Gujarat High Court
Purnasinh D/O Rudradattsinh ... vs Heirs Of Decd. Jayshivsinh ... on 11 June, 2025
NEUTRAL CITATION
C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025
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Reserved On : 08.05.2025
Pronounced On : 11/06/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 780 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/FIRST APPEAL NO. 780 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
✔
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PURNASINH D/O RUDRADATTSINH JAYVANTSINH VAGHELA
Versus
HEIRS OF DECD. JAYSHIVSINH RUDRADATTSINH VAGHELA @ TIKA & ORS.
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Appearance:
MR. MEHUL SURESH SHAH, SENIOR ADVOCATE FOR JENIL M SHAH(7840)
for the Appellant(s) No. 1
MR DHRUV R MAKWANA(11745) for the Defendant(s) No. 1,1.1,1.2,1.3
MR. MIHIR THAKORE,SENIOR ADVOCATE WITH MR VIMAL A
PUROHIT(5049) for the Defendant(s) No. 1,1.1,1.2,1.3
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
CAV JUDGMENT
[1.] Heard learned senior advocate Mr. Mehul Suresh Shah, who has appeared with Mr. Jenil M. Shah, learned advocate on record for the appellant, and learned senior advocate Mr. Mihir Thakore, who has appeared with Mr. Vimal A. Purohit, Mr. Abhishek Sharma and Mr. Dhruv R. Makwana, learned advocates on record for the original Page 1 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined defendants/present respondent nos. 1.1,1.2 and 1.3, on caveat. [2.] With consent of learned advocates for the respective parties, since the matter was heard extensively at the admission stage, the matter was agreed to be decided at the admission stage. Hence, Admit. Issue rule returnable forthwith, learned advocates on caveat waives service of rule for and on behalf of respondents on caveat. [3.] At the outset, learned senior advocate appearing for the appellant has placed on record the paper book of the relevant documents forming part of the record. The same is permitted to be taken upon record.
[4.] The present appeal is filed under Section 96 of Code of Civil Procedure, 1908 (in brief, "the Code, 1908") at the instance of the original plaintiff, challenging the judgment and order dated 03.02.2025 passed by the learned 2 nd Senior Civil Judge, Sanand below Exh.40 in Special Civil Suit No.65 of 2018 (old Special Civil Suit No.439 of 2016) (for short, "the impugned judgment and order"). [4.1] By the said impugned judgment and order, the learned Judge has allowed the application preferred at Exh.40 under Order VII Page 2 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined Rule 11 of the Code, 1908, filed by the original defendant nos.1.1 to 1.3 seeking rejection of the plaint, under Order VII Rule 11(a)(d) of the Code, 1908. Consequently, leading to dismissal of the aforesaid suit being Special Civil Suit No.65 of 2018 (old Special Civil Suit No.439 of 2016).
[5.] In brief, facts as can be summarized from the pleadings of the plaint, are reproduced hereunder:
[5.1] The original plaintiff claims to be the legal heir of deceased-Rudradattsinh Jayvantsinh Vaghela being her father. According to the plaintiff, Rudradattsinh Jayvantsinh Vaghela was the Maharaja (Thakore Sahab) of Sanand State, and had various movable and immovable properties situated in the village of Sanand as well as in the adjoining villages. The plaintiff has placed reliance upon the Pedhinama. She has further averred in the plaint that the said Rudradattsinh Jayvantsinh Vaghela had expired on 02.01.2001, and thereafter, she came across the fact that behind her knowledge, the deceased father had executed a registered WILL in favour of her brother defendant no.1-Jayshivsinh Rudradattsinh Vaghela. The aforesaid WILL was registered vide Registration No.1536 on 19.09.1991 before the Office of Sub-Registrar, Sanand. She has further Page 3 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined pleaded that her deceased father Rudradattsinh Jayvantsinh Vaghela had inherited the aforesaid properties from his ancestors, and therefore, the said properties belong to Hindu undivided family, and the father during his lifetime was administering the aforesaid properties in his capacity as Karta of Hindu undivided family. Despite aforesaid facts, the defendant on the basis of registered WILL, had mutated such properties exclusively in his name. She has further pleaded that being heir of the deceased Rudradattsinh Jayvantsinh Vaghela, she was equally entitled to share in the aforesaid property of Hindu undivided family. By virtue of Section 6 of the Hindu Succession (Amendment) Act, 2005, as a coparcener, she claims to have share in the aforesaid properties [5.2] It is further pleaded that her marriage had taken place on 03.12.1992, and since then, she had moved to the house of her husband. Out of the aforesaid marriage, two children were born.
However, subsequently, due to the incompatibility with her husband, she had willingly left her husband since 2007 which was followed by divorce. Since then, she has been living alone. However, because of financial difficulties and being unable to maintain herself and despite aforesaid circumstances being known to the defendant brother, having failed to take care of her, the plaintiff had approached the Page 4 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined defendant to seek help; however, the defendant had not maintained family relations.
