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2017 DIGILAW 867 (JK)

Sonam Dolma v. Stanzin Dorjay

2017-09-20

M.K.HANJURA

body2017
JUDGMENT : 1. By this judgment, it is proposed to dispose of the Civil 2nd Appeal filed by the appellants (plaintiffs in the main suit) against the judgment and decree, dated 26.06.2014, of the learned District Judge, Leh and Ladakh, whereby he has upheld the judgment and decree dated 30.04.2014 of the learned Sub Judge, Leh and Ladakh. 2. The background facts of the case in a nutshell are that the appellants/plaintiffs filed a suit against the respondents/defendants, before the trial court, seeking declaration, partition, possession and injunction in respect of land measuring 70 Kanals and 11 Marlas, comprising survey Nos. 591, 4612, 4613, 4619 and 4629 situate at Shenam (Old Leh road). 3. In the suit, the appellants/plaintiffs pleaded that the land in question belonged to Tsewang Rafstan, who was succeeded by Tsewang Nurbo Doi and Sonam Kunzom as his legal heirs. The appellants/plaintiffs, claim to be the daughters and son of Sonam Kunzom, who was related to Tsewang Rafstan, as his daughter. The respondents/defendants, are the grandchildren of Tsewang Nurbo Doi, who was the son of Tsewang Rafstan. It is further pleaded in the plaint that the respondents/defendants are in the unlawful possession of the suit property and although they were asked to partition the suit property, yet they failed to do so which constrained them to file the suit. The appellants/plaintiffs have placed on record the certified copies of the Annual Record for the year 1970-71, Khasra Girdawari for the year Rabi 2011, mutation orders passed on the dates 03.12.2004 and 17 of Jeth 1986 Bikrami as also the pedigree table. 4. The respondents/defendants resisted and controverted the pleadings of the appellants/plaintiffs in their written statement filed in answer to the plaint. They took a number of preliminary objections including the one that the suit is recklessly time barred. They plead it further that the predecessor-in-interest of the parties, Tsewang Rafstan, died prior to Jeth 1986 Bikrami, leaving behind a son and two daughters and on the death of Tsewang Rafstan, when the succession opened the same was governed by the Budhist Succession, under which the son only was entitled to inherit and succeed to the estate of his father. They further contended that the right of the daughters to inherit the interest of property was recognized only after J&K Hindu Succession Act, 1956, came into vogue. They further contended that the right of the daughters to inherit the interest of property was recognized only after J&K Hindu Succession Act, 1956, came into vogue. According to the respondents/defendants the succession regarding the property of Tsewang Rafstan, having been acted upon much prior to the year 1956, as per the law prevailing at the moment, the predecessors-in-interest of appellants/defendants, Sonam Kunzom, did not have any right to inherit the property of Tsewang Rafstan. It is also pleaded that the mutation of inheritance in respect of the estate of Tsewang Rafstan, was attested in favour of his son Tswang Nurbo Doi, the predecessors-in-interest of the respondents/defendants, and the predecessors-in-interest of appellants/plaintiffs Sonam Kunzom could not inherit the estate of Tsewang Rafstan, for being a daughter as she was not entitled to succeed to the property of her father as per the law applicable at that moment. The respondents/defendants proceeded to state that the suit property has been in their uninterrupted possession and in the possession of their predecessors-in-interest for the last more than six decades and during this interregnum neither Sonam Kunzom, nor her legal heirs ever challenged the mutation of inheritance attested in favour of the respondents/defendants and their predecessors-in-interest. 5. In that premises, the respondents/defendants have pleaded that the appellants/plaintiffs have no right in the suit property and, as such, they are not entitled to any relief. The respondents/defendants have also relied upon the same set of documents as have been placed on record by the appellants/plaintiffs. 6. After the date of filing the written statement, the appellants/plaintiffs filed their replication to the written statement of the respondents/defendants and the same was taken on record in terms of the order dated 24.04.2013 of the trial court. 