Case Note & Summary
The dispute arose from an execution sale of undivided shares in Mitakshara Hindu joint family property. A money decree was passed against N and his four sons, who were members of a Hindu joint family. In execution, the shares of the four sons, described as 4/5th share, were auctioned in December 1936 and purchased by S. N's interest was not sold due to insolvency proceedings. The sale was confirmed. S transferred the property to P. On November 6, 1939, an order under Order 21 Rules 33(2) and 96 of the Code of Civil Procedure, 1908 was made for delivery of joint possession to P along with the family members already in possession. Symbolical possession was delivered by beat of drum. P later retransferred the property to S. On October 16, 1951, S filed a suit against the then family members and alienees seeking partition of the joint family properties into five shares and possession of four shares. The trial court decreed the suit but held S entitled only to a 2/3rd share, not 4/5th, because a fifth son had been born to N before the decree and was not a party. Some defendants appealed to the High Court, which allowed the appeal holding the suit barred under Article 144 of the Limitation Act. S's cross-objection for 4/5th share was dismissed. S died, and his successors appealed to the Supreme Court under Article 133 of the Constitution. The Supreme Court considered two main issues: whether the suit was barred by limitation under Article 144 or Article 120, and whether S was entitled to a 4/5th or 2/3rd share. The majority (Sarkar and Raghubar Dayal JJ.) held that Article 144 did not apply because the purchaser of a coparcener's undivided interest has no right to possession until partition; hence adverse possession could not run against him. Even if Article 144 applied, the symbolical possession delivered in 1939 interrupted adverse possession, making the 1951 suit within twelve years. Article 120 also did not bar the suit because the right to sue accrues only on unequivocal threat, which was absent. The cross-objection was rejected because the share purchased was only the four sons' share at the date of sale, which had reduced to 2/3rd due to the fifth son's birth. Ramaswami J. delivered a separate opinion, holding that Article 144 applied to such a suit for possession, but agreed that symbolic possession interrupted adverse possession, so the suit was not barred. The Supreme Court allowed the appeal, set aside the High Court judgment, and restored the trial court decree.
Headnote
A) Limitation Law - Article 144 Applicability - Alienee of Undivided Share - Indian Limitation Act, 1908, Article 144 - The purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he purchased; his right is only to sue for partition and allotment. Since possession of defendants could be adverse only if plaintiff entitled to possession, Article 144 did not bar the suit as plaintiff had no right to possession until partition. Held: suit not barred under Article 144. (Page 632-633) B) Limitation Law - Article 144 - Interruption by Symbolic Possession - Indian Limitation Act, 1908, Article 144 - Delivery of symbolical possession under court order dated November 6, 1939 interrupted adverse possession; time commenced from that date. Suit filed October 16, 1951 was within twelve years, hence not barred. The order was not nullity though court erred in law; it had full effect unless set aside. (Page 633-634) C) Limitation Law - Article 120 - Right to Sue Accrual - Indian Limitation Act, 1908, Article 120 - For Article 120, right to sue accrues when right asserted is definitely threatened or challenged. No unequivocal threat by respondents shown; therefore suit not barred under Article 120. Bai Shevantibai v. Janardan R. Warick disapproved insofar as it held right to sue accrued from date of sale. (Page 636) D) Hindu Law - Alienation of Coparcener's Share - Share at Date of Sale - Hindu Law - The share purchased at auction sale was share of four sons at date of sale, reduced from 4/5th to 2/3rd by birth of fifth son before sale. Alienee not entitled to 4/5th share; cross objection dismissed. (Page 637) E) Limitation Law - Article 144 - Suit for Partition by Alienee as Suit for Possession - Indian Limitation Act, 1908, Article 144 - Per Ramaswami J., such suit is really for possession because main relief is delivery of possession of share allotted; thus Article 144 applies. Adverse possession begins from date of purchase (December 21, 1936), but symbolic possession interrupts continuity; hence suit not barred. (Page 638-641)
Issue of Consideration
Whether suit for partition and possession by alienee of undivided share in Hindu joint family property was barred by limitation under Article 144 or Article 120 of Indian Limitation Act, 1908; and whether alienee was entitled to 4/5th or 2/3rd share in joint family properties.
Final Decision
Supreme Court allowed appeal, set aside High Court judgment, and restored trial court decree; held suit not barred by limitation under Article 144 or Article 120; cross objection dismissed and plaintiff entitled to 2/3rd share only.
Law Points
- Purchaser of a coparcener's undivided interest in joint family property does not acquire right to possession until partition
- his only right is to sue for partition and seek allotment. A suit by such alienee for partition and possession is governed by Article 144 or Article 120 of Limitation Act depending on whether actual possession is sought. Symbolic possession delivered under court order interrupts adverse possession. The right to sue under Article 120 accrues only when right is unequivocally threatened. Share of alienee is limited to share held by coparcener at date of sale
- subsequent birth increasing family reduces share.
