CDJ Law Journals

1. By the present Civil Revision Application, the Applicant has challenged the order dated 4th June 2025 (the impugned order) passed by the Learned Civil Judge, Civil Senior Division, Mapusa Goa (the Learned Judge) in SCS No. 16 of 2025. By the impugned order, the Learned Judge has rejected the Application filed by the Applicant under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908.

2. The 1st Respondent (original Plaintiff) filed the suit, inter alia, seeking a declaration that the last Will and Testament dated 31st May 2008 (the said Will) is illegal and null and void. The 1st Respondent also sought a declaration that the Deeds of Sale dated 16th August 2024 are illegal, unlawful and void ab initio, and consequently, has sought cancellation of the same. A relief of permanent injunction is also sought by the 1st Respondent.

3. The Applicant filed an Application under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908 and sought rejection of the plaint on the ground that the suit is barred by the Law of Limitation. It is the main contention of the Applicant that the said Will is a registered document and therefore, limitation shall commence from the date of registration. In any case, it is the case of the Applicant that the 1st Respondent admittedly was aware of the existence of the said Will at least since 21st February 2019. The suit was filed by the 1st Respondent only on 25th January 2025. Therefore, the suit is barred by the provisions of Section 3 read with Article 58 of the Law of Limitation, 1963. The Application was opposed by the 1st Respondent.

4. The Learned Judge dismissed the Application filed by the Applicant, inter alia, holding that the commencement of the period limitation can be determined only after proper adjudication of the matter. The Learned Judge has taken a view that, in the facts and circumstances of the present case, the issue of limitation, being a mixed question of law and facts, has to be thoroughly examined.

5. The 2nd Respondent, who is the 2nd Defendant in the suit, had also filed an Application under Order VII Rule 11 of the Code of Civil Procedure alleging that the plaint does not disclose any cause of action and therefore, the plaint ought to be rejected. This Application was also dismissed. The 2nd Respondent has not challenged that order of dismissal of the Application. Mr. Lawande, the Learned Counsel for the 2nd Respondent, submitted that though the 2nd Respondent has not challenged the order, he is supporting the Applicant’s plea in the present Civil Revision Application that the suit is barred by the Law of Limitation.

6. Mr. Nadkarni and Mr. Lawande agreed that the present Civil Revision Application is only confined to the plea under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908. Accordingly, the hearing of the present Civil Revision Application is confined only to the plea of the Applicant that the suit is barred by the Law of Limitation.

7. Mr. Nadkarni, the Learned Counsel for the Applicant, submitted that in view of the admitted facts about the knowledge of the 1st Respondent of the said Will, the plaint ought to have been rejected. The impugned order, therefore, in the face of it, proceeds on a wrong footing. He formulated his propositions in the following manner:-

                   a. The primary challenge/relief against the said Will in the suit is barred by the law of limitation, as it has been filed after a period of three years from the date of knowledge of the said Will.

                   b. The challenge to the said Will is the primary/main relief, and the other reliefs are merely consequential, therefore, warranting the entirety of the plaint to be rejected for being barred by the Law of Limitation.

8. To begin with, Mr. Nadkarni drew attention to prayers in the suit, which read as follows:-

                   “(a) For Declaration that the purported last Will and Testament dated 31.05.2018 is illegal and null and void;

                   (b) For Declaration that the first impugned Deed of Sale dated 16.08.2024 is illegal, unlawful and void ab initio and consequently cancel the registration of the Sale Deed;

                   (c) For Declaration that the second impugned Deed of Sale dated 16.08.2024 is illegal, unlawful and void ab initio and consequently cancel the registration of the Sale Deed;

                   (d) For an Order of permanent injunction restraining Defendant Nos. 1 and 2, either by themselves or through their agents, servants, representatives, attorneys or any other persons from creating any third-party rights or alienating the property in any manner by claiming the rights through the first and second impugned Sale Deeds in respect of the first and the second suit property;

                   (e) For an order of permanent injunction restraining Defendant No. 1 either by herself or through her agents, servants, representatives, attorneys or any other persons from alienating or creating third-party rights in respect of the third and fourth suit property claiming title by way of the said Will.”