7. Vide order dated 07.10.2013 of the trial court, the following issues were framed in the suit: 1. Whether the suit land measuring 70 Kanals and 11 Marlas under survey o. 591 Khewat No. 289 situated at village Shenam Old Road Leh is un-partitioned? OPD. 2. Whether the plaintiffs are entitled to their shares in the suit property? OPD. 3. Whether the parties to the suit are governed by customary law of Buddhist succession if so what is its effect on the suit? OPD. 4. Whether the suit has not been filed in accordance to the mandatory provisions of CPC and, as such, the suit is liable to be dismissed? OPD. OPD. 3. Whether the parties to the suit are governed by customary law of Buddhist succession if so what is its effect on the suit? OPD. 4. Whether the suit has not been filed in accordance to the mandatory provisions of CPC and, as such, the suit is liable to be dismissed? OPD. 5. Whether the suit is liable to be dismissed for non-verification and non-valuation? OPD. 6. Whether the suit is hit by law of limitation and, as such, the suit requires dismissal? OPD. 8. By the same order dated 07.10.2013, issue nos. 4 to 6 were directed to be treated as preliminary issues and the parties were directed to address arguments on these issues. After hearing the parties, the trial court dismissed the suit of the appellants/plaintiffs, as being barred by time. The trial court did not determine the issue Nos. 4 and 5. 9. Aggrieved by the judgment of the trial court, the appellants/plaintiffs, assailed the same in an appeal filed before the Court of the learned District Judge, Leh and Ladakh, and the said Court dismissed the appeal of the appellants/plaintiffs, by the judgment and decree, dated 26th June, 2014, the relevant excerpts of which are reproduced herein below verbatim et literatim: “I have heard learned Counsel for the parties, perused the record of the trial court, the impugned judgment and the memorandum of appeal. The controversy which calls for determination by this Court is whether the question of limitation, in the facts and circumstances of the case, for its determination calls for any oral evidence or not. If the answer to this question is in affirmative, then the case deserves to be remanded back to the learned trial court for its trial and determination of the issue in accordance with law but if the answer to this question is in negative, then we have to see whether the suit of plaintiffs is barred by the law of limitation or not and for this we have to test the legality of the impugned judgment of the trial court. So far as the plaint is concerned, it does not specify as to who amongst the predecessors-in-interest of the parties are no longer alive and it also does not specify as to when these predecessors-in-interest of the parties have died. It simply provides that parties to the suit are successors of Tsewang Rafstan. So far as the plaint is concerned, it does not specify as to who amongst the predecessors-in-interest of the parties are no longer alive and it also does not specify as to when these predecessors-in-interest of the parties have died. It simply provides that parties to the suit are successors of Tsewang Rafstan. Plaintiffs being successors of his daughter Sonam Kunzom and defendants being successors of his son Tsewang Nurgo. In the plaint, it is further admitted by the plaintiffs that the suit property is in possession of defendants. However, the documents attached to the plaint upon which the plaintiffs are relying, make the facts more lucid. A perusal of order of mutation dated 17th Jeth 1986 Bik, which is attached with the plaint reveals that father of Tsewang Nurbo i.e. Tsewang Rafstan had died about two months and 10 days before the said dated, which means that Tsewang Rafstan the predecessor-in-interest of parties, as per the documents of plaintiffs, had died somewhere in the year of 1986 Bik. It is a settled law that the admission of a fact can be made by a party either in the pleadings or otherwise. According to written statement of defendants, Tsewang Rafstan had died in 1986 Bik. This fact stands admitted by plaintiffs by virtue of their own document i.e. order of mutation dated 17th Jeth 1986 Bik. Even in their replication, plaintiffs have not disputed this fact, though defendants have raised this plea specifically in their written statement. Therefore, so far as date of death of the predecessor-in-interest of parties, Tsewant Rafstan is concerned, the same is not in dispute. As per the record of mutation dated 17th Jeth 1986 Bik, which is a document placed on record by plaintiffs, the mutation of inheritance in respect of estate of deceased Tsewang Rafstan has been attested in favour of Tsewang Nurbo the predecessor-in-interest of defendants. The other documents like jamabandi Charsala and Khasra Girdawari placed on record by plaintiffs shows that the said estate continued to be in exclusive ownership of Tsewang Nurbo. Right from the year 1986 Bik, which is equivalent to the year 1929 AD, the position regarding the title and possession of estate of deceased Tsewant Rafstan continues to the same and now as per plaintiffs own documents, the mutation of inheritance stands attested in favour of the defendants to the exclusion of plaintiffs and their predecessors-in-interest. Right from the year 1986 Bik, which is equivalent