NAPU Vs. SAN BIBI

JUDGEMENT

(1.) The facts out of which this second appeal arises may be thus stated. One Ali Saheb died on 20 February 1912 leaving him surviving his widow Kathi Bibi and three daughters, Rahimat Bibi, Asmath Bibi (defendant 1) and San Bibi (the plaintiff). The record does not show when Rahimat Bibi died, but it is immaterial. Her son is defendant 5. The plaintiff brought this suit for partition and recovery of her share of her father's properties alleging that defendant 2, husband of her sister Rahimat Bibi, trespassed upon the properties in 1917. The suit was originally filed in the District Munsif's Court of Udumalpet on 24 July 1918. On 20th October 1919 the Munsif returned the; plaint for amendment on the ground that it was bad for partial partition. The plaint was re-presented in the same Munsif's Court on 20 February 1924, with the old court-fees plus some additional court- fees and with some amendments. The District Munsif again returned the plaint on 28 October 1924 for presentation to the proper Court. The next day, i.e., 29th October 1924, it was filed before the Subordinate Judge of Coimbatore by whom it was tried and decreed. There was an appeal by defendant 2 to the District Judge of Coimbatore who dismissed the appeal. The present appeal is by defendant 2.

(2.) The point argued before me is that; the suit is barred by limitation. Before I deal with the argument on this question, a few further facts will have to be stated. Defendant 2's plea on the merits was that Kathi Bibi took possession of all Ali Saheb's properties in satisfaction of the mahar of Rs. 7,500 due to her and was enjoying them as absolute owner from the time of Ali Saheb's death and that the properties were given by her to him in 1917. The plea of limitation was made the subject of issue 1. Issue 6 raises the question: "Is the gift by Kathi Bibi valid and true and if so binding on the plaintiff?"

(3.) The learned Subordinate Judge in dealing with issue 6 found that the gift relied on by defendant 2 is false, that the plaintiff has been living in item 5 after the death of her father and was getting the income from her mother and that all the daughters received their share in rent. He also found that there is no evidence that Kathi Bibi entered into possession as full owner or that she enjoyed the whole estate absolutely and adversely to the heirs. This finding amounts to saying that Kathi Bibi's possession was not adverse to the heirs but that that was only as co- owner. On issue 1, he also found that the time taken by the plaintiff between 24th July 1918 and 20 October 1919 in the District Munsif's Court of Udumalpet and again between 20 February 1924 and 20 October 1924 should be excluded and therefore the suit is not barred. He also observed that the suit being within 12 years of the death of the widow Kathi Bibi also no question of limitation arises. In para. 15 he says that the mother was in joint possession with the daughters of some property and leased it.