9. Therefore, it is submitted by Mr. Nadkarni that at this stage, and for consideration under Order VII Rule 11 (d), the Applicant is relying only on the averments made in the plaint and the documents relied upon along with the plaint. On that basis, it is contended that even going by the own case of the Plaintiff, the Suit is barred by the Law of Limitation. He submitted that the Applicant is not raising any contentions on the merits of the Suit, as the same can be considered only after the Trial Court is vested with jurisdiction. It is submitted that the jurisdiction of the Court is barred if the Suit is filed beyond the period of limitation. He submitted that the limitation to challenge a Will under Article 58 of the Limitation Act, commences from the date of knowledge of it, and any suit filed after such period must be rejected by the Court under Order VII Rule 11. Once it is admitted that the Plaintiff is aware of a Will, then the broad argument that limitation is a mixed question of fact and law cannot be sustained. In the present case, the admitted date of the knowledge of the said Will is 21st February 2019. Mr Nadkarni submitted that this contention, despite being specifically raised before the Trial Court, has not even been appreciated in the impugned Order, much less considered by it; therefore, on this ground alone, the impugned Order deserves to be set aside. He further submitted that mere pendency of Testamentary Proceedings cannot extend the period or commencement of limitation for filing of a Suit challenging a Will, and the same must be filed within three years from the date of knowledge of it. According to Mr. Nadkarni, the only cause to challenge the Sale Deeds is that the same has been wrongly and illegally executed by the Applicant by using the Said Will. Therefore, he submitted that the only cause to challenge the Sale Deeds is the Said Will, and therefore if the challenge to the Said Will is barred by limitation, then by necessary implication of law, the challenge to the Sale Deeds is also barred by limitation, even if the challenge to the Sale Deeds by in itself is within three years of its registration. Therefore, Mr. Nadkarni submitted that once the primary challenge to the said Will is beyond limitation, the prayer for challenge to the Sale Deeds and other prayers, which are consequential relief, are also barred by limitation. Therefore, the Suit must be rejected under Order VII Rule 11 (d).

10. Mr. Nadkarni further submitted that the local and special laws in the State of Goa do not in any manner provide a different limitation for filing of the Suit to challenge a Will. Therefore, the matter must be decided solely under the Limitation Act, 1963. The provisions of the law applicable in the State of Goa sought to be relied upon by the Plaintiff can be considered only after the aspect of limitation is first decided, and until the said issue of limitation is decided, the reliance placed on the law of the State of Goa is immaterial.

11. Therefore, Mr. Nadkarni submitted that the impugned Order rejecting an Application filed under Order VII Rule 11 (d) without proper appreciation or consideration of the contentions raised by the party must be set aside and the matter must be remanded for fresh consideration.

12. Mr. Nadkarni supported his submission by citing a series of Judgments, which include Nikhil D. Mehta & Another V. Hitesh P. Sanghvi & Others, 2025 SCC OnLine 779, Anand Madanmohan Jaiswal V. Pratibha Jaiswal & Others, [2018] (3) Mh.L.J. 478, Mrs. Kumud Bhargava V. Sudhir Bhargava & Others, 2014 SCC OnLine 15558, Bhim Sain & Others V. Mohinder Kumar & Others, 2019 SCC OnLine Del 9692, Ramesh Baburao Malve V. Sow Suman and Others, Civil Revision Application No. 205/2017.

13. Mr. Lawande, the Learned Counsel for the 2nd Respondent, by citing Dahiben Vs. Arvindbhai Bhanusali (Gajra) & Others, (2020) 7 SCC 366, submitted that by clever drafting and bringing in an illusory cause of action, limitation cannot be saved. He submitted that the right to sue accrued on the date when the 1st Respondent learnt about the said Will on 21st February 2019. Therefore, the impugned order is wrong.

