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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.2643 OF 1987
Mubarak u n ni s w/o Moham med Naseem & ors
..Plaintiffs
vs.
Moinuddin Mohd Usman Khan & ors. ..Defenda n t s
Mr. A.N.Maniyer for the Plaintiff
Mr.P.R.Gyani, Sr. Advocate i/b Mr. N.R.Gandhi for Defenda nt
No.1 to 5, 6(b) & 7
Mr.B.G.Tangsali for Defendant No.6(c)
CORAM: Smt. ROSHAN DALVI, J.
DATED: 1 st April, 2009
Oral Order :
1. The original Plaintiff has sued for administra tion of the
estate of her father. She has expired. Her heirs have been
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brought on record. They shall be referred to as the Plaintiffs.
Pleadings are filed. The issues have been framed on
20.06.2007. The first issue is with regard to the bar of
limitation. The Plaintiff has thereafter taken out various
Notices of Motion being Notice of Motion No.3870 of 2007,
Notice of Motion No. 1834 of 2008 and Notice of Motion
No.904 of 2009. The Defendant s Advocate contend that the
issue of limitation be decided as preliminary issue. That
issue is required to be decided under the provisions of order
14 Rule 2 of the CPC as a preliminary issue.
2. Issue of limitation is framed as under:
Whether the claim in the suit is barred by law of Limitation.
3. This is an administr ation suit. The Plaintiff is the daughter
of the deceased father whose estate the Plaintiff seeks to
have administered. It is the Plaintiff’s case that her father left
only two heirs – her mother and herself. The parties are
Muslims governed by Muslim person al law. Her mother is
entitled to 1 / 8 share in the estate of the deceased. The
Plaintiff claims 2 / 3 rd of the remaining 7 / 8 estate of the
deceased. The Plaintiff claims that the deceased as a partner
in various businesse s such as Muslim Bakery, Gulsha n
Bakery, Shahi Bakery and Javed Resta ur a n t had 1/ 5 th share
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in the profits and assets of the partners hip firm along with
Defenda nt s who were the other partner s. The extent of the
share of the Plaintiff’s father in the partner s hip firm is not
denied. The Plaintiff has also claimed similar share in certain
immovable properties of her father as his estate. These
properties are enumer ated in the list of partner s hip firm and
immovable properties annexed as Exhibit A to the Plaint.
4. The suit is filed for declaration that the Plaintiff is entitled to
88 paise share in a rupee in the estate of the deceased, that
the sale of one immovable property Kohinoor Manzil is
invalid and be canceled, for directions against Defenda n t s
No.1 to 7 to disclose the assets of the deceased, to
administer the estate of the deceased under directions of the
Court, to sell the properties mentioned in Exhibit A to the
Plaint and pay off the Plaintiff’s share, to take account s of
the properties of the deceased and secure the Plaintiff’s
share, and make such inquiries as necessary.
5. The Plaintiff’s father expired in April 1955. This suit has
been filed initially as pauper Petition on 14.01.1985. It has
been num bered in 1987.
6. It may be mentioned that the Plaintiff’s mother who was also
an heir of her father has never sued. The Court has been
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informed that the Plaintiff’s mother was appointed as partner
in the place and stead of her father in various partners hip
firms. She retired in December 1955 as such partner. The
partner s hip firms were reconstitu ted in Jan u a ry 1956. The
Plaintiff has not sued for accounts of the share of her father
as deceased partner. The Plaintiff claims instead a 1/ 5 th
share in the properties and assets of the various
partner s hip firms where her father had such share. The
Plaintiff has not shown any Partner s hip Deed. The Plaintiff
claims to have no docume nt s.
7. Mr. Maniar on behalf of the Plaintiff argued that the suit is
filed under Muslim Personal Law. He relied upon Mulla’s
Principles of Mohamme d a n Law Chapter V, section 41 at
page 25 in the 19 th Edition relating to the devolution of
inheritance. It shows that the estate of a deceased
Moham med a n who died intestate devolves on his heirs at the
moment of his death . This concept is explained under the
said section itself. The estate vests immediately in each heir
in proportion to the share ordained by Mohammeda n Law.
The said section further shows that the heirs succeed to the
estate as tena nt s- in- common. When the heirs continue to
hold the estate as tenant s- in- common without dividing it
and one of the them subseq ue n tly brings the suit for
recovery of his share, the limitation starts run ni ng from the
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date of his ouster, or denial of title. Hence the suit would be
governed under Article 144 of Schedule 1 of the Limitation
Act 1908 (equivalent to Article 65 of Schedule 1 of the
Limitation Act, 1963)
8. The Plaintiff’s Advocate has placed reliance upon the said
article to claim that this suit is governed by Article 65.
