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A Critical Analysis Of Limitation Viz. A Viz Claim Of Inheritance

Introduction:-

Whether the legislature has left a big lacuna in the Limitation Act by not providing any limitation for filing a suit claiming inheritance of the deceased? Whether the judicial pronouncements holding that no limitation is prescribed, to file a suit on the basis of inheritance, are correct or not? Whether the plea of adverse possession/ouster which is available or ought to be taken by a co-heir against another co-heir, while defending the suit filed to claim inheritance of the deceased? Whether the provisions of an enactment can be interpreted or applied in isolation without discussing the other provisions contained in the same Act or all other allied acts? Such like questions crop up in the mind when an advocate starts studying or searching the case law on the point. He is left in a dilemma as to what ought to be his line of action or choosing a cause of action in either filing a suit on the basis of inheritance of a deceased or taking a defense to defeat the claim of the plaintiff on the plea of limitation. In the present article all the above posed questions will be dealt with in a seriatim manner and attempt will be made to critically analyse the law on the subject.

Before adverting to the legal arena, it may be pointed that every mortal as his own lifetime. The lifespan of a man is also fixed by the god. No one can live beyond the time limit fixed by the almighty. Although, the expiry date of mortal is not known yet it is a hard truth. Even the pharmaceutical company or other leading manufacturers have to mention the date of expiry of its product on the box containing the material/medicines. Can it be assumed and presumed that no expiry date for filing a suit will be prescribed by law. On study of limitation act, we find that expiry date of filing of a lis/suit has been fixed for every type of suit which can be conceived by the human brain.

Inheritance does not remain in abeyance:-

The moment a person dies, his estate is inherited by his legal heirs. It is settled law that inheritance does not remain in abeyance^[3*]. It clearly implies that there has to be someone who is the owner of the property at all points of time. A property cannot be said to be not owned by any person. If the owner cannot be ascertained, then, by applying the principle of escheat property vests in the Govt. Now the question, as to who is the legal heir, of the deceased, may be a question of serious dispute. There can be rival claims with regard to the ownership of the property amongst various co-owners on different grounds. One of the mode of inheritance is to claim on the basis of natural succession. Natural succession means that the property is inherited by all the legal heirs without the hurdle of any testamentary disposition. Natural succession is copiously dealt with the provisions of Hindu Succession Act, 1956, which prescribes the legal heirs of the deceased, when a person dies intestate and deals with the law of intestate succession.

[3* 2008(4) RCR Civil Page-9, 1985 PLJ Page-82(DB)]

Second mode by which inheritance can be claimed is on the basis of bequest made by the property owner during his life time by executing a Will. In such a case, the property owner during his life time, bequeaths the property belonging to him to some of his heirs, while leaving/depriving some of them from his inheritance. The mode of bequest by way of Will is laid down U/s 63 of the Indian Succession Act, which prescribes a detailed procedure of executing the Will, who will be the attesting witnesses, what is the role of attesting witnesses, what formalities are to be observed by the testator in executing the will. Generally, one usual recital is made in all the wills to the effect that the testator is executing the will so that after his death, no dispute may ensue amongst his legal heirs. However, the said will itself become the bone of contention/dispute amongst the legal heirs. Once the litigation challenging the will is commenced amongst the co-heirs, it consumes decades to come to a logical end.

Once the property vest in the legal heir after the death of last property holder, the rights and liabilities of each of the co-heirs comes into operation. The exercise of rights or performance of duties is sine qua non for an heir to claim the property. Can one co-heir sleep over his right in a property for decades together and after passage of long interval, wakes up from the slumber to claim his rights, is also one of the major point of discussion.

Status of co-heir:-

Under section 19 of the Hindu Succession Act, 1956, which provides as follows:-

"19. Mode of succession of two or more heirs.-If two or more heirs succeed together to the property of an intestate, they shall take the property,-

(a) save as otherwise expressly provided in this Act, per capita and not per stirpes; and

(b) as tenants-in-common and not as joint tenants."

