Limitation in Inheritance Suits by Female Heirs under Section 42 of the Specific Relief Act – Interpretation of Article 120 of the Limitation Act, 1908" Reference: PLD 2023 Supreme Court 362.
وراثتی جائیداد میں خواتین کے حقوق اور مدتِ دعویٰ: سپریم کورٹ کا اہم فیصلہ
مالکانہ حقوق کی ڈیکلریشن کے لیے عدالت سے رجوع کر سکتی ہے۔
جس کے تحت دعویٰ دائر کرنے کی مدت چھ (6) سال ہے۔
انکار کب تصور ھو گا۔
مدت کا آغاز تب ھو گا جب فراڈ کا پتہ چلے۔
خلاصہ:
Must read judgement
PLD 2023 SC 362
Specific Relief Act--- S . 42 ---
Limitation Act ( IX of 1908 ) , S. 18 & Sched . I , Art . 120 ---
Inheritance --- Female heirs --- Suit instituted by a female legal heir against her brother for declaration of her ownership rights as to the property left by her deceased father in his inheritance --- Limitation
--- Period of limitation for filing such suit ; the principles relating to accrual of right to sue and the criterion for determining the actual denial of female heir's rights as to joint property stated . As per the residuary Article 120 of Schedule - I to the Limitation Act 1908 , a suit for which no period of limitation is provided elsewhere in the Schedule , the period of limitation for that suit is six years from the time when the right to sue ccrues . No specific Article of Schedule 1 to the Limitation Act , 1908 provides a period of limitation for a suit instituted by a person , under Section 42 of the Specific Relief Act 1877 , for declaration of his ownership rights to any property against a person denying his said rights ; therefore , the residuary Article 120 applies to such suit . A suit instituted by a female legal heir for declaration of her ownership rights as to the property left by her deceased father in his inheritance , against her brother who denies her rights is thus governed by the provisions of Article 120. To decide whether such a suit is barred by limitation , the six - year period of limitation provided by Article 120 is to be counted from the time when the right to sue for declaration accrues as provided therein . The question , when the right to sue for declaration has accrued in a case , depends upon the facts and circumstances of that case , as it accrues when the defendant denies ( actually ) or is interested to deny ( threatens ) the rights of the plaintiff as per Section 42 of the Specific relief Act 1877. The actual denial of rights gives rise to a compulsory cause of action and obligates the plaintiff to institute the suit for declaration of his / her rights , if he / she wants to do so , within the prescribed period of limitation ; while in case of a threatened denial of rights , it is the option of the plaintiff to institute such a suit on a particular threat . On the actual denial of rights , the cause of action and the consequent right to sue matures for instituting the suit for declaration ; whereas every threatened denial of rights gives rise to a fresh cause of action , and thus a fresh right to sue accrues on such a denial .
The obligations of the brothers to their sisters , as co - sharers of joint property , are further augmented when viewed in the light of the Islamic law and jurisprudence . Because of the fiduciary and protecting relation of the brothers to their sisters , they cannot claim their possession of the joint property adverse to the rights of their sisters ; possession of the brothers is taken to be the possession of their sisters . Mere omission to pay a share of the profits or produce of the joint property to their sisters by the brothers in possession of the joint property does not in itself constitute a repudiation of the sisters ' rights , nor does a wrong entry as to the inheritance rights in the revenue record oust the sisters from their ownership of the joint property as the devolution of the ownership of the property on legal heirs of a person takes place under the Islamic law of inheritance immediately on the death of that person without any intervention of anyone and without the sanction of the inheritance mutation in the revenue record . The position is , however , different when the brothers in possession of the joint property make a fraudulent sale or gift deed or get sanctioned some mutation , whether of when they on the sale or gift etc , in the revenue record claiming that their sisters have transferred their share in the joint property to them , basis of a wrong inheritance mutation start selling out or otherwise disposing of the joint property claiming them to be the exclusive owners thereof . In such circumstances , the brothers by their overt act expressly repudiate the rights of their sisters in the joint property , and oust them from the ownership of the joint property . Their acts are , therefore , a clear and actual denial of the rights of the sisters , which give rise to a compulsory cause of action and obligates the sisters to institute the suit for declaration of their rights , if they want to do so , within the prescribed period of limitation .
Although , by the above mentioned acts of the brothers , the right accrues to the sisters to sue for declaration of their rights , but if they by means of fraud are kept from the knowledge of those overt acts , the time limit of six years provided in Article 120 for instituting the suit for declaration against brothers or any person claiming through them otherwise than in good faith and for a valuable consideration , is to be computed from the time when the fraud of the brothers first became known to the sisters , by virtue of the provisions of Section 18 of the Limitation Act . The " fraud " contemplated by Section 18 means suppression of those acts or transactions that give rise to the cause of action from coming into the knowledge of the plaintiff . A deliberate concealment of facts intended to prevent discovery of the right to sue is also a " fraud " within the meaning of the term used in Section 18 , but an open act of a party cannot be said to be a fraudulent act of concealment and is therefore not covered by this Section . The benefit of Section 18 is , however , not available against any person who though claims through the defrauding party but is a transferee in good faith and for a valuable consideration . That is why the Supreme Court treats differently the two types of cases :
( i ) where the joint property is still in possession of the defrauding brothers or their legal heirs ; and
( ii ) where the joint property has been alienated further to third persons the transferees in good faith and for a valuable consideration .