An heir who had never possessed the estate properties sought administration and challenged subsequent transactions by other heirs. The court held the administration claim barred under Article 113, with limitation running from death, and dismissed both the suit and notice of motion.
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.
NMS.3440/2011-S.2792/10(903)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 3440 OF 2011 IN
SUIT NO. 2792 OF 2010
Dr. Jasmine Ajayan ...Plaintiff Vs. M/s. Swastik Realtors & Ors. ...Defendants
Mr. Premlal a/w. Ms. Gayatri Ahire Patil, Mr. D. Singh and Mr. Sankalp i/b. India law for Plaintiff
Mr. P. N. Modi, Sr. Advocate a/w. Mr. Chirag Dave i/b. Narayanan & Narayanan for Defendant Nos. 1 and 4 Mr. Snehal Shah a/w. Ms. Deepti panda i/b. Rakesh Agarwal for Defendant Nos. 2,3 and 5
CORAM : MRS. ROSHAN DALVI, J. Date of Reserving the Order : 11th December, 2012 Date of Pronouncing the Order: 10th January, 2013
ORDER :
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Exhibits-A, H, J & G to the plaint as a part of the estate of the deceased. There are 3 immovable properties and 210 shares in Defendant No.5 Company which had an immovable property on the land described in Exhibit-A to the plaint. The share holding of Defendant No.5 is shown in Exhibit-G-1 to the plaint. The structure of the company was on the suit land owned by the Defendant No.6. The deceased, therefore, was not the owner of the entire land. He was only the owner of certain shares in the company whose structure was upon the land.
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The conveyance between Defendant No.1 and the true owner was registered well before the consent terms were executed.
Whether the suit is barred by the Law of Limitation .
The issue would have to be decided as a question of law based upon admitted facts.
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under Article 65 of the Limitation Act and it having been filed within 12 years (of what is not shown) is also not barred.
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the main relief of the administration of the estate of the deceased upon the main cause of action that the deceased expired and the Plaintiff, as the daughter of the deceased, is entitled to 1/3rd share of the estate of the deceased.
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the estate of the deceased and consequently hold such estate in trust for the other heirs of the deceased. The Plaintiff, therefore, can claim her rights only against Defendant Nos. 2 and 3 and none other with regard to the consent terms entered into by Defendant Nos. 2 and 3 in that suit.
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who are not on record of the suit may have a claim against such of the heirs and legal representatives as were brought on record, unknown to the other heirs, and who represented the estate of the deceased. That claim would be as an heir of the deceased. That claim would arise upon the death of the deceased. That claim, therefore, would have to be made as such heir within the period of limitation. Since there is no separate article in the schedule to the Limitation Act, 1963 for an administration suit, the period of Limitation governing such suits would fall under Act 113 of the Schedule to the Limitation Act being 3 years from the date when the cause of action accrued.
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claiming her 1/3 share in that estate of her deceased father for 5 years. Had she sued or even claimed her share in this estate within a reasonable time after the death of her father in 2005, it would well have been before the conveyance was executed in 2007 or Consent Terms were signed in 2009. Upon the plaint itself considering the admitted date of the death of the deceased and date of the filing of the suit, the suit for administration would be barred by the Law of Limitation unless the period of limitation may be otherwise shown to be saved. This squarely applies to the estate of the deceased shown in Exhibits-H & J to the plaint being the residential premises of Defendant Nos. 2 and 3 and the business premises of Defendant Nos.1 to 5. The Plaintiff does not live in the residential premises of the deceased. She is not in possession thereof as an heir or as a co-owner thereof with Defendant Nos. 2 and 3. She is also not in possession of the business premises of Defendant Nos. 1 to 5 as she is not their partner. She only owns 210 of the 2880 shares of Defendant No.5 Company. She cannot be stated to be in possession of the property of Defendant No.5 also.