to the year 1929 AD, the position regarding the title and possession of estate of deceased Tsewant Rafstan continues to the same and now as per plaintiffs own documents, the mutation of inheritance stands attested in favour of the defendants to the exclusion of plaintiffs and their predecessors-in-interest. Plaintiffs have not even pleaded or placed on record any material to show that they have, at any point of time, since the year 1929AD till the date of filing of the suit, challenged this position before any forum. After a lapse of about more than 80 years from the date of death of predecessor-in-interest of the parties, plaintiffs have now come up with the suit before the learned trial court and for all these years neither plaintiffs nor their predecessors-in-interest have ever challenged the status regarding succession of the estate of deceased Tsewang Rafstan. The plaintiffs cannot be allowed to do so at this point of time as it will amount to reopening of succession regarding the estate of Tsewang Rafstan, which otherwise stands settled as per the law which was prevailing at the relevant time. Law does not come to the rescue of a person who has slept over his rights for generations together. It has been argued by learned counsel for appellants that right of a co-sharer to get a joint property partitioned gives rise to recurring cause of action. He has relied upon the judgment of Hon’ble High Court of J&K in the case of “Vinod Kumar Vs. Lalit Kumar” reported in 2010 (JK) 25714. There is no quarrel with the proposition that to get a joint property partitioned by one of the co-sharers, gives rise to recurring cause of action but it is also a settled law that the cause of action in such cases subsists only so long as the property is held jointly. When the property of the deceased has been inherited by one of his legal heirs and mutation of inheritance has been attested in his favour it ceases to be a joint property. If the other legal heirs are aggrieved of attestation of mutation of inheritance to their exclusion, it is at that point of time that cause of action in their favour arises. If the other legal heirs are aggrieved of attestation of mutation of inheritance to their exclusion, it is at that point of time that cause of action in their favour arises. They cannot sleep over their rights for generations together and thereafter come up with a suit for partition after more than 80 years. The question of succession as regards an estate of a person opens at the time when he dies. When the succession as regards estate of the deceased has been settled as per the law prevailing at the relevant point of time, it is not open to challenge after more than 80 years. In the present case, when Tsewang Rafstan died in the year 1929 AD, the parties were governed by Buddhist customary law, which was prevailing at that time in Ladakh. As per this customary law, estate of a deceased used to devolve upon the eldest son to the exclusions of other legal heirs. In 1944 AD. Ladakh Buddhist Succession Act came into force and under this Act also female legal heirs were not entitled to a share in the estate of their deceased father. In 1956 AD J&K Hindu Succession Act came into force and it replaced Ladakh Buddhist Succession Act, so far as the succession of properties relating to Buddhists of Ladakh region are concerned. This clearly shows that when late Tsewang Rafstan had died, the succession of Buddhists was governed by customary law and it is as per this customary law that mutation of inheritance dated 17th Jeth 1986 was attested in favour of Tsewang Nurbo the predecessor-in-interest of defendants and the same has acquired finality. Learned Counsel for appellants has argued that after coming into effect of amendment to Hindu Succession Act, a daughter becomes a coparcener whether she was born before or after coming into effect of the said amendment. On this ground, it is urged that Sonam Kunzom predecessor-in-interest of plaintiffs had become a coparcener in the suit property. I am afraid the argument of learned Counsel for the appellants misconceived. Firstly because amendment incorporated in Central Hindu Succession Act in the year 2005 has not been extended to the State of J&K as yet. On this ground, it is urged that Sonam Kunzom predecessor-in-interest of plaintiffs had become a coparcener in the suit property. I am afraid the argument of learned Counsel for the appellants misconceived. Firstly because amendment incorporated in Central Hindu Succession Act in the year 2005 has not been extended to the State of J&K as yet. Secondly because immediately after the death of Tsewang Rafstan in the year 1929 AD the question of succession had been settled in favour of his son Tsewang Nurbo to the exclusion of his daughter Sonam Kunzom in accordance with the customary law of Buddhists that was prevailing at that point of time. Once