Bombay High Court
Dileep Balkrishna Nevatia vs Shishir Balkrishna Nevatia on 8 April, 2026
2026:BHC-OS:8582
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TRUSHA
TUSHAR ORDINARY ORIGINAL CIVIL JURISDICTION
MOHITE
Digitally signed by
TRUSHA TUSHAR
MOHITE
Date: 2026.04.08
INTERIM APPLICATION (L) NO.32712 OF 2023
15:47:44 +0530
IN
SUIT NO.630 OF 2015
Dileep Balkrishna Nevatia .. Applicant
In the matter between
Shishir Balkrishna Nevatia .. Plaintiff
v/s
Dileep Balkrishna Nevatia and Ors. .. Defendants
Mr.Rohan Sawant with Mr.Gourav Shetye i/b M/s.Bali Associates,
Advocates for the Plaintiffs
Mr.Dileep Nevatia, Defendant Nos.1 and 4 - party-in-person
Mr.Ranjan Solanki a/w Mr.Santosh Jadhav i/b Ms.Preeti Shah,
Advocates for the Defendant No.5
Ms.Neeta Jain a/w Mr.Avinash Joshi, Advocate for the Defendant
Nos.8 and 9
Mr.Swayam S. Chopda, OSD, Court Receiver present
CORAM: FIRDOSH P. POONIWALLA, J.
RESERVED ON: NOVEMBER 25, 2025
PRONOUNCED ON: 8th APRIL 2026
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JUDGEMENT :
–
1. The present Suit is filed seeking the following final reliefs:
“(a) That it be declared that the estate of the Late Mother is
liable to administered and distributed by the Defendant nos. 8
and 9 on obtaining the probate of her last Will and Testament
dated 17th June 2009 in accordance with the terms thereof.
(b) In the alternative to prayer (a) above and only if the
aforesaid will of the late Mother is not proved or probated then
a fit and appropriate person be appointed as administrator of
the estate of the Late mother with all powers to gather/ recover
the properties forming part of the estate and to partition / sell
the same and thereafter distribute the same in equal shares
amongst Plaintiff and Defendant Nos. 1, 5 to 7 on the basis of
intestacy.
(c) a fit and appropriate person be appointed as administrator
of the estate of the Late Father with all powers to gather/
recover the properties forming part of the estate and to partition
/ sell the same and thereafter distribute the same in equal shares
amongst Plaintiff and Defendant Nos. 1. 5 to 7 on the basis of
intestacy.
(d) declare that properties listed at Exhibits “D-1” to “D-7” and
“D-8” and / or “D-1 to D-7” such other properties as maybe
determined by this Hon’ble Court constitute the estate of the
Late mother.
(e) declare that properties listed at Exhibits “D-1” to “D-7” and
“D-8” and / or “D-1 to D-7″such other properties as maybe
determined by this Hon’ble Court constitute the estate of the
Late Father;
(f) the Defendant Nos. 1 to 4 be directed by an order and
mandatory injunction to hand over the entire estate and/or such
properties as may form part of the estates of the late mother and
late father which are inter alia in their possession, custody or
control including those set out in Exhibits “D-1” to “D-7” and
“D-8” and / or “D-1 to D-7” and Exhibit “E” to the Plaint to
Defendant Nos. 8 and 9 and/or any persons appointed asPage 2 of 32
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ial32712-23.docAdministrators by this Hon’ble court as the case maybe, for the
purposes of administrating the estates of the late mother and
late father.
(g) the Defendants be ordered and decreed to pay to the other
heirs of the deceased parents in proportion to such ratios as
maybe determined as aforesaid, a sum of Rs.86.11 Crores with
interest thereon as losses caused to them on account of the
aforesaid the acts of the Defendant nos. 1 to 4 of intermeddling
with the estates of the late Mother and late Father, seeking to
appropriate /appropriating the same to themselves/ fraudulently
disposing of the same and appropriating the sale proceeds as
per the particulars set out in Exhibit.”L” hereto.”
2. The present Interim Application has been filed by Defendant
No.1 under Order VII Rule 11 of the Code of Civil Procedure, 1908
(hereinafter referred to as “the CPC“) seeking the following reliefs:
“(a) That this Hon’ble Court be pleased to dismiss the
instant Suit as filed being barred by limitation;
(b)That this Hon’ble Court be pleased to dismiss the instant Suit
as filed being as abuse of the process of this Hon’ble Court for
litigating the same issue different Courts through different
proceedings.”
ARGUMENTS OF THE APPLICANT / DEFENDANT NO.1
3. Mr.Dileep Nevatia, Defendant No.1, appeared in person.
4. Mr.Nevatia submitted that the Suit was barred by the law of
limitation. He submitted that, as per the Plaint, the cause of action arose in
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1990 and the Suit was filed in 2015 and, therefore, was hopelessly barred by
the law of limitation.
5. Mr.Nevatia referred to the provisions of Order VII Rule 1(e) of
the CPC and submitted that the same provides that the Plaint must contain
the facts constituting the cause of action and when it arose.
6. Mr.Nevatia then referred to paragraph nos.2 to 6 of the Plaint
and stated that the Plaintiff has not stated as to when the intermeddling by
Defendant No.1 in the estate of his father and mother took place.
