Article 109: (Art. 126 of the Act of 1908):
The period of limitation for a suit by a Hindu governed Mitakshara law to set aside his father’s alienation of ancestral property is twelve years and the limitation commences when the alienee takes possession of the property.
Image Source: yourarticlelibrary.com
ADVERTISEMENTS:
Article 109 is a special Article and the following conditions have to be fulfilled before the Art. 109 can apply, namely, (i) the parties must be Hindus governed by Mitakshara; (ii) the suit is for setting aside the alienation by the father at the instance of the son; (iii) the property relates to ancestral property; and (iv) the alienee has taken over possession of the property alienated by the father.
A ‘Hindu’ is a person who is a Hindu by religion in any of its forms or developments including a Virasaiva, a Lingayat or a follower of Brahmo, Prarthana or Arya Samaj. The term ‘Hindu’ denotes not only persons who were born Hindu but also persons who have adopted it. In Art. 109, the term ‘Hindu’ denotes status possessed and not exactly the religious persuasion. Even though the term a ‘Hindu’ cannot cease to be a Hindu either by no observation of ceremonial observance or by becoming a member of a Brahmo Samaj.
ADVERTISEMENTS:
The word ‘alienation’ in Art. 109 includes a mortgage, a sale, and a gift. Under Art. 109, the alienation contemplated by the Art. 109 is one as involves transfer of possession by the transferor to the transferee.
Art. 109 refers to both movable and immovable property belonging to a joint family. In order to attract the Art. 109, the plaintiff must be the son of the person who has alienated the property. The suit by grandson or great-grandson will not attract the Art. 109. The word ‘son’ would include adopted son. Article 109 does not apply where the alienation has not taken possession of the property alienated.
In Basave v. Basave, (AIR 1952 Mys. 1), it has been held that where the father alienates the ancestral property describing himself as manager and guardian of the minor son, the Article 109 applies because it is in substance a suit to set aside the alienation of Mitakshara father of the ancestral property by him.
A suit to set aside the alienation made by the father on the ground that it was not for legal necessity or for benefit of the estate or not to discharge any antecedent debt or that the antecedent debt was for immoral purposes is governed by Art. 109 of the Limitation Act, 1963 and the period of limitation is 12 years which commences from the date when the alienee took possession of the property alienated. The taking of possession of the property alienated by the alienee is the event from which the period of limitation has to be calculated.