that was done, any further changes in the law cannot have any effect upon the issue of succession because all the subsequent legislations as regards the succession of Buddhists of Ladakh have prospective application. For the foregoing discussion, it is clear that plaintiffs have filed this suit after more than 80 years of death of Tsewang Rafstan, the predecessor-in-interest of the parties. The question of succession having become open upon the death of Tsewang Rafstan, plaintiffs and their predecessors-in-interest have slept over the matter for all these years. As per article 127 of Limitation Act, 12 years has been provided as the period of limitation for filing a suit to enforce right of share in a joint family property. In this case as already noted, plaintiffs have filed the present suit after expiry of more than 80 years. The same is, therefore, hopelessly barred by time and, as such, the suit deserves to be dismissed. The impugned judgment passed by learned trial court is, therefore, upheld and the appeal is dismissed. There shall, however, be no order as to costs. Let a decree sheet be prepared accordingly. Copy of this judgment along with trial court record be sent to learned Sub-Judge Leh. Appeal stands disposed of. File be consigned to records after it due compilation.” 10. Heard and considered the material on record including the memo of appeal. 11. Section 100 CPC (substituted by Act No. 11, 1983), provides that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial questions of law. 11. Section 100 CPC (substituted by Act No. 11, 1983), provides that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial questions of law. Sub section 3 of the section 100 provides that in an appeal under this section, the memorandum of the appeal shall precisely state the substantial question of law involved in the appeal. Sub section 4 states that when the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Sub section 5 stipulates that the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Section 100 supra, makes it abundantly clear that the second appeal cannot be admitted to hearing unless the Court is satisfied that a substantial question of law has been raised in it for adjudication by the Court. 12. Testing the instance case on the above parameters what requires to be seen is whether, or not, a substantial question of law is involved in this case that requires to be determined by the Court. In this perspective, it has to be understood at first as to what the term “substantial question of law” conveys and what is its connotation. The answer to it is provided in the law laid down by the Supreme Court in the case of Santosh Hazari v. Purushhottam Tiwari, reported in AIR 2001 SC 965 , paras 12 and 14 of which assume significance herein this appeal, and are, therefore, reproduced below word for word and letter for letter: “12. The phrase ‘substantial question of law’, as occurring in the amended Section 100 is not defined in the Code. The word substantial as qualifying ‘question of law’, means—of having substance essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with—technical of no substance or consequence, or academic merely. The phrase ‘substantial question of law’, as occurring in the amended Section 100 is not defined in the Code. The word substantial as qualifying ‘question of law’, means—of having substance essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with—technical of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of ‘substantial question of law’ by suffixing the words ‘of general importance’ as has been done in many other provisions such as Section 109 of the Code or Article 133(1) (a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta AIR 1928 PC 172 the phrase ‘substantial; question of law’ as it was employed in the last clause of the then existing Section 110 of the C.P.C (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal v. Mehta & Sons Ltd. v. Century pinning and Manufacturing Co. Ltd., 1962 Supp (3) SCR 549: [ AIR 1962 SC 1314 ] the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju, ILR [1952] Madras 264; [AIR 1951 Madras 969] (at p. 1318; para 5 of AIR]: ……..When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.” and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial (at p 1318 para 6 of AIR): “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to well settled and there is a mere question of raised is palpably absurd the question would not be a substantial question of law.” “14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ‘substantial’ a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the rights of the parties before it are concerned. To be ‘substantial’ a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the rights of the parties before it are concerned. To be a question of law ‘involving in the case’ there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the