7. Mr.Nevatia then relied on Article 58 of the Schedule to the
Limitation Act, 1963 (hereinafter referred to as “the Limitation Act“) which
provides that a Suit to obtain any declaration must be filed three years from
when the right to sue first accrues.
8. Mr.Nevatia also referred to Article 65 of the Limitation Act
which provides that a Suit for possession of immovable property or any
interest therein based on title must be filed within twelve years from when
the possession of the Defendant becomes adverse to the Plaintiff.
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9. Mr.Nevatia then took me through various paragraphs of the
Plaint in order to demonstrate that the cause of action in the present Suit
arose much earlier. In this context, Mr.Nevatia referred to paragraph 15(I)
(iii) of the Plaint and submitted that the same showed that the cause of action
first arose in September 1990. Further, Mr.Nevatia also referred to
paragraph 15(I)(v) and submitted that the cause of action arose on 22 nd
September 1990.
10. Mr.Nevatia then referred to paragraph 15(I)(vi) of the Plaint and
submitted that the cause of action arose on 15 th October 1990. Mr.Nevatia
also referred to paragraph 15(I)(viii) and stated that the cause of action also
arose on 1st June 1996. Mr.Nevatia referred to paragraph 15(I)(x) and
submitted that the cause of action arose on 15 th October 1990. Mr.Nevatia
also referred to paragraph 15(II) (x) and submitted that the cause of action
arose on 5th July 1999. Further, Mr.Nevatia referred to paragraph 15(II)(xii)
and stated that the cause of action arose in 2000. Mr.Nevatia submitted that
all the aforesaid paragraphs of the Plaint showed that the present Suit, which
was filed on 20th March 2015, was clearly barred by the law of limitation.
11. Further, Mr.Nevatia submitted that the present Suit sought
declaration of title in respect of the suit properties as the estates of the father
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and mother [prayers (d) and (e)], injunction and possession [prayer (f)]
declaration of administration of the estate of the mother [paragraph (a)] and
damages [paragraph (g)]. Mr.Nevatia submitted that the substantive relief is
for declaration of title for which the limitation period under Article 58 of the
Limitation Act is three years, followed by injunction and possession for which
the limitation period under Article 65 is twelve years and for declaration of
administration of estate and damages for which limitation period is of three
years.
12. Mr.Nevatia submitted that, in the present case, the first relief is
the substantive relief of declaration of title. Mr.Nevatia submitted that the
said relief is barred by limitation, and, therefore, all other reliefs which are
subsequential to the main relief would also fail and the Plaint is liable to be
rejected under Order VII Rule 11(d) as being barred by limitation. In support
of his submission, Mr.Nevatia relied upon the judgements of the Hon’ble
Supreme Court in Nikhila Devyang Mehta & Anr. v. Hitesh P. Sanghvi & Ors.
(in Civil Appeal Arising out of S.L.P.(C) No.13459 of 2024) and in Rajpal
Singh vs. Saroj (Deceased) through LRs. And Anr. (Civil Appeal No.3489 of
2022). Further, in support of his submissions, Mr. Nevatia also relied upon
the following judgements:
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ial32712-23.doca. V.M.Salgaocar and Bros. vs. Board of Trustees of Port of
Mormugao and another AIR 2005 SC 4138.
b. Nirlon Limited (formerly known as Nirlon Synthetic Fibres
& Chemicals Ltd.) vs. Kamlaben M. Desai and Others (Suit
No.2331 of 1988)
c. Anathula Sudhakar vs. P.Buchi Reddy (Dead) by L.R.s and
Others AIR 2008 SC 2033.
d. Dahiben vs. Arvindbhai Kalyanji Bhanushali (Gajra)(D)
Thr.Lrs and Ors. AIR 2020 SC 3310
e. Raghwendra Sharan Singh vs. Ram Prasanna Singh (Dead)
by Lrs. AIR 2019 SC 1430
13. In conclusion, Mr.Nevatia submitted that the Plaint in the
present Suit be rejected under Order VII Rule 11 as being barred by the law of
limitation.
ARGUMENTS OF THE PLAINTIFF
14. Mr.Rohan Sawant, the learned counsel appearing on behalf of
the Plaintiff, opposed the Interim Application.
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15. Mr.Sawant submitted that the Interim Application filed by
Defendant No.1 is misconceived as the period of limitation in respect of the
present Suit, which is a Suit for administration of the estate of the late father
and late mother of the Plaintiff and Defendant No.1, depends on the facts and
circumstances of each case and the nature of reliefs claimed therein.
16. Mr.Sawant submitted that there can never be a straitjacket
formula for ascertaining the period of limitation for an administration suit,
let alone deciding the period of limitation for a Suit for possession of movable
and immovable property of the deceased filed by any of the legal heirs. In
support of this submission, Mr.Sawant relied upon the Full Bench judgment
of this Court in Sajanbir Singh Anand and others vs. Raminder Kaur Anand
and others, 2018 (3) Mh. L.J. 892.
17. Mr.Sawant submitted that, as regards the late father, the
Plaintiff had only some time in July / August 2011, while going through the
old files come across the photo copy of his late father’s Will dated 15 th May
1985, in a compilation filed by his late mother in Suit No.1379 of 1999. The
Plaintiff was not a party to the said Suit and was not actively participating in
this litigation as his late mother would handle the same.
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18. Mr.Sawant submitted that the executors have already filed a
Testamentary Petition, being Testamentary Petition No.109 of 2012, on 23 rd
September 2011. Steps were hence taken to obtain a probate in respect of the
last will and testament dated 17th June 2009 of the late mother.
