Karnataka High Court
Sri K Immanna vs S Nemoji Rao on 19 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 550, 2020 (3) AKR 461
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
REGULAR FIRST APPEAL No.1206 OF 2004
BETWEEN
Sri. K.Immanna,
S/o. K.Kaloji Rao,
Aged about 51 years,
R/o. Gandhi Bazar,
Shimoga City.
...Appellant
(By Sri. G.S.Balagangadhar, Advocate)
AND
1. S.Nemoji Rao
S/o. K.Immanna,
Since dead by his LRs
1(a) Smt. Janaki Bai,
W/o. Late Nemoji Rao,
Since dead
2. N.Shivaji Rao,
Aged about 56 years,
3. N.Mohan Rao,
Aged about 54 years,
4. N.Balaji Rao,
Aged about 52 years,
2
5. Rathnaji Rao,
Aged about 49 years,
6. N.Chandroji Rao,
Aged about 30 years,
R2 to R6 are Sons of S.Nemoji Rao,
R/o. Gandhi Bazaar, Shimoga.
7. S.Shankara Rao,
S/o. Keroji Rao,
Aged about 59 years,
Hindu, Sheep Merchant,
R/o. Avalakki Keri,
Opp: To Municipal Office Road,
B.H.Road Cross, Shimoga.
8. Smt. Tulaja Bai,
D/o. Keroji Rao,
W/o. Gangoji Rao,
Mutton Merchant,
Medar Block,
Bamboo Bazaar, Mysore.
9. Dharmoji Rao,
S/o. Keroji Rao,
Aged about 47 years,
10. Krishna, S/o. Keroji Rao,
Aged about 42 years,
11. Babu, S/o. Keroji Rao,
Aged about 39 years,
12. Smt. Saroji Bai,
D/o. Keroji Rao,
W/o. Somashekar,
C/o. Baskarappa,
Teacher,
Devaraja Urs Extension,
3
Shiralkoppa,
Shikaripura Taluk
Shimoga District.
13. Nagarathna,
D/o. Keroji Rao,
Aged about 37 years,
14. Smt. Laxmi Bai,
W/o. Keroji Rao,
Aged about 72 years,
15. K.Kaloji Rao,
S/o. Immanna,
Since dead
R9 to R11, R13 & R14 are
R/o. Avalakki Keri,
Opp: Municipal office Road,
B.H.Road Cross,
Shimoga.
16. Smt. Sowbhagya,
D/o. Nemoji Rao,
W/o. Narayana Kuwarkar,
Nandaragi Voni, Betageri,
Gadag.
17. Smt. Shantha,
D/o. S.Nemoji Rao,
W/o. Nagaraja Kala Juganikar,
C/o. Nagaraja Kala-Juganikar,
P.W.D. Offie, Gadag.
...Respondents
(By Sri. Kaleemullah Shariff, Advocate, for R2 to R6,
R1(a) is dead as per cause title,
R7 to R13, R16 & R17 are served, R15 is dead)
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This RFA is filed under Section 96 of CPC against
the judgment and decree dated 01.07.2004 passed in
O.S.No.219/1987, on the file of the Principal Civil Judge
(Sr.Dn.), & C.J.M., Shimoga, partly decreeing the suit
filed by the appellant herein for re-opening of earlier
partition and partition and separate possession by
holding that the appellant herein has got 1/3rd share in
suit schedule item No.6 to 12, 14 & 15 and the
appellant herein prays to set aside the above judgment
and decree in so far as it relates to dismissal of suit for
re-opening of partition and for effecting partition and
separate possession of the suit schedule properties.
This RFA having been heard and reserved on
05.02.2020, coming on for pronouncement this day, the
court pronounced the following:
JUDGMENT
The plaintiff in O.S.219/1987 on the file of Principal Civil Judge (Senior Division), Shivamogga, has preferred this appeal. He brought a suit for re-opening of the partition dated 19.5.1955 and claimed 1/6th share in the properties described in schedule 'A' to the 5 plaint except items No. 2 and 3, and another 1 acre 16 guntas of land in item No. 18; for directing the defendants to pay to him Rs.31,000/- being the value of his 1/6th share in the proceeds of sale of properties described in schedule 'B' and for enquiry into mesne profits.