first time before the High Court is not a question involved in the case unless it goes depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 13. In this 2nd appeal, the appellants/plaintiffs have raised two questions which according to them fall within the ambit and scope of the definition of “the substantial questions of law” when applied to the facts and circumstances of the instant case. Per contra, the learned counsel for the respondents/defendants has stated that no debatable question of law is involved in the case. The questions of law framed herein this appeal read as under: “1. Whether a Buddhist daughter is parri-passu with a Buddhist Son viz claiming the ancestral property when the same is jointly held notwithstanding the time? 2. Whether the cause of action available to a Buddhist daughter is a recurring and continuous one viz the claim of the share strongly in presence of Hindu Succession to Property Act, 2005?” 14. The above questions of law framed in the appeal are terse. These have been framed recklessly and with undue diligence. The pith and core of the judgments of the Ist Appellate Court and the Trial Court is that the suit of the appellants/plaintiffs is recklessly time barred on the face of the pleadings of the appellants/plaintiffs themselves, buttressed with the documents attached to the plaint. These have been framed recklessly and with undue diligence. The pith and core of the judgments of the Ist Appellate Court and the Trial Court is that the suit of the appellants/plaintiffs is recklessly time barred on the face of the pleadings of the appellants/plaintiffs themselves, buttressed with the documents attached to the plaint. Therefore, the question that arises for consideration is, whether under the facts and circumstances of the case, the issue of limitation framed in this suit could be determined to the exclusion of the oral evidence or to put it in other words whether a mixed question of fact and law or a pure question of law as could be determined at its every threshold has been raised in the case. To find an answer to this question, the judgment of the Court below requires assessment and appraisal. 15. The mutation of Succession by which the estate of the deceased namely, Tsewang Rafstan, devolved unto his Son, Tsewang Nurbo Doi, has been attested on 17th Jeth 1986 Bikrami, which corresponds to the 29th day of May, 1929 of the Gregorian calendar. A copy of this mutation has been attached to the plaint by none other than the appellants/plaintiffs themselves. The respondents/defendants have also placed explicit reliance on this mutation in carving out a case for them. 16. From a bare perusal of the mutation aforesaid, what gets revealed is that Tsewang Rafstan, died before 29th day of May, 1929, leaving behind a son. It will not be out of place to state here that a daughter was also born from his thighs which is not stated in the order of mutation. The Ist appellate court has held in its judgment that when Tsewang Rafstan died, the parties were governed by custom in the matter of succession and as per the custom, the eldest son had a right to succeed to the estate of his deceased father. The Ladkakh Buddhist Property Act (1943) AD (herein after called the Act), received the assent of His Highness the Maharaja Bahadur on 26th November, 1943/11th Maghar, 2000 and it was published in the Government Gazette on 14th Mag, 2000/27th January, 1944. Prior to the promulgation of this Act, the Buddhists were governed by custom in the matter of succession in absence of any codified law. 17. Chapter 14 of the History of Tibet, written by Mr. Prior to the promulgation of this Act, the Buddhists were governed by custom in the matter of succession in absence of any codified law. 17. Chapter 14 of the History of Tibet, written by Mr. A. R. Khan, running under the head “Customs and Traditions of Buddhists”, stipulates that the eldest son of a Bodh had the right to succeed to the estate of his deceased father and in the absence of his son, the eldest daughter had the right to succeed him as his heir apparent with a rider that she had to stay in her father’s house after her marriage as otherwise she would lose her right of inheritance. So, in order to succeed to the property of the deceased, the daughter had to live in the house of her father as a matter of compulsion. In case the daughter would leave the dwelling house of her father so as to reside with her husband at a place other than her father’s house, the eldest daughter amongst the unmarried ones would inherit the property of her father. By virtue of this custom as was prevalent in the Ladakh region at the time of the death of Tsewang Rafstan, the estate of the deceased devolved upon his eldest son and, accordingly, Tsewang Nurbo Doi, being the eldest son of the deceased, succeeded to his estate to the exclusion of this sister. The