14. Mr. Ramani, the Learned Senior Counsel for the 1st Respondent, submitted that the judgments cited by the Applicant and the 2nd Respondent are not applicable to the facts and circumstances of the present case. The law governing the said Will is a special law applicable to the State of Goa, and therefore, the principles of Hindu Law are not applicable. He submitted that the said Will is still the subject matter of the pending Testamentary Proceedings. The application seeking a Letter of Administration is still pending. Further, Inventory Proceedings are pending in the State of Goa. It is submitted by Mr. Ramani that, upon reading the plaint as a whole, the suit is filed within the limitation period and is not barred by Section 3 read with Article 58 of the Limitation Act, 1963. He submits that the suit was filed after the cause of action accrued, as stated in the plaint. Therefore, he submitted that the present Civil Revision Application ought to be dismissed.

15. I heard the Learned Counsel appearing for the parties at length, perused the record, and have also considered the written submissions filed by the parties.

16. Before I proceed with the rival submissions, the admitted facts are as follows:

                   a. The said Will of the late Mr. Rui Pinto is dated 31st May 2018 and is a registered Will. Mr. Rui Pinto passed away on 10th November 2018. In December 2018, the Applicant filed Testamentary proceedings before the Bombay High Court at Mumbai and has sought a Letter of Administration. The proceedings seeking a Letter of Administration were filed because the executor of the said Will has renounced his right to act as executor. On 21st February 2019, the 1st Respondent filed an objection in the Testamentary Proceedings. There is also an Application filed by the 1st Respondent seeking condonation of the delay in filing the objections. The said Application is also pending. Therefore, the objection to the grant of a Letter of Administration is pending. Thus, the 1st Respondent’s knowledge of the said Will is at least from 21st February 2019.

                   b. There are also Inventory Proceedings pending in the State of Goa before the Civil Judge, Senior Division, Mapusa, Goa. The Applicant has filed his objections in the Inventory proceedings in 2023.

                   c. There are four properties which are the subject matter of the said Will. These properties are described more particularly in paragraph 4 of the plaint.

                   d. Neither party has filed a separate suit for the administration of the estate of the late Mr. Pinto.

                   e. During the pendency of the proceedings of the Letter of Administration, on 16th August 2024, the Appellant sold two properties out of four by the Sale Deeds dated 16th August 2024 to the 2nd Respondent by claiming ownership of the properties by virtue of the said Will.

                   f. In December 2024, after the execution of the Sale Deeds, the name of the late Mr. Rui Pinto came to be deleted in the survey record, and the name of the 2nd Respondent came to be added.

                   g. On 28th January 2025, the 1st Respondent filed the suit before the Learned Civil Judge, Senior Division, Mapusa, Goa.

17. The Applicant’s submission are solely based on Article 58 of the Schedule to the Limitation Act, 1963, which Article reads as follows:

Description of suit	Period of limitation	Time from which period begins to run
58. To obtain any other declaration	Three years	When the right to sue first accrues

18. Accordingly, the limitation to file a Suit shall start only ‘when the right to sue first accrues’. The period of limitation is three years.

19. Therefore, in the present case, the only relevant fact that is to be ascertained by reading the plaint as a whole is the date on which the right to sue first accrued.

20. The Hon’ble Supreme Court in Khatri Hotels (P) Ltd. V. Union of India, (2011) 9 SCC 126 has interpreted Article 58 and has held that:

                   28. Article 120 of the 1908 Act was interpreted by the Judicial Committee in Bolo v. Koklan AIR 1930 PC 270] and it was held:

                   “There can be no ‘right to sue’ until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.”

                   (emphasis supplied)

                   The same view was reiterated in Annamalai Chettiar v. Muthukaruppan Chettiar [ILR (1930) 8 Rang 645] and Gobinda Narayan Singh v. Sham Lal Singh [(1930-31) 58 IA 125] .