2. The pedigree filed by the plaintiff shows that one Imanna was the common ancestor and his wife was Nagu Bai. They had three sons namely Keroji Rao (deceased), Nemoji Rao, i.e., defendant No.1 and K.Kaloji Rao, defendant No.15. Plaintiff is the son of K.Kaloji Rao. Defendant No.14 Laxmi Rao is the third wife of Keroji Rao. Defendants 7 to 13 are the children of Keroji Rao. Defendants 2 to 6 and 16 and 17 are the children of Nemoji Rao.
3. The plaintiff stated that on 19.5.1955 there took place a family partition according to which his senior uncle Keroji Rao was allotted plaint schedule 6 item No.1, Shankar Rao, i.e., defendant No.7 and son of Keroji Rao was allotted plaint schedule items 2 to 5, the first defendant Nemoji Rao was allotted items 16 to 19 and K.Kaloji Rao, i.e., plaintiff's father was allotted item No.20. The wife of the propositus, i.e., Nagu Bai was allotted items 6 to 10. The seventh defendant Shankar Rao was still a minor at the time of partition. Since the value of the properties given to the first defendant was more than the values of the shares of other parties, the first defendant was assigned with a debt of Rs.6,500/-.
4. The plaintiff pleaded that he was not at all aware of this partition till the year 1986. His father Kaloji Rao was not intelligent and lacked worldly knowledge. His elder brothers used to dominate him. Taking advantage of the innocence of Kaloji Rao, his two brothers arrived at a partition which was not fair. After coming to know about the partition, when the plaintiff enquired defendants 1 to 7, there was no proper 7 response from them. He searched for the papers and also obtained certified copy of the partition deed and other documents pertaining to family properties. He came to know that even after 19.5.1955, some properties had been acquired from the business of the joint family. He alleged fraud on his father by his two uncles in effecting partition dated 19.5.1955 and therefore sought for re-opening of the partition.
5. Defendants 1 to 6 in their written statement admitted the relationship of parties stated by the plaintiff, but denied any fraud in effecting partition in the year 1955, they contended that the said partition was fair and just and stated further that acquisition of properties after 19.5.1955 did not belong to the joint family and all those properties belonged to them exclusively. They stated that the plaintiff was very much aware of the partition and the suit filed in the year 1987 was highly time barred. Defendants 7, 16 8 and 17 also filed written statement refuting all the plaint allegations and prayed for dismissal of the suit. Defendant No.15, i.e., the father of the plaintiff filed written statement supporting the plaintiff and stated that he was not aware of the partition deed effected in the year 1955. Defendant No.8 in her written statement stated that she was not aware of the partition deed and sought for allotting 1/8th share in her father's 1/3rd share.
6. The trial court raised 20 issues and then framed three additional issues on 21.7.1994 and two more additional issues on 6.6.2002. Three witnesses PWs 1 to 3 adduced evidence from plaintiff's side and got marked Exs. P1 to P135. From defendants' side, two witnesses DWs 1 and 2 adduced evidence and produced 22 documents Exs. D1 to D22.
7. The trial court, upon appreciation of evidence came to conclusion that the partition deed dated 9 19.5.1955 was binding on the plaintiff and that the suit for re-opening of partition was barred by limitation. However, noticing that Nagu Bai, the wife of the propositus was dead by the time the suit was filed, the trial court held that partition could be granted in respect of the properties that had been allotted to Nagu Bai in the partition dated 19.5.1955 and accordingly partly decreed the suit holding that the plaintiff was entitled to 1/3rd share in plaint schedule items 6 to 12, 14 and 15. Aggrieved by this judgment, the plaintiff has preferred this appeal.
8. Questioning the correctness of the findings of the trial court, Sri G.S.Balagangadhar, learned advocate for the appellant, argued that the trial court's conclusion that the partition dated 19.5.1955 was binding on the plaintiff is erroneous. It was his argument that the trial court answered all the issues in favour of the plaintiff except the issue on limitation. 10 The plaintiff was a minor when the partition took place. It was in the year 1986 that he came to know about the partition and he brought the suit within three years after gaining knowledge. In this view the suit was not time barred. The trial court has lost sight of the aspect of the matter.
