KRISHNAJI ANNAJEE BULTE Vs. ANNAJEE DHONDAJEE BULTE

JUDGEMENT

(1.) This is a suit brought by the plaintiff for a declaration that the property kept in possession of his father defendant No. 1 for the enjoyment of defendants Nos. 1 and 5 is liable to be equally divided among the plaintiff and his brothers defendants Nos. 2, 3 and 4, and that the sale deeds and deeds of gift passed un authorizedly by defendant No. 1 are null and void. The case on behalf of the defendants was that there was a partition in 1910 and the property was divided into five equal shares and each sharer was absolute owner of the property that fell to his share, It appears that in 1910 there was a partition between the brothers and their father defendant No. 1. The present plaintiff made an application in 1910 for a decree to be passed in terms of an award Exhibit 83 After the presentation of the award the plaintiff contended that there was an agreement in writing to be passed by defendant No. 1 to the effect that the plaint property had fallen to the share of defendant No. 1 and was to be enjoyed by him during his life-time and by the step-mother and mother of the plaintiff during their lives for maintenance, Defendant No. 1 in his written statement, Exhibit 342 dated July 19, 1910, denied the assertion of the plaintiff that the plaint property was joint and asserted that the property allotted to his share by the award belonged to him absolutely. On June 8, 1911, a deed of gift, Exhibit 287, was passed by defendant No. 1, in favour of defendant No. 4 and on January 20, 1913, another deed of gift, Exhibit 288, was passed in favour of defendant No. 2. The present suit was brought on Patiar J. June 13, 1922.

(2.) Both the Courts held that the present suit was barred under Art. 120 of the Indian Limitation Act. The learned Subordinate Judge, however, was inclined to hold that the property in suit was kept joint to be enjoyed by defendant No. 1 and his two wives for their maintenance so that it may be divided equally among all the brothers after the death of defendant No. 1 and his wives. The lower appellate Court has not investigated this important question of fact. If the question had been gone into by the lower appellate Court and found against the plaintiff, the plaintiff's suit would have been liable to be dismissed on the merits. We will assume for the purpose of this appeal that the allegation of the plaintiff is true.

(3.) It is urged on behalf of the appellant, first, that the proper Art. applicable to the suit is Art. 127 of the Indian Limitation Act, secondly, that if Art. 127 does not apply and even if Art. 120 applies, there is a continuing cause of action within the meaning of Section 23 of the Indian Limitation Act, and, thirdly, that Art. 144 would apply as it is a suit for possession of an interest in immovable property.