An action of ‘petito haereditatis’ will be barred after three years from the plaintiff having become aware of his right and of the taking possession of the property of the inheritance by the defendant. But does this mean that any suit arising from inheritance will be barred if not brought with in three years?
A decision rendered on April 29, 2001 E.C by the Cassation bench relates to this issue. The suit was between the applicants the successors of Wro Genet Damlew and the defendant Ato Yisma Asfaw. The suit stated that in the will of the deceased, Mrs.Tekabech, it is stated that a house was passed on to the plaintiff and the defendant’s husband. But the defendant took the house but failed to give the plaintiff his share. So, the plaintiff requested the court to render a decision on his behalf.
The defendants, on their statement of defense claimed that the suit was barred by limitation since it was not brought to the court with in three years.
The court that first entertained the case rejected the claim of period of limitation and decided on the issues framed. The High Court upon appeal also decided to enforce lower court’s decision.
The case was appealed to the Cassation bench. As the bench came to see the property at the center of the suit was handed to the plaintiff on 1962 E.C, the testator dead in 1968 E.C and the plaintiff instituted a suit to the court in 1994 E.C
In the case at hand art. 1000 of the Civil Code of Ethiopia cannot be applied since the defendant doesn’t have any right in relation to the property of dispute.
The specific period of limitation for these kinds of suits is not specified in the law. When this kind of gap occurs one of the methods that should be used is reference to other laws. Hence the bench tried to resolve the issue in accordance with the laws governing general contracts. As per Article 1845 of the Civil Code of Ethiopia the period of limitation for such cases is 10 Years.
The bench, decided to bar the suit to because the plaintiff brought the claim to the court after 26 years have lapsed the will was drafted.
So, what one can grasp from this particular suit is that in cases regarding inheritance where specific stipulations regarding the period of limitation is not provided in the law, the court entertaining the suit should refer to the legal provisions discussing about general contracts and decide in accordance thereof.
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