Gujarat High Court
Lhs Of Decd. Shantaben Bhayjibhai ... vs Lhrs Of Decd. Bai Bachi Wd/O Lallu Ratna ... on 6 October, 2025
NEUTRAL CITATION
C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025
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Reserved On : 03/09/2025
Pronounced On : 06/10/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 62 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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LHS OF DECD. SHANTABEN BHAYJIBHAI VASAVA & ORS.
Versus
LHRS OF DECD. BAI BACHI WD/O LALLU RATNA MALI & ORS.
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Appearance:
MR MEET D KAKADIA(11896) for the Applicant(s) No.
1,1.1,1.2,1.3,2,2.1,2.2,2.3,3,4,5,6,7,8
MR SP MAJMUDAR(3456) for the Applicant(s) No.
1,1.1,1.2,1.3,2,2.1,2.2,2.3,3,4,5,6,7,8
DS AFF.NOT FILED (N) for the Opponent(s) No. 3
NOTICE SERVED BY DS for the Opponent(s) No.
4.1.1,4.1.2,4.2,4.3,4.4,5,6.1.1
MR HARSHIT S. TOLIA, SR ADVOCATE with
MR RASHESH A PATEL(8802) ADVOCATE for the Opponent(s) No.
1.1,1.2,1.3,2
SAKET A WAGHELA(8068) for the Opponent(s) No. 7
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
Table of Contents INTRODUCTION..................................................................................3 FACTUAL MATRIX AND PROCEDURAL HISTORY..................4 Family Tree and brief history................................................................4 Factual Matrix.......................................................................................4 Procedural history.................................................................................5 SUBMISSION OF PLAINTIFF - PETITIONER..............................7 Re: Order VII Rule 13...........................................................................7 Page 1 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined Re: Cause of Action..............................................................................8 Re: Limitation.....................................................................................10 Judgments relied upon by the Plaintiff...............................................12 SUBMISSIONS OF THE DEFENDANT - RESPONDENT...........16 Re: Order VII Rule 13.........................................................................16 Re: Limitation.....................................................................................17 Re: Contradictions, estoppel, etc.........................................................18 Re: Cause of Action............................................................................20 Judgments relied upon by the Defendants..........................................25 REJOINDER OF THE PLAINTIFF :...............................................28 ANALYSIS............................................................................................31 Scope of Order VII Rule 11................................................................31 Broad issues for determination in the present Application.................33 Cause of Action...................................................................................33 Scope of enquiry in Order VII Rule 11 (a).........................................35 Re: Rejection of Former Counterclaim...............................................40 Re: Settlement arrived at in previous litigations.................................44 Section 14 v. Section 15 of the Hindu Succession Act.......................46 Re: Allegations of contradictory statements made in the proceedings .............................................................................................................58 Order VII Rule 11 (d) Limitation........................................................61 Limitation under Order VII Rule 13...................................................61 Re: Limitation of the Registered Will in challenge............................66 Judgments Cited by the parties...........................................................74 CONCLUSION.....................................................................................79 Page 2 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined INTRODUCTION
1. This Revision Application poses several cardinal questions with regard to Order VII Rule 11 of the Code of Civil Procedure ("CPC").
2. As a prologue to a seemingly elaborate judgment, I must add a caveat that this is a fiercely contested family dispute. As it is (almost) always the case with such disputes, there have been several rounds of litigations. Approbation, reprobation, inheritance, estoppel, etc. this dispute has seen a tinge of it all. The parties even after several decades (now through their legal heirs) are (still!) contesting the dispute tooth and nail. Even diminutive arguments have been contended and responded to during the course of hearing. I have therefore, dealt with the contentions clubbing them head-wise.
3. Present Application has been filed challenging the impugned Order passed by the Ld. 3rd Additional Senior Civil Judge, Vadodara ("Ld. Trial Court") (on Exhibit 324) in Regular Civil Suit No.536 of 2009. By way of the said Order, the Ld. Trial Court has been pleased to reject the Application under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 ('CPC', for short) to reject the Counterclaim filed by the Defendant nos.1 and 2.
4. The parties are referred to as per their original status in the Suit.
FACTUAL MATRIX AND PROCEDURAL HISTORY Family Tree and brief history Page 3 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined
5. In order to appreciate the present controversy, the relations between the parties to the suit are required to be considered:
6. Lallubhai Ratanbhai Mali had married twice. Lallubhai and his first wife Chanchalben had a daughter named Puniben. Whereas Lallubhai and his second wife Maniben had a daughter named Bachiben.
7. Plaintiffs herein are the beneficiaries of Will of Mohanbhai (husband of Puniben and son in law of Lallubhai Ratanbhai Mali). Whereas, the Defendants are the heirs of Bachiben (daughter of Lallubhai Ratanbhai Mali).
Factual Matrix
8. With the aforesaid context of relation of the parties in mind, I propose to set out brief facts in the background of which the present dispute has arisen.
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9. Brief facts leading to the present dispute are that the Plaintiff filed a Civil Suit (being No. 536 of 2009) ("Suit") against the Defendants seeking declaration and injunction. Declaration, to the effect that Defendants did not have any right to obstruct Plaintiff's peaceful possession of the Suit property and injunction from the Defendants from doing such acts by which the title of the Plaintiff over the Suit property is disturbed. The Suit was filed on the ground that the Defendants are causing obstruction and hindrance to the Plaintiff's peaceful possession of the property by erecting fence in the Suit premises. Hence, the aforesaid prayers.
Procedural history
10. Upon service of summons, the Defendant Nos. 1 and 2 entered their appearance and filed their Written Statement as well as a Counterclaim. This pleading, i.e., the Counterclaim is the kingpin of the present dispute.
11. By way of the said Counterclaim, the Defendants challenged the Will executed by Mohanbhai in favour of the husband of the Plaintiff No. 1 (father of the Plaintiff Nos. 2 to 6 and grandfather of Plaintiff nos.7 and 8).
12. In the said Counterclaim, the Defendants sought for a declaration that the Plaintiffs do not have a right to transfer, assign, sell the Suit property and also have sought a relief to declare that as per the Hindu law, the Defendant No.1 has a right in the property belonging to her maternal grandfather i.e., Lallubhai Ratnabhai Mali and not the Plaintiffs.
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13. The Plaintiffs consequently preferred an Application (Exhibit
302) under the provisions of Order VII Rule 11 of the CPC on the ground that no cause of action has arisen for the Defendant to file Counterclaim and that the said Counterclaim is barred by law on the ground of limitation.
14. The Ld. Trial Court, after considering the Counterclaim and the documents annexed therewith, allowed the said Application (vide Order on Exhibit 302) and rejected the Counterclaim of the Defendant and considered the Reply filed along with the Counterclaim as the Written Statement of Defendant Nos. 1 and 2 for purposes of the Suit.
15. The Defendant thereafter moved an Application at Exhibit 306 to recall the said Order passed below Exhibit 302 and the said Application was also rejected by trial Court vide order dated 04.10.2024.
16. Order VI(A) and Order VII Rule 13 of CPC, the Defendant Nos. 1 and 2 filed a Counterclaim again vide Exhibit 311 ("latter Counterclaim"), seeking the same relief that was sought in the earlier Counterclaim at Exhibit 52 ("former Counterclaim"). Reliefs which were sought in the first Counterclaim Exhibit 52 and in Exhibit 311 were identical.
17. The Plaintiff thereafter filed an Application under the provisions of Order VII Rule 11 of the CPC seeking rejection of the said Counterclaim. After considering the Counterclaim, documents annexed therewith and after hearing the parties, trial Court rejected the Application filed by the Plaintiff under Page 6 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined the provisions of Order VII Rule 11 of the CPC.
18. Hence, present Revision Application.
SUBMISSION OF PLAINTIFF - PETITIONER Re: Order VII Rule 13
19. Mr. S. P. Majmudar, the Ld. Advocate for the original Plaintiff has argued that the earlier Counterclaim filed vide Exhibit 52 having been rejected on the ground that no cause of action has arisen for the Defendants to file Counterclaim, the Defendant could not have filed fresh Counterclaim on the same cause of action. Therefore, according to Mr. Majmudar, the Ld. Trial Court ought to have rejected the latter Counterclaim also in limine. Mr. Majmudar submits that on this ground alone, the present Revision Application is required to be allowed. It has also been argued that the former Counterclaim was not rejected by the Trial Court on any technical count and hence, a fresh Counterclaim could not have been filed by the Defendants on the same grounds. The Plaintiff has argued that it is the not the case of the Defendants that merely since a paragraph of cause of action was not included in the former Counterclaim, the Ld. Trial Court had rejected the Counterclaim. Mr. Majmudar argued that if the Order passed below Exhibit 302 is perused, the Ld. Trial Court has taken into consideration that on the plain reading of the Counterclaim, the Counterclaim does not disclose any cause of action to file the same.
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20. According to the Plaintiff, this rejection of the former Counterclaim ensued in view of the fact that the dispute pertaining to the said suit property has been already been settled between the mother of the Defendant No. 1 Maniben and consequently, Chanchalben. Therefore, Maniben has already settled the dispute with respect to the suit property by agreeing that the suit property would come to the share of Chanchalben and her daughter (Puniben). In view thereof, the Defendant could not have filed the Counterclaim challenging the Will executed by husband of Puniben i.e., Mohanbhai as it did not have any cause of action to do so.
21. Explaining this chequered dispute further, the Ld. Advocate for the Plaintiff has argued that disputes erupted between the two wives of Lallubhai in the following manner.
22. Maternal grandmother of Defendant No. 1 (Maniben) had filed Civil Suit No. 254 of 1963 before 2nd Civil Judge, Vadodara, against Chanchalben and Puniben for partition of 19 properties that belonged to Lallubhai who died on 11.05.1962. The said Suit having been dismissed on 26.06.1963, Maniben preferred First Appeal No. 389 of 1964. This First Appeal was partly allowed and it was decided that Maniben and Puniben will have 50% share each in the 19 properties that were the subject matter in the said Suit. The present suit property was also a subject matter of the said First Appeal.
23. Thereafter Second Appeal was also dismissed against which Page 8 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined Letters Patent Appeal was filed being No.154 of 1972, wherein it was held that, both the parties viz., Maniben and Chanchalben will have one third share in each of 19 properties and the trial Court was directed to carry out partition of the properties. Therefore, both Maniben and Chanchalben have by consent agreed that 1/3rd share of 19 properties will go to the share of Maniben and Puniben and shall own the other properties.
24. The properties which went to the share of Puniben included the Suit property. It was also agreed in the said consent terms (filed in Letters Patent Appeal No.154 of 1972) that the properties which come to the hands of Maniben, will be owned by Maniben in her individual capacity and the property that came in share of Puniben shall be owned by her in her individual capacity.
25. In view thereof, the Ld. Advocate for the Plaintiff has argued that if the Suit property came in the hands of Puniben, she would become owner of the said property in her individual capacity and, therefore, it cannot be said that the Defendants have any independent right in the property. After the partition and after consent terms (filed in Regular Civil Suit No. 254 of 1963) arrived at between the parties, Puniben would become the exclusive owner of the property and thereafter even as per Hindu Succession Act, the Defendants do not have any right, title or interest in the property. Hence, it has been argued that the Defendants have no cause of action to file the present Page 9 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined Counterclaim.
Re: Limitation
26. Addressing the issue of limitation, the Ld. Advocate for the Plaintiff has argued that there are no averments in the latter Counterclaim that till the year 2024, the Defendants were not aware of execution of the Will dated 26.05.1981. Therefore, the said claim was also barred by limitation.
27. Further, the learned Advocate for the Plaintiff has also argued that claim is hopelessly time barred in view of the fact that the Defendant is trying to challenge the Will executed by husband of Puniben viz. Mohan and said Will is registered Will dated 26.05.1981 and the said Will came in force on the death of Mohanbhai i.e., on 12.06.1981. The said Will being registered by Registration No. 3015 of 1981, the Defendants had deemed knowledge of execution of the said Will.