8.1. Sri G.S.Balagangadhar elaborated his argument by arguing that whenever a suit is instituted for re-opening of the partition on the premise that there was no equitable partition, question of limitation would not arise. There is no bar for re-opening of partition at any time if it is found that the partition had not taken place properly and equitably. Especially when the plaintiff alleges fraud in effecting partition, the party deprived of legitimate share can institute a suit for re- opening of partition after he comes to know of it. Whenever a suit for re-opening of partition is filed, the court has to examine whether fraud has been played on 11 any of the parties at the time when the partition was effected in the past. If the evidence discloses fraud, the court is bound to decree the suit without considering the question of limitation. Therefore he argued that the trial court has grossly erred in holding the suit time barred.
8.2. It was his another point of argument that the trial court has not properly appreciated the evidence. It has completely ignored the effect of Ex.P113. Evidence shows that the partition dated 19.5.1955 was not proper; the father of the plaintiff was defrauded taking undue advantage of his innocence and lack of worldly knowledge. For these reasons, the appeal has to be allowed and suit decreed in entirety.
9. Meeting the arguments of Sri G.S.Balagangadhar, learned counsel for the respondents Sri Kaleemullah Shariff argued that the trial court has rightly come to conclusion that there is 12 no scope for re-opening of partition. The plaintiff has suppressed the fact that he came to know about the partition in the year 1974 itself. Acting on the partition, he mortgaged the property on 18.7.1974 and Ex.D1 and D2 provide proof for the same. He filed the suit 14 years thereafter. Therefore the suit was highly time barred. With regard to the merits of the suit, he submitted that the partition was fair and proper. If the partition deed is seen, it becomes amply clear that the first defendant was entrusted with the responsibility of discharging the debt of Rs.6,500/- and therefore she was given properties worth Rs.10,500/-. Entrustment of loan to him was for the purpose of balancing equity. The trial court has noticed all these aspects of the matter, There are no merits in the appeal and hence it is to be dismissed.
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10. The following points arise for discussion : -
(i) Whether the trial court has erred in arriving at a conclusion that partition dated 19.5.1955 cannot be re-opened despite its finding that there was disparity in allotting the shares?
(ii) Has the trial court rightly held that the suit is time barred?
Point No. (i):-
11. The plaintiff has sought to re-open the partition dated 19.5.1955 giving the reasons, firstly that the division of property was not made equitably; secondly that fraud was played on his father and thirdly that it was not acted upon. The trial court has given a finding in para 29 of its judgment that while effecting division there was no proper adjustment of shares based on valuation of the properties. In fact, this was the point that was very much emphasized by Sri G.S.Balagangadhar when he argued. In para 11 of the plaint, it is stated that 'A' schedule property was valued 14 at Rs.4,000/- approximately, 'B' schedule at Rs.10,500/-, 'C' schedule at Rs.4,000/- and 'D' schedule at Rs.1,000/-. These schedules are mentioned in the partition deed dated 19.5.1955. The valuation of 'B' schedule property of the partition deed comprising of plaint schedule items 16 to 19 was more than the valuation of the properties allotted to others. This is not disputed. But, an explanation is sought to be given that the first defendant was asked to discharge joint family loan of Rs.6,500/- and therefore he was allotted the properties the value of which was higher than the other properties. The trial court has given a finding in this regard that there was no just and equal division of property among the brothers and the mother in terms of the value of the properties.