19. Mr.Sawant submitted that it is the case of the Plaintiff in
paragraphs 17 and 18 of the Plaint that, after the death of the father, on no
occasion have Defendant Nos.1, 5 to 7 denied the Plaintiff’s share in the estate
of the late father on the basis of intestacy.
20. Mr.Sawant further submitted that with respect to the mother’s
estate, it is the Plaintiff’s case in paragraphs 23 and 45 of the Plaint that the
Plaintiff interalia learnt from the cross-examination of the Defendant No.1 in
Suit No.3598 of 1996 that Defendant Nos.1 to 4 have been intermeddling
with the estate of the late mother and late father. He further stated that in
paragraph 30 of the Plaint it is averred that the contesting Defendants have
actively suppressed relevant facts.
21. Mr.Sawant further submitted that it has been contended by the
Defendant No.1 that since Suit No.3598 of 1996 had been filed by the late
mother concerning the title of one of the properties involved in the present
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Suit, being the Shashi Deep property, the present Suit is barred by limitation
and is an abuse of the process of the Court.
22. Mr.Sawant submitted that the late mother had filed Suit
No.3598 of 1996 with respect to cancellation of the purported family
arrangement dated 22nd September 1990. The said Suit was based on a
different cause of action and filed by the late mother prior to her death. The
cause of action for a Suit for administration by a legal heir is completely
different from the cause of action for cancellation of a document filed by the
deceased.
23. Mr.Sawant submitted that the said Suit was filed by a different
party and hence, there is no question of any abuse of the process. Further,
only one of the properties involved in the present proceedings, i.e., Shashi
Deep property, is involved in the said Suit No.3598 of 1996.
24. Mr.Sawant submitted that the suit proceedings being based on
different causes of action, the period of limitation applicable to Suit No.3598
of 1996 cannot be applied to the present Suit.
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25. Without prejudice to the aforesaid, Mr.Sawant submitted that, in
any event, the fact that certain protective orders are passed by this Court in
the said Suit, protecting one of the properties involved thereof, would in fact
inure to the benefit of the Plaintiff as the same would not require the Plaintiff
to urgently take protective steps qua the said property.
26. Mr.Sawant further submitted that Defendant No.1 relies on the
Suit filed by the late mother some time in 2000 before the Small Causes
Court, being RAE and R Suit No.131/229 of 2000, to contend that the cause
of action arose on 5th July 1999 when the notice of demand was issued by the
late mother, or in the year 2000 when the Suit was filed. Mr.Sawant
submitted that the cause of action in the said Suit was completely different
from the cause of action in the present Suit. The said Suit was filed by the
late mother, during her life time, for eviction against a company named
Elegant Industries Pvt.Ltd. Mr.Sawant further submitted that, in any event,
only one of the properties involved in the present Suit form the subject
matter of the said Suit. Mr.Sawant submitted that the limitation period for
the said Suit in no manner affects the present Suit.
27. Further, Mr.Sawant submitted that, in addition, the late father
had filed Suit No.1379 of 1999 against the late mother claiming that the late
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mother was his benamidar in respect of the some of the properties which
allegedly belonged to him. After the death of the late father, Defendant No.1
continued the said Suit until it was eventually withdrawn by Defendant No.1
on 24th November 2015.
28. Mr.Sawant submitted that this Suit was also based on a different
cause of action, and filed by the late father during his life time, which was
continued by Defendant No.1 till 24th November 2015 i.e. even after the filing
of the present Suit.
29. Mr.Sawant further submitted that the issue of limitation, in the
facts and circumstances of the present case, is not on the basis of any
admitted fact or a pure question of law but would entail a consideration of
several disputed facts which clearly and evidently would require a trial. Such
an issue cannot be decided in an Application under Order VII Rule 11. In
support of this submission, Mr.Sawant relied upon the judgments of the
Hon’ble Supreme Court in Nusli Neville Wadia vs. Ivory Properties and
Others (2020) 6 SCC 557 and in Mongia Realty and Buildwell Private Limited
vs. Manik Sethi (2022) 11 SCC 572. Mr.Sawant further submitted that the
Plaint does not demonstrate that the Suit is barred by limitation. He
submitted that an Application under Order VII Rule 11 of the CPC can only be
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decided on the basis of the averments in the Plaint and not on the basis of
any external material such as the written statement or the contention taken
by the Defendants in other pleadings. He submitted that the conditions
precedent to the exercise of power under Order VII Rule 11 are stringent and
it is especially so when the rejection of the Plaint is on the ground of
limitation. He further submitted that the plea regarding the date on which
the Plaintiff got knowledge of the essential facts is a triable issue.
30. Mr.Sawant submitted that Defendant No.1 has selectively relied
on certain paragraphs of the Plaint in support of the present Application. He
submitted that the Plaint has to be read as a whole and cannot be read in a
compartmentalized manner as is sought to be done by Defendant No.1. In
support of his submission, he relied upon the judgment of the Hon’ble
Supreme Court in P. Kumarakurubaran vs. P. Narayanan and Others (2025)
SCC Online 975.
