2022 SCMR 1647
Whenever the rights of a co-sharer are infringed, by way of wrong entries or by any other means, he can seek the redressal by way of a suit for declaration under Section 42 of the Specific Relief Act, 1877. When no limitation runs against a co-sharer/co-owner and the attestation of a mutation also established law of the land, is just for updating the revenue record and for the fiscal purposes creating no title nor is considered as a document of title then no question of limitation arises against co-sharers. The question of limitation in the matters of inheritance, with respect, is being misunderstood for quite some time. When a legal heir becomes owner and at the same time a cosharer in the property left by a deceased Muslim and attestation of mutation in this regard is also immaterial and is meant for very limited purposes and besides the above, possession of a co-sharer is considered as a possession on behalf of all other co-sharers then it is, at least, beyond our consumption and understanding of law of inheritance and the law of limitation as to how the law of limitation can be made applicable for disinheritance of a legally entitled person who becomes owner/co-sharer by operation of law. As per Para 7.1.(v) of the Land Record Manual, recording/entering of a mutation of inheritance is the job of local revenue officials but with the passage of time it has been left to the legal heirs and the parties concerned. Any delay for asking for correction of entries in the record of rights is then attributed to the parties which is not appropriate and against the law.
The law of the land, developed so far, is that every wrong entry in the record of rights gives fresh cause of action if the parties are in possession. Here in this case, all the co-sharers are in physical possession from day one what to talk of their symbolic possession. A co-sharer with symbolic possession even can safeguard his rights.
The most of the judgments of the Supreme Court through which clog of limitation on inheritance matters has been imposed and the law of limitation have been made applicable are not regarding simple claim of inheritance. We have attempted to go through many of such judgments on this issue which, in our opinion, are distinguishable. The main distinction that requires to be kept in mind is that the case in hand revolves around the question of inheritance alone and for that matter a lengthy discussion has been made above but the judgments being referred to and distinguished almost involve the issues of transfer of lands by way of sale, gift etc. by the predecessors themselves in their lifetimes and not challenged or questioned by them. The heirs, feeling themselves aggrieved, challenged the same by claiming their right of inheritance after a considerable delay and such cases were dismissed on the question of limitation for want of proof and justifying the delay.
The acquisition of a limited interest and then its termination makes the actual legal heirs to inherit under the Muslim Personal Law and provision of Section 3 of the Act IX of 1948 gives inbuilt/implied retrospective effect for such inheritance. All the persons entitled to inherit the predecessor (who were alive at the time of death of the predecessor) become the owners to the extent of their respective shares from the date of his death as discussed above. It is also the established law that inheritance under Muslim Personal Law/Muhammadan Law opens just after the death of a Muslim. All the legal heirs, lineal and collaterals inherit/acquire to the extent of their respective shares just after the death of a Muslim. They all by such inheritance/acquisition become cosharer/co-owner in the estate left by the deceased Muslim under sharia. The shares of each heir/residuary are fixed and determined in sharia. Our law so far developed in the country is that every cosharer/co-owner is presumed to be in possession of every inch of the joint property unless the same is partitioned.
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