heirs of Madhab, that is to say, his three sons had been in possession of the property.

2. The First Court decreed the plaintiffs' suit which was to establish their title to 4 annas of the property and for joint possession thereto. The lower Appellate Court has reversed, the decision of the First Court.

3. It seems to us that the judgment of the learned Subordinate Judge is founded upon a misapprehension of the law. He says that the suit is barred by the provisions of Article 123 of the Limitation Act it, having been brought more than 12 years after Madhabs death. Clearly on the facts which. I have stated Article 123 has no application whatsoever. The suit was brought against defendant No. 1 who did not in any way represent Madhab's estate. In these circumstances it is impossible to contend that the provisions of Article 123 have any application whatsoever. The limited application of that Article has been pointed out in the case of Issur Chunder Doss v. Juggut Chunder Shaha 9 C. 79 at p. 81 : 4 Ind. Dec. (N.S.) 705. It is there pointed out that this Article only applies to cases in which the property sought to be recovered is not only a legacy but is also sought to be recovered as such from a person who is bound by law to pay such legacy, either because he is executor of the Will or otherwise represents the estate of the testator. So much then for the first ground upon which the learned Subordinate Judge decided the appeal before him.

4. He is equally wrong in law with regard to the second ground. He says that the doctrine of joint family does not apply to a Muhammadan family. But that does not prevent the ordinary law of occupation, applied to a Muhammadan family. Here there is no evidence and no finding with regard to the ouster of plaintiff No. 1 by her brothers. They have been in possession all along down to the year 1919 and possession of these co-owners enured for the benefit of the plaintiffs, if, as was the case here, there was no ouster.

5. In the result, therefore, the appeal succeeds for the learned Subordinate Judge has found that there is no doubt that the plaintiffs have shown that they are the heirs of Madhab.

6. The appeal is accordingly allowed. The decree of the lower Appellate Court is set Aside and that of the Court of first instance, restored with costs of this Court and of the lower Appellate Court.

Mukerji, J.

7. I agree.


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