Dismissed

Nina Agarwalla v. 1. Ashok Gupta and Ors.

Bombay HC13 Mar 2013MPT/67/2011

Case brief

AI extract

What is this about?

Single judge dismissed miscellaneous petition and notice of motion. Court held that plaintiff's claim for 1/6th share is barred by limitation as it accrued at father's death in 1965. Presumption of service in 1971 citation stands unrebutted. Suit for injunction dismissed for lack of prima facie case.

What did the court decide?

Miscellaneous petition and Notice of Motion dismissed; suit to be decreed if defendants fail to file written statement.

Nina Agarwalla Vs 1. Ashok Gupta and Ors. — Succession and Inheritance | Bombay HC (2013)

MP No.67_2011

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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MISCELLANEOUS PETITION NO.67 OF 2011

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TESTAMENTARY PETITION NO.8 OF 1969

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Smt. Nina Agarwalla – Petitioner

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V/s.

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– Sri Ashok Gupta & Ors. Respondents

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ALONGWITH

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NOTICE OF MOTION NO.2213 OF 2012

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SUIT NO.3069 OF 2011

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– Nina Agarwalla Applicant /

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Orig. Plaintiff Between Nina Agarwalla – Plaintiff V/s. Ashok Gupta & Ors. – Defendants

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Ms. Rajani Iyer, Sr. Advocate, a/w. Ms. Shastri Maniar & Mr. R. Varun i/b. Soloman & Co. for the Petitioner.

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Mr. Venkatesh Dhond, Sr. Adv. & Mr. Sharan Jagtiani, a/w. Mr. Dhiraj Mhatre, Adv. i/b. M/s. Desai & Diwanji, for Defendant Nos.1 to 4. R.D. Shah, Adv. for Defendant No.8.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 13th March, 2013.

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P.C. :-

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The parties are the essentially sisters barring Respondent / Defendant Nos.2 to 4 who are the heirs of a deceased brother. Defendant No.8 in the suit is the transferee of the suit property. The father of the parties one Devraj Gupta expired on 13^th October, 1965

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MP No.67_2011

having left the will dated 28^th March, 1964. Under the will he bequeathed his properties to his wife and two sons. His widow applied for probate in 1969 in the above petition. A probate came to be granted on 12^th March, 1973.

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His wife and children were his only heirs. The probate petition shows each of them. The sons were minors. The Plaintiff was an unmarried daughter. The other heirs were married sisters. The mother, as the Petitioner, got the citation issued and underwent the various formalities under the rules of the testamentary division of this Court.

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The original Testamentary Petition No.8 of 1969, the papers of which have been called, shows inter-alia the handwritten record of testamentary department of this Court showing citation affixed on both the notice boards on 28^th April, 1971 and all the next of kin being served on 12^th May, 1971. There is a reference to a joint affidavit of V.M. Vyas and Anr. filed on 12^th May, 1971.

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This is original record of service in the Testamentary Petition No.8 of 1969. It is an official record. It carries a presumption of its correctness under the Indian Evidence Act. It is rebuttable presumption. It is required to be rebutted by the party who challenges it. The Petitioner / Plaintiff has challenged the issue of the citation upon herself. This was when she was unmarried and living with the Petitioner who was her mother. Mr. Dhond on behalf of Respondent rightly contended that it is for her to show how she has not been served the citation in 1971.

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She has filed the above Misc. Petition in 2011. She has not shown the non service of the citation. The presumption, therefore, holds good.

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The above suit is filed by the Plaintiff initially for only an

MP No.67_2011

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order of injunction restraining the sale or transfer of the suit property which is the property left by the deceased and bequeathed by him under the aforesaid will which has been probated on 12^th March, 1973. The Plaintiff claims knowledge of certain agreement entered by and between her siblings and the transferee, defendant No.8. She has sued for declaration of her 1/6^th share in the suit properties. The 1/6^th share is claimed upon father's intestacy. Intestacy can be claimed upon the death of the father. The death of the father is on 13^th October, 1965. The Plaintiff became entitled for 1/6^th share on and from 13^th October, 1965. Time begun to run from the date of her father's death to claim her share.

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Ms. Iyer contended on behalf of the Plaintiff that only when the public notice of sale of Plaintiff's father's property was seen by the Plaintiff, that her right came to be denied entitling her to sue. The contention is erroneous. An heir is not required to wait for her lifetime if the properties are not sold. Her share is to be claimed in the estate of the deceased. It is to be claimed within three years from the date when the share becomes available to the Plaintiff. That would be the date when the cause of action would accrue to the Plaintiff. That is the date of the death of her predecessor-in-title, the father in this case. Even if the defendants did not desire to sell the property, the Plaintiff could have claimed her share. That has not been done. The suit is prima faice barred by the law of limitation.

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The Plaintiff has sought to answer the bar upon the two judgments of the Supreme Court in the cases of Kunvarjeet Singh Khandpur V. Kirandeep Kaur & Ors., AIR 2008 Supreme Court 2058 & Krishna Kumar Sharma V. Rajesh Kumar Sharma, AIR 2009 Supreme Court 3247 . Both the judgments have considered the case of Vasudev Daulatram Sadarangani V. Sajni Prem Lalwani,

MP No.67_2011

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AIR 1983 Bom 268 . Both the cases relate to bar of Limitation in respect of application for Letters of Administration and probate. The bar of limitation would apply not to the Plaintiff / Petitioner for revocation of the probate but for the application of the probate itself. The later Judgment which has considered inter-alia the judgment in the case of Sadarangani (Supra) has remanded the matter for fresh consideration of Kunvarjeet (Supra) . Hence what has been held in Kunvarjeet's case is also at present not reconsidered. In any case it does not apply to a civil suit or to an application for revocation of the probate.

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The Plaintiff has made out no case for revocation of the probate.

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Miscellaneous Petition No.67 of 2011 is dismissed. 11 The Plaintiff has not made out any prima facie case for grant of relief for injunction against the defendants with regard to transfer of suit property.

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Notice of Motion is dismissed.

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The defendants have been served. They have been represented. Writ of Summons deemed to be served. Written Statement is not filed. The defendants shall file their Written Statement within 30 days failing which the suit shall be decreed as prayed.

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Order dated 29^th November, 2012 in the above Notice of Motion shall continue for three weeks.

Nina Agarwalla v. 1. Ashok Gupta and Ors.

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Nina Agarwalla v. 1. Ashok Gupta and Ors.

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