MAMLDI VENKATA SATYANARAYANA MANIKYALA RAO AND ANOTHER versus MANDELA NARASIMHASWAMI AND OTHERS

Citation: [1966] 1 S.C.R. 628 · Decided: 27-08-1965 · Supreme Court of India · Bench: A.K. SARKAR · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

MAl\llDI VENKATA SATYANARAYANA MANIKYAI,A 
A 
RAO AND ANOTHER 
v. 
MANDr;LA NA!!ASli\IllASWAMI AND OTHERS 
A ug11st 27, 1965 
[A. K. SARKA&, !lAGHUBAR DAYAL AND V. RAMASWAMI, JJ.j 
Indian Lirni;aition .r!ct, Arts 144 and 120·-·Aii~·1u11~u11 of shu1·c of flindu 
Joint family property--Pos~;ession of members uf j"nzily whc1her adverse 
tu ailenee-Period within which l"Uil for partition and possession by iditmee 
must be brought. 
A decree was passed in a money suit against N and his four ~ons who 
were members of a Mitakshara Hindu joint family. Jn execution of lhat 
decree the sbarea of the four sons in the joint family properties, <lescribed 
altogether aa 4/Sth share, were put up for auction in December, 1936 and 
purchased by S. N's interest was not put up for sale as it was the subject 
matter of insolvCillCY proceedinll". The sale to S was duly confirmed. S 
sold the properties to P. On November 6, 1939 an order was made under 
0. 21 rr. 35(2) and 96 of the Code of Civil Procedure for delivery of 
joint possession of the properties purchase to P along with the members 
of the )oiot_ family already in possession. This order was carried out and 
p<>MCOSton was delivered to P by publishing that fact by beat of drum a• 
prescribed in tho rules. 
Subsequently P retransferred the properties to S. 
On October 16, 1951 S filed a suit against the then members of the 
joint family and various alienees asking for a partition of the joint family 
properties into five equal shares and thereafter for possession of four of 
ouch shares by removing the defendants from possession. 
The trial court 
de::reed the suit but held that S was not entitled to a 4/ 5th share but only 
10 a 2/3rd share because before the decree a Sth son had been born to N 
who had not been made a party to the suit or the execution proceedinga 
and whose share had consequently not passed under the auction sale. 
Some of the defendants filed an appoal to the High Court which allowed 
the appeal holding that the suit was barred by limitation under Art. 144 
of Schedule I to the Limitation Act. 
S had fild a coss-0bjection in tho 
High Court on the ground that he should have been held entitled to a 
4/ Sth share of the properties which waa dismissed by the High Court 
without discussion of the merits in view of its decision on the ques~ion of 
limitation. S having died the appellants aa bis successors in intercot appeal-
ed to this Court under Art. 133 of the Constitution. The two Qtlll<ltion• 
that arose for decision were ( 1) whether the suit was barred by limillttion 
under Art. 144 or Art. 120 and (2) whether S was entitled 'to a 4/Stb 
!lbaro. 
HELD: (Per Sarkor and Raghubar Dayal, JJ.) (i) (a) The view thot 
'he mil was barred undor Art. 144 of the suit presented great difficulties. 
"fbe article obviously eontemplatcs a suit for pos~cssion of propcrtv where 
the defendant might be in posscss'on of it •• a~ainst the plainriff. How-
ever, the ?Urcha~er of 3 coparcencr's undivided interest tn joint family 
property is not entitled to po!!"lession of what he has purchased. His only 
ri~ht is to sue for pac'ition of the oroperty and ask for allotment to ~im 
o! lh:tt whic!l on partition mip.ht be found to fall to the •hare cf the co-
P!lt'CCner \vhose share he h.1s purchased. 
Hi.'i right lo p~es·:ioa \\'outd 
dote frnm the p.riod w~ a 1'peclfic allotment is mado in 
his 
favour. 
[632 HI 
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SATYANARAYANA v. NARASfMHA 
G29 
A 
S was therefore not entitled to possession till a partiticn had been 
made. As possession of the defendants could be adverse to him only if 
he was entitled to possession the difficulty in applying Art. 144 
arose. 
[633 Bl 
B 
c 
D 
E 
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G 
H 
Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain, [1954] S.C.R. 
177, relied on. 
Vyapuri v. Sonamma Bol Ammani, (1916) I.L.R. 39 Mad. 81, referred 
to. 
Mahant Sudarsan Das v. Mahan Ram Kirpal Das, (1949) LR. 77 I.A. 
42, distinguished. 
(b) Even on the assumption that Art. 144 applied the suit was not 
barred. 
In the present case the defendants were not in uninterrupted 
possession for twelve years as required by the Article. By the delivery of 
symbolical possession under the order of No\·ember 6, 1939, the adverse 
possession of the defendants was interrupted. Time had therefore to com-
mence to run from that date, and the suit having been brought within 
twelve years of that date, it was not bared und..r that article, [633 F-0] 
Sri Radha Krishna

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