TMI Blog2017 (4) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... HELD THAT:- The cause of action of the suit in the present case for partition is different and dispute as to mutation had been subsequently decided. Thus, the suit for partition as filed, could not be said to be barred by Order II Rule 2 Code of Civil Procedure. The Defendants were trying to sell the property in the year 1979 as such the Plaintiffs in the suit prayed for partition and separate possession. Plaintiffs could not have claimed interest in the land in the life-time of Anandibai and the cause of action in the previous suit for declaration of title filed by Anandibai was materially different. In the instant case it cannot be said that the second suit for partition was in respect of the same cause of action as that on which the previous suit was based. In respect of the cause of action of the previous suit Plaintiff was not entitled to more than one relief. Hence, it could not be said that the Plaintiff has omitted to sue for relief for which second suit has been filed. Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order II Rule 2 Code of Civil Procedure. Submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntalabai. The judgment had been affirmed by the High Court. The name of Anandibai was required to be mutated after death of Shakuntalabai. In the year 1976 the Plaintiffs came to know that the name of Anandibai had not been mutated over the land in question. Anandibai @ Sulochana filed an appeal in which ex parte order was passed against her. However as the Defendants were trying to sell the land as such suit was filed for partition and separate possession. 3. Defendants in their written statement contended that in the previous civil suits filed by Anandibai, the property had not been included as such the suit was barred by Order II Rule 2, Code of Civil Procedure. It was also contended that the name of Shankara Rao was mutated during his life-time and upon his death, it was recorded in the name of Shakutalabai. The share of Shankara Rao was partitioned and was allotted to the share of Chimasaheb. Chimasaheb denied the Plaintiff's right in the year 1962 and had been enjoying the property as absolute owner for more than 12 years. Therefore, suit was barred by limitation. 4. The trial court decreed the suit and held the Plaintiffs and Defendants to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: Article 65: 8. It was submitted on behalf of the Appellants that Anandibai became entitled to possession of the property on the death of Shakuntalabai in the year 1962. The name of Chimasaheb, original Defendant, was mutated and possession of Chimasaheb became adverse w.e.f. the date of death of Shakuntalabai in the year 1962. Thus the suit preferred by the Plaintiffs in the year 1979 beyond a period of 12 years, was hopelessly barred by limitation. We are unable to accept the submission as Explanation (b) to Article 65 of the Act is applicable only in the case where property is not claimed through the female but independently of woman who has died. The word entitled contained in Explanation (b) to Article 65 clearly means a person is entitled independently of the right of the Hindu or Mohammedan female. In case she is absolute owner Article 65(b) will have no application. In other words, it is necessary to trace the right to someone else and not to the Hindu or Mohammedan female, as the case may be. In the instant case, Shakuntalabai, daughter of Shankara Rao became absolute owner of the property on 6.2.1958 and on her deat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed by the High Court. It was held that Kirpi had no right of maintenance. The case was covered by Section 14(2) of the Hindu Succession Act and not by Section 14(1). The suit filed in the year 1982 was barred by limitation as the widow who had life interest, had died on 5.9.1967 and the suit for possession was not filed within 12 years of her death. This Court opined that the suit was barred by limitation, relying upon Article 65(b), this Court has laid down thus: 3. Sunder had executed, during his life time, a gift deed on 23.6.1920 in favour of his daughter Smt. Manshan (mother of the Plaintiff). He died on 17.9.1941. On 3.8.1945 Smt. Kirpi, widow of Sunder, filed suit against Smt. Manshan which finally resulted in a compromise to the effect that Smt. Kirpi will enjoy the suit property as long as she was alive and after her death the property will be inherited by her daughter Manshan. It appears that on 23.8.1958, Smt. Kirpi executed an adoption deed in favour her second daughter's son, namely Varinder Prakash-the Defendant and also executed gift deed in his favour. Smt. Manshan, mother of the Plaintiff, filed a suit on 27.5.1959 for cancellation of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the suit land. The High Court has rightly pointed out that even if the Plaintiff had sought amendment of the pleadings in the pending matter and claimed decree for possession, the legal position would have been different. He having not done so, he should have filed the suit for possession of the suit land within 12 years of the death of Smt. Kirpi, which he failed to do. The decision is totally distinguishable as Kirpi had life-time interest and the Plaintiffs became entitled to possession on the demise of said widow on 5.9.1967. The suit was filed on 14.12.1982 and it was held to be barred by limitation. In the instant case Shakuntalabai was not having life-interest but she was the full owner of the property, thus Article 65(b) has no application to the instant case. 11. Another decision of this Court in Ranbir Singh and Ors. v. Kartar Singh and Ors. AIR 2003 SC 1858 may also be referred to, in which this Court had observed in the backdrop of the fact that the widow had inherited the life estate in the ancestral property of her husband and brother. The parties were governed by custom under which a widow having life estate in the ancestra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s adverse possession has not been concurrently found by the three courts and in this case the starting point of limitation would not be the date of death of Shakuntalabai in the year 1962 as she was full owner, as such suit could not be said to be barred by limitation. 14. Coming to the second question raised on behalf of the Appellants as to the suit being barred by Order II Rule 2 of the Code of Civil Procedure, suffice it to say that the earlier suit based on different cause of action for a declaration for one-half of the share in certain other properties was filed by Anandibai in the year 1963. At that time the property in question was not included in the suit. It had been found by courts below, the suit of 1963 was based on different cause of action on the basis of deed of 1957 whereas in the instant case, cause of action is different. It is on the basis of death of absolute owner Shakuntalabai in the year 1962, Anandibai became owner and Plaintiffs had in turn inherited from Anandibai. Thus the cause of action of the suit in the present case for partition is different and dispute as to mutation had been subsequently decided. Thus, the suit for partition as file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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