28. It is also argued that the cause of action as contended in the Counterclaim does not make any mention that till the year 2024, the Defendants were not aware of execution of Will by dated 26.05.1981.
29. Secondly, Ld. Advocate has argued that a Civil Suit bearing No. 379 of 2005 was filed by Class II legal heirs of Mohanbhai and Puniben challenging the Will executed by late Mohanbhai. In the said Suit, mother of Defendant no.1 (Bachiben) had filed an Application to be joined as Plaintiff. In accordance therewith, she was impleaded as Plaintiff No. 11 by an Order below Exhibit 33 on 11.08.2010.
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30. Therefore, according to the Plaintiff, at least in the year 2010, if not before, late Bachiben had knowledge of execution of the said Will. This Suit was dismissed for default on 13.11.2018 and thereafter Bachiben during her lifetime has neither restored the said Suit nor filed separate Suit for challenging the said Will nor has challenged the said Will by independent proceedings during her lifetime. Therefore, it is argued that the present Counterclaim is barred by limitation.
31. Ld. Advocate for the Plaintiff has also argued that even in the revenue proceedings, Bachiben i.e., predecessor of the Defendants has stated that in view of the consent terms arrived at between her mother and Puniben, her mother had relinquished all her rights with respect to the properties of Lallubhai. Further, Bachiben had also admitted that her mother Maniben was not wife of deceased Lallubhai and that she is the daughter of Maniben and one Soma Khoda Vaghaji and that she has no right, title in property of Lallubhai.
32. Moreover, it is argued that in Civil Suit No. 727 of 2002 also, Bachiben had reiterated the said fact that she does not have right, title in the properties of deceased Lallubhai and she abides by all the consent terms that had been entered into between Chanchalben and Maniben.
33. Therefore, it has been argued that in view of the said fact, Counterclaim that has been filed by the Plaintiff, is hopelessly time barred.
Judgments relied upon by the Plaintiff Page 11 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined
34. Ld. Advocate for the Plaintiff has relied on following judgments.
i. C.S.Ramaswamy Vs. V.K.Senthil And Ors. (AIR 2022 SC 4724) wherein it has been held that if there is no averment with regards to date of knowledge, Order 7 Rule 11(d) will be attracted;
ii. Haridas Atmaram Desani Vs. Legal Heirs Of Decd.Vishnudas Atmaram Desani Madhuram Vishnudas Desani & 4 Ors. (2023(3) GLR 1835) wherein it has been held that a registered deed would be considered as deemed knowledge;
iii. Rajendra Bajoria and Ors. Vs. Hemant Kumar Jalan and Ors. (2021 SCC OnLine SC 764) wherein it has been held that clever Drafting cannot aid a Plaintiff when there is no cause of action;
iv. Kantibhai Ghelabhai Patel (Deceased Through His Legal Heirs) Vs. Mansukhbhai Ghelabhai Patel (2024 (0) AIJEL-HC 248747) and has argued that Successive Violation of right cannot give rise to fresh cause of action(Case is with regards to time barred challenge to will similar to the present case). Therefore, in the present case, if challenge to the original will is time barred, subsequent events(filing of the suit for permanent injunction) could not give rise to a new cause of action as is sought to be portrayed;
v. Raghwendra Sharan Singh Vs. Ram Prasanna Page 12 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined Singh 2020(16) SCC 601, and Emrald Co Operative Housing Society Limited Vs. Gulamkadar S/o Gulam Husain Abdulkadar And Bai Shakarbu Decd 2019 (2) GLH 559, wherein it has been held that registered deed would constitute deemed knowledge and clever drafting cannot be used to circumvent such a bar to the suit.
vi. Heirs Of Decd.Maniben D/o Naranbhai Ishvarbhai And Wd/o Kantilal Nathalal Patel Vs. Heirs Of Decd.Dwarkabhai Naranbhai Ishvarbhai 2016 (0) AIJEL-HC 236282, wherein it has been held that vague averments made in the plaint without date when cause of action arose; proof or documents will attract Order 7 Rule 11;
vii. Order of Hon'ble Division Bench of this Court dated 24.06.2025 rendered in First Appeal No. 2 of 2025, in case of Chanchalben Ishwarbhai Vasava Vs. Decd. Ambalal Ishwarbhai Vasava Through Lhrs. & Ors. wherein it has been held that if documents are deliberately suppressed, they can be viewed for the purpose of Order 7 Rule 11;
viii. Molugu Ram Reddy and ors. Vs. Molugu Vittal Reddy and ors. 2011 SCC OnLine AP 228 wherein it has been held that when Order 7 Rule 11 application is rejected on the ground of non-curable defects, only remedy is to file an appeal under Section 96 and the Page 13 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined provisions of Order 7 Rule 13 cannot be invoked;
ix. A. Nawab John Vs. V.N. Subramaniyam (2012 7 SCC 738) wherein it has been held that even though an application is preferred under Order 7 Rule 13, if it is hit by limitation overall (prior application and subsequent application both), it must be rejected again under Order 7 Rule 11;
x. Order of Hon'ble Division Bench of this Court dated 16.11.2017 rendered in First Appeal No. 1916 of 2017 in case of Umaben D/o Thakorbhai Vallabhbhai Parmar Vs. Uttambhai Javanmal Shah & Ors. wherein it has been held that when the suit is barred by limitation, by suppression and clever drafting, it cannot be maintained. In such cases, strict rules of Order 7 Rule 11 of examining only the plaint must be widened and suppression must be looked into. If the suit is time barred, it must be rejected.
35. In essence, Ld. Advocate for the Plaintiff has preferred the present Revision Application on the following broad grounds:
i. Rejection of Counterclaim which is at Exh.52 (former Counterclaim) was not on technical grounds and hence, the same cannot be resuscitated in form of the new Counterclaim under Order VII Rule 13.
ii. Defendants have no cause of action to file the present Counterclaim because Defendant's predecessors at the Page 14 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined relevant time already settled all disputes with Chanchalben and Puniben.
iii. Defendants have no cause of action to file the present Counterclaim as the consent terms filed in Letters Patent Appeal No. 154 of 1972 record that suit property (amongst 18 other properties) will go to the share of Maniben and Puniben in their respective individual capacities.
iv. Bachiben in several proceedings stated on oath that she was not the daughter of Maniben and Lallubhai and hence, she would have no right over the Suit property even otherwise.
v. Will of Mohanbhai (husband of Puniben) dated 26.06.1981 was a registered Will and therefore, the Defendants would have deemed knowledge of the said document.
vi. In any case, mother of the Defendant No. 1 had filed an Application for impleadment in Civil Suit No. 379 of 2005 (which was filed by the legal heirs of Mohanbhai and Puniben) challenging the Will dated 26.05.1981. Hence, the Defendants are aware of the said Will and hence, the present Counterclaim is barred by limitation.
vii. Even in view of the revenue proceedings pending between the parties, Defendants were aware of the said Will and hence, its challenge in the present Counterclaim is barred by limitation.
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36. Per Contra, Ld. Senior Advocate Mr. Harshit Tolia for the Defendant has argued that the earlier Counterclaim was rejected under the provisions of Order VII Rule 11 of the CPC on a technical point i.e., on the point that there was no separate paragraph for cause of action in the said Counterclaim. Therefore, this would not preclude the presentation of a fresh Counterclaim in view of Order VII Rule 13 of the CPC.
37. Therefore, it has been argued that Counterclaim, which has been filed vide Exhibit 311, cannot be said to be barred by law on the ground that earlier Counterclaim on the same cause of action has been rejected
38. Ld. Senior Advocate Mr. Tolia for the Defendant has also argued that the period of limitation for filing latter Counterclaim under Order VII Rule 13 will be considered from the date when the former Counterclaim was rejected i.e. on 24.09.2024 and the latter fresh Counterclaim is filed without any delay. Though the overall period for limitation will have to be considered but the period of limitation cannot be considered from the year 2009 i.e., the date when the former Counterclaim Exh.302 was filed.
39. Therefore also, trial Court has rightly rejected application filed under the provisions of Order VII Rule 11 of CPC.
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40. Advocate Mr. Tolia for the Defendant has also argued that the period of limitation for filing fresh application under Order VII Rule 11 will be considered from the date when the former Counterclaim was rejected i.e. on 24.09.2024 and the fresh Counterclaim is filed without any delay. Though the overall period for limitation will have to be considered, but the period of limitation cannot be considered from the year 2009 i.e., the date when the first Counterclaim Exhibit 302 was filed. Therefore, also trial Court has rightly rejected application filed under the provisions of Order VII Rule 11 of CPC.
41. With respect to the argument that Defendant was aware of execution of Will of deceased Mohanbhai Motibhai Mali, it was argued that the Defendant has categorically stated that till the year 2009 the Defendant was not aware of execution of Will of deceased Mohanbhai Motibhai Mali and, therefore, while deciding the application under the provisions of Order VII Rule 11 of CPC in the present case the Court will only have to look at the averments made in the Counterclaim and the documents annexed with the Counterclaim. From the said documents and the Counterclaim, it cannot be said that the Defendant was aware of execution of Will of deceased Mohanbhai Motibhai Mali beyond the period of limitation.
42. With respect to Civil Suit No.1390 of 2002 it has been argued by learned Senior Advocate Mr. Tolia that the said Suit is not with respect to the Suit property and the same is also not with respect to the Will of deceased Mohanbhai and the Page 17 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined statements made in the said Suit and the earlier Suit i.e., Civil Suit No.727 of 2002 will have no bearing to the facts of the present case in view of the fact that the Defendant in the Counterclaim has specifically stated in its Counterclaim that till the time of filing the Counterclaim, Defendant was not aware about execution of Will.
43. Learned senior Advocate Mr. Tolia has also argued that if the cross- examination of Defendant no.2 is taken into consideration, the Defendant No. 2 has specifically stated that Defendant No. 2 came to know about execution of Will only at the time when the Counterclaim was filed in the year 2009.
44. It was further argued that pleadings of Regular Civil Suit No. 379 of 2005 cannot be taken into consideration in view of the fact that the predecessor of Defendant No. 2 i.e., daughter of Lallubhai was not a party at the time when the Suit was filed and an application was given after Suit was filed and the predecessor of Defendant no.2 were joined in the said Suit only after the order below Exhibit 33 was passed on 11.08.2010 and the fact remains that the first Counterclaim was filed in the year 2009 and the fact of predecessor of Defendant no.2 was joined in the said Suit in the year 2010 and, therefore, any subsequent event after filing the Counterclaim cannot be taken into consideration while deciding an application under Order VII Rule 11 of the CPC.
Re: Contradictions, estoppel, etc.
45. Learned senior Advocate Mr. Tolia for the Defendant has also Page 18 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined argued that even assuming if there are contradictions in the pleadings of the Counterclaim and Regular Civil Suit No. 379 of 2005, the same will not be a ground to reject the plaint under the provisions of Order VII Rule 11 of the CPC. Moreover, it has also been argued that Defendant in the said Suit though being a Plaintiff and though having not amended the plaint has challenged the Will of deceased Mohanbhai Motibhai Mali and by way of present Counterclaim also the Defendant is challenging the Will executed by Mohanbhai Motibhai. Therefore, it cannot be said that there are contradictory statements made in the Counterclaim and Regular Civil Suit No. 379 of 2005.
46. Moreover, it has been argued that the earlier Counterclaim was rejected on a technical point and it was also the case of the Plaintiff that as a separate paragraph showing cause of action was not stated the said Counterclaim was rejected.
47. Therefore, it has been argued that Counterclaim, which has been filed vide Exh.311, cannot be said to be barred by law on the ground that earlier Counterclaim on the same cause of action has been rejected.
48. Ld. Senior Advocate Mr. Tolia has also argued that even if there are contradictions, and even on the ground of res judicata and or estoppel the plaint cannot be rejected under the provisions of Order VII Rule 11 of the Code.
