Partition Suit Not Barred by Limitation or Statutory Notice Where Primary Relief is Apportioning Joint Family Property

The suit property is Shop No. 146 in the Ahmedabad Maskati Cloth Dealers Co-operative Society, originally allotted to the Hindu Undivided Family (HUF) of Ramlal Mulchand.

Following Ramlal’s death, the HUF consisted of his widow (plaintiff) and son (Defendant No. 2).

In 1974, Defendant No. 2 executed an agreement to sale and the Society passed a resolution transferring the 10 shares of the shop to Defendant No. 1.

The plaintiff filed a suit in 1981 seeking a declaration that the transfer was illegal and a partition of her 1/2 undivided share.

The Trial Court found the shop was HUF property and the transfer resolution was invalid, yet dismissed the suit, holding it was barred by limitation under Article 58 and for want of statutory notice under the Co-operative Societies Act.

1. Whether the suit for partition was barred by the Law of Limitation.

2. Whether the suit was maintainable without the issuance of a statutory notice under Section 167 of the Gujarat Co-operative Societies Act, 1961.

The Court applied Article 110 of the Limitation Act, 1963, which provides a 12-year limitation period for a person excluded from joint family property to enforce a right to share therein, starting from when the exclusion becomes known to the plaintiff.

It relied on Vidya Devi @ Vidya Vati v. Prem Prakash, establishing that partition is a continuous and recurring cause of action as an incident of property ownership.

Regarding the Co-operative Societies Act, the Court applied Section 167 of the Gujarat Co-operative Societies Act, 1961, read with the precedent in Parmanand Kanaiyalal Nimbark v. A.M.C., which clarifies that notice is mandatory only for acts "touching the business of the society".

The Court found the Trial Court erred by applying Article 58 (3-year limit for declarations) instead of Article 110 (12-year limit for HUF partition).

Since partition is a recurring right and the shop remained joint property in law, the 12-year clock only triggers upon clear "ouster" or express denial of rights, which the defendants failed to prove.

The Court noted the Trial Court’s contradiction in declaring the 1974 resolution invalid while simultaneously calling the challenge time-barred.

Regarding the statutory notice, the Court reasoned that a suit for partition among HUF members is a private civil dispute and does not "touch the business" of the Co-operative Society.

Defendant No. 7 (Society) was merely a formal party to give effect to the decree; thus, the absence of a Section 167 notice did not bar the suit against the primary defendants.

Section 167 notice was unnecessary as the dispute was not regarding society business.

The High Court allowed the appeal and set aside the Trial Court's judgment. The Court declared the plaintiff entitled to a 1/2 share in the shop, held the 1974 resolution invalid, and ordered the drawing of a preliminary decree for partition.