This appeal challenged an order holding a succession suit within limitation. The High Court dismissed the appeal, finding the suit filed within three years from the knowledge of the dispute (caveat), holding no merit in the limitation objection.
Appeal dismissed as there was no merit in the objection regarding the limitation period.
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.
osapeal108
1
ssp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.108 OF 2015 IN
NOTICE OF MOTION NO.2908 OF 2006 IN
SUIT NO.2290 OF 2006
Yashoda Dina Patil and others...Appellants
vs.
Vijayshree Ashok Mhatre...Respondent
Mr.Surel Shah a/w Mr.Ashish Mishra i/b N.K.Mudnaney
for the appellant
Mr.A.M.Ashfaq a/w Mr.Arvind Taral for the respondent
CORAM : A.S.OKA, &
P.D.NAIK,JJ.
DATE : APRIL 4, 2016
P.C.:
1Heard the learned counsel for the appellant.
By this appeal, the challenge is to the order dated
24th September 2014 in a suit filed by the respondent
on a Notice of Motion No. 2908 of 2006 which was
taken out for the relief of interim injunction,
appointment of Court Receiver etc. An issue of
limitation was framed as a preliminary issue in the
suit. By the impugned order, the learned Single
Judge has held that the suit filed by the respondent
is within limitation.
2The learned counsel for the appellant has taken
us through the pleadings as well as evidence adduced
by the parties. He invited our attention to the
prayers made in the suit by the respondent. He
2 osapeal108
pointed out that the first prayer is for declaration
that the respondent has 1/6th share in the estate of
deceased Dina Bama Patil who expired on 6th September
2002. He pointed that though the prayers in the
suit are in the nature of seeking administration of
the estate of the deceased, his submission is that
even if the suit is treated as a suit for
declaration, in view of Article 58 of the Schedule
to the Limitation Act,1963 (for short `the said
Act'), the suit ought to have been filed within a
period of three years from the date on which the
deceased expired. He urged that the suit for
administration of the estate will be governed by
Article 113 in the said Schedule. Even as per
Article 113, the suit ought to have been filed
within three years from the date of death of the
deceased. He pointed out that the learned Judge has
in fact accepted the aforesaid contention of the
appellants as seen from the findings recorded in
paragraph 7 of the impugned order. He submitted that
erroneouslym the learned Judge has granted benefit
of section 15 of the said Act and has held that the
suit filed by the respondent is within limitation.
3We have carefully considered submissions. The
parties adduced evidence on the preliminary issue.
We have perused the plaint. The first prayer in the
plaint is prayer clause (a) which reads thus:
“(a)at this Hon'ble Court be pleased to
declare that the Plaintiff has 1/6th share in
the estate of the said deceased more
osapeal108
3
particularly described in Exhibit-”A” hereto
and in such other and further assets and
properties that may be found belonging to the
estate of the said deceased.”
4The plaint itself discloses that in the year
2003, the respondent-plaintiff filed a petition in
this Court for obtaining letters of administration.
In the impugned order, the learned Single Judge in
paragraph 5 has recorded an admitted position that
after service of citations, in the petition for
letter of administration, the appellants filed a
caveat on 18th December 2003 which was served upon
the respondent-plaintiff on 3rd January 2004. The
present suit is filed on 25th March 2006. It is true
that in paragraph 7 of the impugned order, the
learned Single Judge has made an observation that
cause of action to claim estate administration will
arise on the date of death of the deceased.
However, in paragraph 13 of the impugned order, the
learned Judge has precisely held that the suit is
filed within three years from the date of knowledge
of caveat which showed that the share of the
respondent was being disputed by the appellants. In
fact, on this ground in paragraph 13, the learned
Single Judge has held that the suit was within
limitation.
5As stated earlier, the present suit has been
filed by the respondent on 25th March 2006. It is
not shown by the appellants that the prior to 26th
March 2003, the respondent had a notice that the
4 osapeal108
appellants were disputing her entitlement to the
share in the estate of the deceased.
6In the circumstances, even if Articles 58 and
113 are to be applied, the suit was filed within the
stipulated period of 3 years the date on which from
the right to sue accrued to the respondent.
7Hence, we find no merit in the Appeal against
an order by which the issue of limitation has been
decided in favour of the original plaintiff. The
appeal is accordingly dismissed.
8We, however, make it clear that the findings
recorded in the impugned order as well as this
Judgment are only for the purposes of deciding the
issue of limitation and no adjudication has been
made on the controversy on the merits or on the
rights of the parties.
9Appeal is disposed of.
(P.D.NAIK,J.)
2 issues framed by the court
Whether the suit filed by the respondent to declare her share in the estate of the deceased is within the prescribed limitation period.
Whether Section 15 of the Limitation Act applies to extend the limitation period given the dispute raised in a caveat.
3 provisions across 1 enactments
Yashoda Dina Patil and others
Vijayshree Ashok Mhatre
A.S.Oka
P.D.Naik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court