31. Further, Mr.Sawant submitted that it is settled law that the
Plaint cannot be rejected in part and has to be rejected as a whole. The
contention of Defendant No.1 with respect to his dealing with certain
properties belonging to the estate of the deceased apart from being irrelevant
to the present application, in any event, only deals with some aspects of the
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present Suit. None of those contentions would result in the entire Plaint
being barred by limitation. He submitted that the Plaint cannot be rejected
with respect to some of the properties. In support of this proposition,
Mr.Sawant relied upon the judgements of the Hon’ble Supreme Court in
Madhav Prasad Aggarwal and Another vs. Axis Bank Limited and Another
(2019) 7 SCC 158 and in Geetha, D/o Late Krishna and Others vs.
Nanjundasawamy and Others, (2023) SCC Online SC 1407.
32. Further, Mr.Sawant submitted that it is the contention of
Defendant No.1 that the filing of the present Suit is an abuse of the process as
the Plaintiff ought to resort to the summary remedy provided under the
Indian Succession Act 1925 (hereinafter referred to as “the Succession Act“).
Mr.Sawant submitted that this contention is misconceived and erroneous.
Firstly, the executors, i.e. Defendant Nos.8 and 9, have already filed
Testamentary Petition No.109 of 2013 which has been converted to
Testamentary Suit No.75 of 2014. Secondly, it is settled law that the Plaintiff
cannot claim protective relief in a Testamentary Suit and is required to file a
substantive Suit for protective reliefs in respect of the assets of the deceased.
In support of this submission, Mr.Sawant relied upon the judgments in
Rupali Mehta vs. Smt.Tina Narinder Sain Mehta 2006 (6) Mh.L.J. 786 and
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Ramchandra Ganpatrao Hande alias Handege vs. Vithalrao Hande & Ors.
(2011) (4) Mh.L.J. 50.
ANALYSIS AND FINDINGS
33. The present Application is filed Under Order VII Rule 11 of the
CPC.
34. It is settled law that under Order VII Rule 11 of the CPC, the
Plaint must be rejected as a whole. This is laid down by the Hon’ble Supreme
Court in the judgment in Madhav Prasad Aggarwal and Another (Supra).
Paragraphs 10 and 12 of the said judgement are relevant and are set out
hereunder.
10. We do not deem it necessary to elaborate on all other
arguments as we are inclined to accept the objection of the
appellant(s) that the relief of rejection of plaint in exercise of
powers under Order 7 Rule 11(d) CPC cannot be pursued only
in respect of one of the defendant(s). In other words, the plaint
has to be rejected as a whole or not at all, in exercise of power
under Order 7 Rule 11 (d) CPC. Indeed, the learned Single
Judge rejected this objection raised 9 by the appellant(s) by
relying on the decision of the Division Bench of the same High
Court. However, we find that the decision of this Court in Sejal
Glass Ltd. is directly on the point. In that case, an application
was filed by the defendant(s) under Order 7 Rule 11(d) CPC
stating that the plaint disclosed no cause of action. The civil
court held that the plaint is to be bifurcated as it did not disclose
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any cause of action against the Director’s Defendant(s) 2 to 4
therein. On that basis, the High Court had opined that the suit
can continue against Defendant I company alone. The question
considered by this Court was whether such a course is open to
the civil court in exercise of powers under Order 7 Rule 11(d)
CPC. The Court answered the said question in the negative by
adverting to several decisions on the point which had
consistently held that the plaint can either be rejected as a
whole or not at all. The Court held that it is not permissible to
reject plaint qua any particular portion of a plaint including
against some of the defendant(s) and continue the same against
the others. In no uncertain terms the Court has held that if the
plaint survives against certain defendant(s) and/or properties,
Order 7 Rule 11(d) CPC will have no application at all, and the
suit as a whole must then proceed to trial.
12. Indubitably, the plaint can and must be rejected in exercise
of powers under Order 7 Rule 11(d) CPC on account of non-
compliance with mandatory requirements or being replete with
any institutional deficiency at the time of presentation of the
plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7
CPC. In other words, the plaint as presented must proceed as a
whole or can be rejected as a whole but not in part. In that
sense, the relief claimed by Respondent 1 in the notice of
motion(s) which commended to the High Court, is clearly a
jurisdictional error. The fact that one or some of the reliefs
claimed against Respondent 1 in the suit concerned is barred by
Section 34 of the 2002 Act or otherwise, such objection can be
raised by invoking other remedies including under Order 6 Rule
16 CPC at the appropriate stage. That can be considered by the
Court on its own merits and in accordance with law. Although,
the High Court has examined those matters in the impugned
judgment the same, in our opinion, should stand effaced and we
order accordingly.”
35. The same has also been held by the Hon’ble Supreme Court in
the case of Geetha, D/o Late Krishna and Others (Supra). Paragraph Nos.12
and 13 of the said judgment are relevant and are set out hereunder:
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ial32712-23.doc“12. There is yet another reason why the judgment of the High
Court is not sustainable. In an application under Order VII Rule
11, CPC a plaint cannot be rejected in part. This principle is
well established and has been continuously followed since the
1936 decision in Maqsud Ahmad v. Mathra Datt & Co. This
principle is also explained in a recent decision of this Court in
Sejal Glass Ltd. v. Navilan Merchants (P) Ltd., which was again
followed in Madhav Prasad Aggarwal v. Axis Bank Ltd.The
relevant portion of Madhav Prasad (supra) is extracted
hereinunder:
“10. We do not deem it necessary to elaborate on all other
arguments as we are inclined to accept the objection of the
appellant(s) that the relief of rejection of plaint in exercise
of powers under Order 7 Rule 11(d) CPC cannot be
pursued only in respect of one of the defendant(s). In other
words, the plaint has to be rejected as a whole or not at
all, in exercise of power under Order 7 Rule 11(d) CPC.
