Mohideen Bee et al vs Syed Meer Saheb et al

The plaintiffs in this case are the heirs of one Syed Oomer Sahib who died about nineteen years ago leaving three sons and three daughters all of

whom attained their majority considerably more than three years before this suit. Syed Oomer had a brother Syed Meer who survived him and is

the first defendant in the case. The plaint itself is very difficult to understand as it appears to intermingle Muhammadan and Hindu law in a very

confused manner; but paragraph 7 sets out that Syed Oomer carried on business jointly with his brother the first defendant and that the properties

set out in Schedule A ""were purchased out of the moneys acquired in the said joint business and the sale-deeds thereof were clandestinely secured

by the first defendant in his own name."" Clearly the allegation is that the two brothers carried on a partnership business which was dissolved by the

death of Syed Oomer and that the properties set out in Schedule A are part of the assets. It is perfectly clear that the proper suit against the first

defendant on those allegations would be a suit for an account of the partnership as from the date of the death of Oomer, and the property that

would be divisible would be the assets which remained after the realization of the partnership property and the payment of the partnership debts.

Such a suit would have become barred more than fifteen years ago, under Article 106 of the Limitation Act. Paragraph 8 sets put that after the

death of Syed Oomer his two sons, second and third plaintiffs, one Khader Saheb and the first defendant carried on various businesses and the

immovable properties set out in Schedule B to the plaint were purchased out of the earnings of the joint business. Here again the alleged

partnership was dissolved on the death of Khader Saheb who admittedly died four years ago, and a suit on account of these transactions is

likewise barred. Paragraph 14 sets out that the first defendant with the assistance of the funds of the family carried on a business in partnership with

one Patel Hussain. This is apparently part of one of the firms mentioned in paragraph 7 or 8. In that case this claim is also barred. It was admitted

that this business was carried on in the years 1903-04 and a suit for an account is therefore barred. Paragraph 15 alleges that some fuel depot

business was carried on under the management of Syed Khader Sahib. Any suit with regard to this should have been brought within three years

from the dissolution of partnership and the claim to this item is likewise barred. Paragraph 16 alleges that the first defendant received the sale-

proceeds of a house which was sold by the first plaintiff and another person (now deceased). The moneys were received by him so long ago as

1895 and any claim against him is barred under Article 62 of the Limitation Act. Paragraph 17 alleges that about 1897 the first defendant realised

some moneys which had been invested on a mortgage. This claim is barred for the same reason.

I think that the suit is due to some confusion in the minds of the plaintiffs as to the applicability of the Hindu law of joint family property to

Muhammadans. There is no allegation in the plaint that the parties agreed to retain the property which they inherited from Syed Oomer on his death

undivided and to hold it as tenants in common such as appears in the case of Abdul Kader v. Aishamma ILR (1898) Mad. 61. It has been argued

that Article 127 of the Limitation Act will apply, under which the plaintiff has twelve years from his exclusion from joint family property. I think it is

perfectly clear that in Muhammadan law there is no such thing as joint family property. If the members of a Muhammadan family succeed to

property on the death of a relation each of them takes a share of each item of the property; and the article of the Limitation Act which would apply

to a suit for a share, would be Article 123 which deals with a suit for a distributive share of the property of an intestate. In the case where one of

the heirs has retained part of the inheritance in his possession, the suit must be brought within twelve years at the latest, after the debts of the

intestate have been paid and the inheritance has become divisible among the heirs. In my opinion the suit is barred and must be dismissed with

costs.