Yashoda Dina Patil And 5 Others v. Vijayshree Ahsok Mhatre

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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.:

Heard 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.

The 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

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. We have carefully considered submissions. The parties adduced evidence on the preliminary issue. We have perused the plaint.

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."

The 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.

As 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

appellants were disputing her entitlement to the share in the estate of the deceased.

In 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.

Hence, 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.

We, 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.

Appeal is disposed of.

(P.D.NAIK,J.) (A.S.OKA,J.)