Indeed, the learned Single Judge rejected this objection
raised by the appellant(s) by relying on the decision of the
Division Bench of the same High Court. However, we find
that the decision of this Court in Sejal Glass Ltd. [Sejal
Glass Ltd. v. Navilan Merchants (P) Ltd., (2018) 11 SCC
780: (2018) 5 SCC (Civ) 256] is directly on the point. In
that case, an application was filed by the defendant(s)
under Order 7 Rule 11(d) CPC stating that the plaint
disclosed no cause of action. The civil court held that the
plaint is to be bifurcated as it did not disclose any cause of
action against the Director’s Defendant(s) 2 to 4 therein.
On that basis, the High Court had opined that the suit can
continue against Defendant 1 company alone. The
question considered by this Court was whether such a
course is open to the civil court in exercise of powers
under Order 7 Rule 11(d) CPC. The Court answered the
said question in the negative by adverting to several
decisions on the point which had consistently held that the
plaint can either be rejected as a whole or not at all. The
Court held that it is not permissible to reject plaint qua
any particular portion of a plaint including against some
of the defendant(s) and continue the same against the
others. In no uncertain terms the Court has held that if the
plaint survives against certain defendant(s) and/or
properties, Order 7 Rule 11(d) CPC will have no
application at all, and the suit as a whole must thenPage 17 of 32
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12. Indubitably, the plaint can and must be rejected in
exercise of powers under Order 7 Rule 11(d) CPC on
account of non-compliance with mandatory requirements
or being replete with any institutional deficiency at the
time of presentation of the plaint, ascribable to clauses (a)
to (f) of Rule 11 of Order 7 CPC. In other words, the plaint
as presented must proceed as a whole or can be rejected as
a whole but not in part…”
(emphasis supplied)
13. In view of the above referred principle, we have no
hesitation in holding that the High Court committed an error in
rejecting the plaint in part with respect to Schedule-A property
and permitting the Plaintiffs to prosecute the case only with
respect to Schedule-B property. This approach while considering
an application under Order VII Rule 11, CPC is impermissible.
We, therefore, set aside the judgment and order of the High
Court even on this ground.”
36. Prayers (a), (b) and (c) of the Plaint show that the present Suit is
essentially an administration Suit.
37. In my view, the reliefs sought in prayer (a), (b) and (c) of the
Plaint would fall under Article 106 of the Schedule to the Limitation Act,
which reads as under:
Description of suit Period of Time from which period
limitation begins to run
106. For a legacy or for a share of a Twelve years. When the legacy or share
residue bequeathed by a testator or becomes payable orPage 18 of 32
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of an intestate against an executor or
an administrator or some other
person legally charged with the duty
of distributing the estate.
38. I am supported in this view by a judgment of a Full Bench of this
Court in Sajanbir Singh Anand and others (Supra). Paragraph 21, 23 and 24
of the said judgment are relevant and are set out hereunder:
“21. An administration suit, as noted earlier, is essentially one
where reliefs claimed relate to seeking administration of the
estate of a deceased under orders of the Court. The
quintessential aspect which qualifies any suit for being called
an administrative suit is that the reliefs claimed involve the
administration of the estate of the deceased. A suit for a legacy
or for a share of a residue bequeathed by a testator or for a
distributive share of the property of an intestate can only be by a
legal heir. In such a suit, Article 106 will be applicable. But
while an administration suit by a creditor for recovery of his
debt, there is no specific period provided and therefore, the
residuary Article 113 will be applicable.
23. The term administration suit connotes a relief rather than a
cause of action. An administration suit is, in essence, one in
which plaintiff seeks special relief, viz., the administration of the
estate of a deceased person, be he a debtor, a testator or an
intestate, by and under the direction of the Court for the better
realisation of the specific claim regarding which plaintiff has a
cause of action. Therefore, the period of limitation applicable to
such a suit would depend on who the plaintiff is and what his
specific cause of action is. It is for that reason that the
Limitation Act has not explicitly provided a period of limitation
for such a suit. If the suit is by a creditor, the cause of action is
to recover the debt, the appropriate article applicable to a suit
for debt would govern and the period of limitation would be
three years. It is the real nature of the claim that counts and if
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ial32712-23.docdeceased, Article 106 will govern [Rajamannar and anr. vs.
Venkatakrishnayya and anr., 1902 (25) I.L.R. 361 (Madras)]. We
also find support for this view from Parmeshwari Devi Ruia vs.
Krishnakumar Nathmal Murarka, 2007 MhLJ Online 34
2007(6) Bom. C.R. 180. If the suit is by a person entitled to a
part of the interest of a coheir in the estate as against certain
other heirs for administration. Article 106 would not apply as
the suit would be one between coheirs [Mohomedally Tyebally
and ors. vs. Safiabai and ors. (supra)].
