2021 Supreme(Mad) 2902

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N.SATHISH KUMAR, J.
Jeganathan - Appellant
Vs.
Sellathurai - Respondent
S.A.(MD)No.861 of 2010
Decided On : 06-01-2021

Headnote:

Limitation Act, 1963 - Article 136, 110, 109 - Second Appeal - Partition deed - Suit filed for partition - Claiming 1/3rd share - Whether in law have not Courts below erred in ignoring decree under which plaintiff's vendor became entitled to 1/3rd share - Whether in law is not lower Appellate Court wrong in holding that settlement deed was not accepted when neither defendant nor other sharers disputed settlement deed - Whether in law have not Courts below misconstrued wherein it is clearly recited that after executing settlement deed, had ceased to have any interest in joint family property – Held, Court cannot come to conclusion that issue with regard to validity of settlement deed, arose in an earlier occasion - Be that as it may - Though preliminary decree was passed, from records, it is seen that it has not been enforced - No final decree application has been filed for dividing property, in pursuant to decree passed in O.S. - It is also relevant to note that to enforce any decree of Court, period of limitation is twelve (12) years, as per Article 136 of Limitation Act, 1963 - Though preliminary decree was passed in year 1993, it has not been enforced and no final decree application has been filed - Though it is contention of learned counsel for appellant that pursuant to preliminary decree, partition deed was executed among family members under Ex.A8, it is to be noted that though legal heirs has entered a partition deed, defendant or his vendor are not a party to above document - In such view of matter, mere entering of some partition in respect of undivided properties, it cannot be said that decree still holds good and creates a right - It is to be noted that any alienation is made by father in respect of ancestral property, same has to be challenged within a period of twelve (12) years, as per Article 109 of Limitation Act, 1963. Admittedly, father has made alienations on 03.06.1987 and 04.06.1987. Such alienations have not been challenged by him or his son within period of limitation i.e., (12) years from date of sale - Therefore, it cannot be stated that plaintiff's vendor had share in property - Even assuming that they had a share in property, as per preliminary decree by operation of law, same is lost and extinguished - When co-shares is excluded from joint family property, to enforce right to share, same should be done within a period of twelve (12) years, as per Article 110 of Limitation Act, 1963 - Having obtained preliminary decree in year 1993, same has not been enforced - Much water has been flown thereafter - On a perusal, boundaries set out in above deed, makes it very clear that plaintiff's vendor have no property in above mentioned four boundaries - If really, plaintiff's vendor had retained their right in property or in possession of property, same would have been reflected in any one of boundaries, but same has not been reflected - It also clearly indicates that rights of plaintiff's vendor, if any, already lost by operation of law - It is also to be noted that plaintiff claims to have purchased property in year 2007, after seven years of purchase of property by defendant. It is to be noted that in year 1987 itself under Exs.B2 and B3, and his two sons sold suit survey field to and her son -Thereafter, executed gift settlement in favour of his mother and thereby has become absolute owner of property - Along with her legal heirs had dealt with property in favour of defendant in year 2000, through Ex.B5. After above purchase, plaintiff appears to have purchased property from his vendor, who already lost his share, if any, in ancestral property not only by way of sale under Exs.B2 and B3 and also by operation of law -Such being position, on basis of preliminary decree passed in year 1993, which was also not enforced within 12 years, his right has already extinguished by operation of law - Such being position, mere execution of any document did not convey any title to plaintiff to claim partition in suit property - Second appeal is dismissed.