12. To come to the above conclusion, the trial court has referred to the oral evidence of the witnesses. PW1 stated that at the time when partition took place, 15 the joint family had no loan to be repaid, that the properties allotted to the first defendant were of a higher value, that the property allotted to his father was item No.20 whose measurement is shown as 13.15 x 110 feet and 120 x 4 feet, that it is a house property which was valued at Rs.4,000/-, that Nagu Bai was allotted agricultural land to the extent of 13 acres, that the measurement of the house given to the first defendant actually measures 23 x 110 feet, but in the assessment register, its measurement is shown only 23 x 40 feet and that his father was not in a position at that time to understand the disparity in measurements. The trial court has also noticed the evidence given by DW1 that in the year 1950 properties situate at Durgigudi Extension and Savalanga Road in Shivamogga were purchased for Rs.6,000/- each from one Panchaksharappa and Channappa. He also stated that one piece of agricultural land allotted to his share was purchased in the year 1954 by all the three brothers for 16 Rs.7,525/-. He further stated that property allotted to plaintiff had irregular shape (kochu in Kannada). When he was questioned as regards the family debt which was entrusted to him for repayment, he gave the answer that Rs.8,000/- was due and that Rs.4,000/- was to be repaid to one K.Ramanna and some money to Brahmoji Rao, but he admitted that in the partition deed the names of these creditors are not mentioned and even there are no documents to this effect. I think at this juncture that it is better to discuss the effect of this evidence after discussing the other two reasons emphasized by the learned counsel, Sri Balagangadhar.
13. Examining the aspect whether partition was acted upon, the trial court has held that in Ex.D1, the mortgage deed, there is a reference to partition deed, and its registration details. These details could not be mentioned without having the partition deed at the time of drafting mortgage deed. Subsequently the mortgage 17 was redeemed as evidenced by Ex.D2. The plaintiff was a major when mortgage deed was executed by him and his father. Therefore it cannot be said that the plaintiff did not have knowledge prior to 1986.
14. I have examined Ex.D1 and Ex.D2, though PW1 has given evidence that he did not know about mortgage, that answer cannot held to be true, the possible inference to be drawn is that Ex.D1 and D2 not only indicate the partition having been acted upon, but also the fact that the plaintiff might have come to know about mortgage in the year 1973, if not earlier.
15. Apart from the above, the trial court has noticed certain other aspects found in oral evidence. PW1 has very clearly answered that he and the first defendant are residing separately, that they have separate ration cards for their families, that in the property allotted to his father, there were some tenants from whom his father was collecting rents. But PW1 18 made an attempt to improve his case by giving an answer voluntarily that his father used to just pass receipts at the instance of first defendant, and actually the first defendant was collecting the rents. The trial court has disbelieved this answer and I too have to take the same view in as much as Ex.D5 shows rents having been collected by the plaintiff's father in the year 1994- 95, i.e., seven years after institution of the suit. There is also evidence to show that the plaintiff was collecting daily rent from a goldsmith and that the plaintiff himself started his independent business obtaining loan from the Syndicate Bank. Sri. G.S.Balagangadhar argued by referring to this part of evidence that there is no restriction for a member of joint family to own independent business. Yes there is no any such restriction or prohibition, and certainly a member of joint family can have his own business. The trial court appears to have considered this aspect not from the 19 angle argued by Sri. G.S.Balagangadhar, but as one of the circumstances indicative of acting upon partition.
16. In addition to municipal and revenue records that have been marked, there are two more documents as per Ex.P37 and Ex.P40 which show acceptance of mutation and making entries in the register of record of rights based on partition dated 19.5.1955.
17. Sri. G.S.Balagangadhar's argument was that the trial court has not considered Ex.P.113, but in fact the trial court has discussed the effect of Ex.P113 in paras 41 & 42 of its judgement and held that it has least effect as it is not possible to hold that even after 1955 partition, the first and the seventh defendant remained in joint family. If Ex.P113 is subjected to scrutiny again, what is found is that the said document purports to be a partition though captioned as agreement to partition; it appears that the first and the seventh defendant jointly purchased some lands at two 20 villages; and that they partitioned these properties on 30.6.1986. The suit is not filed in respect of these properties; there is no mention of them in the plaint schedule. Probably the first and the seventh defendants might have partitioned these properties on 30.6.1986 as they were joint owners, there is nothing to show that the said properties belonged to joint family at any time earlier. Therefore Ex.P113 does not help the plaintiff in any manner. This apart, PW1 has very clearly admitted that the first defendant obtained conversion of land in Sy.No.5 and sold sites to 42 persons, that his objection to granting conversion was rejected even by this court, and that later on he filed suits against the purchasers which were also dismissed for his being unable to pay court fee. Therefore the conclusion to be drawn is that there is ample evidence in proof of partition having been acted upon.
