Dismissed

Ashok Madhavrao Pradhan v. Meena Moreshwar Pradhan and 9 Ors.

Bombay HC3 Oct 2012APP/469/2012

Case brief

AI extract

What is this about?

Appeal against dismissal of a suit for partition and declaration challenging a 1943 conveyance. The High Court held the suit time-barred. Limitation for setting aside the 1943 instrument had expired upon the appellant's majority. Possession claim was also barred as the property ceased to be ancestral in 1943.

What did the court decide?

Suit dismissed; limitation position upheld; appeal dismissed.

Ashok Madhavrao Pradhan Vs Meena Moreshwar Pradhan and 9 Ors. — Partition | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.469 OF 2012 IN

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SUIT NO.184 OF 2010 WITH NOTICE OF MOTION NO.1182 OF 2012 AND NOTICE OF MOTION NO.1536 OF 2012

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Ashok Madhavrao Pradhan ..Appellant

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Versus

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1.Meena Moreshwar Pradhan & Ors...Respondents.

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Ms. Usha Purohit, for the appellant. Mr. A.I. Jalegaonkar i/b. Bhaishankar Kanga & Guirdharlal for respondent No.1.

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M.M. Patel with U.S. Patel i/b. Bhaishankar Kanga & Girdharlal for respondent Nos. 2 and 4.

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CORAM: MOHIT S. SHAH, C.J. & N.M. JAMDAR, J. DATE : 03 October 2012.

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P.C.

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The Appeal is directed against the judgment and decree dated 27 March 2012 of the learned Single Judge of this Court dismissing the plaintiff's suit by giving a finding on the preliminary issue of limitation raised at the instance of the defendant Nos.1 to 4.

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On 8 June 2010, the appellant-plaintiff filed the present suit for partition and separate possession of 1/4^th share claimed by the plaintiff in the suit property which is a house situate at Khar, Mumbai. The appellant also sought a declaration that the deed of conveyance dated 13 March 1943 executed by the plaintiff's great

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grand father late Vinayak Harishchandra Pradhan in favour of Moreshwar, brother of the plaintiff's grant father is null and void ab initio. The plaintiff also prayed for accounts of the suit property.

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Defendant Nos.1 and 4 contended that the suit is hopelessly barred by law of limitation and prayed for raising a preliminary issue of limitation. Accordingly, the issue of limitation was tried as a preliminary issue and after hearing the learned counsel for the parties, the learned Single Judge held that the suit is hopelessly barred by law of limitation and accordingly dismissed the suit. Hence the present appeal.

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Learned counsel for the appellant-plaintiff submits that until and unless evidence is led, the issue of limitation could not have been decided as it is a mixed question of law and facts.

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The suit house situate in Khar, Mumbai, is the only property in respect of which the appellant-plaintiff filed the suit for partition. Vinayak Harishchandra Pradhan, the great grand father of the plaintiff executed the deed of conveyance in favour of his youngest son Moreshwar. Defendant No.1 is the youngest daughter of said Moreshwar. The learned counsel for the appellant submits that it was only recently in 2009 that the plaintiff came to learn that the suit property was a joint family property when defendants tried to develop the suit property and defendant No.1 was trying to form a Trust in respect of the property and create third party interest over the same.

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It is necessary to note that the plaintiff is presently aged about 65 years and the registered deed of conveyance in question was executed by Vinayak Harishchandra Pradhan on 13 March 1943 even before the appellant was born. Even accepting all the arguments

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of the appellant, upon completing 18 years of age the appellant could have filed a suit within 3 years because Article 59 to the Schedule to the Limitation Act provides that the period of limitation to cancel or set aside an instrument is 3 years from the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside first become known to the plaintiff.

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When the instrument is registered, the world at large is put to the notice about the execution of the instrument. Hence when the plaintiff did not take any steps even after attaining majority and for a period of 3 years thereafter, it has to be held that the suit filed in the year 2010 is hopelessly time barred. We, however, make it clear that we have may not be treated to have expressed any opinion that such a suit, if filed within 21 years from the date of birth of the plaintiff, would have been within the period of limitation. We are only assuming the best possible case of the plaintiff for testing the plaintiff's arguments.

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Learned counsel for the appellant, however, submits that even if the suit for setting aside the conveyance deed is time barred, the plaintiff's suit for partition cannot be said to be time barred. The contention is misconceived. When Vinayak Harishchandra Pradhan had transferred the property to Moreshwar, brother of the plaintiff's grand father, the property no more remained with Vinayak Harishchandra Pradhan. Hence the plaintiff could not have claimed any right as a co-parcner in the property. The moment the property ceased to be that of Vinayak Harishchandra Pradhan as far back as in the year 1943, the prayer for partition is also time barred. Therefore, the partition suit filed in the year 2010 would also be time barred.

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For the reasons aforesaid, we find no merit in this appeal. The Appeal is accordingly dismissed.

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In view of the dismissal of the appeal, the Notices of Motion do not survive. Notices of Motions accordingly stand disposed of.

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CHIEF JUSTICE

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(N.M. JAMDAR, J.)

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Ashok Madhavrao Pradhan v. Meena Moreshwar Pradhan and 9 Ors.

Case brief

What is this about?

What did the court decide?

Ashok Madhavrao Pradhan v. Meena Moreshwar Pradhan and 9 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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