Case Note & Summary
The case pertains to a partition suit filed by Sakhubai Jagu Bodare (since deceased, represented by her legal representatives) against the appellants (defendant nos. 8 to 11) and other respondents. The common ancestor Savla Madane died in 1948, survived by his widow Radhabai, son Pandurang, and daughter Sakhubai. The suit property devolved on Radhabai and Pandurang. Radhabai died in 1972. Sakhubai claimed half share in the property of her mother Radhabai. Earlier, Pandurang's wife Parubai had filed Regular Civil Suit No.209 of 1992 for partition, which was decreed on 15th October 1993, but Sakhubai was not a party to that suit. Sakhubai instituted Regular Civil Suit No.128 of 2003 in February 2003 for partition. The trial court decreed the suit on 26th February 2007, and the decree was confirmed in Regular Civil Appeal No.253 of 2010. The appellants (defendant nos. 8 to 11) preferred the second appeal. The legal issues were whether the suit was barred by limitation and res judicata. The appellants argued that the suit was filed after 12 years from Radhabai's death and that the earlier decree in Suit No.209 of 1992 operated as res judicata. The respondents contended that Sakhubai was in joint possession as a co-owner and not a party to the earlier suit. The High Court held that the suit was governed by Article 65 of the Limitation Act, which provides 12 years from when possession becomes adverse, and since Sakhubai was in joint possession, the suit was within time. The earlier decree did not bind her as she was not a party. The court dismissed the second appeal, confirming the concurrent findings of the courts below.
Headnote
A) Limitation Act - Partition Suit - Article 65 - Daughter's Claim to Mother's Share - Suit for partition filed by daughter claiming half share in mother's property is governed by Article 65 of the Limitation Act, 1963, which provides a period of 12 years from the date when possession of the defendant becomes adverse to the plaintiff. Since the daughter was in joint possession with the defendants as co-owners, her possession was not adverse and the suit was within limitation. (Paras 5-7) B) Res Judicata - Section 11 CPC - Earlier Partition Suit - The earlier suit for partition (Regular Civil Suit No.209 of 1992) was between other family members and the daughter was not a party. Therefore, the decree in that suit does not operate as res judicata against her claim. (Para 4) C) Hindu Succession Act - Section 6 - Daughter's Right - The daughter Sakhubai, being a Class I heir of her mother Radhabai, is entitled to a share in the property inherited by Radhabai from her husband Savla. The suit for partition was maintainable. (Paras 2-3)
Issue of Consideration
Whether the suit for partition filed by the daughter Sakhubai claiming half share in the property of her mother Radhabai was barred by limitation and res judicata in view of the earlier decree in Regular Civil Suit No.209 of 1992.
Final Decision
The High Court dismissed the second appeal, confirming the concurrent decrees of the courts below. The suit for partition was held to be within limitation and not barred by res judicata.
Law Points
- Limitation Act
- 1963
- Article 65
- Article 120
- Partition suit
- Daughter's right
- Hindu Succession Act
- 1956
- Section 6
- Res judicata
- Adverse possession
- Co-owner's possession
