Petitioners sought to amend a partition plaint to add a declaratory prayer against a Will; the trial court refused on limitation grounds. The High Court heard counsel's challenge, observed Article 59 of the Limitation Act would be rendered otiose if the amendment were allowed, and adjourned for further submissions.
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20.WP.2984.2024.doc
HARSHADA H. SAWANT (P.A.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2984 OF 2024
Bharati Sambhaji Patil and Anr. .. Petitioners
Versus Ananda Hambirrrao Shinde and Ors. .. Respondents
CORAM : MILIND N. JADHAV, J. DATE : MARCH 04, 2024
P.C.:
1. Heard Mr. Dalvi, learned Advocate for Petitioners.
2. The impugned order dated 30.09.2023 is passed in Application filed below Exhibit-51 in Regular Civil Suit No.52 of 2017. The Plaintiffs filed the original suit for partition in the year 2017. Plaintiffs sought to amend the suit plaint by introducing the declaratory relief seeking a direction that the Will of the predecessorin-title of one of the Defendant would not be binding on them.
3. It is seen that admittedly the dispute was in respect of the Will which is the subject matter of the parallel suit instituted five years before the filing of the suit for partition in the year 2012. The impugned order dismisses the Application seeking declaration of the Plaintiffs on the ground that the fact about the existence of the Will was in fact to the knowledge of the Plaintiffs at the time of institution of the present suit and in any event in the year 2018 itself and
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20.WP.2984.2024.doc
therefore to introduce prayer after the lapse of the period of limitation it would be time barred.
4. Mr. Dalvi would submit that allowing such an amendment would not change the nature of the suit proceedings and further that it would always be open to the Plaintiffs to seek a declaratory relief with respect to devolution of the property.
5. If Mr. Dalvi’s submission is countenanced, the provisions of
Article 59 of the Limitation Act, 1963 would be rendered otiose.
6. Mr. Dalvi seeks time to place on record certain decisions and
citations which would enure to the benefit of the Plaintiffs’ case.
7. At his request, stand over to 11th March, 2024 .
H. H. SAWANT
[ MILIND N. JADHAV, J. ]
Digitally signed HARSHADAHANUMANT by HARSHADAHANUMANTSAWANT SAWANT Date: 2024.03.05 10:29:36 +0530
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1 provisions across 1 enactments
Bharati Sambhaji Patil and Anr.
Ananda Hambirrrao Shinde and Ors.
Milind N. Jadhav
As recorded by the court registry
6 orders share this CNR
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