Disposed

Abdul Mubin Abdul Majid Khan v. Suraiya Abdul Majid Khan and 5 Ors.

Bombay HC3 Nov 2014NMS/267/2014

Case brief

AI extract

What is this about?

In a suit seeking performance of a family settlement clause, the defendants moved to frame a preliminary issue on limitation and rejection of plaint. The court held the plaint disclosed a cause of action as of 2013, dismissed the limitation objection, and disposed of the motion.

What did the court decide?

Motion for framing preliminary issue on limitation disposed; preliminary issue answered negatively; plaint maintained.

Abdul Mubin Abdul Majid Khan Vs Suraiya Abdul… — Succession and Inheritance | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION NO.267 OF 2014 IN SUIT NO.124 of 2014

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Abdul Mubin Abdul Majid Khan

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..Plaintiff.

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V/s.

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Smt. Suraiya Abdul Majid Khan & Ors.

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..Defendants.

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Ms.Pooja Patel with Mehtab Alam i/b. Jus Consultants for the Plaintiff.

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Mr.Bomi Patel with Brijesh Upadhyay i/b. Mrs.Anila Acharya for Defendant Nos.1 & 2.

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Mr.Mayur Khandeparkar with Prathamesh Kamat and Ms.Sneha Patel i/b.K.K. Associates for Defendant Nos.3 & 4.

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CORAM : A.K. MENON, J.

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DATED : 3RD NOVEMBER, 2014

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P.C. :-

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The present Notice of Motion is taken out by Defendant Nos.1 & 2 seeking framing of a preliminary issue under section 9A of the Code of Civil Procedure on the ground that the suit is barred by Law of Limitation and further for rejection of the plaint as the plaint does not disclose any

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cause of action.

The Plaintiff has filed a suit seeking a declaration that the Memorandum of family settlement (Memorandum) dated 5^th March, 1998 is valid, subsisting and binding upon the Defendants and for other ancillary reliefs. The Memorandum in so far as the Plaintiff is concerned provides in clause (4) as follows:-

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“4. Shri Abdul Mubin Khan had taken away his share in the family property during the lifetime of Shri Abdul Majid Khan, copy of the said settlement is enclosed in Annexure 'C'. However in view of the fact that he has made losses in his old business and is in need of finance to establish some business of his own, the parties hereto agree that Shri Sayeed, Shri Umar and Shri Tanveer will contribute adequate and reasonable money to purchase an asset / business to enable Mr.Mubin Khan to do some business activity outside of Mumbai, more particularly in Goa, which has been Mubin's desire. However, the said asset / business shall remain in the joint names of Shri Sayeed, Shri Umar and Shri Tanveer, but Shri Mubin will be entitled to the entire profits of the said business, so as to ensure that the said asset is not frittered away by Shri Mubin. It is further agreed that once Shri Sayeed, Umar and Tanveer are convinced that Shri Mubin has settled down in his business and is able to manage his

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business on his own, they will transfer the said asset to Shri Mubin Khan, Shri Sayeed, Umar and Tanveer will act as Trustees and Executors for the assets of this business, and will render all reasonable help to enable him to settle down in his business.”

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According to the Plaintiff after the memorandum was executed on 5^th March, 1998, he first came to know about the unlawful distribution of the estate of the deceased on or about 23^rd September, 2013 and thereafter, on 15^th October, 2013, the Plaintiff's Advocate called upon the Defendants to furnish details of the estate and properties of the deceased. Apparently, there was no reply to the request. The Plaintiff states that he is entitled to performance of clause (4) of the said Memorandum.

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It is common ground that the Memorandum of family settlement was in fact executed on the said date between the parties. Initially, the Plaintiff vide his Advocate's letter dated 15^th October, 2013 appears to have contended that the Memorandum is executed fraudulently and that fraud

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has been perpetrated by the four addressees. In the plaint paragraph 12, the Plaintiff has referred to a Will dated 24^th

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September, 1981 said to be executed by the deceased. However, the said Will was never given effect to and the same has neither been probated or acted upon. Instead the parties executed the Memorandum on 5^th March, 1998. In paragraph 16, the Plaintiff has averred that he has not received his share as entitled under the memorandum though time and again oral assurances were given that the Plaintiff will be given his share as duly entitled but till date the said commitment has

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not been adhered to. Admittedly, the clause (4) of the memorandum requires the Defendants to contribute adequate and reasonable money to purchase an asset / business to enable the Plaintiff to carry on some business activity outside Mumbai. The Plaintiff's case is that the Defendants are required to but have failed to perform this obligation.

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Defendant Nos.1 & 2 have filed the Notice of Motion on the basis of the suit being barred by the Law of Limitation. Learned counsel for the Defendants relies upon paragraphs 3, 12, 14, 16, 30 and 48 of the plaint. In support of his submissions that the Plaintiff's claim is expressly barred by the Law of Limitation and that the plaint discloses no cause of action whatsoever. In view of that he also seeks dismissal of

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the suit.

On behalf of Defendant Nos.3 & 4, Mr.Khandeparkar submitted that he supports the Plaintiff inasmuch as, the memorandum at page 45 makes clear reference to the schedule annexed to the memorandum and submits that the parties in the larger interest of family members have resolved to amicably abide with the said memorandum. He, therefore, submitted that Defendant Nos.3 & 4 stand by the Memorandum. He further submitted that in pursuance of the memorandum, Defendant Nos.3 & 4 have executed an agreement pursuant to clause (2) on page 46. It is the case of the first Defendant that the suit has been filed in this Court on 29^th October, 2013 and he contends that it has nothing to do with any agreement pursuant to clause (2) of the Memorandum. It is an admitted position that the Plaintiff is not a party to the alleged agreement executed between the Defendant Nos.3 & 4. However, he is a party to the suit (Lod) No.1127 Of 2013 filed in relation to the alleged agreement. Suffice it to say that we are not at present moment concerned with the performance of the Memorandum qua by Defendant Nos.3 & 4. The issue before this Court is limited in its scope.