Mulla in his famous books, principles of Hindu Law (Eighteenth Edition), while interpreting the provisions of section 19, has analyzed as under:-

"In a tenancy-in-common, each sharer has an independent share in the common property and ordinary cannot act for the others or assumed any authority of a manager unless so appointed by all the others. Thus, for instance, one of the several female heirs, who are co-tenants, cannot alienate the property held as co-tenants, though, or course in a given case, the court may as far as possible try to protect the interest of the alienee on equitable considerations. A co-owner, as such, it has been held in the context of present section, has no authority to enlarge the period of limitation, as against the other co-owners, by any acknowledgement of liability or payment of interest or principal."

Dr. Paras Diwan in his treatise "Modern Hindu Law" Twenty First Edition (2012) has opined as under:-

"In both cases (joint tenants and tenants in common) property is held jointly but there are vital difference in the incidence of both. Joint tenancy means that the shares of the joint owners are not specified and in the event of death of one, the other takes his interest by survivorship. Tenants in common means that the share of each co-owner is a specific share and on his death it devolves on his shares."

Thus, a tenant in common is different from a co-sharer of a property. A co-sharer can represent the other co-sharers. However, a joint tenant in common cannot act on behalf of the other joint tenants in common.

Judicial Pronouncements holding no limitation for inheritance:-

There are plethora of judicial pronouncements, which go on to hold that no limitation is prescribed for filing a suit on the basis of inheritance.^[4*]

[4* 2008(4) RCR Civil 9, 2008(4) RCR Civil 178, 2008(2) RCR Civil 487, 1985 HRR 345(DB), 2002(1) SLJ 778]

According to these judgments, the inheritance can be claimed at any point of time. No time limit is provided for filing a suit on the basis of inheritance. The only defence available to the person defending the case is that he has either to claim ouster of the other co-heirs or plead and prove his adverse possession to the property. It is a herculean task for him to prove either of the two defences of ouster and adverse possession.

Whether these judicial pronouncements have taken a correct view after discussing all the provisions of limitation act or other allied acts governing/operative in this field.

This Limitation Act, 1963, prescribed limitation for every type of suit which can be conceived by a human brain. Holding to the contrary shows that somewhere the correct position of law has not been brought before the Court, which has led to such a misinterpretation.

Inheritance not implemented in record

In case, after the death of the owner, if the property remains entered in the name of the deceased, then, it can be assumed and presumed that any heir can claim his share in the property at any point of time. The other co-heir may be in possession of the property as tenants in common u/s 19 of the Hindu Succession Act. There is no bar for any co-heir to claim his share in the property by filing the appropriate legal remedy in a competent court of law. No limitation will bar the said suit filed by him under any of the circumstances.

Purpose of Limitation:-

The sole purpose of prescribing limitation for all types of suits, proceedings/appeals/applications is that memory may not fade away with the passage of time and the sequence of events may not become elusive with time. In the absence of any law of limitation, the courts will be burdened with plethora of cases which would become a nightmare for the courts to decide the said litigation for many generation together. The courts are already under severe criticism for the delay in deciding the disputes amongst the litigants. Huge pendency of suits at present has overburdened the judiciary in deciding the cases. It is settled law that limitation bars the remedy but does not distinguish the right. Defence can still be taken in response to a suit filed on the basis of a suit filed claiming any such right on other grounds.

It has been held by Supreme Court of India^[5*] as under:-

"The Law of limitation may harshly effect a particular party. It has to be applied with all its rigour when the statues so provides.

Section 3 of the Limitation Act, which provides as under:-

(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

[5* 2013(3) ACJ 311 (SC)]

The limitation to file a suit cannot be extended by any court under any of the circumstances, whether legal, moral or equitable. Law has to be harsh. Stale claims cannot be entertained on ground of expediency also, but the court does not possess any power to condone the delay in filing of a suit. Thus, it can be safely deduced that law helps the vigilant and not the persons, who sleep over their rights. One ought to be prompt and vigilant enough to assert his right in the property. Postponement of one's right will always prove to be fatal and disastrous leading to various losses.

Normal Course of events:-

The Apex court of India has categorically held^{[5*] [6*]}

"that when no period of limitation is fixed but in the normal course of event, the period, the parties required to file a suit/proceedings ought to be a guiding factor."

