Limitation
adv.amarbabu
(Querist) 06 July 2013
This query is : Resolved
(X)Grandson aged about 27 years old filing suit for partition against his uncles and others. The grandson who is the son of the deceased daughter. The Grand father died in the year 1991. The Mother of the X died in the year 1986 itself. Whether the defendants (uncles) can make the issue of limitation, that the X has attained the age of major and the suit filed belately after lapse of 6 years from the date of major. Whether the same be sustainable. Since the X is Coming under the Class I heir Please clariry.
Advocate M.Bhadra
(Expert) 06 July 2013
The suit is maintainable,no limitation for partitione suit in respect of Succession Act,see with reference judgment:---
Bombay High Court
Satyabhamabai W/O Wasudeo ... vs Chhatrapati S/O Zibal Dhanjode ... on 25 April, 2003
Equivalent citations: 2004 (1) BomCR 177, 2004 (1) MhLj 1093
Author: V M Kandle
Bench: V Kanade
JUDGMENT
V. M. Kandle, J.
1. This Second Appeal is filed by the Original Defendants who are challenging the Judgment and Decree passed by the 8th Additional District Judge, Nagpur in Civil Appeal No. 484/84 arising out of the Judgment and Decree passed on 31-3-1984 by the 4th Joint Civil Judge, Jr. Dn., Nagpur, who had dismissed the Civil Suit No. 1561/80 filed by the plaintiffs.
The brief facts are as under:
One Jagoba Dhanjode was the paternal grand father of the plaintiffs and the defendants. This Jagoba Dhanjode was the owner of House No. 216 situated in Ward No. 20 and his name was recorded in the Corporation Record. He had two sons viz, Zibal and Wasudeo. They were residing along with their father in the said House. Jagoba died in the year 1947. Jagoba had a brother viz. Nagobaji who had a separate house in his exclusive possession. After the death of Nagobaji who died issueless, his wife Gangubai inherited the house and become the owner of the House and on 11-1-1944 this Gangubai bequeathed her house under a registered gift-deed in favour of the plaintiffs father Zibal and he accepted that house and thereafter Zibal went to reside in that house. It is the case of the plaintiffs that because there was a quarrel in the family, Jagobaji asked his other son Zibal to shift to his house which was gifted to him. While leaving the house, it is submitted by the plaintiffs that Zibal did not surrender his right from House No. 216. The plaintiffs came to know that in the Corporation Record, the name of Jagoba was found on 29-9-1980 and, therefore, a notice was issued to the defendants asking them to give share in the house and on refusal by the defendants, the plaintiffs filed the present suit for partition and separate possession. The appellants/defendants filed their Written Statement and contended that Zibal was residing separately and that he had surrendered his rights in the said house after he shifted to the house which was gifted to him. It was further contended that the plaintiffs had brought the suit for partial partition and, therefore, the said suit was not maintainable. It is further averred that the defendants have become the owner of the suit house by way of adverse possession and, therefore, the suit was liable to be dismissed. The trial Court dismissed the suit of the plaintiffs on the ground that the other joint family properties were not included in the schedule and, therefore, the present suit was a suit for partial partition and, therefore, it was not tenable and, therefore, the suit was dismissed.
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Under these circumstances, I am of view that the findings which are arrived at by the Appellate Court will have to be set aside as the Appellate Court was merely impressed with the fact that the defendants had not led any evidence. However, the said finding is perverse because the entire evidence which has been brought on record by the plaintiffs themselves and in view of the admissions which are given by the plaintiffs of the revenue record and the possession of the defendants and the further fact of knowledge of their ouster by the plaintiffs themselves, the findings given by the Appellate Court cannot be sustained.
In the result, the Second Appeal filed by the appellants is allowed. The Judgment and order passed by the Appellate Court is quashed and set aside.
Raj Kumar Makkad
(Expert) 06 July 2013
There is no limitation to get partition of join property. The issue of limtation cannot be raised in the given case.
Rajendra K Goyal
(Expert) 06 July 2013
Well advised by the experts raj kumar makkad ji and Advocate M. Bhadra ji. There is no limitation for partition of the property.
prabhakar singh
(Expert) 06 July 2013
Co/Joint owners can remain in such status as long as they desire.
Partition is their right which they can do any time.
Your uncles can not plead any limitation bar
in given facts.