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18. The next point is as regards fraud. The plaintiff states that his father was not worldly wise, and he was a dullard, and he did not know the contents of the partition deed. G.S.Balagangadhar stressed this point very much while arguing. The trial court has recorded reasons that the plaintiff's father i.e., defendant No.15 gave evidence as a witness in another suit O.S.54/1977 as evidenced by Ex.D6, that very admission of PW1 that his father used to participate in the auctions held by the municipality for selling sheep, that the father was a mutton vendor and therefore these facts would clearly indicate that the plaintiff's father was not a dullard.
19. The findings of the trial court in this regard cannot be said to be incorrect. On assessing the evidence, it may be stated that the plaintiff's father was able to transact independently. The trial court has not referred to Ex.D7 and D8. Ex.D7 is a certified copy of 22 lease deed which shows that the plaintiff's father let out a house to one Madan Lal. Ex.D8 is a certified copy of sale deed which shows that on 12.8.1968, the plaintiff's father and his two elder brothers together sold away one agricultural land that stood in the name of their mother. Therefore these two documents help to draw an inference that plaintiff's father was not a dullard. They also prove that partition was acted upon. If really there was any fraud in effecting partition, the plaintiff's father should have questioned it, he did not take any action at all, rather the evidence shows that he accepted the partition. Above all, the father who is arrayed as defendant No.15, filed written statement supporting his son and he should have entered witness box to speak about fraud. He did not; PW1 is an incompetent witness to speak about fraud. Therefore this point is not sustainable.
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20. Harking back to conclusion reached by the trial court in regard to disparity in allotment of shares, it is to be now stated that its findings or conclusions appear to be not acceptable. It is no doubt true that the value of properties allotted to first defendant is more than the value of properties given to others; it also appears that some of the sharers were given properties larger in extent than what was given to defendant No.15 i.e., the plaintiffs' father. But this disparity cannot be a reason for reopening of the partition. So far as the value of the properties is concerned, the balance appears to have been met by saddling the responsibility on the first defendant to repay the family loan. The trial court disbelieves the evidence of DW1 as he stated that there was no documentary proof for the loan. This reason does not appear to be commendable. As discussed above, the partition has been acted upon; defendant No.15 did not question the partition, and his acceptance of the partition would show that there was 24 no unfairness and disparity in the partition. There is mention about family loan in the partition deed itself. Why it should be disbelieved when there is ample proof for it being acted upon by the parties? Moreover every loan transaction need not have documentary support, the facts and circumstances may be considered to believe such transactions. Therefore this ground of attack fails.
Point No. (ii):-
21. Sri. G.S.Balagangadhar argued that limitation issue does not arise when partition is sought to be reopened on the grounds of unfairness, in-equitability and fraud; and in this case, all the three reasons are proved. He has relied upon some decided cases which are now considered.
22. In B.V.Deveerachar and Another Vs. D.Visweswariah and Others (AIR 1968 Mysore 211), 25 it is held that a partition effected by a father can be sustained only if it is fair and equal, and if a valuable property is excluded from partition on the ground that it is unavailable for partition as it is a separate property of a member of a family, such partition invites reproach. The facts of this reported case disclose that the father himself effected partition among his sons; and one of the sons challenged the partition alleging unfairness while effecting division. The trial court granted the decree and the High Court dismissed the appeal of the defendants 1 and 2. The evidence showed that the partition was not fair.
23. In the case of Ratnam Chettiar and Others Vs. S.M.Kuppuswami Chettiar and Others (AIR 1976 SC 1) the Supreme Court laid down the following four propositions:-
"19...... (1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their 26 consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.
(emphasis supplied) (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.
(3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.27
(4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair".
