Decided on June 04,1963

CHANGARAN Respondents

Cited Judgements :-



- (1.)The appellant filed the suit for partition and recovery of possession of his 28 out of 48 shares in the suit property, which is a tenancy right. The property belonged to the 1st defendant and a person named; Andarman; and the plaintiff's father, Avulla held the same on lease. Avulla died leaving the plaintiff and the 13th defendant, who were his minor children, and his widow, the 12th defendant. Thus on the death of Avulla, the plaintiff became entitled to 28 out of 48 shares, under the Mohamadan Law, being Avulla's son, the 13th defendant became entitled to 14 sham being the daughter and the 12th defendant, the widow of Avulla, took the remaining 6 shares. The 12th defendant, acting for herself and as guardian of her minor children, surrendered the leasehold right to the 1st defendant and Andarman on 5th May 1934. Defendants 14 to 17 obtained leases from the owners of the property after the surrender by the 12th defendant. The 18th defendant claimed to be a donee from the 1st defendant of his half share. Originally, defendants 14 to 18 were not impleaded in the suit and they were impleaded only on 19th November 1953 as per order in K. I. A. No, 3929 of 1953. The suit itself was instituted on nth June 1953, the plaintiff having attained majority on 13th June 1950. The plaintiff's elder sister, the 13th defendant, who attained majority earlier, did not institute any suit. Defendants 14 to 18 alone are impleaded in the second appeal and they are respondents 1 to 5.
(2.)So far as the second appeal is concerned, the following findings alone need be noted. The Trial Court found that the surrender of the tenancy right by the mother acting as the guardian of the Mohamadan minors was void and invalid and therefore it did not affect the share of the children. It also held that since the 13th defendant did not file a suit within three years of her attaining majority, her rights were barred by limitation. Regarding the plaintiff, the Trial Court held that he was entitled to his 28 out of 48 shares in the tenancy right and was thus entitled to recovery of possession of the same. It held further that the tenancy created in favour of defendants 14 to 17 after the surrender by the 12th defendant also fell to the ground, since the surrender itself was void. On the question of limitation pleaded by these defendants under S.22 of the Limitation Act, the Trial Court held that since their title was only derivative from the 1st defendant and Andarman, on the wiping out of the surrender the tenancy created by them also disappeared and these defendants could not therefore avail of the plea of limitation. Similarly, on the plea of the 18th defendant that she was entitled to a half share in the property under the gift in her favour by the 1st defendant, the Trial Court held that since there was no evidence of acceptance of the gift by her, the gift was not established.
(3.)Two appeals were filed by the defendants 14 to 17 and the 18th defendant respectively before the lower appellate court. The learned. Subordinate Judge accepted the case of the plaintiff that the surrender of the lease by the mother was void and invalid, mainly because there was no objection against that finding. But on the question of limitation the learned Subordinate Judge disagreed with the learned Munsif. The Subordinate Judge held that since defendants 14 to 18 were impleaded more than three years after the attainment of majority by the plaintiff, the suit against them was barred by limitation under S.22 of the Limitation Act. He also held that the view expressed by the Munsif, that there was no evidence regarding the acceptance of the gift by the defendant, was wrong. In the result, he allowed the appeal in part holding that the plaintiff would be entitled to 28 out of 48 shares of an undivided half share over the property, that is, he would be entitled to 28 out of 96 shares of the property, and that share would be subject to the tenancy right of defendants 14 to 17. Thus under the decree the plaintiff was entitled to recover only symbolical possession of this share, the tenancy right, having 'been found with defendants 14 to 17, It is this decision of the learned Subordinate Judge that is being questioned in second appeal.

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