MERANI RUPI VINZA HEIRS OF DECD MER MIYAJAR KANDHA Vs. MALIBAI KESHAV
LAWS(GJH)-1979-9-24
HIGH COURT OF GUJARAT
Decided on September 12,1979

MERANI RUPI VINZA Appellant
VERSUS
MALIBAI KESHAV Respondents

JUDGEMENT

B.K.MEHTA - (1.) A short but interesting question arises as to what is the appropriate article of the Limitation Act 1963 which is applicable to a suit filed by a wife for reopening the partition effected between her husband and sons where in complete disregard of her right she was not allotted her share in the joint family properties. The question arises in the following circumstances:
(2.) The pedigree which is necessary to understand the dispute involved in this appeal is set out hereinbelow: Viram ( Kandha = Maliben (D-1) (Plaintiff) ( --------------------------------------------------------- Shiya Bhima Miyajar=Rupi (D-4/1) ( ------------------------------------------------------------------- Nathi Gigi Sarman (D-4/2) (D-4/3) (dead)
(3.) It is common ground that on 4th May 1963 corresponding to Vaishakh Sud 11 of S.Y. 2019 a memorandum recording oral partition effected between Shiya and Bhima defendants Nos. 2 and 3 herein and Miyajar (now deceased) was executed dividing the joint family properties comprising of as many as seven agricultural pieces of land four out of which situate within the revenue limits of village Mitrala and the remaining three within the revenue limits of village Lushala within Junagadh district and one house property in each of the aforesaid two villages by metes and bounds. The four agricultural fields admeasuring acres 25-3 gunthas situate within the revenue limits of village Mitrala went to the share of Miyajar and the remaining three situate within the revenue limits of village Lushala and admeasuring acres 25-4 gunthas went to the share of Shiya and Bhima jointly. Similarly the house property situate within the limits of village Mitrala went to the share of Miyajar and the one situate within village Lushala went to the share of Shiya and Bhima jointly. There were two other agricultural fields situate within the revenue limits of village Navagam and another agricultural field situate within the revenue limits of village Lushala which were referred to in the said memorandum of partition and were not divided. Apparently no property was allotted to Kandha defendant No. 1. Admittedly Malibens share was ignored with the result that she was not allotted any property out of the joint family properties. It appears that Miyajar died in about November or December 1963 and the possession of the agricultural lands allotted to the share of Miyajar was said to have been forcibly taken over by Kandha and his two sons Shiya and Bhima. Rupi the widow of deceased Miyajar therefore filed a suit on behalf of hersel and her two minor daughters Nathi and Gigi for possession of the agricultural lands allotted to the share of her deceased husband Miyajar and for mesne profits or in the alternative for partition of the joint family properties. It was Special Civil Suit No. 12 of 1965 on the file of Civil Judge (S.D.) Porbandar.;


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