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or made any demand for her alleged share in the estate of the deceased at any point of time. The factum of not making claim as alleged by the Defendants 2, 3 and 5 is not denied by the Plaintiff in her affidavit of rejoinder. No claim made by the Plaintiff after the death of her father to claim her 1/3rd share is shown by the Plaintiff.
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apply.
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such he would continue as the heir of the deceased. He would then continue as a co-owner or a tenant-in-common. He would not have a specific share in the property but he would hold, use, enjoy and accordingly possess such property along with other coowners or co-tenants who are the other heirs of the deceased. It is only when such co-owner is ousted from such possession or his ownership rights or title upon such possession is denied that he would have to sue for recovery of such possession within 12 years of the ouster under Article 65 of Schedule I to the Limitation Act. If, however, he is not in possession of any immovable property but claims a share therein as one of the heirs of the deceased, he would have to sue for such share upon the accrual of such share to him which is from the moment of the death of the deceased. Whether or not such share is claimed in any movable or any immovable property is of no consequence. The suit would be in respect of the estate of the deceased, be it movable or immovable. The limitation period for such a suit being an administration suit for administering the estate of the deceased and for claiming a share therein, not being specifically set out in the Schedule, would be covered under Article 113 of Schedule I of the Limitation Act and no other. The same analogy as in the case of Mubarakunnis (supra) would apply to all.
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some of his heirs as on intestacy. The probate of his will was granted in a related probate petition by the same Court. The related administration suit came to be filed 5 years after the death of the deceased. The correspondence between the parties was sought to be relied upon to save the bar of limitation. The very first letter making the claim was seen to have been written more than 3 years after the death of the deceased which was after the period of limitation was over. The reply of the defendant which was relied upon did not dispute the right of the plaintiff. The period which was sought to be saved, therefore, could not be saved. It was observed in para 25 of the judgment that the period of limitation can be saved only after it began to run and it must be saved before it culminated in the statutory bar. The period of limitation had begun to run when the cause of action accrued. The date of the accrual of the cause of action was the death of the deceased and not the receipt of the reply of the letter of the plaintiff himself. It was observed that the plaintiff may not receive any reply to a letter sent by him immediately prior to the filing of the suit which may be, as it was in that case, after the period of limitation culminated in the statutory bar. That would not mean that the cause of action would not begin to run.
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condition precedent. That would form the cause of action. The action would necessarily be only for such property and not for the other estate of the deceased. A claim for several properties, movable and immovable is a claim not for possession, not based on his title, but for administration of the entire estate of the deceased. Such claim cannot fall with Article 65 of the Schedule to the Limitation Act, 1963. It, not having been otherwise provided for, would fall only within Article 113 of the said Schedule.
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fell within Article 144, in the later amended Act being the Limitation Act of 1963 only the possession or interest in immovable property based on title fell within Article 65. Hence it was observed that though in the earlier Act of 1908 a specific provision was made with regard to the immovable property not otherwise specified in any other article, in the new Act of 1963 Article 113 dealt with both movable and immovable properties where the period of limitation was not prescribed elsewhere in the Schedule to the Act.
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110 would not apply to the case of administration of the estate of the deceased except where the plaintiff sought a right in the joint family property from which he was excluded in which case alone Article 110 would apply. For a Hindu plaintiff who has not been excluded from joint family property that right would not apply. If he has to apply de novo only for his share in the estate he would have to necessarily sue within the period of limitation under Article 113 of the Act.
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plaintiff.
Ors. (2006) 11 SCC 600 it is held that a co-owner in possession of the property would be deemed to be in possession unless his ouster is established and such ouster must be hostile open possession adverse to the interest of the claimant. That suit was for partition and separate possession. One Raju Naidu died in 1954. The plaintiff and the defendants were his legal heirs. The plaintiff was his second wife. The defendants were the sons of the first wife. The plaintiff was maintained initially by Raju Naidu, later by the second wife and thereafter by the defendants. The maintenance was stopped after many years. A notice was sent in 1979. It had to be seen whether the suit instituted 12 years after the issue of the notice of the admitted ouster and dispossession was barred by limitation. The defendants took the plea of adverse possession citing the case of Mohaideen Abdul Kadir Vs. Mohd. Mahideen Umma ILR (1970) 2 Mad 636 . It has been observed that law would presume an ouster as an explanation of long peaceful possession of the co-owner in possession.