pleadings of the parties do not spell out the date of the death of Tsewang Nurbo Doi. However, in the mutation dated 03.12.2004, attested after his death, it has been reported by the Patwari concerned that he died before 16.08.1978 and this report of his has been endorsed on 15.05.1979, by the Girdawari of the area. The Ladakh Buddhist Succession Act, came into force in the year 1943 A.D/11 Magar, 2000. Section 3 of the Act, which assumes significance here is reproduced below word for word and letter for letter: “3. The Ladakh Buddhist Succession Act, came into force in the year 1943 A.D/11 Magar, 2000. Section 3 of the Act, which assumes significance here is reproduced below word for word and letter for letter: “3. Right of all sons to succeed in equal shares.—On the death of a Buddhist his property, where he leaves more than one son, shall, notwithstanding any law or custom to the contrary but subject to any valid disposition thereof which he may have made during his lifetime, be inherited by all his sons in equal shares: Provided that sons, sons of pre-deceased sons, and sons of pre-deceased sons of predeceased sons, shall inherit per stripes that is to say, the sons of a pre-deceased son shall take the share which would have been taken by him, and likewise the grandsons of a pre-deceased son shall take the share which their father would have taken.” 18. From a bare glimpse of section 3, (supra) what comes to the fore is that after the Act came into force the estate of a Buddhist on his death would devolve on his sons, to the exclusion of his daughters, notwithstanding any law or custom to the contrary. The learned Ist appellate court and the trial court returned a concurrent finding to determine that Tsewang Rafstan, had died before a period of eighty years approximately from the date of filing the suit and the appellants/plaintiffs did not lay any claim over the suit land during this period. They did not assail the order of mutation and have never been in the possession of the suit land. They derived this conclusion on the basis of the documents placed on record by the appellants/plaintiffs supported by their pleadings. 19. The appellants/plaintiffs claim to be daughters and son of Sonam Kunzom who was the daughter of Tsewang Rafstan. They have never been in possession of any part of the estate of Tsewang Rafstan after his death. They seek the relief of possession and partition of the suit land in addition to the other reliefs. The contention of the appellants/plaintiffs is that after coming into force of the J&K, Hindu Succession Act, 1956, the daughter became a coparcener in the suit property irrespective of whether she was born before or after the promulgation of the said Act. On this ground, they assent that Sonam Kunzom, their predecessor-in-interest became a coparcener in the suit property. The contention of the appellants/plaintiffs is that after coming into force of the J&K, Hindu Succession Act, 1956, the daughter became a coparcener in the suit property irrespective of whether she was born before or after the promulgation of the said Act. On this ground, they assent that Sonam Kunzom, their predecessor-in-interest became a coparcener in the suit property. This argument, appears to be a spurious one for the simple reason that immediately after the death of Tsewang Rafstan in the year 1929, the question as to who will succeed to his property was settled in favour of his son, named Tsewang Nurbo Doi, to the exclusion of his daughter, Sonam Kunzom, in accordance with the custom as it prevailed at that moment. Subsequently, in 1956 AD, J&K Hindu Succession Act., came into force and it replaced the Lakakh Buddhist Succession Act, so far as the succession of property of the Buddhists of Ladakh region is concerned. This demonstrates that when Tsewang Rafstan, died in the years 1929, the succession opened in favour of his son as per the customary law and the same acquired finality. The J&K, Hindu Succession Act, had a prospective application and not a retrospective one. The appellants/plaintiffs, who were in a deep slumber filed the suit after a period of more than eighty years from the date of the death of Tsewang Rafstan and during this period the possession of the respondents/defendants or their predecessor-in-interest over the suit land has never been disturbed as is brought to the fruition from the pleadings of the appellants/plaintiffs and the documents attached to it. Sub Section (1) of Section 3 of the Limitation Act, provides as under: “3. Dismissal of suits, etc., instituted, etc after period of limitation.-Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefore by the First Schedule shall be dismissed, although limitation has not been set up as a defence. Explanation:-A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made; and, in the case of a claim against a company which is being would up by the Court, when the claimant first sends in his claim to the official liquidator.” 