                   29. In Rukhmabai v. Lala Laxminarayan [AIR 1960 SC 335 : (1960) 2 SCR 253] , the three-Judge Bench noticed the earlier judgments and summed up the legal position in the following words: (Rukhmabai case [AIR 1960 SC 335 : (1960) 2 SCR 253] , AIR p. 349, para 33)

                   “33. … The right to sue under Article 120 of the [1908 Act] accrues when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.”

                   30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word “first” has been used between the words “sue” and “accrued”. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued. (emphasis supplied)

21. A three-Judge Bench in the State of Punjab V. Gurdev Singh, (1991) 4 SCC 1 has held that:

                   “6. First of all, to say that the suit is not governed by the law of limitation runs afoul of our Limitation Act. The statute of limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed “period of limitation” must subject to the provisions of Sections 4 to 24 be dismissed although limitation has not been set up as a defence. Section 2(j) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 2(j) also defines, “prescribed period” to mean the period of limitation computed in accordance with the provisions of the Act. The court's function on the presentation of plaint is simply to examine whether, on the assumed facts, the plaintiff is within time. The court has to find out when the “right to sue” accrued to the plaintiff. If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fall within the residuary article. The purpose of the residuary article is to provide for cases which could not be covered by any other provision in the Limitation Act. The residuary article is applicable to every variety of suits not otherwise provided for. Article 113 (corresponding to Article 120 of the Act of 1908) is a residuary article for cases not covered by any other provisions in the Act. It prescribes a period of three years when the right to sue accrues. Under Article 120 it was six years which has been reduced to three years under Article 113. According to the third column in Article 113, time commences to run when the right to sue accrues. The words “right to sue” ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted (See (i) Mt. Bolo v. Mt. Koklan [AIR 1930 PC 270 : 57 IA 325 : 1930 ALJ 1188] and (ii) Gannon Dunkerley and Co. Ltd. v. Union of India [(1969) 3 SCC 607 : AIR 1970 SC 1433 : (1970) 3 SCR 47] ).” (emphasis supplied)

22. Both these Judgments are referred to and relied upon by the Hon’ble Supreme Court in Dahiben (supra). Therefore, the Court must examine the averments made in the plaint and determine when the Plaintiff ’s right to sue first accrued. The right to sue accrues only when the cause of action arises. If the reading of the plaint as a whole discloses that the right to sue accrued on a particular day and the suit is filed after a period of three years from that date, then the plaint ought to be rejected by exercising the power under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908.

23. In the present case, the suit is filed after the 1st Respondent noticed the change in the survey record by which the name of the late Mr. Rui Pinto came to be deleted and the name of the 2nd Respondent came to be added. The cause of action is framed by the 1st Respondent on the basis of the entry in the survey record.

24. The averments made in the plaint proceed by describing the parties. Thereafter, the details of properties which are the subject matter of the said Will are given in paragraph 4 of the plaint. Thereafter, the statements are made in respect of the happening of events leading to the divorce of the late Mr. Pinto etc. After paragraphs 6 onwards, the 1st Respondent has narrated the knowledge of the Testamentary Proceedings filed by the Applicant before the Bombay High Court and the fact that the 1st Respondent has opposed the grant of the Letter of Administration in respect of the said Will, further statements are made in respect of the grounds of challenge of the said Will. The plaint also states the fact about the pending Inventory Proceedings filed by the 1st Respondent in the State of Goa and the objection filed by the Applicant thereto.

25. Thereafter, the 1st Respondent has stated in the plaint that after the Applicant filed an objection in the Inventory Proceedings, the 1st Respondent kept a periodical watch on the official website of the Government of Goa in respect of online Form I & XIV. It is stated that the survey record of the properties was in the name of the late Mr. Pinto.

