Limitation act
SUKUMARAN
(Querist) 03 August 2017
This query is : Resolved
sir,
Ancestral property- A Father sold his ancestral property without get permission from the court for the miner share. suit filed by the minor for the partition of the property. kindly give the Limitation
Rajendra K Goyal
(Expert) 03 August 2017
Limitation for what?
Please state clear material facts.
Kumar Doab
(Expert) 03 August 2017
Owner (Minor) can agitate in next 3 years, after attaining adulthood.
Azhagananth
(Expert) 04 August 2017
Go through the below Judgment, it has given new definition to Self Acquired property and absolute power has given to father….
REPORTABLE
Supreme Court of India
Uttam vs Saubhag Singh & Ors on 2 March, 2016
Author: R Nariman
Bench: Kurian Joseph, Rohinton Fali Nariman
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2360_of 2016
[ARISING OUT OF SLP (CIVIL) NO.6036 OF 2014]
2. The present appeal is by the plaintiff who filed a suit for partition, being Suit No.5A of 1999 before the Second Civil Judge, Class II Devas, Madhya Pradesh, dated 28.12.1998, in which the first four defendants happened to be his father (defendant No.3), and his fathers three brothers i.e. defendant Nos. 1,2 and 4. He claimed a 1/8th share in the suit property on the footing that the suit property was ancestral property, and that, being a coparcener, he had a right by birth in the said property in accordance with the Mitakshara Law. A joint written statement was filed by all four brothers, including the plaintiffs father, claiming that the suit property was not ancestral property, and that an earlier partition had taken place by which the plaintiffs father had become separate. The trial court, by its order dated 20.12.2000 decreed the plaintiffs suit holding that it was admitted by DW.1 Mangilal that the property was indeed ancestral property, and that, on the evidence, there was no earlier partition of the said property, as pleaded by the defendants in their written statements.
3. The first Appellate Court, by its judgment dated 12.1.2005, confirmed the finding that the property was ancestral and that no earlier partition between the brothers had in fact taken place. However, it held that the plaintiffs grandfather, one Jagannath Singh having died in 1973, his widow Mainabai being alive at the time of his death, the said Jagannath Singhs share would have to be distributed in accordance with Section 8 of the Hindu Succession Act, 1956 as if the said Jagannath Singh had died intestate, and that being the case, once Section 8 steps in, the joint family property has to be divided in accordance with rules of intestacy and not survivorship. This being so, no joint family property remained to be divided when the suit for partition was filed by the plaintiff, and that since the plaintiff had nom right while his father was alive, the father alone being a Class I heir (and consequently the plaintiff not being a Class I heir), the plaintiff had no right to sue for partition, and therefore the suit was dismissed and consequently the first appeal was allowed.
20. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:-
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at
the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindus widow get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.
21. Applying the law to the facts of this case, it is clear that on the death of Jagannath Singh in 1973
, the joint family property which was ancestral property in the hands of Jagannath Singh and the other coparceners, devolved by succession under Section 8 of the Act. This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants in common and not as joint tenants. This being the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. The appeal is consequently dismissed with no order as to costs.
If you represent for father this Judgment may help you..