49. Ld. Senior Advocate Mr. Tolia has also argued that if the cross- examination of Defendant No. 2 is taken into Page 19 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined consideration, the Defendant No.2 has specifically stated that Defendant No. 2 came to know about execution of Will only in the year 2009.
50. Moreover Ld. Advocate for the Defendant has also argued that the argument of the Plaintiff that Bachiben i.e. the mother of the Defendants has filed affidavit in different litigation that she is not the daughter of Lallubhai Ratnabhai and, therefore, she cannot be considered as legal heir of Lallubhai Ratnabhai for which the Plaintiffs are relying on affidavit produced in Civil Suit No.727 of 2002, however, the fact remains that in Civil Suit No.1390 of 2002, a statement that has been made in Civil Suit No.727 of 2002 by Bachiben that the pleadings made by all the parties including Bachiben were revoked and, therefore, the earlier statements made by Bachiben that she is not the daughter of Lallubhai Ratnabhai cannot be a ground of rejecting the Counterclaim under the provisions of Order VII Rule 11 of the Code.
Re: Cause of Action
51. With respect to the right of the Defendant to file the Counterclaim it has been argued by the Ld. Senior Advocate Mr. Tolia that it is the case of the Defendant that originally, the property belonged to Lallubhai Ratnabhai who expired on 11.05.1962. The present Defendants, who have filed Counterclaim, are legal heirs of Bachiben and, therefore, as the suit property is their ancestral property and the Defendants being great- grandchildren of Lallubhai Ratnabhai, they have Page 20 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined right in the suit property.
52. Ld. Advocate for the Defendant has argued that the entire case of the Defendant revolves around the fact that originally the suit property belonged to Lallubhai Ratnabhai and by way of consent terms, the suit property has come in the hands of Chanchalben and Puniben. Even if the consent terms dated 22.01.1976 that have been arrived at in LPA No.154 of 1972 is taken into consideration, the fact remains that originally the property belonged to Lallubhai Ratnabhai and thereafter it has come in the hands of his daughter Puniben and it is an admitted position that Puniben had married Mohanbhai Motibhai and from the said marriage they did not have any children.
53. Therefore, in view of the fact that originally the suit property belonged to father of the Puniben and the fact that Puniben had inherited the property from her father, in view of Section 15(2) of the Hindu Succession Act, 1956, the suit property shall devolve upon the heirs of the father of Puniben i.e. either Chanchalben Lallubhai Ratnabhai, who expired on 27.12.1981 or Maniben Lallubhai Ratnabhai (second wife of Lallubhai) who expired in the year 1982 and Bachiben (i.e. daughter of Maniben) who expired on 13.04.2011. Therefore, the Defendants have filed Counterclaim and it is the case of the Defendants that the husband of Puniben i.e. Mohanbhai Motibhai could not have executed a Will in favour of Plaintiff.
54. Moreover, Ld. Advocate for the Defendant has also drawn Page 21 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined attention of this Court to the fact that an Application was preferred by Maniben i.e. the second wife of Lallubhai Ratnabhai and grand-mother of the Defendant Nos.1 and 2, that as Puniben and her husband had expired and they did not have any children, an application was given by Maniben vide Exh. 187 on 18.06.1983, that she be declared owner of the properties stated in the consent decree of Regular Civil Suit No.254 of 1963.
55. Pursuant thereto, an Order was passed on 30.06.1983, declaring Maniben as the owner of the property mentioned at paragraph no.1 of Civil Suit No.254 of 1963, (except the agriculture land). It has been argued that though the Suit property is an agriculture land but the fact remains that the Court at the relevant point of time had considered the fact that Maniben i.e. the grandmother of the Defendants had become the owner of the property and the Court has recognized the issue that Puniben and Mohanbhai Motibhai had expired without any son and daughter and as Maniben was the wife of Lallubhai Ratnabhai she inherited the property of the share that had gone in favour of Puniben in consent terms entered into in Civil Suit No.254 of 1963.
56. Ld. Senior Advocate has also argued that though a contention has been raised by the Plaintiff that since beginning the Suit property belonged to Puniben and she was a tenant under the Tenancy Act, but the fact remains that in the suit for partition, where consent terms were entered into, Puniben was a party. She derived her right from those consent terms (through Page 22 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined Lallubhai). Therefore, this contention of the Plaintiff is meritless.
57. Moreover it has been argued by Ld. Senior Advocate that the Plaintiff has taken a contention that in Civil Suit No. 379 of 2005 the present Defendant has pleaded that Puniben had become the owner of the property by way of having tenancy rights and that Mohanbhai Moti did not have any right to execute a Will dated 26.05.1981 in favour of the Plaintiff, but the fact remains that the predecessors of the Defendant herein was not a party to the Suit when the Suit was filed in the year 2005 and it is only in the year 2010 that the predecessor of the Defendant has been joined in the said Suit and the Counterclaim that has been filed by the Defendant i.e. vide exhibit 52 was in the year 2009 and the same has been rejected in the year 2024.
58. With respect to the factum of knowledge of execution of Will by Mohan Moti, it was not in knowledge of the Defendant when an application was filed on 18.06.1983, when the grandmother of the Defendant Maniben filed application vide Exh. 187 and though a public notice was issued, the Plaintiff had not come forward with a case that they have become owner of the property by way of alleged Will executed by Mohanbhai Motibhai on 26.05.1981 and the fact that the Defendant came to know about the execution of the Will was only when the Defendant got the record from the revenue department and the said fact is also a matter of trial, in view of Page 23 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined the fact that even in the oral evidence of Defendant No. 2, vide Exhibit 394, in cross examination also, the said facts were sought by the Plaintiff and in cross-examination, the present Defendant had stated that in the year 2008, the Defendant had gone to the Suit premises and it is only after the year 2008 that the Defendant had got the copies from the revenue record and, therefore, in view of the fact that the matter is at the stage of oral evidence, the Trial Court can decide the said issue as to the date of knowledge of execution of the Will of the Mohanbhai Motibhai.
59. Moreover, it has also been argued by Ld. Senior Advocate that there was no requirement of the Defendant to check the revenue records in view of the fact that the name of the Defendant was already mutated in the revenue record with respect to the Suit property, therefore there was no occasion for the Defendant to verify the fact that Mohan Moti had executed a Will in favour of the Plaintiff. Ld. Senior Advocate for the Defendant has argued that Mohan Moti could not have executed a Will in favour of the Plaintiff in view of the fact that the property was inherited by Puniben from her father and in absence of any son or daughter of Puniben, the Suit property shall devolve upon heirs of the father i.e. present Defendant.
60. With respect to the fact that the Defendant had deemed knowledge of execution of the Will, the Ld. Senior Advocate for the Defendant has argued that under Section 51 of the Registration Act, more particularly, register of Will falls in Page 24 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined book 3 of Section 51 of the Registration Act and under Section 57 of the Registration Act, the copies of entries in Book 3 and in the index related thereto can only be given to the persons executing the documents to which such entries relate or to their agents and after the death of the executants to apply for such copies and therefore, it cannot be said that the said document is a registered document and in view of the said fact, it has been argued that just because there are contradictory statements made in some other proceedings cannot give rise to the Plaintiff to reject the Counterclaim.
Judgments relied upon by the Defendants
61. Ld. Senior Advocate has relied on the judgment reported in 2008 (105) DRJ in the case of Suresh Khakhar Vs. Mahender Nath Khakhar and has argued that under the provisions of Order VII Rule 11, the Court is enjoined only to look at the averments made in the Counterclaim and not travel to the written statement or the documents filed by the Plaintiff and even a bar under Order II Rule 2 if has been set up by the Plaintiff, the Plaintiff had to produce the pleadings in the previous Suit by way of evidence and the same cannot be a ground of rejecting the Counterclaim under the provisions of Order VII Rule 11 of the Code.
62. With respect to the contention raised by the Plaintiff that the latter counter- claim would be hit by the period of limitation and the fact that former Counterclaim filed vide exhibit 52 in the year 2009 and the latter counter- claim filed vide exhibit Page 25 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined 311 on 07.10.2024, and, therefore, the Defendant has not explained the delay in filing the fresh Counterclaim. Ld. Senior Advocate for the Defendant has tried to canvass his argument by relying on the judgment reported in 2025 SCC OnLine SC 48 in the case of Indian Evangelical Luthren Church Trust Association Vs. Sri Bala and Co. wherein the Hon'ble Apex Court has held that if the right to sue accrued on the basis of Order VII Rule 13 of the Code, subsequent to the rejection of the plaint in the earlier Suit, the right to sue by means of a fresh Suit was only after the rejection of the plaint in the earlier Suit, therefore in the present case, as the former Counterclaim filed vide exhibit 52 was rejected on 24.09.2024 and the latter Counterclaim was filed on 07.10.2024, the cause of action to file the latter Counterclaim accrued only on 24.09.2024 and, therefore, it cannot be said that the Counterclaim is hopelessly time barred.
63. With respect to the argument of Ld. Advocate for the Plaintiff that the Defendant had deemed knowledge of execution of the Will in view of the fact that the said Will was registered, Ld. Advocate had relied on the judgment reported in 2019 13 SCC 372 in the case of Urvashiben and Another Vs. Krishnakant Manuprasad Trivedi wherein the Court has held that the Court will only have to look at the plaint and the documents annexed with the plaint.
64. Ld. Advocate for the Defendant has also relied upon the judgment reported in 2015 SCC OnLine Delhi 14667 in the Page 26 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined case of Raman Mahindra and Others Vs. Adarsh Bala Sud (A) Adarsh Kumari and Others, on the ground that registered will is not a public document and is not open for public inspection and the actual date of knowledge of existence of Will and receipt of date of such will would be starting point of limitation.
65. Moreover, it has been argued that it cannot be said that the Defendant has suppressed material fact before the Court in view of the fact that Defendant has already stated in the Counterclaim about the Civil Suit No.379 of 2005 and though at the time when fresh Counterclaim was filed in the year 2024, the application that was filed by the Defendant to be joined in the Civil Suit No.379 of 2005 as the Plaintiff was allowed and the said suit was dismissed for default, the Defendant has, by incorporating the same pleadings that were filed in earlier Counterclaim vide Exh.52, stated that the said application to join Defendant in Civil Suit No.379 of 2005 is pending and that said suit is pending and, therefore, just by incorporating the same paragraphs in the latter Counterclaim, the same cannot be said to have suppressed material facts before the Court in view of the fact that vide Exh.304, the Plaintiff had already produced the order passed of dismissing the Civil Suit No.379 of 2005.
66. With respect to the judgment of coordinate Bench of this Court rendered in First Appeal No.2 of 2025, in case of Chanchalben Ishwarbhai Vasava Vs. Decd. Ambalal Page 27 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined Ishwarbhai Vasava Through Lhrs. & Ors., is concerned in the said judgment, there were suppression of earlier suits and the Plaintiff had come before the Court suppressing the facts that earlier suit was filed on the same cause of action and, therefore, the Court had held that there were suppression of material facts, but if the facts of the present are taken into consideration, the Defendant himself has stated about filing of Civil Suit No.379 of 2005 and the fact of said suit having already been disposed of was already on record and, therefore, it cannot be said that there were suppression of material facts before this Court.
67. Therefore, the Ld. Senior Advocate has argued that the present Application is required to be dismissed.
REJOINDER OF THE PLAINTIFF :
68. Ld. Advocate for the Plaintiff, in rejoinder, has argued that if the earlier order passed below Exh.302 whereby earlier Counterclaim filed by Defendant nos.1 and 2 has been rejected under the provisions of Order VII Rule 11 of the CPC, the trial Court while dismissing the said Counterclaim, has held that on considering entire Counterclaim, no cause of action has arisen for Defendant nos.1 and 2 to file the Counterclaim and also as to when the cause of action had arisen, has not been stated in the plaint / Counterclaim and in view of the said fact, the application under Order VII Rule 11 has been allowed.
