ORAL ORDER

1. By the impugned order dated 14.12.2018, the learned Second Additional Civil Judge, Sanand, declined to frame the issue as to limitation in Regular Civil Suit No.245 of 2011 below Exh.39, in a suit pertaining to the partition for the ancestral properties.

2. On consideration of the submissions made by the learned counsel for the petitioner and perusing the impugned order as also taking into consideration the provisions of the Limitation Act, this Court does not find the merit in the petition for the simple reason that in absence of the provision prescribing the limitation for claiming the partition of the ancestral properties, issue of limitation would not arise.

3. As is clear from the scheme of the Limitation Act, limitation will operate in case of a dispute in respect of entitlement of a right, title or interest. The schedule pertaining to the limitation under the Limitation Act would apply in relation to the suites relating to accounts, contract, decree and instruments, immovable property by a mortgagor or for enforcement of payment of money secured by mortgage or otherwise charged upon immovable property or a suit by mortgagee for various purposes, suits relating to immovable properties, tort and miscellaneous rights. Pertinently, when it comes to ancestral property or joint family property, a suit by Hindu governed by Mitaxara law to set aside his father’s alienation of ancestral property and a suit for enforcement of a rght to share in joint family property in case of exclusion of a person therefrom is governed by limitation. (Article 109 and 110). The suit for partition does not find mention there. The residuary article 113 prescribes the period of limitation of three years from the date of accrual of cause of action.

4. It can be noticed from the scheme of the Limitation Act that the limitation is provided in case of the suit seeking resolution of the disputes or seeking a right, title or interest in the property. The estate of the deceased person would be governed by personal laws or the enactment like Hindu Succession Act or Indian Succession Act. Such statute may provide for intestate or testamentary succession or succession by inheritance, survivorship etc. In case of intestate succession, the personal laws like Mohammedan Law or the enactment like Hindu Succession Act provides for an order of succession and the extent of the share of a person entitled to succeed to. Even in case of devolution of coparcenery property of a Hindu, the right to share would exist in favour of a person on mere being a coparcener. Thus, in such a case, the share of a successor gets statutorily determined without adjudication from the Court. Thus, in cases of such nature, the right would preexist the suit for partition and the question of determination of such rights would not arise. By virtue of statutorily determination, a person would statutorily become owner of the property to an extent statutory entitled to. Suit for partition in such cases would be a mere formality for division of property by metes and bounds only, for realization of the share already statutorily vested in such persons. In a suit for partition, no determination of right title or interest would be involved. No limitation would divest a person of such statutorily accrued right. Therefore, no limitation can run again such statutory owners and the prescription of a limitation under the Limitation Act is thus wisely avoided by legislature. In absence of provision for limitation therefore the Court below was absolutely justified in declining to frame the issue pertaining to limitation in the suit for partition.

5. In the opinion of this Court, no error is committed by the Court below in refusing to frame the issue of limitation. No substance is found in this petition. The petition fails and is rejected.

(G.R.UDHWANI, J)

ANKIT SHAH