24. Even the Madras High Court in the case of T. A. Meenakshi
Sundarammal and anr. vs. K. Subramania Ayyar and ors., AIR
1955 Madras 369 has considered the judgments passed hitherto
by the Privy Council and confirmed that a suit filed as against
an executor or administrator for a share in the legacy, the
relevant article would be Article 123 of the Limitation Act, 1908
(corresponds to Article 106 of the Limitation Act, 1963). This
proposition is also confirmed by a judgment of the Himachal
Pradesh High Court in the case of Mohinder Lal and ors. vs.
Tule Ram and ors., AIR 2006 H. P. 103. In the said judgment,
the Court has held that a suit claiming title to the property of a
deceased person or a portion of such property on the strength of
a Will is in the nature of a suit for a legacy as against the
executor and the period of limitation is 12 years under Article
106 of the Limitation Act, 1963.
In Tara Nath Chakraverty (supra) the Court further held
that:
if there is a conflict between two periods of limitation, one
of which, the longer, is applicable to all circumstances,
and the other, the shorter, to special circumstances only,
the longer term given by the statute to bring the suit ought
to be applied, unless there is clear proof of the special
circumstances which would make the shorter term
applicable and it is upon the party claiming the benefit of
a shorter period of limitation to establish that the case fell
within the special rule limiting the period of a shorter
time”.
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39. Under Article 106, the limitation period is 12 years from when
the legacy or share becomes payable or deliverable. Under the provisions of
Section 337 of the Succession Act an executor or administrator is not bound
to pay or deliver any legacy until the expiration of one year from the testator’s
death.
40. In the present case, the Plaintiff’s father passed away on 13 th
August 2005 and his mother passed away on 26 th June 2011. The present
Suit is filed on 20th March 2015. Therefore, the present Suit is filed within
thirteen years of their passing away. In these circumstances, as far as prayers
(a), (b) and (c) are concerned, the Suit is filed within the period of limitation.
41. In these circumstances, the Plaint cannot be rejected under
Order VII Rule 11 of the CPC as a part of the reliefs sought are within the
period of limitation. For these reasons, I am not dealing with the arguments
of Defendant No.1 that certain other reliefs are barred by limitation.
42. Mr.Nevatia has relied upon the judgment of the Supreme Court
in Nikhila Divyant Mehta & Anr. (Supra) to submit that if the main relief is
barred by limitation, the Suit for a dependent relief would also fail. In my
view, the said judgment is distinguishable on the facts.
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43. In the said Suit, the issue before the Hon’ble Supreme Court was
whether the Suit instituted on 21 st November 2017 for a declaration of the
Will dated 4th February 2014 and the Codicil dated 20 th September 2014 as
null and void was barred by limitation in light of the averments contained in
the Plaint. The Hon’ble Supreme Court held that since the prayer for
declaration of the Will was barred by limitation, the relief for permanent
injunction sought would also have to be rejected as being a consequential
relief. The Hon’ble Supreme Court held that the primary relief being that of
declaring the Will and the Codicil as null and void, and the same being barred
by the law of limitation, the consequential relief of permanent injunction
would also have to be rejected and, accordingly, the Plaint was rejected under
Order VII Rule 11 of the Code of Civil Procedure.
44. In the present case, in my view, the main reliefs sought for are
for the administration of the estate of the late father and late mother of the
Plaintiff and Defendant No.1. As held by me hereinabove, the said reliefs are
not barred by limitation. In these circumstances, assuming that some other
reliefs are barred by limitation, the Plaint cannot be rejected under Order VII
Rule 11 of the CPC as the Plaint has to be rejected as a whole.
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45. Mr.Nevatia also relied upon the judgment of the Hon’ble
Supreme Court in Rajpal Singh (Supra) in support of the aforesaid
proposition that if the main relief is barred by the law of limitation, then the
consequential reliefs in the Plaint ought to be rejected. This judgment is also
distinguishable on facts.
46. In the said Suit, also, the Plaintiff had sought the relief of
cancellation of a Sale Deed dated 19 th April 1996, and, a further relief for
recovery of possession. The Hon’ble Supreme Court held that the relief for
possession was a consequential prayer and the substantive prayer was for
cancellation of the sale deed dated 19 th April 1996, and, therefore, limitation
period is required to be considered with respect to the substantive relief
claimed and not a consequential relief. Further, the Hon’ble Supreme Court
held that when a composite Suit is filed for cancellation of the Sale Deed as
well as for recovery of possession, the limitation period is required to be
considered with respect to the substantive relief of cancellation of the sale
deed which would be three years from the date of knowledge of the Sale Deed
sought to be cancelled. The Hon’ble Supreme Court further held that the Suit
which was filed by the original Plaintiff for cancellation of the sale deed can
be considered to be a substantive relief which was clearly barred by
limitation. Hence, the Trial Court ought to have dismissed the Suit on the
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ground that the Suit was barred by limitation. In the present case, before us,
as stated hereinabove, the main reliefs are for administration of the estate of
the late father and late mother of the Plaintiff and Defendant No.1. As stated
hereinabove, the said reliefs are not barred by limitation. In these
circumstances, the Plaint cannot be rejected under Order VII Rule 11 of the
CPC and the case of Rajpal Singh (Supra) does not carry the case of the
Defendant No.1 any further.
47. I now deal with the various other judgements relied upon by
Mr.Nevatia:
48. In S.Shivraj Reddy (Supra) and V.M.Salgaoncar and Bros.
(Supra), the Hon’ble Supreme Court held that the question of limitation has
to be considered even if it is not set up as a defence. It further held that when
limitation is a bare question of law, it is the duty of the court to decide
limitation at the earliest even in the absence of a plea. In my view, in light of
my aforesaid findings, the said judgments do not carry the case of Defendant
No.1 any further.
