LexBAPUSAHEB CHIMASAHEB NAIK-NIMBALKAR (DEAD THROUGH LRS.) & ANR. versus MAHESH VIJAYSINHA RAJEBHOSALE & ORS.
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[2017] 3 S.C.R. 387 BAPUSAHEB CHIMASAHEB NAIK-NIMBALKAR (DEAD A THROUGH LRS.) & ANR. v. MAHESH VIJAYSINHA RAJEBHOSALE & ORS. (Civi!Appea!No. 3110of2012) APRIL25, 2017 (ARUN MISHRA AND S. ABDUL NAZEER, JJ.] . Limitation Act, 1963 -Art. 65 Explanation (b) -Applicability- B Held: Art. 65 Explanation (b) is not applicable to a heir of Hindu C or Mohammedan female who is full owner of the property as it could not .be said that the person became entitled to fhe property independently of the right of the female but derives right through her - Suit by such a heir is not governed by Art. 65 Explanation (b) - On facts, property was claimed from a Hindu woman-SB, who was D fall owner, on her death in 1962 - It could not be said that AB-heir of such female or the plaintiffs became entitled to the property independently of the rights of SB - Thus, the suit filed by AB for separate possession/partition would not be governed by Art. 65 Explanation (b) - Limitation would not commence as per Art. 65 on death of female Hindu but the starting point of limitation for E computation of 12 years would be the date of start of adverse possession otherwise - However, concurrent finding that defendants were not in adverse possession and plaintiffs were in joint posses~on of the disputed land on the date of filing of the suit - Starting point of limitation would not be the date of death of SB in 1962 as she F was fall owner, as such suit filed in 1979 beyond period of 12 years not barred. Code of Civil Procedure, 1908 - Or. II, r. 2 -Applicability - Held; Or. JI, r. 2 does not apply if the cause of action in the subsequent suit is different from that of the former suit - On facts, the second suit for partition was not in respect of the same cause of action as G that on which the previous suit was based - It was on the basis of death of absolute owner SB in the year 1962, AB became owner and plaintiffs had in turn inherited from AB - Cause of action in the previous suit for declaration of title filed by AB was materially H 387 388 SUPREME COURT REPORTS [2017] 3 S.C.R. A different - Thus, the cause of action of the suit for partition being different and dispute as to mutation had been subsequently decided, suit for partition as filed, could not be said to be barred by Or. JI 1: 2. Dismissing the appeal, the Court HELD: 1.1Article65(b) of the Limitation Act, 1963 applies B where the female was a 'limited owner' with regard to the disputed property. Hence, if the sale is not for legal purposes, it would not be binding on the estate, the husband's heirs who would be entitled to inherit the estate after the widow's death, would be entitled on such death to sue for the recovery of the property c from the purchaser. As their right would be one derived from the husband and not from the widow, it would be independent of the widow and they would be the persons "entitled to sue for possession of the property on the death of the widow" within the meaning of Explanation (b) to Article 65. Hence, the said Explanation would apply to their suit and they would be entitled D to a period of 12 years from the widow's death within which to bring the suit. [Para 12)[398-E-G] Jagat Ram v. Varinder Prakash (2006) 4 SCC 482: [2006) 3 SCR 207 - distinguished. E Hashmat Begam & Anr. v. Mazhar Husain & Ors. (1888) ILR 10 All. 343; Ghisa Singh & Anr. v. Gajraj Singh AIR 1916 Oudh 50; Mohammad Yaqub v. Bijai Lal AIR 1918 Oudh 32; Zarif un-nisa & Ors. v. Chaudhri Shafiq- uz-zaman & Ors. AIR 1923 Oudh 185; Malkarjun Mahadev Belure v. Amrita Tukaram Dambare & Ors. F AIR 1918 Born. 142; Ranbir Singh & Ors. v. Kartar Singh & Ors. AIR 2003 SC 1858 : [2003) 2 SCR 291; Amar Singh & Ors. v. Sewa Ram & Ors. AIR 1960 Punjab 530; Harak Singh v. Kai/ash Singh and Anr. AIR 1958 Pat. 581; Mt. Lukai W/o Kati/cram and Ors. G .v. Niranjan Dayaram and Ors. AIR 1958 MP 160 - referred to. 1.2 Explanation (b) to Article 65 is not applicable to a heir of Hindu or Mohammedan female who is full owner of the property as it could not be said that the person became entitled to the H property independently of the right of the female but derives right BAPUSAHEB CHlMASAHEB NAlK-NlMBALKAR v. MAHESH 389 VIJAYSlNHA RAJEBHOSALE through her. Hence, the suit by such a heir could not be said to A be governed by Explanation (b) to Article 65. It cannot be said that the suit preferred by the plaintiffs in the year 1979 beyond a
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