1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2643 OF 1987 Mubarakunnis w/o Mohammed Naseem & ors ..Plaintiffs vs. Moinuddin Mohd Usman Khan & ors. ..Defendants Mr. A.N.Maniyer for the Plaintiff Mr.P.R.Gyani, Sr. Advocate i/b Mr. N.R.Gandhi for Defendant No.1 to 5, 6(b) & 7 Mr.B.G.Tangsali for Defendant No.6(c) CORAM: Smt. ROSHAN DALVI, J. DATED: 1 st April, 2009 Oral Order : 1. The original Plaintiff has sued for administration of the estate of her father. She has expired. Her heirs have been 2 brought on record. They shall be referred to as the Plaintiffs. Pleadings are filed. The issues have been framed on 20.06.2007. The first issue is with regard to the bar of limitation. The Plaintiff has thereafter taken out various Notices of Motion being Notice of Motion No.3870 of 2007, Notice of Motion No. 1834 of 2008 and Notice of Motion No.904 of 2009. The Defendants Advocate contend that the issue of limitation be decided as preliminary issue. That issue is required to be decided under the provisions of order 14 Rule 2 of the CPC as a preliminary issue. 2. Issue of limitation is framed as under: Whether the claim in the suit is barred by law of Limitation. 3. This is an administration suit. The Plaintiff is the daughter of the deceased father whose estate the Plaintiff seeks to have administered. It is the Plaintiff's case that her father left only two heirs - her mother and herself. The parties are Muslims governed by Muslim personal law. Her mother is entitled to 1/8 share in the estate of the deceased. The Plaintiff claims 2/3 rd of the remaining 7/8 estate of the deceased. The Plaintiff claims that the deceased as a partner in various businesses such as Muslim Bakery, Gulshan Bakery, Shahi Bakery and Javed Restaurant had 1/5 th share 3 in the profits and assets of the partnership firm along with Defendants who were the other partners. The extent of the share of the Plaintiff's father in the partnership firm is not denied. The Plaintiff has also claimed similar share in certain immovable properties of her father as his estate. These properties are enumerated in the list of partnership firm and immovable properties annexed as Exhibit A to the Plaint. 4. The suit is filed for declaration that the Plaintiff is entitled to 88 paise share in a rupee in the estate of the deceased, that the sale of one immovable property Kohinoor Manzil is invalid and be canceled, for directions against Defendants No.1 to 7 to disclose the assets of the deceased, to administer the estate of the deceased under directions of the Court, to sell the properties mentioned in Exhibit A to the Plaint and pay off the Plaintiff's share, to take accounts of the properties of the deceased and secure the Plaintiff's share, and make such inquiries as necessary. 5. The Plaintiff's father expired in April 1955. This suit has been filed initially as pauper Petition on 14.01.1985. It has been numbered in 1987. 6. It may be mentioned that the Plaintiff's mother who was also an heir of her father has never sued. The Court has been 4 informed that the Plaintiff's mother was appointed as partner in the place and stead of her father in various partnership firms. She retired in December 1955 as such partner. The partnership firms were reconstituted in January 1956. The Plaintiff has not sued for accounts of the share of her father as deceased partner. The Plaintiff claims instead a 1/5 th share in the properties and assets of the various partnership firms where her father had such share. The Plaintiff has not shown any Partnership Deed. The Plaintiff claims to have no documents. 7. Mr. Maniar on behalf of the Plaintiff argued that the suit is filed under Muslim Personal Law. He relied upon Mulla's Principles of Mohammedan Law Chapter V, section 41 at page 25 in the 19 th Edition relating to the devolution of inheritance. It shows that the estate of a deceased Mohammedan who died intestate devolves on his heirs at the moment of his death . This concept is explained under the said section itself. The estate vests immediately in each heir in proportion to the share ordained by Mohammedan Law. The said section further shows that the heirs succeed to the estate as tenants- in-common. When the heirs continue to hold the estate as tenants- in-common without dividing it and one of the them subsequently brings the suit for recovery of his share, the limitation starts running from the 5 date of his ouster, or denial of title. Hence the suit would be governed under Article 144 of Schedule 1 of the Limitation Act 1908 (equivalent to Article 65 of Schedule 1 of the Limitation Act, 1963) 8. The Plaintiff's Advocate has placed reliance upon the said article to claim that this suit is governed by Article 65. Article 65 is with regard to suits for possession of immovable property or interest based on title. The period of limitation is 12 years from the date when the possession of the Defendants become adverse to the Plaintiff. This suit is not for possession. The