N MUHAMMAD HUSSAIN SAHIB Vs. SELAMBUKARA ABDUL GAFFOOR SAHIB

JUDGEMENT

(1.) Two questions of law arise in this appeal. The first has reference to the application of Section 116 of Evidence Act. The second is one of limitation.

(2.) The appellants are the legal representatives of one Naivasal Abdul Waheb Saheb, who instituted a suit in the Court of the District Munsiff of Tirupattur for partition of two items of immovable property. The properties originally belonged to three brothers, Mohammed Hussain, Mohammed Ghouse and Moham-?med Usman. On the 20 September, 1926, Mohammed Huss&in, who was a major, for himself and on behalf of his brothers, who were minors, conveyed item No. 1 to Mahabub Bivi the wife of the first defendant and the mother of the second defendant and on the 28 September, 1928, he conveyed item No. 2 to her. Mohammed Ghouse attained his majority in 1930 and Mohammed Usman his in 1936. On the 24 September, 1936, the plaintiff, the first defendant and a third person took a lease of both the properties from Mahabub Bivi for a period of ten years. On the 16 November, 1939, the plaintiff bought the shares of Mohamed Ghouse and Mohamed Usman in them. On the 14th December, 1939, he filed the present Suit for partition.

(3.) The District Munsiff held that the suit could not be maintained because sec- tion 116 of the Evidence Act precluded the plaintiff from questioning the title of Mahabub Bivi. The defendant also pleaded that the suit was barred by limitation, but this plea was rejected by the District Munsiff. The finding on the issue of estoppel was sufficient to dispose of the suit and consequently he dismissed it. On appeal the Subordinate Judge of Vellore agreed with the District Munsiff on the question of estoppel but disagreed with him on the question of limitation in so far as item No. 1 was concerned. The result was that the appeal was dismissed. The plaintiff died during the pendency of the appeal in the Subordinate Judge's Court., His legal representatives were brought on record in his place and they have filed the present appeal.