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69. Moreover, while deciding the application under Order VII Rule 11 of CPC vide Exh.302, the Trial Court has also held that after considering the entire facts stated in the Counterclaim, the Defendant has not stated any cause of action and in view of the same, the said Counterclaim was rejected. Therefore, it has been argued that as the said order has become final, it cannot be said that the said Counterclaim was rejected on technical point that no formal paragraph or cause of action was stated in the said Counterclaim vide Exh.52 and, therefore, Defendant was entitled to file fresh Counterclaim.
70. Moreover, it has been argued that if the cause of action as stated in the Counterclaim vide Exh.311 is taken into consideration, in para:13 the Defendant nos.1 and 2 have stated that cause of action has arisen when Mohanbhai executed a Will in the year 1981 and when an entry to that effect was mutated in the revenue record in the year 1981 and when compensation was received from Baroda Municipal Corporation which took place in the year 2002 and in view of the fact that though no documents are produced along with the Counterclaim as there is a reference made in the counter- claim about receiving compensation from Baroda Municipal Corporation, the same document is produced vide Exh.4/6 which clearly establishes that the said compensation was received in the year 2002. Moreover, it is also stated in the Counterclaim that cause of action to file Counterclaim arose when the possession of property was taken from Defendant nos.1 and 2 and if the order that has been passed below Exh.5 Page 29 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined is taken into consideration, the trial Court has prima facie held that possession of property is since the year 1981. Therefore, even otherwise the cause of action has arisen in the year 1981.
71. With respect to the argument that latter Counterclaim will relate back to the year 2009 and the subsequent event cannot be considered by the Court while deciding fresh Counterclaim, Ld. Advocate for the Plaintiff has argued that Defendant nos.1 and 2 themselves have relied upon on subsequent event and if Para 7 of the Counterclaim is taken into consideration, the Defendant has placed reliance on the revenue entry that took place in the year 2015 and in view of the said fact it has been argued that there is clear suppression of material facts by Defendant nos.1 and 2 by suppressing the fact that earlier suit that was filed challenging the Will had already been dismissed for default and the Defendant has stated that the same is pending.
72. Moreover, it has been argued that Bachiben during her lifetime has never resiled to any of her statement to the effect she is not daughter of Lallubhai Ratnabhai and even if the cross- examination of Maniben viz. mother of Bachiben, is taken into consideration, she has in her cross- examination in Civil Suit No.254 of 1963 has stated that she does not have any daughter from Lallubhai Ratnabhai and the said statement has been made in the year 1963 and by that time Lallubhai Ratnabhai had already expired.
73. Moreover, in the plaint also the Plaintiff has specifically stated Page 30 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined that Bachiben is not daughter of Lallubhai Ratnabhai.
74. Moreover, Ld. Advocate for the Plaintiff has argued that in view of Section 14 of Hindu Succession Act as the suit property has been received by Puniben through partition and consent terms and the said consent terms specifically state that other party i.e. party of Maniben will not have any claim in the property. Therefore, same becomes self- acquired property of Puniben and, therefore, Section 15(1) of the Hindu Succession Act will apply and as Mohanbhai Motibhai being husband of Puniben was alive at the time when Puniben expired, he will have the right, the property shall devolve on Mohanbhai Motibhai and in view of the fact that the property has been received by Puniben by way of partition there is no question of considering Section 15(2) of Hindu Succession Act and for which Ld. Advocate for the Plaintiff has relied upon the judgments reported in 2025 (0) AIJEL SC 75121 in the case of Angadi Chandranna vs. Shankar and in 2009 (0) AIJEL SC 43551 in the case of Omprakash vs. Radhacharan.
ANALYSIS
75. Having noted the extensive arguments on both the sides, I now proceed to analyse the facts and issues in question from the perspective of Order VII Rule 11.
Scope of Order VII Rule 11
76. At the outset, to dispel the fog which arises from a chequered history of the factual matrix given by both the parties, it is Page 31 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined imperative to examine the scope and bounds of the present Application. Needless to say, this Court will not have any jurisdiction beyond such scope.
77. In an Application under Order VII Rule 11, as is well established by judgments of the Hon'ble Apex Court:
i. Only the Plaint and the documents along with the Plaint can be looked into. [Saleem bhai v. State of Maharashtra, (2003) 1 SCC 557] ii. Reading of such Plaint will have to be meaningful and not formal. [T Arvindam v. TV Satyapal, (1977) 4 SCC 467] iii. In this reading of the Plaint there cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. [see: Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004) 3 SCC 137]
78. These broad principles have been reiterated by the Hon'ble Apex Court and this Court in numerous if not endless judgments. Therefore, this Court will have to proceed and decide this issue at hand on basis of the said principles only.
79. In other words, neither this Court is entitled to look into the probable/improbable defense of the Plaintiffs insofar as the Counterclaim is concerned, or other pleadings except for the Counterclaim with its documents.
Broad issues for determination in the present Application Page 32 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined
80. Bearing the aforesaid principles in mind, following broad issues/aspects have been agitated and need to be decided by this Court.
i. Whether or not the Defendants had disclosed a cause of action in the Counterclaim. This will have to be examined in view of the contention that whether or not the Defendants have any right to sue for the suit property or challenge the will.
ii. Whether or not the Defendants' Counterclaim is barred by limitation. This again, will have to be seen in light of two contentions.
a. Whether the challenge to the Will of Mohanbhai by way of the present Counterclaim will be barred by limitation.
b. Whether the filing of present Counterclaim can be construed to have been filed after the limitation period (in terms of Order VII Rule 13).
Cause of Action
81. Having heard the Ld. Advocates for the respective parties, the foremost question which falls for consideration of this Court is whether or not the Counterclaim discloses a cause of action.
82. A bare perusal of the cause of action averment of the Counterclaim would show the that the Defendant nos.1 and 2 were in possession of property. The plaintiff has, by placing false facts before the Court, taken possession of the premises Page 33 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined from the Defendant and after the Order was passed below Exh. 5, Plaintiffs have taken possession of the property. The cause of action has arisen when registered Will was executed and pursuant to the same, revenue entries were mutated in the revenue record and cause of action has arisen also when the Vadodara Municipal Corporation paid compensation, the cause for filing the Counterclaim has arisen.
83. Moreover, the law is well settled that disclosure of a cause of action has to be seen from a meaningful and entire reading of the Plaint/Counterclaim. In Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174 Hon'ble Apex Court held as follows:
7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is Page 34 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the Defendant are wholly immaterial while considering the prayer of the Defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.
Scope of enquiry in Order VII Rule 11 (a)
84. Therefore, the scope of enquiry has to be:
i. On a demurrer, whether on an entire reading of the Counterclaim a cause of action is disclosed (i.e., right to sue).
ii. Any defence or the statement in the Reply to the Counterclaim is immaterial at this juncture.
85. Hence, without having looked at the defense of the Plaintiff, it needs to be examined whether or not the Defendants have disclosed a cause of action. This examination of cause of action in context of Order VII Rule 11 would mean a bundle of facts being pleaded which show the right to sue. In Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success Page 35 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined I, (2004) 9 SCC 512 the Hon'ble Apex Court held as follows:
140. A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit.
For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence.
86. Therefore, what is required to be pleaded by the Plaintiff (Defendant in the present case) is a bundle of facts which give the said party a right to sue. It must be kept in mind that the objective of Order VII Rule 11 is not to conduct a mini trial at the threshold. The only permissible examination is whether or not from the averments in the Counterclaim (and assuming them to be true) a right to sue is disclosed.
87. There is no test of evidence, chance of success at the trial, etc. required to be gone into at the stage of Order VII Rule 11. Further in Liverpool (supra) the Hon'ble Apex Court has held as follows:
139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.
...
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146. It may be true that Order 7 Rule 11(a) although authorises the court to reject a plaint on failure on the part of the Plaintiff to disclose a cause of action but the same would not mean that the averments made therein or a document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit. The approach adopted by the High Court, in this behalf, in our opinion, is not correct.
88. Hon'ble Apex Court further in Ashraf Kokkur v. K.V. Abdul Khader, (2015) 1 SCC 129 held as follows:
22. After all, the inquiry under Order 7 Rule 11(a) CPC is only as to whether the facts as pleaded disclose a cause of action and not complete cause of action. The limited inquiry is only to see whether the petition should be thrown out at the threshold. In an election petition, the requirement under Section 83 of the RP Act is to provide a precise and concise statement of material facts. The expression "material facts"
plainly means facts pertaining to the subject- matter and which are relied on by the election petitioner. If the party does not prove those facts, he fails at the trial [see Philipps v. Philipps [(1878) LR 4 QBD 127 (CA)] (QBD p. 133); Mohan Rawale v. Damodar Tatyaba [(1994) 2 SCC 392] (SCC p. 399, para 16)].
89. Therefore, it becomes amply clear that the enquiry while considering Order VII Rule 11 (a) is not whether there is a Page 37 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined chance of success at the trial with the cause of action so pleaded but only whether there is (i) a cause of action pleaded
(ii) right to sue (iii) whether a decree can be passed accepting the cause of action to be true.
90. In the present case, this Court does not find a reason to hold otherwise. The Defendant as pointed out above, has clearly pleaded its cause in the latter Counterclaim. On an entire reading of the Counterclaim it is clear that the Defendants are challenging the Will of Mohanbhai on the ground that the suit property stood vested in the heirs of Lallu Ratna. This was on account of operation of Section 15(2) of the Hindu Succession Act, 1956.
91. What is pertinent to note in accordance with the principles laid down by the Hon'ble Apex Court's judgments cited above is that whether or not the Defendants succeed in their claim before the Ld. Trial Court or not, today it cannot be said that the Defendants have no cause of action at all or no right to sue.
92. If at the present juncture, the averments made by the Defendants in the Counterclaim are accepted to be true and correct, it cannot be said that the Defendants cannot under the law be entitled to a decree. Whether or not the Defendants actually succeed at the trial (or their probability of success) is a completely different question and irrelevant to the present enquiry. The Defendants definitely will have to stand and prove their claim at the trial. However difficult or improbable it may seem, that consideration is irrelevant at the stage of Page 38 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined enquiry under Order VII Rule 11(a).
93. The only exception to the above rule regarding cause of action is when a party has pleaded illusory cause of action. Hon'ble Apex Court has time and again directed Courts to consider whether or not a real cause of action has been disclosed or something purely illusory by clever drafting [see: Dahiben v. Arvindbhai Kalyanji Bhanushali, (2020) 7 SCC 366, ITC Ltd. v. Debts Recovery Appellate Tribunal (1998) 2 SCC 70].
94. Illusory would mean something that does not exist but has been shown as so. In the present context, if a real cause of action does not lie and the Defendants have no cause or right to sue, any cause that they may show would mean an illusory cause of action. In the present case however, the Plaintiff cannot allege that the Defendant would have no cause to file the Counterclaim. The Plaintiff may, of course, contend that such a cause of action is not maintainable in view of the several stances which have been taken by the Defendant in other proceedings between the parties, etc. This however, would mean to take into consideration the defence of the Plaintiff. It is impermissible for this Court to make such an enquiry. This Court as stated above, has to only see if admitting the contents of the Counterclaim to be correct, is a right to sue disclosed. The answer thereto being in affirmative, there can be no rejection of the Counterclaim under Order VII Rule 11 (a).
95. In the present case however, the Defendants have categorically Page 39 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined pleaded their right to sue. The right in the suit property, inter alia, has been claimed to have arisen by operation of Section 15(2) of the Hindu Succession Act, 1956. This in the opinion of this Court, is a right to sue which has arised. Whether or not the contention is tenable in law is a triable issue and would be tested at the trial in accordance with law. Therefore, it cannot be said that the Defendants have no right to sue at all or have pleaded a mere illusory cause of action.
96. Therefore, in my opinion, the contention of the Plaintiff that the Counterclaim preferred by the Defendants must be rejected under Order VII Rule 11 (a) is liable to be rejected.