49. I have not rejected the claim of defendant No.1 that the Suit is
barred by limitation on the ground that limitation could not be set up as a
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defence or on the ground that limitation is a mixed question of facts and law.
In these circumstances, the ratio of these judgments does not help Defendant
No.1.
50. The next judgment relief upon by Mr.Nevatia is the judgment of
this Court in Nirlon Limited (formerly known as Nirlon Synthetic Fibres &
Chemicals Ltd.) (Supra). Paragraph 33, 35 and 36 of the judgement were
relied upon by Mr.Nevatia and read as under:
“33 In the present case, the plaint was originally filed on
July 22, 1988. The Plaintiff has not anywhere in the suit as
originally filed set out the date / dates on which its cause of
action arose to recover the amounts claimed against the
Defendants. The plaint originally contained paragraph 39 which
reads as follows :-
“The Plaintiffs say and submit that no part of their claim
against the Defendant is barred by the Law of Limitation.
The Plaintiff shall in any event, rely upon the part payment
of Rs.6,00,000/-and the letter of acknowledgment dated
13th February, 1986, Ex.’K’ hereto to save the bar of
limitation, if any.”
35 The Plaint as framed does not disclose the date on
which the Plaintiffs cause of action to file the suit arose. There is
not even a whisper about the same in the Plaint. The Plaintiff
has sought to recover various sums which it claims were due
and payable by Original Defendant No.1 but has not disclosed
when these payments became due. The Defendants are sought to
be sued under a Deed of Guarantee dated 27th July, 1985. It is
the Plaintiffs case that the Defendants have guaranteed the
payments due to the Plaintiff from Defendant No.1 under the
Suit transactions.
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36 The Supreme Court in the case of Syndicate Bank v.
Channaveerappa Belari & Ors. held that the demand under a
deed of guarantee must be made within the time when the claim
against the principal borrower is still live and has not become
time barred.
The Plaintiff has not averred or proved as to when its cause of
action arose in this matter and therefore the Plaintiff has not
discharged its burden in demonstrating that the suit has been
filed within limitation.”
51. The said judgment also does not help the case of the Plaintiff. In
light of my aforesaid findings, the said judgment is irrelevant. In the present
case, I have held that the cause of action arose one year after the respective
deaths of the late father and late mother of the Plaintiff and Defendant No.1,
and in light of the same, the present Suit was not barred by law of limitation.
52. Mr.Nevatia also relied upon the judgment in Anathula Sudhakar
(Supra). Paragraph 10 of the said judgment sets out the questions which
arose for consideration before the Hon’ble Supreme Court and is set out
hereunder:
“10. On the contentions urged, the following questions arise for
our consideration in this appeal:
(i) What is the scope of a suit for prohibitory injunction relating
to immovable property?
(ii) Whether on the facts, plaintiffs ought to have filed a suit for
declaration of title ad injunction?
(iii) Whether the High Court, in a second appeal under Section
100 CPC, examine the factual question of title which was not the
subject matter of any issue and based on a finding thereon,
reverse the decision of the first appellate Court?
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(iv) What is the appropriate decision?”
53. A perusal of the said questions of law clearly shows that the said
judgment is irrelevant for the purpose of the present case.
54. Further, Mr.Nevatia relied upon the judgment of the Hon’ble
Supreme Court in Dahiben (Supra). In this case, a Suit was filed for
cancellation of a sale deed on the ground of alleged non-payment of part of
the sale consideration. The recitals in the sale deed stated of receiving the
entire payment of consideration. In these circumstances, the Hon’ble
Supreme Court held that non-payment of the sale consideration cannot be a
ground for cancellation of the sale deed because of availability of other
remedies for recovery of balance consideration. Further, the Hon’ble
Supreme Court held that the Plaintiff had remained silent for a period of over
5 and ½ years without even issuing a legal notice for payment of unpaid sale
consideration or by instituting any proceeding for recovery of amount. The
Suit was filed only after the property was further sold by the purchaser. In
these circumstances, the Hon’ble Supreme Court held that the Suit is
vexatious, meritless and does not disclose any right to sue and is liable to be
rejected under Order VII Rule 11 (a). From the above, it can be seen that the
facts in the said Suit are very different from the facts in the present Suit and,
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therefore, the said Judgment also does not carry the case of Defendant No.1
any further.
55. The last judgment relied upon by Mr.Nevatia is the judgment in
Raghawendra Sharan Singh (Supra). Paragraphs 7 to 9 of the said judgment
read as under:
“7. Applying the law laid down by this Court in the aforesaid
decisions on exercise of powers under Order 7 Rule 11 of the
CPC to the facts of the case in hand and the averments in the
plaint, we are of the opinion that both the Courts below have
materially erred in not rejecting the plaint in exercise of powers
under Order 7 Rule 11 of the CPC. It is required to be noted that
it is not in dispute that the gift deed was executed by the original
plaintiff himself along with his brother.
