In a second appeal, the High Court dismissed the appeal, holding that the appellant cannot rely on a time-barred Will to claim title or resist an injunction. The court noted that a declaration under the Will was not sought within the limitation period.
The second appeal was dismissed as no substantial question of law arose.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.208 OF 2007
Shri Pralhad Mahadeorao Ghorpade. ..Appellant.
V/s.
Sau. Shalan Vilas Khandagale. ..Respondent.
Mr.A.Kumbhakoni for appellant.
CORAM: A.M.KHANWILKAR,J
DATE : JULY 16, 2007.
P.C. :
1. Heard counsel for the appellant.
2. The entire effort of the appellant was to
persuade this Court to hold that the appellant has
succeeded to the property by virtue of Will dated
28th August, 1995, left behind by Malanbai
bequeathing the suit property to the appellant. It
is however, fairly accepted by the counsel for the
appellant that although the appellant had filed
counter claim in the subject suit, the said counter
claim has been dismissed by the trial Court. That
decree passed by the trial Court was not carried in
appeal by the appellant. In other words, the counter
claim of the appellant to get the relief of
possession of the suit property on the assertion that
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he has become owner of the suit property on account
of the said Will has been rejected by the trial
Court. In that case, it will have to be assumed that
the ownership of the suit property is that of the
respondent, being daughter of the deceased
Malanbai-original owner and having inherited the suit
property as the legal heir and representative of the
deceased Malanbai after the demise of Malanbai on
12th February, 1996. It would have been a different
matter, if the appellant was to get the Will probated
or in any case, declaration that he has become owner
of the suit property on the basis of the Will dated
28th August, 1995, within period of limitation after
the demise of Malanbai on 12th February, 1996.
3. Whereas, the counter claim filed by the
appellant, as is fairly accepted by the counsel for
the appellant, was on 12th October, 1999.
Admittedly, no declaration was asked that the
Appellant has become the owner of the suit property
by virtue of the stated Will. Significantly, the
remedy of appellant to seek such declaration had
already become time barred on that date. That plea
therefore, cannot be now set up in a suit for
injunction by the real owner, who has become owner by
virtue of being daughter of the deceased Malanbai,
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after the demise of Malanbai on 12th February, 1996.
As the limitation for seeking declaration in relation
to the Will dated 28th August, 1995 has become time
barred, the appellant cannot be heard to resist the
claim of the respondent/plaintiff in the suit for
injunction filed by the respondent asserting title in
respect of the suit property.
4. Counsel for the appellant contends that the
two Courts below have not addressed the matter in
this perspective. That makes no difference for
deciding the Second Appeal. Besides, it is well
established that the issue regarding any claim being
barred by limitation, will have to be addressed by
the Court even if, such specific issue is not raised
by the party to the suit, by virtue of section 3 of
the Limitation Act.
5. To get over this position, counsel for the
appellant would contend that in the counter claim the
limited relief that was claimed by this appellant was
of possession and the fact that the claim of the
appellant founded on the Will dated 28th August, 1995
being barred by limitation will be of no consequence.
It is not possible to accept this submission. The
appellant can succeed in getting relief of possession
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only upon establishing his ownership with regard to
the suit property and in no other manner. The
appellant having failed to seek declaration with
regard to the suit property in the context of Will
dated 28th August, 1995, cannot simplicitor use that
Will to buttress the claim of possession asked in the
counter claim. As aforesaid, unless the appellant
was to establish title in respect of suit property
could not be heard to claim relief of possession. I
am conscious of the fact that I am not addressing the
matter in relation to the counter claim or the relief
claimed thereunder by the appellant, but the reason
stated hereinbefore is of some significance for
considering whether the appellant can be heard to
resist relief of injunction claimed by the respondent
on the basis of title in respect of the suit
property.
6. Accordingly, in my opinion, no substantial
question of law arises in this Second Appeal. Hence
dismissed.
(A.M.KHANWILKAR,J)
2 issues framed by the court
Whether the appellant can resist a claim of injunction by asserting title based on a Will which time-barred for declaration when counter-claim was filed.
Whether failure to seek declaration of ownership under the Will within the limitation period precludes using the Will to support a claim for possession in a counter-claim.
Shri Pralhad Mahadeorao Ghorpade
Sau. Shalan Vilas Khandagale
A.M. Khanwilkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court