Re: Rejection of Former Counterclaim
97. Ld. Advocate for the Plaintiff has argued that the former Counterclaim as filed by the Defendant has been rejected not only on technical but also substantive grounds. Therefore, according to the Plaintiff, there was no remedy available to the Defendant for filing a fresh Counterclaim. The only remedy which could be availed by the Defendant was that of an Appeal. For bolstering its submissions, the Plaintiff relies especially on the judgment of the Andhra Pradesh High Court in Molugu Ram Reddy (supra).
98. On the other hand, Ld. Sr. Advocate on behalf of the Defendant has argued that the rejection of the former Counterclaim was in lieu of the fact that there were no paragraphs of cause of action mentioned and therefore, the same was an error which could be cured and fresh Page 40 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined Counterclaim under Order VII Rule 13 could be filed.
99. Looking at the provision of Order VII Rule 13, it becomes clear that the said provision is applicable to all the grounds of rejection of Plaint. The provision uses the phrase "The rejection of the Plaint on any of the grounds hereinbefore mentioned". This would make it amply clear that there is no distinction in Rule 13 as regards its applicability to grounds under Rule 11. In absence of any specified distinction, in opinion of this Court, no such implied restriction can be read into the provision.
100. Moreover, the Hon'ble Apex Court has also time and again specified that the presentation of a fresh Plaint under this provision can be made, subject to the limitation. Therefore, to read any fetter into Rule 13 when it specifies all the grounds specifically is impermissible.
101. The Bombay High Court in Walchandnagar Industries Ltd. v.
Indraprastha Developers, 2013 SCC OnLine Bom held as follows Effect of rejection of plaint or dismissal of suit and remedy
15. When a suit is dismissed or a plaint is rejected under section 9-A or under Order VII, Rule 11(d) or under Order XIV, Rule 2 of Civil Procedure Code, it becomes a 'decree' within the meaning of sub-section (2) of section 2. Hence, a statutory right of appeal under section 96 read with Order XLI, Rule 1 can be exercised to challenge such an Page 41 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined order on facts and on law both. Where a plaint is rejected under Order VII, Rule 11(a) to (f), it does not mean to preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action in terms of Order VII, Rule 13.
102. In any case, in the present case, a perusal of the Order passed by the Ld. Trial Court while rejecting the former Counterclaim will clarify this position further.
103. On perusal of the Order passed below Exhibit 302 (Application for rejection of the former Counterclaim), the Ld. Trial Court while allowing the said application in paragraph No.7 has held that, in the Counterclaim at paragraph Nos.1 to 5, the Defendant has denied the allegations made in the plaint and at paragraph Nos.16 & 17, the Defendant has not mentioned any cause of action to file the Counterclaim and at paragraph No.18, it has been stated that the possession of the property has been taken away from the Defendant by the Plaintiff, and thereafter, they are trying to make illegal construction in the property and the trial Court while deciding the said Application has stated that it has not been mentioned in the Counterclaim as to when and as to how the possession has been taken over.
104. With respect to Paragraph 19, the Court has come to the conclusion that the said paragraph states that the deceased Mohanbhai Motibhai did not have any right to execute the Will, and therefore, the said Will is required to be declared Page 42 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined illegal and it has been observed by the trial Court that at paragraph No.18 & 19 of the said Counterclaim filed vide Exhibit-52 the Defendant has not stated as to how and as to when the cause of action has arisen, and ultimately, the Court has observed that as the Defendant has not stated as to when the cause of action has arisen and only on that ground the Defendant has not stated as to when the cause of action arisen to file Counterclaim, the said application under Order VII Rule 11 of the Code of Civil Procedure, was decided. The fact remains that the trial Court has not rejected the Counterclaim on the ground that no cause of action has arisen to file the Counterclaim but the said Counterclaim was rejected only on the ground that the Defendant had not given details of cause of action, and therefore, the said Counterclaim was rejected.
105. Moreover, even if the Plaintiff's Application for rejection of the Counterclaim is taken into consideration, the contention that has been taken by the Plaintiff for rejecting the Counterclaim filed in an application under the provision of Order VII Rule 11 of the Code of Civil Procedure by the Plaintiff are also that no separate paragraphs have been stated to show the cause of action.
106. If the Written Submission of the Plaintiff in support of their Application to reject the Counterclaim under Order VII Rule 11 of the Code of Civil Procedure (Exhibit 329), are taken into consideration, in the said written submission also at paragraph No. (F), the Plaintiff has mentioned that no separate paragraph has been stated in the Counterclaim, specifically earlier Page 43 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined Counterclaim, filed vide Exhibit-52, did not give a separate paragraph of stating the cause of action.
107. With respect to the judgment relied by the Ld. Advocate for the Plaintiff being 2011 SCC OnLine AP 228, the same also will be of no assistance to the Plaintiff in view of the fact that it cannot be said that the earlier application which has been rejected of non-curable defects, and therefore, only remedy to the Defendant was to file appeal under Section 96 and in the facts of the present case, it cannot be said that provision of Rule 13 could not be invoked by the Defendant. Which respect, this Court does not agree with the view taken by the Andhra Pradesh High Court in view of the fact that the provision itself does not make any such distinction.
108. Hence, it cannot be said that a fresh Counterclaim cannot be filed under Order VII Rule 13. The argument of the Ld. Advocate on behalf of the Plaintiff insofar as the present contention is concerned, is therefore meritless and is accordingly turned down.
Re: Settlement arrived at in previous litigations
109. Another contention that has been raised by the Ld. Advocate for the Plaintiff was that the predecessor of the Defendant No. 1 & 2 had already settled the dispute with Puniben and that the Defendants have no cause of action to file the present Counterclaim, as consent terms filed in LPA No. 154 of 1972 records that suit property amongst 18 other properties will go to the share of Maniben and Puniben in their respective individual Page 44 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined capacity.
110. Therefore, what comes on record that Lallubhai Ratnabhai expired on 11.05.1962 and during his life time, he had two wives, Maniben and Chanchalben, the present Defendants are claiming through Bachiben i.e., daughter of Maniben. Whereas the Plaintiffs are beneficiaries in the Will of Mohanbhai.
111. Though, it is the case of the Plaintiff that Bachiben herself has stated that she is not the daughter from the marriage of Lallubhai and Maniben and her father is Soma Khoda Vaghaji and in Civil Suit No. 727 of 2002, there are pleadings by Bachiben that she is not the daughter of Lallubhai Ratnabhai. However, these statements have also been resiled from latter in point of time. This aspect shall be dealt with later in the present judgment.
112. As it transpires, Civil Suit No.254 of 1963 was filed by Maniben against Chanchalben and Puniben for partition of 19 properties that belonged to Lallubhai Ratnabhai. By judgment and decree dated 26.06.1963, the said Civil Suit was dismissed. Challenging the said judgment, First Appeal 398 of 1964 was filed by Maniben. This First Appeal was partly allowed and the appellate Court has held that Maniben had 50% right in the property and Chanchalben and Puniben had the remaining 50% share.
113. Against the said First Appeal, a Second Appeal was preferred and dismissed. Thereafter, a LPA No. 154 of 1972 was filed which was decided on 22.05.1976 and in the said LPA, Page 45 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined by way of consent, the properties were distributed and the suit property came to the share of Puniben.
114. Therefore, the question which arises is that is there a bar for the Defendants to seek any prayer as sought for in the cause of action.
Section 14 v. Section 15 of the Hindu Succession Act
115. In view of the aforesaid, the Plaintiffs contend that in view of the said consent terms the suit property came in the hands of Puniben as her individual property in view of Section 14 of Hindu Succession Act, which reads as under:
14. Property of a female Hindu to be her absolute property.―(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.―In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or Page 46 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
116. Therefore, from the date, the partition took place, the said property was individual property of Puniben and the same cannot be property which has been inherited by her father Lallubhai Ratnabhai.
117. As against this, Ld. Sr. Advocate for the Defendant has argued that the Plaintiff has claimed that suit property was of property which Puniben received and became the owner under Tenancy Act, but the fact remains that in the Civil Suit No. 254 of 1963, wherein the suit property was also one of the property which has been stated to be belonging to Lallubhai Ratnabhai and by virtue of the said consent terms, the said property came in the hands of Puniben, therefore, whether the said property came in the hands of Puniben by virtue of Tenancy Act or by virtue of the consent terms can only be decided by leading evidence.
118. Be that as it may, the other fact that will also have to be considered is that after consent decree was passed in Civil Suit No.254 of 1963, in view of the fact that the Puniben and Mohanbhai Motibhai did not have any children, by virtue of section 15(2), the suit property would come in the hands of the legal heirs of the father of Puniben. The present Defendants being legal heirs of Lallubhai Ratnabhai have claimed share in the suit property.
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119. Ld. Sr. Advocate for the Defendant has also stated that the ground that after the consent terms were filed, Maniben had given an Application in Civil Suit No. 254 of 1963, that in view of the fact that Puniben had expired and that Chanchalben had also expired and the fact that there were no children of Puniben, the suit property shall come to the share of Maniben and the trial Court had passed an order whereby the immovable properties except for agricultural land had gone to Maniben, in view of the fact that Puniben and Mohanbhai did not have any children.
120. Moreover, in Civil Suit No. 727 of 2002 also, there is a categorical statement that all the other properties that came in the hands of Puniben and Chanchalen by way of consent terms, the name of Bachiben was entered in the revenue record by virtue of fact that Puniben did not have any children and the said revenue entry has not challenged till date. Moreover, with respect to the said property also in the revenue record, the name of Bachiben has been added, therefore, the fact remains that Puniben and Mohanbhai Motibhai did not have any children and the suit property according to the consent terms belonged to Lallubhai Ratnabhai, and thereafter, it came in the hands of Bai Puniben by way of partition. The provision of section 15(1) and (2) is reproduced hereinunder:
General rules of succession in the case of female Hindus.―(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,―
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) Page 48 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),―
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre- deceased son or daughter) not upon the other heirs referred in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
121. That the property with female hindu dying intestate shall devolve according to the rules set out in Section 16 and if same is considered, the suit property after the death of Puniben, would go in the hands of her husband-Mohan Moti, but in the present case, the suit property has inherited by Puniben from her father and in absence of any son or daughter of Puniben, the same shall devolve upon the heirs of her father i.e. Lallubhai Ratnabhai.
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122. Though, a contention has been raised that the Defendant No.1 & 2 are not the legal heirs of Lallubhai Ratnabhai but this said fact cannot be considered while deciding application under Order VII Rule 11 of the Code of Civil Procedure.
123. It is pertinent to be noted that all of these questions are essentially questions of fact. Therefore, the same cannot be decided in an Application under Order VII Rule 11. In C. Natarajan v. Ashim Bai and Anr. (2007) 12 SCALE 163 the Hon'ble Apex Court held as follows:
An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence.
124. Hon'ble Apex Court in Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661: 2008 SCC OnLine SC 727 at page 669
25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of Page 50 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained.
...
34. The only contention raised before the Ld. trial Judge was the applicability of the principles of res judicata. Even for the said purpose, questions of fact cannot be gone into. What can only be seen are the averments made in the plaint. What inter alia would be relevant is as to whether for the said purpose the properties were sold by reason of any arrangement entered into by and between the parties out of court; whether they had accepted the partition or whether separate possession preceded the actual sale; or whether the contention that a presumption must be drawn that for all practical purposes the parties were in separate possession, are again matters which would not fall for consideration of the court at this stage.
125. Therefore, all of such questions which have been raised by the Plaintiff, are not such questions which can be determined at this stage in a proceeding under Order VII Rule 11 without Page 51 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined leading of evidence.
126. Moreover, as the Plaintiff himself rely on the order passed in LPA, whereby the property of Lallubhai Ratnabhai has distributed amongst his legal heirs, the suit property came in the hands of Puniben, same can clearly be established that the suit property belonged to Lallubhai Ratnabhai.