26. In this background, the Plaintiff proceeds to state in the plaint that, in December 2024, the 1st Respondent was shocked to notice that the name of the 2nd Respondent was recorded in Form I & XIV of the first and second suit properties (the properties which are the subject matter of the Sale Deeds) and the name of the late Mr. Pinto came to be deleted. It is the case of the 1st Respondent that the Sale Deeds are executed by the Applicant by claiming ownership of the properties which are the subject matter of the said Will. The said Will, which is the subject matter of challenge in the Testamentary Proceedings before the Bombay High Court. It is alleged in the plaint that the Applicant could not have executed the Sale Deeds in favour of the 2nd Respondent when the Testamentary Proceedings are pending for the grant of Letters of Administration.

27. With this factual background, the 1st Respondent has sought declarations and other reliefs in the plaint. Paragraph 27 of the plaint read as follows:

                   “27.The Plaintiff states that the cause of action for filing the present Suit arose somewhere in end of December, 2024, when the Plaintiff realized that the name of late Rui has been deleted from the survey records of the first and second suit properties and the name of Defendant No. 2 has been illegally added.”

28. Therefore, the cause of action pleaded in the plaint accrued when the 1st Respondent noticed the change in the survey record by which the name of the late Mr. Pinto came to be deleted and the name of the 2nd Respondent came to be added. That is the pleaded cause of action, though the knowledge of the said Will is admitted by the 1st Respondent.

29. Mr. Nadkarni’s submissions are solely based on the fact that the 1st Respondent was aware of the said Will since 21st February 2019. However, it is an admitted fact that the Sale Deeds are executed only on 16th August 2024, and this is the first time the Applicant has dealt with the properties covered by the said Will. On the one hand, the Applicant has sought a Letter of Administration, which is pending; on the other hand, the Applicant has sold the estate of the deceased, claiming ownership of the same.

30. Therefore, I agree and accept the submission of Mr. Ramani in view of the admitted fact that the Sale Deeds were executed on 16th August 2024, and the survey record changed only thereafter, which was noticed by the 1st Respondent only in December 2024, the cause of action only arose in December, 2024.

31. I further agree with the submissions of Mr. Ramani that here was no occasion for the 1st Respondent to challenge the said Will because, (i) in view of the pending Testamentary Proceedings and the Inventory Proceedings, and considering the fact that the Applicant only dealt with the property for the first time by executing the Sale Deeds on 16th August 2024, (ii) the objections raised by the 1st Respondent to the said Will are already sub judice in the Testamentary Proceedings and therefore, there was no question of the Applicant being owner of the estate of the late Mr. Pinto, (iii) no such claim of ownership was made by the Applicant before the execution of the Sale Deeds. In view thereof, I also reject the submissions of the Applicant that the other prayers are ancillary prayers to the prayer challenging the said Will.

32. After reading the plaint in its entirety, I reject the submission made on behalf of the Applicant and the 2nd Respondent that the plaint is cleverly drafted to allege an illusory cause of action to bring it within the limitation period.

33. If the submissions of the Applicant and the 2nd Respondent are accepted that the cause of action arose on date of knowledge of the 2nd Respondent about the said Will, then certainly it is a disputed fact which requires to be tried, and the plaint cannot be rejected by invoking the powers under Order VII Rule 11 (d), the limitation being a mixed question of fact and law. In view thereof, the Judgments cited by Mr. Nadkarni and Mr. Lawande are not applicable to the facts and circumstances of the present case, except for the part of the Judgments quoted hereinabove.

34. In view thereof, the Applicant has failed to make out a case at the threshold. A mere reading of the plaint clearly suggests that the suit is not manifestly vexatious and without any merit. Therefore, I completely agree with the findings of the Learned Judge in the impugned order.

35. Accordingly, the present Civil Revision Application stands dismissed.

36. Consequently, the pending Civil Application No. 1513 of 2025 (F) and Miscellaneous Civil Application No. 1514 of 2025 (F) also stand dismissed.

37. The cost in the cause. The cost shall be determined in the pending suit.

38. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.

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