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a party in possession in a partition suit but not a suit for administration of the estate of the deceased simplicitor when the party has never been in possession of the properties left by the deceased.
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Prakash Narsingh Shah & Ors. in Suit No. 1294 of 1986 of this Court also related to joint family property. The original plaintiff was being paid maintenance from the estate of her deceased husband initially by the other widow and later her children. On the facts of that case it was held that after coming into force the Hindu Succession Act, 1956 daughters as well as sons would succeed to the estate of the deceased. Though the plaintiff did not prove any joint family, the suit was only for claiming their share in the property of the deceased. In para 20 it was to be considered whether limitation would start running from the date of death of the deceased or whether it would continue till the plaintiff demanded partition of the property and was refused partition. It was held that since there was no demand for partition 12 years prior to the suit which was denied or rejected by the defendants, the limitation period did not even begin to run. It was observed in para 22 of the Judgment that mere non assertion of right in the property by the plaintiff would not tantamount to their exclusion. Since the plaintiffs were being maintained, they did not claim partition of the property and could have made a claim at any time.
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the date of death of the deceased. The analogy in that Judgment would only apply in a case where the plaintiff was given maintenance and was happy with that much so that when the maintenance was stopped she could sue for partition. This case is not one such. The plaintiff has simplicitor applied for administration of the estate of the deceased father more than 3 years after his death.
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Notice of Motion No. 3440 of 2011 also stands dismissed.
3 issues framed by the court
Was the administration suit barred under Article 113 because it was filed more than three years after the deceased's death?
Did Article 65 apply where the heir claiming administration had never possessed the estate properties?
Could challenges to subsequent consent terms and conveyance save limitation for the administration claim?
Colour shows how this judgement treated each authority
Jehrabi Mokasi Vs. BismillabiKajiRelied on¶35
A 1924 Bom. 420
Kobad Rustomji Noble Vs. Nelly Rustomji NobleRelied on¶58
2008(4) Bom. C. R. 275 · Who else cites this
Mubarakunnis Mohammed Naseem & Ors. Vs. Moinuddin Mohd. Usman KhanApplied¶63
2009(3) Bom. C. R. 2 · Who else cites this
Antony Eugene Pinto & Ors. Vs. Eugene Cajetan Pinto & Anr.Relied on¶68
2009(1) Bom. C. R. 828 · Who else cites this
Shehnaz Aftab Kapadia Vs. Dr. Niranjan Umeshchandra M. Joshi & Ors.Relied on¶80
Shehnaz Aftab Kapadia Vs. Dr. Niranjan Umeshchandra M. Joshi & Ors.
Sadbuddhi Brahmesh Wagh & Ors. Vs. Sheela Mahabaleshwar Wagh & Ors.Distinguished¶86
2003(6) Bom.C.R. 787 · Who else cites this
Govindammal Vs. R. Perumal Chettiar & Ors.Distinguished¶98
(2006) 11 SCC 600 · Who else cites this
Gulabrao Maruti Bhagat Vs. Bhagwan Nana Bhagat & Ors.Distinguished¶103
2001(2) Mh.L.J. 665 · Who else cites this
Ranganayakamma & Anr. Vs. K. S. Prakash & Ors.Distinguished¶105
(2008) 15 SCC 673 · Who else cites this
Kishore Narsingh @ Hiralal Shah & Ors. Vs. Prakash Narsingh Shah & Ors.Disapproved¶110
Suit No. 1294 of 1986
3 provisions across 2 enactments
Dr. Jasmine Ajayan
M/s. Swastik Realtors
ROSHAN DALVI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
