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 as Administrators 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 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.
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 22nd September 1990.
10. Mr.Nevatia then referred to paragraph 15(I)(vi) of the Plaint and submitted that the cause of action arose on 15th 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 15th 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 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:
a. 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.
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 15th 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.
18. Mr.Sawant submitted that the executors have already filed a Testamentary Petition, being Testamentary Petition No.109 of 2012, on 23rd 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 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.
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 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 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 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 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 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 noncompliance 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:
“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 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..."
(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 limitation | Time from which period begins to run | |
| 106. | 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 against an executor or an administrator or some other person legally charged with the duty of distributing the estate. | Twelve years. | When the legacy or share becomes payable or deliverable. |
“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 the suit for legacy involves administration of the estate of the deceased, 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".
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 13th August 2005 and his mother passed away on 26th 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.
43. In the said Suit, the issue before the Hon’ble Supreme Court was whether the Suit instituted on 21st November 2017 for a declaration of the Will dated 4th February 2014 and the Codicil dated 20th 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.
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 19th 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 19th 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 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 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.
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?
(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, 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 and the bundle of facts stated in the plaint, we are of the opinion that 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 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.
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.
b. In the facts and circumstances of the case, there will be no order as to costs.