20. The sum and substance of Section 3 of the Limitation Act, is that if and when the suit is expressly barred by the law of limitation, the Court has no choice but to dismiss the same irrespective of whether the respondents/defendants have or have not raised such a plea. Section 3 places a statutory duty on the courts to see and examine whether the suit has been filed within or beyond the period of limitation. Order 7 Rule 6 of the C.P.C, provides that where a suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. The underlining object in framing section 3 of the limitation Act, and Order 7 Rule 6 C.P.C, is that whenever a suit is ex-facie, barred by limitation, It is necessary for the appellants/plaintiffs, to exhibit and indicate as to how the suit is saved from the operation of the law of limitation. This had to be explained and made known by the appellants/plaintiffs at the time of commencement of the suit, to claim the right to seek the possession and partition of the suit land and to enforce their right in the suit property. They had to discharge the burden to prove so, where after the onus would shift to the other side to prove that the suit is not within the period of limitation. There is not even a whisper to say so in the plaint of the plaintiffs. They have not stated anywhere as to how their suit is within time. Under these circumstances of the case, the First Appellate Court has rightly held that the plaintiffs have filed the suit after a period of more than eighty years from the death of Tsewang Rafstan the Predecessor-in-interest of parties. It has also been held that since succession opened upon the death of Tsewang Rafstan, the plaintiffs and their predecessor-in-interest slept over the matter for all these years and as per Article 127 of the limitation Act, a suit to enforce the right of share in a joint family property has to be filed within a period of 12 years, which has not been done by the appellants/plaintiffs. Therefore, the suit of the appellants/plaintiffs is dismissed. 21. Therefore, the suit of the appellants/plaintiffs is dismissed. 21. The first appellate court has also noted that although the right of a co-sharer to get a joint property partitioned gives rise to a recurring cause of action in view of the judgment delivered by the Hon’ble High Court of J&K in the case of “Vinod Kumar Vs. Lalit Kumar” reported in 2010 (JK) 25714, yet it is also a settled law that the cause of action in such cases subsists only so long as the property is held jointly. When the property of the deceased has been inherited by one of his legal heirs and mutation of inheritance has been attested in his favour, it ceases to be a joint property. If the other legal heirs are aggrieved of attestation of mutation of inheritance to their exclusion, it is at that point of time that cause of action arises in their favour. They cannot sleep over their rights for generations together and thereafter come up with a suit for partition after more than 80 years. The question of succession as regards an estate of a person opens at the time when he dies. When the succession as regards estate of the deceased has been settled as per the law prevailing at the relevant point of time, it is not open to challenge after more than 80 years. This conclusion is based on the firm foundations of the law and the facts applied to the case. 22. The appellants/plaintiffs, seek possession and partition of the estate of the deceased. They had to file the suit within the period detailed above. It is not their case that they or their predecessors-in-interest were ever in the possession of suit land. They seek refuge under the provisions of the Hindu Succession Act, 1956, which were not available at the time of the death of Tsewang Rafstan in the year 1929. 23. The cumulative effect of all that has been said and done above is that there is no error in the judgment and decree of learned Principal, District Judge. It is lucid and clear. It does not call for any interference. The conclusions derived are reasonable, logical and based on the canons of law. Therefore, the judgment and the decree of the Ist appellate court are upheld for these do not suffer from any impropriety or illegality. It is lucid and clear. It does not call for any interference. The conclusions derived are reasonable, logical and based on the canons of law. Therefore, the judgment and the decree of the Ist appellate court are upheld for these do not suffer from any impropriety or illegality. The 2nd appeal of the appellants/plaintiffs does not deserves any consideration. It is liable to be dismissed. Accordingly, the appeal of the appellants/plaintiffs is dismissed and shall be consigned to records after due completion. 24. The record of the trial court shall be remitted back forthwith.