[5* 2013(3) ACJ 311 (SC)]

[6* AIR 2000 SC 671]

Such a dictum nullifies the version that no limitation is prescribed for filing a suit on the basis of inheritance. Article 113 of the Limitation Act is a complete answer to this argument. Now the question arises from bare reading of article 113 of the Limitation Act, as to when the right to sue accrues to a co-heir to file such a suit. The denial of right cannot be made to be the sole criteria to file such a suit. It depends on the facts and circumstances of each case on its peculiar effects. It also depends upon the steps taken by a co-heir, after the death of the owner to assert his own rights in the property of the deceased. In the absence of any assertion of right, how there can be a denial? Secondly, why the co-heir who is enjoying the property and is in possession of the property or dealing with the property as owner, will go all the way to deny the title of such other co-heir, so as to give him a cause of action to file the suit.

Thus, the party cannot be allowed to sleep over his rights for a considerable time and then one fine morning comes forward to assert his right over the property. Law helps vigilant.^[7*]

[7* 2009(2) CCC P-708(SC)]

An exception can be said to exists, when a co-heir, who is living abroad and has not visited India for a long period, then, he may file the suit on pleading the said circumstances of his absence from the country for delay in filing of the suit. Otherwise, with the advent of scientific gadgets, mode of communication, facilities provided by the respective governments and public awareness of law, he can approach the appropriate authority to enter his claim as one of the co-heirs and assert his right to the property.

One can get the entry made in the revenue record/municipal record, showing that he has also inherited the property or the property has been bequeathed to him. By getting an entry made in the record will show his vigilance in the matter to fortify his claim. He can also write a letter/send a written communication through email or other mode available to him, to local authority to include his name as one of the co-heir of the deceased. Such an action will prove his bonafidies to claim his right in the property of the deceased.

Natural Inheritance/Bequest

In the case of natural inheritance, if the property continues to remain recorded in the revenue/municipal record or other record in the name of the deceased, then it can be said that no limitation is provided to claim his share in the property. However, in case, the Will is executed and is implemented and acted upon in the record, then, there is no question of unlimited period of limitation for filing a suit for inheritance.

Section 41 of the Transfer of Property Act

41. Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it:

Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.

Under the provisions of this section, if one of the co-heirs allows another co-heir to represent himself to the general public that he is the exclusive owner of the immovable property, then, he can transfer the same for consideration and the transfer shall not be voidable on the ground that transferor was not authorize to make it. In this section, the word consent, express or implied is of utmost importance.

The implied consent, referred to in this section as to be interpreted as per the interpretation clause, contained in section 3 of Transfer of Property Act, which reads as under:-

"a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.

Provided that-

Explanation II.-Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

Thus, according to this interpretation clause, the implied consent in allowing one co-heir to assert his ownership over the property will be deemed to be in the notice of the other co-heir and he cannot be feign ignorance regarding the same.

Section 115 of the Evidence Act Estoppel by acquiesce

The principle of acquiesce is also applicable in such cases, where one co-heir does not raise any objection to the other co-heir representing himself to be the owner of the property.

Section 31 of the Specific Relief Act.

According to this section, when any person against whom a written instrument is void or voidable, and who has reasonable apprehension then such document if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the court may in its discretion, so adjudged it and order it to be delivered up and cancel.

This section has to be read in conjunction with section 34 of the Specific Relief Act, 1963, where any declaration is being sought by any person as to any legal character or any right as to any property against a person who is denying or who is interested to deny his title to such character or right, then, he has a right to file a suit for seeking a declaration regarding his rights with a consequential relief of possession.

In such like cases, the limitation applicable will be at the most 12 years from the date when the entry on the bases of a bequest is made in the revenue/municipal or local authorities record. On this principle also, it cannot be said that there is no limitation prescribed for filing a suit based on inheritance.

Void Order:-

Even a void order has to be got declared as void from the court u/s 31 of the Specific Relief Act. However, if a void act has been implemented and acted upon and is implemented in the record, then, that has to be challenged and the said act has to be got set-aside by filing an appropriate suit in a court of law.