Article 65 is with regard to suits for possession of immovable
property or interest based on title. The period of limitation is
12 years from theig date when the possession of the
Defenda nt s become adverse to the Plaintiff. This suit is not
for possession. The Plaintiff has not contin ued to hold the
estate of her deceased father in respect of the 1 / 5 share in
the part ners hip assets. The Plaintiff has not been ousted
from her share at any time after she continued to hold such
share. The Plaintiff has been living in one residential
premises. Defenda nt s have not ousted her from that
residential premises. The above provision relating to
limitation for recovery of Plaintiff’s share would apply only if
the Plaintiff was ousted from such premises. That would be
within 12 years from the date of ouster. The Plaintiff has
claimed 1 / 5 th share inter alia in the partner s hip firms. There
is no question of the Plaintiffs ”continuing to hold” such
share in any of the firms since the firms have been dissolved
and reconstit uted after the Plaintiff’s mother was admitted
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as partner and later retired as partner of those firms. The
Plaintiff’s suit is for administra tion of the estate. The
Plaintiff’s case is therefore, not covered under article 65 of
the Limitation Act.
9. Under Moham med a n Law the heirs become entitled to the
estate from the moment of the death of the deceased, whose
estate is claimed, since the estate vests in them at the
moment of his death. The Plaintiff became an owner of the
88 paise share in a rupee from the moment of death of her
father. Hence from that moment the right to sue accrued to
the Plaintiff. The Plaintiff must, therefore, sue for
administration of the estate of her father within the period of
limitation which began to run from the moment of his death.
Such suit would require to be filed under Article 113 of
schedule 1 of the Limitation Act, since no other period of
limitation is provided elsewhere in the schedule for
administration suits. Under the said article it is three years
from the accrual of the right to sue. That would be within
three years from the time the estate vests in the Plaintiff and
the Plaintiff becomes entitled to the estate. That would be
within three years from the moment of death of her deceased
father.
10. The Plaintiff’s Advocate further contended that her right to
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sue first accrued when a Deed of settlement was entered
into by and between the Defenda nt s. That Deed was
executed in 1982. The suit has been filed in 1985. Hence it
is contended, that it is within the period of limitation.
11. It is seen that the right first accrued from the moment of
death of the deceased. The Plaintiff has claimed that the
Defenda nt s assured her at all material times that they would
give her share when the estate of the deceased would be
finally settled. The Plaintiff continued to wait. The wait lasted
30 years. The Plaintiff claims that the Defenda nt s finally
settled the share in 1982 and because the Plaintiff was not
given her share she has sued. This would mean that if the
Defenda nt s do not enter into a Deed of Settlement amongst
themselves for their partner s hip properties for a 100 years,
the Plaintiff would not sue. Such interpretation is absur d.
The Plaintiff must sue from the time the cause of action
accrues. The aforesaid provisions of Moham med a n Law show
that it first accrued from the moment of the death of the
deceased.
12. The Plaintiff’s Advocate relied upon Article 58 of schedule 1
of the Limitation Act, with regard to the prayer of
declaration. Even under that article the limitation period is 3
years from the time when the right to sue first accrued. Even
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if the present suit is taken to be a suit for declaration, since
in prayer (b) the Plaintiff has prayed for a declaration that
she is entitled to 88 paise share in a rupee in the estate of
the deceased, the declaration that is claimed is for such
estate. Such estate has to be administered. Accounts of such
estate have to be taken. Properties of such estate have to be
sold. Then alone can the share of the Plaintiff be given to
her. The mere declaration of the share in the estate of the
deceased would also, therefore, require the suit to be filed
within 3 years from the moment of the death of the deceased
as that is when the right to sue would first accrue since that
is the time when the estate vests in the Plaintiff.
13. Seen from both the angles upon the funda me nt al principles
of Moham med a n Law, the Plaintiff was entitled to any part of
the estate of her deceased father as also for administration of
such estate of her deceased father which vested in her within
three years from the date of his death. The filing of the suit
has nothing to do with the settlement inter se amongst the
Defenda nt s of the five partner s hip firms which contin ued
after the death of the deceased partner for as long as about
three decades.
14. The Plaintiff’s suit is far too delayed. It is distinctly barred
by law of limitation.
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15. Hence issue No.1 is answered in the affirmative.
16. Suit is dismissed accordingly, Notices of Motion being
Notice of Motion No.3870 of 2007, Notice of Motion No. 1834
of 2008 and Notice of Motion No.904 of 2009 accordingly
also stand dismissed.
(Smt. Roshan Dalvi, J)
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