24. Again, the Supreme Court, following its earlier judgment in the case of Ratnam Chettiar held in the case of Smt. Sukhrani (dead) by LRs and Others Vs. Hari Shanker & Others (AIR 1979 SC 1436) that, "7. All that we need say is that the learned author has not referred to any decided case in support of what he has said, but the matter is now no longer res integra. In Ratnam Chettiar & Ors. v. S. M. Kuppuswami Chettiar & Ors. (supra) an identical question arose and it was held that even though there was no fraud, misrepresentation or undue influence, a partition could be reopened at the 28 instance of a minor coparcener, despite the fact that the branch was represented by his father at the partition, if the partition was unfair or prejudicial to the interest of the minor. It was also held that the entire partition need not be reopened if the partition was unfair in regard to a distinct and separable part of the scheme of partition. In such an event the reopening of the partition could be suitably circumscribed. In the light of the principles laid down in Ratnam Chettiar & Ors. v. S. M. Kuppuswami Chettiar & Ors.
(supra) this appeal is dismissed with costs".
25. A.Venkappa Bhatta and Others Vs. Gangamma and Others (AIR 1988 Kerala 133) is a case decided by Kerala High Court. On noticing undue influence and misrepresentation at the time of effecting partition, the Kerala High Court confirmed the judgment of the trial court which had decreed the suit. A coordinate bench of this court, in the case of A.Ganapathi Nayak Vs. Devanatha (ILR 1999 KAR 29
613) has also held that partition can be reopened if it is prima facie proved that it is unjust and detrimental.
26. Therefore from the above rulings what emerges is that partition can be reopened only if the proved facts indicate unfairness, or fraud or exercise of undue influence or an alike ground at the time of partition, or other wise it cannot be reopened. In all these decisions, issue with regard to limitation is not discussed, but it can be stated that if any such ground is proved, limitation may not arise for consideration, for it is that right of party to claim equal and legitimate share in the properties unless he consents for taking lesser share, which is again a matter of proof.
27. But in the case on hand, as already discussed, there is no proof for the father of plaintiff being defrauded; there is no proof for the other parties to the partition dated 19.5.1955 being unfair towards plaintiff's father; and on the contrary there is ample 30 proof for the said partition being acted upon. For these reasons limitation question certainly arises. It is a fact that the plaintiff was a minor at the time of partition. His say that he came to know of it only in the year 1986 has no evidence. Ex.D1 and Ex.D2 show his participation in creating mortgage and redeeming it; these transactions took place in the years 1973 and 1974 respectively. Therefore the date of first knowledge about partition can be unhesitatingly taken as date of mortgage in the year 1973. If Article 110 of Limitation Act is applied, the suit should have been filed within 12 years from 1973. But this Article is not applicable, for it is applicable when a suit is filed by a person excluded from a joint family property. This is not the case here. If Article 113 is applied, limitation period is 3 years from the time of accrual of right to sue. In this context Sri. G.S.Bala Gangadhar placed reliance on two rulings (1) Nanak Chand and Others Vs. Chander Kishore and Others (AIR 1982 Delhi 520) and Mt. Bolo Vs. 31 Mt.Koklan and Others (AIR 1930 PC 270). Both the decisions are in relation to suits for partition, and hold that there can be no right to sue until right accrues. In the case on hand actually right to sue accrued when plaintiff attained majority; or else in the year 1973 when he joined with his father in executing mortgage deed if it can be said that he did not have knowledge about partition when he attained majority. It is interesting to mention here what the plaintiff has stated in the plaint; he states that he came to know about partition for the first time in year 1986; and he has not stated that he came to know about inequitable partition in the year 1986. His assertion in the plaint is contrary to Ex.D1. Hence suit filed in the year 1987, after 14 years from the date of Ex.D1 is time barred. The trial court is justified in holding that this suit as time barred.
28. It appears that the trial court has come to a right conclusion to allot shares in the properties that 32 were allotted to Nagu Bai, the mother of defendants 1 and 15, and one Keroji Rao. Nagu Bai was dead by the time suit was filed.
29. The appeal should therefore fail from above discussion. It is dismissed with costs.
Sd/-
JUDGE ckl