IMPORTANT POINTS
Property inherited upto four generations of male lineage from the father, grandfather etc. is ancestral property. Property inherited from mother, grandmother, uncle and even brother is not ancestral property. In ancestral property, the right of property accrues to the coparcener on birth.
Daughters not recognized as coparceners before 1989 Amendment. Therefore did not have right to partition. Coparcener as well as daughter should be alive to avail benefit of the provision at the time of commencement of 1989 Amendment.

JUDGMENT :

R.K. Agrawal, J.

This appeal is preferred against the impugned judgment and order dated 18.09.2006 passed by the High Court of Judicature at Madras in S.A. No. 780 of 2006 whereby learned single Judge of the High Court dismissed the appeal filed by the appellants herein at the admission stage.

2. Brief facts:-

(a) The case of the appellants, in a nutshell, is that the appellants herein are the daughters of Late Shri T.G. Basuvan (died on 29.12.1979) and Late Smt. Sundari (died on 22.07.1989) whereas Respondent No. 1 is the brother of the appellants herein. Late T.G. Basuvan left three properties consisting of agriculture land (Item Nos. 1 & 2) and dwelling house (Item No. 3)

(b) Later on, due to the irresponsible behaviour of Respondent No. 1, suit properties at Item Nos. 1 and 2 were leased out to Respondent Nos. 2 to 4 herein during the lifetime of the mother of the appellants herein.

(c) During the lease period, the mother of the appellants died. On the expiry of said lease deed, the appellants herein through legal notice approached the Respondent Nos. 2 to 4 to deliver the vacant possession of Item Nos.1 and 2. In reply, it has been stated that the lands were sold to them by Defendant No. 1.

(d) Being aggrieved, the appellants instituted a suit being O.S. No. 202 of 2003 praying, inter-alia, for the partition and separate possession of the suit properties which consisted of three items, namely, agriculture land (Item Nos. 1 and 2) and building site with constructed building (Item No. 3) and arrayed the brother as Defendant No. 1 and lessees/subsequent buyers as Defendant Nos. 2 to 4. The appellants herein were the plaintiffs in the original suit

(e) The trial Court, after hearing the suit at length, dismissed the same, vide judgment dated 28.09.2004 while holding, inter alia, that the plaint is the creature of the Defendant No. 1 and the plaintiffs, who being the puppets in the hands of Defendant No. 1, are not entitled to any partition.

(f) Being dissatisfied, the appellants took the matter before the District Judge, Udhagamandalam. Learned District Judge, vide judgment dated 14.12.2005, dismissed the appeal while upholding the decision of the trial court.

(g) Feeling aggrieved with the decision, the appellants herein preferred a Second Appeal being No. 780 of 2006 before the High Court of Judicature at Madras. Learned single Judge of the High Court, vide order dated 18.09.2006, dismissed the appeal at the admission stage itself.

(h) Consequently, this appeal has been filed before this Court by way of special leave.

3. We have given our solicitous consideration to the submissions of learned counsel appearing for both the parties and perused the relevant material on record.

Point(s) for consideration:-

4. The short question that arises before this Court is whether in the light of present peculiar facts and circumstances of the case, any intervention of this Court is required with the impugned decision of the High Court?

Rival contentions:-

5. At the outset, learned counsel for the appellants submitted that the High Court failed to appreciate that no limitation has been prescribed for filing a suit for partition by one or more co-sharers, hence, a suit for partition cannot be dismissed as being barred by time. Further, it was submitted that dismissal of a suit for partition by holding that the appellants herein have not filed the suit within 12 years from the date of dispossession cannot be sustained in the eyes of law specially when there is no proof to prove dispossession and the respondents have failed to plead and prove ouster. Hence, the impugned judgment of the High Court is liable to be set aside at the threshold.

6. Per contra, learned counsel for Respondent No. 1 herein submitted that Respondent No. 1 had never been a drunkard and the appellants made such allegations in order to defeat the sale made in favour of Respondent Nos. 2 and 3 and that during the lifetime of their mother, the suit properties remained un-partitio