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1 - 10 of 18 (0.46 seconds)Section 8 in The Hindu Succession Act, 1956 [Entire Act]
Sangita Rehan & Ors. vs Surinider Kishan Grover & Ors. on 13 October, 2014
In Sangita Rehan v. Surinder Kishan Grover 218 (2015) DLT 305,
in a case where the suit for partition was filed 36 years after the death of the
father, this Court held it to be barred by limitation. In the present case as
well, Sh. Sriram Sharma passed away in the year 1980, however, the suit for
partition came to be filed by the Plaintiff only in 2013, after almost 33 years.
The long period that elapsed from the time of the father's death, partition
between the father and the uncle and thereafter 33 years, clearly raises
questions as to whether the right was waived. The Plaintiff, clearly did not
assert her rights diligently and in time. But the fact remains that the Plaintiff
regularly visited the suit property as stated by her in her cross examination.
It appears that only in the year 2013 the relationship between the siblings
went sour leading to the filing of the present suit. The Plaintiff sought
partition at that stage and prior to that, there existed no cause of action to file
the suit. It cannot therefore be held that the suit is barred by limitation.
Shambhu Prasad Singh vs Mst. Phool Kumari & Ors on 24 March, 1971
14. The counsel for the Defendants has further contended that the
Defendants have been in exclusive possession of the suit property. She
submits that even a co-sharer can assert adverse possession. However, in
such a case, such an assertion can succeed, only if it can be shown that the
non-possessing co-sharer has been ousted from the property and the property
has been in exclusive possession and enjoyment of one or more co-sharers
and in a manner that is hostile to the said co-sharer. The concept of adverse
possession between co-sharer and non co-sharer has been settled by the
Supreme Court in Shambhu Prasad Singh v. Phool Kumari & Ors. (1971)
2 SCC 28 (hereinafter, „Shambhu Prasad‟). The Supreme Court held as
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under:
Kuthali Moothavar vs Peringati Kunharankutty on 18 July, 1921
"On the question of adverse possession by a co-sharer
against another co-sharer, the law is fairly well settled.
Adverse possession has to have the characteristics of
adequacy, continuity and exclusiveness. The onus to
establish these characteristics is on the adverse
possessors. Accordingly, if a holder of title proves that
he too had been exercising during the currency of his
title various acts of possession, then, the quality of
those acts, even though they might not be sufficient to
constitute adverse possession as against another, may
be abundantly sufficient to destroy that adequacy and
interrupt that exclusiveness and continuity which is
demanded from a person challenging the possession
the title which he holds. (See Kutbali Moothavar v.
Paringati Kunharankutty AIR 1922 PC 181). As
between co-sharers, the possession of one co-sharer is
in law the possession of all co-sharers. Therefore, to
constitute adverse possession, ouster of the non-
possessing co-sharer has to be made out. As between
them, therefore, there must be the evidence of open
assertion of a hostile title coupled with exclusive
possession and enjoyment by one of them to the
knowledge of the other.
P. Lakshmi Reddy vs L. Lakshmi Reddy on 5 December, 1956
(See Lakshmi Reddy v.
Lakshmi Reddy and also Mohammad Baqar v. Naim-
un-Nisa Bibi). But once the possession of a co-sharer
has become adverse as a result of ouster, a mere
assertion of a joint title by the dispossessed co-sharer
would not interrupt the running of adverse possession.
Mohammad Baqar And Ors. vs Naim-Un-Nisa Bibi And Ors. on 9 November, 1955
(See Lakshmi Reddy v.
Lakshmi Reddy and also Mohammad Baqar v. Naim-
un-Nisa Bibi). But once the possession of a co-sharer
has become adverse as a result of ouster, a mere
assertion of a joint title by the dispossessed co-sharer
would not interrupt the running of adverse possession.
Wuntakal Yalpi Chenabasavana Gowd vs Rao Bahadur Y. Mahabaleshwarappa And ... on 15 April, 1954
He must actually and effectively break up the exclusive
possession of his co-sharer by re-entry upon the
property or by resuming possession in such a manner
as it was possible to do. (See Wuntakal Yalpi
Chanabasavana Gawd v. Y. Mahabaleshwarappa).
Amrit Kaur vs Sarabjeet Singh & Ors on 29 August, 2008
In Amrit Kaur v. Sarabjeet Singh (2008) 153 DLT 92 a
Ld. Single Judge of this Court had held that the law of limitation applies in
a partition suit and a suit filed after 19 years from the death of the parents
was held to be barred by limitation. The relevant portion of the said
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judgement reads as under:
Prakash vs Phulavati . on 16 October, 2015
However, recently, in
Mangammal @ Thulasi v. T.B. Raju [dated 19th April, 2018 in C.A. No.
1933/2009], the Supreme Court has confirmed that Phulavati (supra) binds
as a precedent and as per the said judgements, the amendments of 2005 in
HSA would apply only in respect of 'living daughters of living coparceners‟
as on the date of the amendment. Thus, neither of the daughters of Sh.
Sriram Sharma can be treated as a coparcener.