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On behalf of the Plaintiff, learned counsel submits that clause (4) of the Memorandum does not specify any particular date for performance of the Defendants' obligation thereunder and as such, merely the fact that no specific time limit is provided, it will not give rise to a cause of action. It is common ground that memorandum has yet not been fully performed but only partly performed. The parties before the Court have different contentions as far as the extent of performance of the memorandum is concerned. The fact remains that the memorandum is still to be fully perfirmed by the parties.

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None of the Defendants have challenged the memorandum or its contents and apart from the Plaintiff's initial contention in its Advocate's letter dated 15^th October, 2013 that the Memorandum has been executed fraudulently, a claim that has been given up by filing the plaint, it is the case of the Plaintiff in the plaint that the Memorandum was in fact executed. Quite apart from the fact, the Plaintiff need not be directly concerned with the distribution of properties unlawful or otherwise, it is not in dispute that the Plaintiff was entitled

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for performance of clause (4).

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It is the case of Defendant Nos.1 & 2 that several of the assets have been distributed, including to Defendant Nos.3 & 4 in paragraph 7 of the plaint. The Plaintiff has provided a list of assets which the deceased held during his lifetime as a self acquired property. This includes certain tenanted premises which for obvious reasons cannot be the subject matter of the Will. It is common ground that in addition, there were other properties which have been dealt and distributed in accordance amongst the parties. Learned counsel for the Defendant Nos.1 & 2 submits that the suit was barred under Article 58 and / or 113 of the Limitation Act, 1963. Article 113 provides for any suit for which no period of limitation is not provided elsewhere in the schedule.

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Counsel for Defendant Nos.1 & 2 seeks to rely upon the judgment of this Court in the case of Mubarakunnis Mohammed Naseem & Ors. V/s. Moinuddin Mohd. Usman Khan & Ors. reported in 2009 (3) BOM.C.R.2 in support of his contention which considers the issue of limitation in an administration suit. We are not concerned with

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a suit for administration. In the present case, the only issue involved is the MOU and performance of clause (4) thereof. Counsel for the Plaintiff submits that apart from clause (4), there is no other provision in the memorandum clause which the Plaintiff seeks to enforce. In this view of the matter, the judgment will be of no assistance.

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Taking into consideration the averments in the plaint, in particularly paragraphs 12, 14, 17, I am of the view that the plaint does disclose a cause of action. Based on an averment in paragraph 48 which clearly sets out that the Plaintiff first came to know about the unlawful distribution of the estate of the deceased on 23^rd September, 2013, the suit cannot be barred by limitation. More so, in view of the fact that the Defendants have also not led any evidence on the preliminary issue. The Plaintiff has claimed knowledge of breach as on 23^rd September, 2013. The Defendant Nos.1 & 2 could have proved this to be incorrect by leading evidence. That not having been done, there is no reason to disbelieve the Plaintiff's version.

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Learned counsel for the Plaintiff also relied on

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Article 54 of the Limitation Act, 1963 and submitted that under the second part of Article 54, where no date is fixed for performance and the Plaintiff has notice that when performance is refused, a suit is required to be filed within three years from such notice. In the present case, the first denial seems to be on 15^th October, 2013 based on the pleadings because on 23^rd September, 2013 when the Plaintiff came to know of the alleged unlawful distribution. On behalf of Defendant Nos.2 & 3, it is submitted that although the Plaintiff was given the opportunity to lead evidence, this Court vide order dated 11^th September, 2013 had framed a preliminary issue and had directed the parties to indicate whether they intend to lead evidence but none of the parties has led evidence and vide order dated 30^th September, 2013, this Court recorded that none of the parties desire to lead evidence on the preliminary issue.

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Having considered the submissions, there is no reason to reject the plaint on the basis of averments on limitation. The preliminary issued framed i.e. “ Whether the suit is barred by the law of limitation ?” is answered in the negative. In view of the issue having been answered in the

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negative and in view of prima facie finding that the plaint does disclose a cause of action, nothing survives in the Motion. Motion is disposed of accordingly. Vide order dated 2^nd September, 2013 as modified by order dated 12^th September, 2013, the Defendants are also permitted to file further statements after Defendants' application under section 9A has been decided. Written statements to be filed within four weeks from today.

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At this stage, learned counsel for Defendant Nos.1 & 2 submits that he intends to file affidavit in reply to the Notice of Motion (Lod) No.2187 of 2013. The reply was not filed in view of the pendency of Notice of Motion No.267 of 2014. The Defendants may filed their affidavit in reply to Notice of Motion No.2187 of 2013 within a period of three weeks from today with advance copies to the Advocates of the Plaintiff and to other Defendants. Rejoinder, if any to be filed after two weeks thereafter.

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(A.K. MENON, J.)

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Abdul Mubin Abdul Majid Khan v. Suraiya Abdul Majid Khan and 5 Ors.

Case brief

What is this about?

What did the court decide?

Abdul Mubin Abdul Majid Khan v. Suraiya Abdul Majid Khan and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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