127. Even otherwise, the issue before this Court is that whether the property which has been received by Puniben can be considered as her individual property in view of the consent terms that have been taken place in LPA No.154 of 1973. Ld. Sr. Advocate for the Defendant has relied on the judgment reported in in the case of V. Dandapani Chettiar v. Balasubramanian Chettiar & Others (2003) 6 SCC 633 wherein the question was that in the suit property came in the hands of the party because of compromise decree, wherein the High Court had held that the properties devolved upon the party in view of the compromise decree not by inheritance of her mother and held that section 15(1) of the Hindu Succession Act alone applied. The said order was challenged in LPA wherein the Division Bench also held that the property devolve under the party under Section 15(1) and not under section 15(2) of the Act in view of the fact that property was received in a compromise decree, Apex Court while interpreting section 15 of Hindu Succession Act held as under:
"9. The above section propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate after the commencement of the Act. words, the order of Page 52 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined succession in case of property inherited by her from her father or mother, its operation is confined to the case of dying without leaving a son, a daughter or a children of any pre-deceased son or daughter. ...
10. Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a pre-deceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under Section 15(2)(a). If it is inherited by her from her husband or father-in-law, it would devolve upon the heirs of her husband under Section 15(2)(b). The clause enacts that in a case where the property is inherited by a female from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. This would mean that if there is no son 01 daughter including the children of any pre- deceased son or daughter, then the property would devolve upon the heirs of her father. Result would be - if property is inherited by a female from her father or her mother, neither her husband or his heirs would get such property, but it would revert back to the heirs of her father.
11. In the present case, it is not disputed that Rajathiammal died intestate without leaving any son or daughter or children of pre-deceased son or daughter. Hence, the property would devolve on the heirs of her father. It is contended that she got the property because of the compromise decree and, therefore, the property is not inherited by her from her father or mother. This submission, in our view, Page 53 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined is without any substance. She was daughter of Sivabagyammal and, therefore, she was entitled to inherit the property of her maternal grandmother as her mother had expired. As some dispute was raised by the other heirs, a suit was filed. In that suit, rights of Rajathiammal were recognized and compromise decree was passed in her favour. Result is - she got the property as daughter of her mother. That means, she got the property not from her husband or father-in-law, but from her mother side. In that state of affairs, the heirs of her father, that is, heirs of S.V. Venugopala Chettiar would be entitled to inherit her property in view of Section 15(2)(a) of the Act.
In the case reported in Venugopal Pilial v. T. Ammal, AIR (1979) Madras 124, a Division Bench of the Madras High Court observed that in cases where the female Hindus acquired rights by virtue of compromise is a reiteration and a declaration of a pre-existing right of the female Hindus.
13. The respective case of the parties, as contended by their respective counsel, has already been summarized in the above paragraphs. It is not in dispute that Rajathiammal died intestate and got certain items by way of compromise in Suit No. 8/1926 and in Suit No. 15/1942 filed by Natanasabapathy. Items 1 to 3, 5 and 8 to 18 in the plaint second schedule were allotted to Rajathiammal under the compromise decree passed in O.S.No. 8/1926. Likewise, items 4,6 and 7 were Page 54 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined given to Rajathiammal under the compromise decree passed in O.S.No. 15/1942. Thus all the items got by Rajathiammal were under the compromise decree in both the suits.
...
In our opinion, the contention of the appellant/Plaintiff that it is only Section 15 (2) of the Act that applies in the instant case to the properties of Rajathiammal upon her death on 1.7.1972 has support and well founded. The High Court having been upheld the finding of the Ld. single Judge that Ex.B-26, a Will executed by Rajathiammal, according to the first respondent, is not a Will that is proved to have been executed by her, should have further held that the properties devolved upon the heirs of the father of Rajathiammal in accordance with Section 15(2)(a) of the Act.
16. It will be seen from the facts of the present case that Rajathiammal had inherited the property from her mother, the section applicable will be Section 15(2) of the Act, according to which the properties will go to the heirs of her father and, therefore, the Plaintiff/appellant and Defendants 2- 9/respondents 2-9 who are the sons and daughters of Rajathiammal's father, Venugopal Chettiar, through his third wife Nagalakshmi would be entitled to the suit properties. Therefore, the case put forward by the first Defendant and other contesting Defendants that Rajathiammal inherited the properties not from her mother but also from her grand-mother and great grand-mother, and, therefore, Section 15(1) of the Act would only apply cannot at all be countenanced.Page 55 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025
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128. Moreover, as held in the case of Govindasamy v. E. Muthulakshmi and others reported in 2014 (1) MWN (Civil) 704, paragraph Nos.13, 14, & 15 are as under:
"13. I would like to observe that partition is declaratory and not transference. The Honourable Apex Court, in the aforesaid precedents consistently holds the view that the word 'inherited' is of paramount significance and it is not a pococurante one or remark made on passant by the Legislators in Clause (a) of sub- section (2) of Section 15 of the Act. Even assuming that there had been an oral partition among the sisters that would not be sufficient to lable or dub the said property as the one not inherited by Chitradevi. The alleged partition emerged only in recognition of the three daughters having inherited the property from their father. Not to put too fine a point on it, the element of 'inheritance' involved in it, cannot be taken as one got obliterated by virtue of the oral partition. Inheritance preceded the partition, which is in recognition of the inheritance only.
14. On balance, the Honourable Apex Court in the aforesaid decisions, interpreted the word 'inheritance' only in that manner. Over and above that the Honourable Apex Court, in V. Dandapani Chettiar v. Balasubramanian Chettiar (Dead) by LRs., 2003 (4) CTC 122 (SC) : (2003) 6 SCC 633, went a step further and spot lighted and stressed that even in a Compromise Decree, if a portion is allotted to a lady, recognizing her inheritance, still it would come within the purview Page 56 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined of Clause (a) of sub-section (2) of Section 15 of the Hindu Succession Act.
15. What is expected of the Court is to see the source of title of the deceased lady in respect of the property concerned. If the lady got that property on the strength of she having inherited the property from her father, then irrespective of the fact whether it was allotted to her in a partition or otherwise, that would not in any way take away the property from the purview of Clause (a) of sub-section (2) of Section 15 of the Act."
129. In the present case also the source of title of Puniben in respect of the suit property was on the strength of she having inherited the property from her father, and therefore, whether it was received by Puniben by way of consent terms or otherwise would not impede the application of Section 15(2).
130. One more aspect will have also have to be taken into consideration is the fact that Puniben expired on 23.04.1979, and thereafter, her mother expired on 27.12.1981, therefore, after the death of Puniben, the properties also came in the hands of Chanchalben, and therefore, Mohan Moti could not have executed will, therefore, all these aspect will have to be taken into consideration by the trial Court while deciding the suit, and therefore, also the Counterclaim cannot be rejected on the ground that in view of the fact that in LPA No.154 of 1973 partition of the properties have taken place and all the disputes have been settled.
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131. Ld. Advocate for the Defendant has also relied on the judgment reported in Manu/AP/0690/2015 in the case of Nalla Raji Reddy v. Venkatanantha Chary. Ld. Advocate for the Defendant relied on paragraph No.6, 7, & 8 of the said judgment and in view of the facts of the present case as the earlier Counterclaim is rejected on the ground of non- disclosure of cause of action, the previous contention under Rule 13 of Order VII of Code of Civil Procedure certain come to the rescue of the Defendant to present the fresh Counterclaim clearly disclosing the cause of action right to sue.
Re: Allegations of contradictory statements made in the proceedings
132. Ld. Advocate for the Plaintiff had argued that there are contradictory statements made by Bachiben and Defendant nos.1 and 2 in different proceedings. In Special Civil Suit No.1390 of 2002, the legal heirs of Bachiben had taken a stand that Bachiben is daughter of Lallubhai Ratnabhai and even in the revenue entries with respect to other properties other than Survey No. 364, the name of Bachiben has been entered as legal heir of Lallubhai Ratnabhai. Whereas in RTS Appeal No.79 of 2002 Bachiben had made statement that she is not the daughter of Lallubhai Ratnaben and she is daughter of Khoda Vagha and even in the consent terms that have been filed in Special Civil Suit No.727 of 2002 Bachiben i.e., mother of Defendant nos.1 and 2 had made statement that she is not daughter of Lallubhai Ratnabhai.
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133. These contradictory statements, in the opinion of this Court, cannot be the subject matter of enquiry under Order VII Rule
11. A contradiction or estoppel, etc. shown from documents which do not form part of the Counterclaim/Plaint cannot be ground to reject the Counterclaim filed by Defendant nos.1 and
2. These are all matters on which evidence will have to be led and proven in trial.
134. Moreover, considering the averments made in the Counterclaim, the Defendant in the Counterclaim has specifically stated that she is the daughter of Lallubhai Ratnabhai and if the issues that have been framed vide Exh.172 and re-casted vide Exh.174 are taken into consideration, the Court had already framed issue whether Defendant nos.1 and 2 are legal heirs of the deceased Lallubhai Ratnabhai.
135. Therefore, this contention cannot detain this Court for long.
This is for a simple reason that a contention which is thoroughly factual in nature, i.e., a contention which pertains to statements made by a party in other proceedings in evidence, which will have to be proved in the present case, cannot be a ground for rejection of a Plaint at the threshold. Doing so and rejecting the Plaint will amount to considering the defence of the Plaintiff in the present case. This is impermissible as per the scope of Order VII Rule 11. The Ld. Trial Court at the time of trial can enter into the merits and consider the said stances of the parties.
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136. Therefore, it cannot be said that this contention is required to be considered for rejecting the Counterclaim filed by the Defendants.
137. Even generally, for both these counts, i.e., on the ground that some statements were made by the parties in other proceedings and showing of documents of other proceedings citing estoppel, etc., the Hon'ble Apex Court has clarified that the same cannot be looked in to at the stage of Order VII Rule 11.
138. In Keshav Sood v. Kirti Pradeep Sood, 2023 SCC Online SC 2459 had as follows:
4. After having heard the learned counsel appearing for the parties, we find that the plea of res judicata could not have been gone into on an application made by the appellant under Rule 11 of Order VII of CPC. Apart from pleadings in the earlier suit, several other documents which were relied upon by the appellant in his application under Rule 11 of Order VII of CPC were required to be gone into for deciding the issue of res judicata.
5. As far as scope of Rule 11 of Order VII of CPC is concerned, the law is well settled. The Court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. The defence of a defendant and documents relied upon by him cannot be looked into while deciding such application.
6. Hence, in our view, the issue of res judicata could not have been decided on an application under Rule 11 of Order VII of CPC. The reason is that the adjudication on the issue involves consideration of the pleadings in the earlier suit, Page 60 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined the judgment of the Trial Court and the judgment of the Appellate Courts. Therefore, we make it clear that neither the learned Single Judge nor the Division Bench at this stage could have decided the plea of res judicata raised by the appellant on merits.
139. Therefore, in facts of the present case, irrespective of whether or not Puniben has received the said property by way of consent terms, that shall not debar application of Section 15(2) of the Hindu Succession Act. Hence, it cannot be said straightaway without a trial, that there is no cause of action for the Defendants to file the present Counterclaim in view of the settlement terms.
Order VII Rule 11 (d) Limitation
140. The argument of limitation is two-fold. First, the Counterclaim is barred since it is filed in 2024. Second, the challenge to Will of 1981 is in any case barred.
Limitation under Order VII Rule 13
141. A major point of dispute between the parties has been the date from which the limitation starts running for filing of the latter Counterclaim. In other words, will it be in 2024 (when the latter Counterclaim was filed) or 2009 (when the former one was filed).
142. Before analyzing the present issue, it becomes imperative to consider Order VII Rule 13, which governs the field on the topic in question.
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13. Where rejection of plaint does not preclude presentation of fresh plaint.-- The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action.
143. Therefore, on a clear reading of the bare provision, it becomes clear that the Plaintiff (Defendant in the present case) is permitted to re-present a Plaint which has been rejected under Order VII Rule 11. This provision is naturally, in the opinion of this Court, introduced to ensure substantial justice between the parties. In case that a Plaint is rejected filing a fresh Plaint after curing the defects is explicitly permitted in law.