The deed of gift was a registered gift deed. The execution of the
gift deed is not disputed by the plaintiff. It is the case of the
plaintiff that the gift deed was a showy deed of gift and therefore
the same is not binding on him. However, it is required to be
noted that for approximately 22 years, neither the plaintiff nor
his brother (who died on 15.12.2002) claimed at any point of
time that the gift deed was showy deed of gift. One of the
executants of the gift deed – brother of the plaintiff during his
lifetime never claimed that the gift deed was a showy deed of
gift. It was the appellant hereinoriginal defendant who filed the
suit in the year 2001 for partition and the said suit was filed
against his brothers to which the plaintiff was joined as
defendant No. 10. It appears that the summon of the suit filed by
the defendant being T.S. (Partition) Suit No. 203 of 2001 was
served upon the defendant No. 10 plaintiff herein in the year
2001 itself. Despite the same, he instituted the present suit in the
year 2003. Even from the averments in the plaint, it appears that
during these 22 years i.e. the period from 1981 till 2001/2003,
the suit property was mortgaged by the appellant hereinoriginal
defendant and the mortgage deed was executed by the
defendant. Therefore, considering the averments in the plaint
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ial32712-23.docthat by clever drafting the plaintiff has tried to bring the suit
within the period of limitation which, otherwise, is barred by
law of limitation. Therefore, considering the decisions of this
Court in the case of T. Arivandandam (AIR 1977 SC 2421)
(supra) and others, as stated above, and as the suit is clearly
barred by law of limitation, the plaint is required to be rejected
in exercise of powers under Order 7 Rule 11 of the CPC.
7.1. At this stage, it is required to be noted that, as such, the
plaintiff has never prayed for any declaration to set aside the
gift deed. We are of the opinion that such a prayer is not asked
cleverly. If such a prayer would have been asked, in that case,
the suit can be said to be clearly barred by limitation
considering Article 59 of the Limitation Act and, therefore, only
a declaration is sought to get out of the provisions of the
Limitation Act, more particularly, Article 59 of the Limitation
Act. The aforesaid aspect has also not been considered by the
High Court as well as the learned trial Court.
8. Now, so far as the application on behalf of the original
plaintiff and even the observations made by the learned trial
Court as well as the High Court that the question with respect to
the limitation is a mixed question of law and facts, which can be
decided only after the parties lead the evidence is concerned, as
observed and held by this Court in the cases of Sham Lal alias
Kuldip (AIR 2009 SC 3115) (supra); N.V. Srinivas Murthy (AIR
2005 SC 2897) (supra) as well as in the case of Ram Prakash
Gupta (supra), considering the averments in the plaint if it is
found that the suit is clearly barred by law of limitation, the
same can be rejected in exercise of powers under Order 7 Rule
11(d) of the CPC.
9. In view of he above and for the reasons stated above, we are
of the opinion that both the High Court as well as the learned
trial Court have erred in not exercising the powers under Order
7 Rule 11 of the CPC and in not rejecting the plaint in exercise
of powers under Order 7 Rule 11 of the CPC. For the reasons
stated above, the impugned judgment and order passed by the
High Court as well as the trial Court cannot be sustained and
the same deserve to be quashed and set aside. Consequently, the
impugned judgment and order passed by the High Court dated
12.03.2013 as well as the order passed by the Munsif, Danapur
rejecting the Order 7 Rule 11 application filed by the original
defendant are hereby set aside. Consequently, the application
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submitted by the appellant hereinoriginal defendant to reject the
plaint under Order 7 Rule 11 of the CPC is hereby allowed and
the plaint, being Title Suit No. 19 of 2003 is hereby rejected. The
present appeal is allowed accordingly in terms of the above. No
costs.”
56. A perusal of these paragraphs would show that, in the light of
my aforesaid findings, the said judgement is irrelevant.
57. It is also contended by Defendant No.1 that since a Suit, being
Suit No.3598 of 1996, had been filed by the late mother concerning title to
one of the properties involved in the present Suit i.e. Shashi Deep property,
the present Suit is an abuse of the process of the Court. In my view, the said
submission of the Defendant No.1 has no merit whatsoever. The late mother
had filed Suit No.3598 of 1986 with respect to cancellation of the purported
Family Arrangement dated 22nd September 1990. The said Suit was based on
a different cause of action filed by the late mother prior to her death. The
cause of action for a Suit for administration filed by the legal heirs is
completely different from the cause of action for cancellation of a document
filed by the deceased. The said Suit was filed by a different party and hence,
there is no question of any abuse of process.
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58. It is also contended by Defendant No.1 that the filing of the
present Suit is an abuse of the process as the Plaintiff ought to resort to the
summary remedy provided under the Succession Act.
59. In my view, this contention also does not have any merit. Firstly,
the executors i.e. Defendant Nos.8 and 9 have filed Testamentary Petition
No.109 of 2013 which has been converted into Testamentary Suit No.75 of
2014. Secondly, it is settled law that the Plaintiff cannot claim protective
relief in a Testamentary Suit and is required to file a substantive Suit for
protective reliefs in respect of the assets of the deceased.
60. In my view, for all the aforesaid reasons, the Interim Application
filed by Defendant No.1 is liable to be rejected. In these circumstances, I am
not dealing with the other arguments of Mr.Sawant on behalf of the Plaintiff
and with some of the other judgements relied upon by Mr.Sawant.
ORDER
a. Interim Application (L) No.32712 of 2023 is rejected.
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b. In the facts and circumstances of the case, there will be no
order as to costs.
[FIRDOSH P. POONIWALLA, J.]
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