Word of caution by Supreme Court:-

A serious word of caution has been laid down by the Supreme court of India viz a viz the application of the law of limitation. It has been held in the case titled as "State of Punjab v. Gurdev Singh, AIR 1992 SC 111 : AIR 1991 SC 2219 (Full Bench) as under:-

"4. First of all, to say that suit is not governed by the law of limitation, runs a foul of our limitation act. The statue of limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act, a suits, appeal or application instituted after the prescribed period of limitation, must be subject to provisions of section 4 to 24 be dismissed although limitation has not been setup as a defence......... If a suit is not covered by specific articles, prescribing a period of limitation, it must fall within the residuary article. The purpose of residuary article is to provide for cases, which could be covered by any other provisions in the limitation act. The residuary article is applicable to every variety of suits, not otherwise provided for. Article 113 (corresponding to article 120 of the Act of 1908) is a residuary article for cases not covered by any other provisions in the act. It prescribed a period of three years, when a right to sue accrues.............. The words right to sue ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when cause of action arises that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or well raise a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. (See:- Mt. Bole v. Mt. Koklam, AIR 1930 PC 270 and Gannon Dunkerley and co. v. Union of India, AIR 1970 SC 1433)"

Similarly, the Supreme Court of India has held in case titled "M. Meenakshi v. Metadin Aggarwal", 2006(3) ACJ 289 as under:-

"It is well settled principle of law that even a void order is required to be set aside by a competent court of law in as much as the order may be void in respect of one person but may be valid in respect of another person. A void order is necessarily not nonest."

According to third column of article 113 the words right to sue ordinary means, the right to seek relief by means of legal proceedings. Generally, the right to sue accrues, only when the cause of action arises, i.e. the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendants against whom the suit is instituted.

Implementation of bequest and dealing with property by alienation in whole or a part of it, provides right to sue. If the agreed co-heir does not make inquiry or takes any step in this regard, then, he will be deemed to have knowledge of such bequest.

Fraud/Misrepresentation:

It is settled principle of law that fraud/misrepresentation vitiate every action. In case, one co-heir prepares forged and fabricated documents of the deceased to claim his entire property and is successful in getting the property mutated in his name in the revenue/municipal/local authorities record, then, such an action is vitiated by fraud and misrepresentation. The action for setting aside such proceedings on the basis of fraud and misrepresentation can be initiated by an aggrieved person when he comes to know of such a fraud or misrepresentation. In that case, the limitation will start from the date of knowledge of such fraud or misrepresentation u/s 17 of the Limitation Act. It has been settled in catena of judgments that fraud has to be proved beyond all reasonable doubts in civil suits also. In the absence of any such proof of fraud, the action commenced by the aggrieved person may fail in the court of law.

Harmonious interpretation:-

It is settled principle of legal jurisprudence and cardinal principle of interpretation of statues is that a harmonious interpretation of various sections/acts have to be made for arriving at a right decision in the absence of such a harmonious interpretation, it can lead to a wrong conclusion. All the relevant sections/acts have to be taken into consideration by an authoritative pronouncement dealing with all the aspects stated above, to clear the mist existing in the existing law.

From the discussion and the case law discussed above, it is humbly submitted that the judgments holding that no period of limitation has been prescribed for filing a suit for inheritance, needs to be reviewed and an authoritative view ought to be taken so as to clarify the mist created by various provisions referred to above.

[1*] The author passed degree in Master of Laws from the Panjab University Chandigarh in the year 1978. He has been practicing on civil side at Ludhiana. He has been a guest professor in Panjab University Regional Centre, Ludhiana. The author has written various articles, which have been published in the journals. The author has also addressed various webinars on facebook/youtube on various legal aspects to enlighten the younger generation. He had judged various moot competitions held in PURC, Ludhiana. Contact No. 9814712425, email: advocateajayjindal@gmail.com, Ch.No.425, 4th Floor, Advocates Complex, District Courts, Ludhiana, Punjab.

[2*] The co-author started visiting the courts since may, 2011 and completed his law graduation from Panjab University, Chandigarh and is regularly doing practice on Civil Side. Email:-Abhayjindal14@yahoo.co.in, M No. 9814912425

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