Law: Limitation Act, 1908

Section: 18,3

(a) Islamic law--- ----Inheritance---Estate of a Muslim, on his death, is transferred to his legal heirs by operation of law, with each heir having constructive possession of his share in the estate till the partition of the entire estate or transfer of his share under the law. (b) Limitation Act (IX of 1908)--- ----S. 18---Inheritance---Inheritance cases where third party interest has been created in the property---Commencement of limitation period---Burden of proof on claimant to prove that he was not aware of having been deprived of his inheritance share---Principle stated. Court while dealing with inheritance cases tread very cautiously to balance the proprietary rights of the legal heirs of the deceased Muslim owner and third party, who has acquired proprietary rights therein, and that too, in good faith and for valuable consideration. It is for this reason that, legal heirs must be vigilant and not indolent regarding their proprietary rights in their sharai share of inheritance. There is a stark distinction between cases in which an heir has been deprived of his sharai share and disregarded at the time of recording of the inheritance mutation, and those cases in which the heir comes forward to seek his sharai share after third-party rights in the subject land have been created. To succeed in respect of the former category of cases, as compared to the latter, is legally less cumbersome, as it is not hurdled by the rigors of limitations - the possession over the inherited property by one heir is considered as constructive possession on behalf of all the heirs, and the cause of action would only arise, when the deprived heir seeks his share and the same is denied by the other in possession of the inherited property. However, to succeed in respect of the latter category of cases, where third-party interest is created in the inherited property, is legally more problematic, as the legal heir would then have to face the wrath of the period of limitation. The burden ofproof would rest on the claimant heir to demonstrate and prove that he was not aware of having been deprived, give cogent reasons for not challenging the long-standing property record, or showing…

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