144. Hon'ble Apex Court in a guiding and brief judgment of Delhi Wakf Board v. Jagdish Kumar Narang, (1997) 10 SCC 192, held as follows:
3. The Plaintiff/appellant had filed a suit earlier which was rejected under Order VII Rule 11. That was in the year 1984. In the year 1986 he filed a fresh suit on the same cause of action. The second suit has been dismissed by the trial court as barred by the order rejecting the plaint in the earlier suit.
An appeal preferred against that order has been dismissed by the High Court. In our opinion the Courts below were not right in holding that the present suit is barred by virtue of the order rejecting the earlier suit.
4. Order VII Rule 13 reads as under:
...
5. In view of the said clear rule, we hold that the Page 62 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined present suit is not barred by the earlier order rejecting the plaint in the earlier suit. We express no opinion on any other question. The trial court may consider the expeditious disposal of the suit according to law. The appeal is allowed accordingly. No costs.
145. Therefore, there is no doubt regarding the permissibility of filing such a fresh Plaint in the eye of law. However, as far as limitation for the presentation of the fresh Plaint is concerned, the Hon'ble Apex Court in Indian Evangelical Lutheran Church Trust Association v. Sri Bala & Company, 2025 SCC OnLine SC 48 has recently held as follows:
"9.7 In the present case, the earlier suit was filed by the respondent/Plaintiff in July, 1993 on the basis of Article 54 referred to above and the plaint in the said suit was rejected on 12.01.1998. The second suit being O.S. No.49/2007 was filed on the strength of Order VII Rule 13 of the Code for the very same cause of action and for seeking the very same relief of specific performance of the agreement dated 26.04.1991 as the plaint in the earlier suit was rejected on 12.01.1998. Therefore, it cannot be said that the second suit namely O.S. No.49/2007 was filed as per Article 54 of the Limitation Act. Since this is a suit filed for the second time after the rejection of the plaint in the earlier suit, in our view, Article 54 of the Limitation Act does not apply to a second suit filed for seeking specific performance of a contract. Then, the question is, what is the limitation period for the filing of O.S. No.49/2007. We have to fall back on Article 113 of the Limitation Act.Page 63 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025
NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined 9.8 Under Article 113 of the Limitation Act, time commences to run when the right to sue accrues. This is in contradistinction to Article 54 of the Limitation Act relating to a suit for specific performance of a contract which is on the happening of an event. No doubt, the second suit which is the present suit filed by the respondent/Plaintiff is also for specific performance of the contract but the right to sue accrued to file the second suit is on the basis of Order VII Rule 13 of the Code subsequent to the rejection of the plaint in the earlier suit on 12.01.1998. Therefore, the right to sue by means of a fresh suit was only after 12.01.1998. The expression "when the right to sue accrues" in Article 113 of the Limitation Act need not always mean "when the right to sue first accrues". For the right to sue to accrue, the right sought to be vindicated in the suit should have already come into existence and there should be an infringement of it or at least a serious threat to infringe the same vide M.V.S. Manikyala Rao vs. M. Narasimhaswami, AIR 1966 SC 470. Thus, the right to sue under Article 113 of the Limitation Act accrues when there is an accrual of rights asserted in the suit and an unequivocal threat by the Defendant to infringe the right asserted by the Plaintiff in the suit. Thus, "right to sue" means the right to seek relief by means of legal procedure when the person suing has a substantive and exclusive right to the claim asserted by him and there is an invasion of it or a threat of invasion. When the right to sue accrues, depends, to a large extent on the facts and circumstances of a particular case keeping in view the relief sought. It Page 64 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined accrues only when a cause of action arises and for a cause of action to arise, it must be clear that the averments in the plaint, if found correct, should lead to a successful issue. The use of the phrase "right to sue" is synonymous with the phrase "cause of action" and would be in consonance when one uses the word "arises" or "accrues"
with it. In the instant case, the right to sue first occurred in the year 1993 as the respondent/Plaintiff had filed the first suit then, which is on the premise that it had a cause of action to do so. The said suit was filed within the period of limitation as per Article 54 of the Schedule to the Limitation Act.
9.9 Thus, generally speaking, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the Defendant against whom the suit is instituted. Article 113 of the Schedule to the Limitation Act provides for a suit to be instituted within three years from the date when the right to sue accrues and not on the happening of an event as stated in Article 54 of the Schedule to the Limitation Act."
146. Therefore, the Hon'ble Apex Court has categorically clarified that the applicable limitation in the case of a fresh Plaint being filed under Order VII Rule 13 is not the substantive limitation under Article 54 or other applicable Article of the Limitation Act but the procedural limitation under Article 113 of the Page 65 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined Limitation Act. In the present case therefore, the right to sue arose only on 24.9.2024.
147. This is also in view of the fact that the position of any Plaintiff (Defendant in the present case) cannot be made so disadvantageous by having to comply with the substantive limitation of the dispute. This is because, if for instance, an Application for rejection of Plaint has been filed later in the course of trial by which time the substantive limitation to file the suit has expired, filing of the fresh Plaint under Order VII Rule 13 is bound to be after the period of limitation of the substantive dispute expires. Reading of the provision in a such a manner would render the said provision otiose.
148. In any event of the matter, Hon'ble Apex Court has clarified that the fresh Plaint under Order VII Rule 13 can be filed within a period of 3 years (under Article 113 of the Limitation Act). This law as declared by the Hon'ble Apex Court governs the field.
149. Therefore, the contention of the Ld. Advocate for the Plaintiff that the presentation of the latter Counterclaim shall be barred by limitation is meritless and hence, rejected.
Re: Limitation of the Registered Will in challenge
150. The Plaintiff has also raised an argument before this Court that the Will of Mohanbhai was a registered one and hence, the Defendants would have deemed knowledge of the same. Hence, challenge to the said Will belatedly would debar the Page 66 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined same and hence, the present Counterclaim is required to be rejected.
151. However, it is pertinent to note that in the Counterclaim the Defendant has specifically pleaded that the Defendants acquired knowledge of the said document only in the year 2008 when the Defendant got the record from the revenue department. Hence, in such a situation, when specific knowledge date has been attributed and the same is not a vague averment, the doctrine of deemed knowledge of registered documents cannot apply.
152. Hon'ble Apex Court in the case of Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422 held as follows:
14. What is relevant for answering the matter in issue in the context of the application under Order 7 Rule 11(d) CPC, is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the Defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order 7 Rule 11(d). Only the averments in the plaint are germane. It is common ground that the registered sale deed is dated 18-10-1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellant- Plaintiffs is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers, original Defendants 1 and 2, in favour of Jaikrishnabhai Prabhudas Thakkar or Defendants 3 to 6. They acquired that knowledge on 26-12-
2012 and immediately took steps to obtain a Page 67 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original Defendants 1 and 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (½) portion of the land so designated towards their share. However, when they realised that the original Defendants 1 and 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the trial court opined that it was a triable issue and declined to accept the application filed by Respondent 1-Defendant 5 for rejection of the plaint under Order 7 Rule 11(d). That view commends to us.
153. Therefore, when there is an averment in the Counterclaim regarding the knowledge of the Will having been acquired in the year 2008, the Plaintiff cannot contend that the same is barred by law. Moreover, the same is a triable issue, which is required to be tried in accordance with law.
154. This can be viewed from one more angle. Deemed knowledge doctrine sprouts from Explanation to Section 3 of the Transfer of Property Act, 1882. The same is reproduced hereinunder:
Explanation I.--Where any transaction relating to immovable property is required by law to be Page 68 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, 2 [where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub- Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated]:
155. A bare perusal of the aforesaid would show that for invoking the said doctrine, it must pertain to (i) transaction of immovable property; (ii) such transaction is required by law to be effected by a registered document, etc. Therefore, in the present case, Will is neither a transaction pertaining to an immovable property and nor is the same required to be effected by a registered instrument. Therefore, this explanation or the deemed knowledge doctrine would have no application to the cases of a Will.
156. With respect to the fact that while considering the fact that will is registered in the year 1981, and the same having been challenged for the first time, by way of Civil Suit No.52 of 2009. The Ld. Advocate for the Defendant has relied on judgment Page 69 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined reported in 2015 SCC OnLine Del 14667 in the case of Raman Mahindra and Others v. Adarsh Bala Sud (A) Adarsh Kumari and Others, wherein the Court has considered that the exact question was that as the will was registered in the year 2001, the date of registration is to be presumed date of deemed knowledge, and consequently, it would argued that the suit having been filed in the year 2013, would be beyond the period of limitation, wherein at paragraph No.13, the Court has held as under:-
"13. Also, registered Will is not a public document and is not open for public inspection. In fact, from the Delhi Registration Rules referred to by Ld. counsel for Plaintiffs, it is apparent that copies of registered Wills are not furnished to the public at large. Consequently, in cases of challenge to the existence of the Wills, the actual date of knowledge of existence of Will or date of receipt of such Will, would be the starting point of limitation. Also at this stage, the question of limitation has to be read in the context of facts pleaded in the plaint with respect to knowledge of the Will in dispute. Therefore, in the present case, the knowledge of the Will cannot be held to be beyond limitation under the provisions of Order VII Rule 11 CPC at this stage."
157. Moreover, argued by the Ld. Sr. Advocate of the Defendant, under Section 51 of the Registration Act the "Will" falls in the heading "Book 3". Further, under Section 57 of the Registration Act, the copies of entries in Book 3 and index related thereto can only be given to the persons executing the documents to which such entries relate to or to their agents and Page 70 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined after the death of the testator. Therefore, also it cannot be said that just because the said Will was registered, it would amount to deemed knowledge in view of the fact that the Defendants have come forward with a case that they were aware of the said Will only in the year 2008.
158. Moreover, even when Maniben had filed an application in Civil Suit No.254 of 1963, vide Exhibit-187, the Defendant had not come forward with a case that the will had been executed. The fact remains that the Defendant in the Counterclaim has stated that the Defendant came to the knowledge of the said will only in the year 2008 and even when the Defendant was cross- examined, the Defendant in his cross-examination has also stated that the Defendant had get the knowledge about the will only in the year 2008 when the Defendant had gone to the suit property, therefore, even before the trial Court, the Defendant has stated that the Defendant aware of the will, till the year 2008.
159. Moreover, with respect to the Civil Suit No. 379 of 2005 (filed by class-II legal heirs of Mohanbhai Motibhai) it is argued that the mother of Defendant No. 1 had preferred an Application to be impleaded as party, wherein the will of Mohanbhai Motibhai has been challenged. Therefore, the mother of the Defendant was aware of the said Will in 2010.
160. With regard to the same, it is pertinent to note that the former Counterclaim was filed in the year 2009 challenging the said Page 71 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined Will, whereas the contention of the Plaintiff is that knowledge of the Will was attributable to the Plaintiffs at least in the year 2010. Therefore, in any case, the former Counterclaim was not barred by limitation. Further as noted above, even the latter Counterclaim does not suffer from the bar of limitation as the same is reckoned from rejection of the former one.
161. The Ld. Advocate for the Defendant has also relied on the judgment reported in Civil Revision Application No.338 of 2013 in the case of Kanubhai Savabhai Rabari v. Punjiben Alias Shataben Daughter of Parshotambhai & and Others, wherein the Court has held in paragraph No.8 as under
"8. The question of limitation would have to be judged on facts that may be brought on record during the course of trial that whether to such a fraudulent document, if so established, can period of limitation would apply, would itself be a question. Even if one go to apply the period of limitation as provided in the Limitation Act, the question would be, what would be the starting point of such limitation
- whether the date of registration of the document or the date of actual knowledge to the Plaintiffs in present state of facts would also be a relevant question. All these issues must be allowed to be tried. The principle of deemed knowledge of registered document to a existing owner cannot be applied mechanically. Both the details cited by the Ld. Counsel for the Petitioner came for consideration before this Court recently in Civil Revision Application No. 12 of 2015 decided on 26.6.2015, in which following observations were made by this Court:Page 72 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025
NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined "13. Upon perusal of the said portion of section 3 of the Transfer of Property Act, it can be seen that knowledge of a fact is attributed to a person either when he actually knows that fact, or when, but for wilful abstention from an inquiry or search, he ought to have made, or gross negligence, he would have known it. Explanation to the said clause interalia provides that where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part thereof, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration. This is subject to the conditions provided in provisios contained to the said explanation. Explanation thus refers to deemed notice and relates to the notice of instrument relating to a transaction of immovable property which is required by law and has also been so registered and such deemed knowledge is imputed to the person acquiring such property or any share or interest in such property.