Plaintiff has not continued to hold the estate of her deceased father in respect of the 1/5 share in the partnership assets. The Plaintiff has not been ousted from her share at any time after she continued to hold such share. The Plaintiff has been living in one residential premises. Defendants have not ousted her from that residential premises. The above provision relating to limitation for recovery of Plaintiff's share would apply only if the Plaintiff was ousted from such premises. That would be within 12 years from the date of ouster. The Plaintiff has claimed 1/5 th share inter alia in the partnership firms. There is no question of the Plaintiffs ''continuing to hold'' such share in any of the firms since the firms have been dissolved and reconstituted after the Plaintiff's mother was admitted 6 as partner and later retired as partner of those firms. The Plaintiff's suit is for administration of the estate. The Plaintiff's case is therefore, not covered under article 65 of the Limitation Act. 9. Under Mohammedan Law the heirs become entitled to the estate from the moment of the death of the deceased, whose estate is claimed, since the estate vests in them at the moment of his death. The Plaintiff became an owner of the 88 paise share in a rupee from the moment of death of her father. Hence from that moment the right to sue accrued to the Plaintiff. The Plaintiff must, therefore, sue for administration of the estate of her father within the period of limitation which began to run from the moment of his death. Such suit would require to be filed under Article 113 of schedule 1 of the Limitation Act, since no other period of limitation is provided elsewhere in the schedule for administration suits. Under the said article it is three years from the accrual of the right to sue. That would be within three years from the time the estate vests in the Plaintiff and the Plaintiff becomes entitled to the estate. That would be within three years from the moment of death of her deceased father. 10. The Plaintiff's Advocate further contended that her right to 7 sue first accrued when a Deed of settlement was entered into by and between the Defendants. That Deed was executed in 1982. The suit has been filed in 1985. Hence it is contended, that it is within the period of limitation. 11. It is seen that the right first accrued from the moment of death of the deceased. The Plaintiff has claimed that the Defendants assured her at all material times that they would give her share when the estate of the deceased would be finally settled. The Plaintiff continued to wait. The wait lasted 30 years. The Plaintiff claims that the Defendants finally settled the share in 1982 and because the Plaintiff was not given her share she has sued. This would mean that if the Defendants do not enter into a Deed of Settlement amongst themselves for their partnership properties for a 100 years, the Plaintiff would not sue. Such interpretation is absurd. The Plaintiff must sue from the time the cause of action accrues. The aforesaid provisions of Mohammedan Law show that it first accrued from the moment of the death of the deceased. 12. The Plaintiff's Advocate relied upon Article 58 of schedule 1 of the Limitation Act, with regard to the prayer of declaration. Even under that article the limitation period is 3 years from the time when the right to sue first accrued. Even 8 if the present suit is taken to be a suit for declaration, since in prayer (b) the Plaintiff has prayed for a declaration that she is entitled to 88 paise share in a rupee in the estate of the deceased, the declaration that is claimed is for such estate. Such estate has to be administered. Accounts of such estate have to be taken. Properties of such estate have to be sold. Then alone can the share of the Plaintiff be given to her. The mere declaration of the share in the estate of the deceased would also, therefore, require the suit to be filed within 3 years from the moment of the death of the deceased as that is when the right to sue would first accrue since that is the time when the estate vests in the Plaintiff. 13. Seen from both the angles upon the fundamental principles of Mohammedan Law, the Plaintiff was entitled to any part of the estate of her deceased father as also for administration of such estate of her deceased father which vested in her within three years from the date of his death. The filing of the suit has nothing to do with the settlement inter se amongst the Defendants of the five partnership firms which continued after the death of the deceased partner for as long as about three decades. 14. The Plaintiff's suit is far too delayed. It is distinctly barred by law of limitation. 9 15. Hence issue No.1 is answered in the affirmative. 16. Suit is dismissed accordingly, Notices of Motion being Notice of Motion No.3870 of 2007, Notice of Motion No. 1834 of 2008 and Notice of Motion No.904 of 2009 accordingly also stand dismissed. (Smt. Roshan Dalvi, J)