Such provision therefore, cannot be applied in case of a subsequent sale of an immovable property to impute deemed knowledge of such transaction on the erstwhile purchaser/owner merely on the strength of section 3 of the Transfer of Property Act unless facts and attendant circumstances suggest that the person in question was reasonably expected to make search or inquiry which he failed to do, thus suggesting willful act, negligence or lack of due diligence i.e. prudence, expected of a reasonable man. Any such interpretation being quite contrary to the language used in the provision, would also put an unreasonable onus on a owner or a purchaser of an immovable property to be constantly vigilant and apprise himself of any subsequent registered transaction with respect to such immovable property or face unpleasant consequences of his Page 73 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined challenge to a totally invalid or even a fraudulent or a bogus sale deed being barred by law of limitation after the statutory period commencing from the date of registration on the principle of deemed knowledge. In plain terms said provision of section 3 of the Transfer of Property Act applies in case of a person acquiring an immovable property or a share or interest therein of a transaction which would be an existing and not a future transaction which by law is required and indeed been registered."
Judgments Cited by the parties
162. With respect to judgment relied on by the Ld. Advocate for the Plaintiff. More particularly, AIR 2022 SC 4724 in the case of C.S. Ramaswamy vs. V.K. Senthil and others will not be applicable to the present case in view of the fact that in the present case, the Defendant had specifically stated that he came to the knowledge of the execution of the will only in the month of October, 2008, and therefore, the said judgment will not be applicable to the facts of the present case. With respect to 2023 (3) GLR 1835 in the case of Haridas Atmaram Desani vs. Legal Heirs of Decd. Vishnudas Atmaram Desani Madhuram Vishnudas Desani & 4 Others, the said judgment deals with the fact of the registered deed would be considered as deemed knowledge, but as stated hereinabove, the fact remains that the Defendant has raised an issue that he came to the knowledge of execution of will only in the month of October, 2008, and more particularly, it is the case of the Defendant in the Counterclaim that the suit property came in the hands of Puniben by inheritance from her father and the Page 74 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined fact that Puniben and Mohanbhai Motibhai dies at that time they did not have any children and property shall devolve on the Defendants who are the legal heirs of Lallubhai Ratnabhai.
163. With respect to the judgments reported in 2021 SCC OnLine SC 764 and 2024 (0) AIJEL-HC 248747, 2020 (16) SCC 601, 2019 (2) GLH 559, 2016 (0) AIJEL-HC 236282 and First Appeal No.1916 of 2017, looking to the Counterlaim, it cannot be said that there is no cause of action raised in the present case in view of the fact that the Defendant has came forward with a case that the suit property was received by Puniben by inheritance from her father Lallubhai Ratnabhai and even if the consent terms were filed and other suit property came in the hands of Puniben and mother Chanchalben, the fact remains that there are orders passed by the Court whereby other than the suit properties that were received by Puniben by way of compromise, came in the hands of Bachiben i.e. the mother of Defendants No.1 & 2 by way of order of the Court in Civil Suit No.254 of 1963 and also by revenue record and even in the revenue record, the name of mother of the Defendant No.1 & 2 and thereafter, the Defendant is mutated in the revenue record, and therefore, it cannot be said that the Defendant do not have any cause of action to file the suit.
164. Moreover, as stated hereinabove the judgments pertaining to registered deed would constitute deemed knowledge and clever drafting cannot circumvent such fact, the said judgments stated above Will not be applicable to the facts of Page 75 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined the present case. In view of the fact that the very fact that the Defendant in the Counterclaim stated that the Defendant was not aware of the execution of the will till the year 2008 and the fact that Mohanbhai Motibhai did not have any right to execute the will and bequeath the property in favour of the Plaintiff, the said issue will have to be decided by the trial Court while disposing the suit, the same cannot be said to be a deemed knowledge though the will is registered, the same cannot be a deemed knowledge of a registered deed. More particularly, the will executed by Mohanbhai Motibhai
165. Moreover, as noted above, the doctrine of deemed knowledge shall not be applicable in the case of a Will.
166. With respect to the judgment reported in First Appeal No.2 of 2025, dated 19.09.2017 (Chanchalben Ishwarbhai Vasava Vs. Decd. Ambalal Ishwarbhai Vasava Through Lhrs. & Ors.), it is the case of the Plaintiff that the Defendant has suppressed the fact of disposal of Civil Suit No. 379 of 2005 and the fact the Defendant's application to be impleaded as party is pending. The Plaintiff further states that there was suppression in the latter Counterclaim inasmuch as that the said application by the mother of Defendant in Civil Suit No.379 of 2005 was already allowed and the said suit was dismissed for default. This fact has been suppressed.
167. However, the fact remains that while filing Exhibit 311 also the applicant had stated the same fact as stated at Exh.52 and the same has been noted in the fresh Counterclaim.
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168. Therefore, it cannot be said that there was suppression of any kind. If the entire record is considered it comes on record that the Plaintiff himself has produced copy of the said dismissal of Civil Suit No.379 of 2005, before the fresh Counterclaim was filed, vide Exhibit-304, therefore a mere statement that the said Application is pending and the suit is pending which has been taken from the earlier Counterclaim, will not be a ground that the Defendant has suppressed facts from the Court and that it cannot be a ground for rejection under the provision of Order VII Rule 11 of the Code of Civil Procedure.
169. In any case, the suppression which has been stated by the Plaintiff, is not of such magnitude or gravity that affects the present cause of action which has been laid out by the Defendant in the counterclaim. Therefore, in absence of such an effect on the Counterclaim directly, it cannot be said that a power under Order VII Rule 11 can be exercised for the purposes of rejecting the same at the threshold.
170. Moreover, it has been argued by Ld. Advocate for the Plaintiff that in Civil Suit No.379 of 2005, the Defendant has supported the plea of the original Plaintiffs of Civil Suit No.379 of 2005 that the property that has been received by Puniben was owned by Puniben under the Tenancy Act, but if the entire record of proceedings are taken into consideration the fact remains that the suit property has been received by Puniben by way of consent terms filed in Civil Suit No.254 of 1963 therefore, the fact that the suit property belonged to Lallubhai, Page 77 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined and thereafter, in the hands of Puniben by way of inheritance by way of consent terms has never been challenged by Puniben during her life time, and therefore, the said fact is also matter of trial and the same cannot be ground under which the application Order VII Rule 11 of the Code of Civil Procedure can be allowed.
171. With respect to judgment relied on by Ld. Advocate for the Plaintiff in 2012 7 SCC 738 in the case of A. Nawab John v. V.N. Subramaniyam, the honourable apex Court explains that Order VII rule 13 will have to comply with the provisions of the Limitation Act and fall within the same. However, in the present case as explained above, the Counterclaim has fallen within the prescribed period of limitation of three years as laid down by the honourable apex Court later in the year 2025.
172. Ld. Advocate for the Defendant has also relied on judgment reported in (1977) 4 SCC 467 in the case of T. Arivandandam v. T.V. Satyapal and Another, more particularly, paragraph No.5, and has argued that while taking into consideration the provision of Order VII Rule 11 of the Code of Civil Procedure, the Court will have to take care to see that the grounds mentioned therein are fulfilled and in the present case, the defendant has stated the cause of action to file present Counterclaim and, therefore, the Court has rightly rejected the application under the provisions of Order VII Rule 11 of the Code of Civil Procedure in view of the fact that the Defendant has specifically stated the cause of action, and therefore, the Page 78 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined Court has rightly rejected the application under the provision of Order VII Rule 11 of the Code of Civil Procedure.
173. With respect to the fact that the Court cannot consider the pleading that has been filed in Civil Suit No.379 of 2005, Ld. Advocate for the Defendant has relied on the judgment reported in 2008 (105) DRJ 211 in the case of Suresh Kakkar and Another v. Mahender Nath Kakkar and Others. The said judgment would be applicable to the facts of the present case in view of the fact that the Court had held that the pleading in the previous suit were filed by way of evidence by the Defendant and the Court cannot consider the plea which is traveling beyond the averments made in the Counterclaim and the court can only look at the averments made in the Counterclaim and not travel to other documents which are not forming part of the Counterclaim and the documents annexed to the Counterclaim.
174. In any case, it cannot be said that even a single prayer of the Petitioner is not maintainable and liable to be rejected at the threshold. Therefore, in any case, there can be no part rejection of Plaint and the suit as a whole must then proceed to trial [Geeta v. Nanjundaswamy, 2023 SCC Online SC 1407] CONCLUSION
175. In conclusion, the following appears clearly:
i. The Plaintiff is alleging non-disclosure of cause of Page 79 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined action on the ground that the Defendants do not have any right in the suit property in view of earlier settlement. This cannot be looked into at this stage especially in view of Section 15(2) of the Hindu Succession Act. Applicability of the provision to the facts of the present case, etc. is a matter of trial which shall have to be adjudicated at the relevant stage.
ii. Even for the allegations regarding other contradictions, statements, etc. made before the other Authorities and in previous suits, the same cannot be looked into at the present stage of Order VII Rule
11. The Court must confine itself to the Counterclaim and documents therewith. Hence, it cannot be said to have barred filing of the Counterclaim.
iii. As regards limitation of the latter Counterclaim under Order VII Rule 13, the Hon'ble Apex Court has clarified that the same shall be 3 years from the date of rejection of the former Plaint. Therefore, the latter Counterclaim is filed within limitation.
iv. Re limitation of the registered Will, it cannot be said that the Defendants have any deemed knowledge of the said Document. In any case, the Defendants have specifically pleaded that they attained knowledge of the same only in 2009. Therefore, it cannot be said that the challenge to the Will is barred by limitation in the present case.
Page 80 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined v. In any case, the doctrine of deemed knowledge as applicable to documents of conveyance, etc. under explanation to Section 3 of the Transfer of Property Act, 1882 is not applicable to cases of registered Will. This ofcourse, is subject to knowledge of the Plaintiff being shown from the record or illusory cause of action being pleaded.
vi. Entire challenge to the Counterclaim at the present stage is on factual counts. These are all questions which are triable and must be decided during the trial. Therefore, the same cannot done at the present stage under Order VII Rule 11.
vii. Even otherwise, even if one prayer of the Defendant is maintainable, there can be no part rejection of the Counterclaim and the same as a whole must go to trial. Therefore also, the present Application deserves to be dismissed.
176. For the foregoing reasons, this Court opines that the impugned Order does not warrant any interference and hence, the present Civil Revision Application is dismissed. Rule is discharged.
177. However, in view of the history of the present dispute and the fact that while dismissing the Revision Application previously, the Coordinate Bench of this Court by an Order dated 05.05.2023 had directed the trial Court to hear the proceedings of the suit as expeditiously as possible on or before Page 81 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025 NEUTRAL CITATION C/CRA/62/2025 CAV JUDGMENT DATED: 06/10/2025 undefined 31.03.2024. Thereafter by an Order dated 16.12.2024, as a last chance, time was extended for further period of five months i.e., on or before 31.05.2025.
178. In view of the said fact, trial Court to hear the proceedings of the suit as expeditiously as possible on or before 31.12.2025.
(SANJEEV J.THAKER,J)
179. After the order was pronounced, learned advocate for the petitioner has sought for stay of the order, however, in view of the fact that the suit is of the year 2009 and the same was earlier expedited by the coordinate Bench vide order dated 05.05.2023 and 16.12.2024, the request made by the learned advocate for the petitioner is rejected.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 82 of 82 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:10:55 IST 2025