[5.3] By referring to the aforesaid circumstances, the plaintiff has further pleaded that the defendant had failed to abide by the last wishes expressed by her father in the aforesaid WILL. Hence, according to her, the WILL has not been operated till date and only for the purpose of transferring the properties in the exclusive name, the defendant has started to claim ownership rights over the suit properties.
[5.4] The reference is also made to the transaction fraudulently done by the defendant in respect of one agricultural land bearing Block No./Survey No.1642, Paiki-1 of Moje Sanand, which otherwise belonged to the grandmother- Devkuvarba Jayvantsinh, who had died in the year-1964. Despite aforesaid facts, the defendant, who in fact, was born in the year-1966, had created a forge power of attorney in the name of defendant no.1 himself, and by using such power of attorney, the transactions in respect of aforesaid lands, have been entered upon. She has, therefore, contended that the cause of action has arisen for her to approach the Civil Court, when the defendant had refused her rightful share in the ancestral properties. Page 5 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025
NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined [5.5] She has further contended that the properties derived by the deceased father retains the character of properties of Hindu undivided family and were not his self acquired properties, and therefore, also the deceased father had no authority to execute such WILL in respect of ancestral property. The aforesaid fact is an undisputed fact, as can be born out from the recitals of the WILL. She has, therefore, contended that prima facie, the WILL is false, illegal, and is therefore, required to be cancelled. [5.6] Despite the aforesaid WILL being false, the defendant had misused such documents to administer the suit properties. In absence of any compliance of the recitals of the WILL, the same has not been operated and implemented in full force till date. The very fact that the defendant has acted against the recitals of the WILL, suggests that the defendant has affected the entitlement of the share of the plaintiff in the ancestral properties.
[5.7] By making aforesaid pleadings, the plaintiff has pleaded the cause of action by contending that the WILL of deceased father Rudradattsinh Jayvantsinh Vaghela was registered before the Office of Sub-Registrar, Sanand vide Registration No.1536 on 19.09.1991 and by virtue of the aforesaid registered WILL, the defendant had Page 6 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined attempted to usurp the right of the plaintiff in respect of the ancestral properties, and had attempted to transfer the aforesaid properties illegally, despite the fact that the the plaintiff was equally entitled to share in the ancestral properties. After the divorce from her husband in the year-2007 and the defendant being the real brother, who had been negligent in taking care of her, and since the plaintiff had started living alone and when the defendant had acted dehors the right of the plaintiff in the ancestral properties and when, she acquired knowledge from her relatives and on further inquiry, when she came across the certified copy of the WILL, and having derived the knowledge about such existence of the WILL and its implementation at the instance of the defendant affecting her rights in the ancestral properties, and when in absence of any source of income, when she was left without any source of livelihood and when the defendant had refused to give her share in the ancestral properties, and had used abusive words and recently, when she came across the fact about the defendant's attempts to enter into the transactions in respect of few properties, in order to protect her right and interest in the suit properties, the cause of action has arisen to approach the competent Civil Court.
[5.8] By highlighting the aforesaid cause of action, the plaintiff Page 7 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined has prayed for following reliefs:
"(A) To declare the Will executed by deceased father Rudradattsinh Jayvantsinh Vaghela in favour of the defendant, registered with the Office of Sub-
Registrar vide Registration No.1536 on 19.09.1991, right from its inspection as voidable and illegal, and therefore, to be treated as cancelled.
(B) To declare that the plaintiff is equally entitled to share in respect of all movable and immovable properties of her deceased father Rudradattsinh Jayvantsinh Vaghela as well as in respect of the properties mentioned in the registered Will dated 19.09.1991 executed by her deceased father and to draw partition decree in favour of the plaintiff. (C) To injunct the defendant and his agent, servants, officers, attorneys and others not to alienate the transfer in any manner or to create any charge in any manner over the suit properties or to enter into any agreement in respect of the suit properties."
[6.] By making the aforesaid pleadings, the suit was presented before the Court of learned 2nd Additional Senior Civil Judge, Sanand on 12.05.2016. The aforesaid suit was initially registered as Special Civil Suit No.439 of 2016. Considering the aforesaid pleadings, vide order dated 08.09.2016, the preliminary hearing of the suit was fixed, Page 8 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined noticing the fact that all members of the Hindu undivided family were not made parties to the proceedings, more particularly, when the relief of partition was sought for. The appropriate application in this regard was moved before the learned Judge. Pending the aforesaid suit, the defendant being duly served with the court's summons, had appeared before the learned Judge through his advocate. However, the original defendant having expired, pending the trial, the defendant nos.1.1 to 1.3- present respondents being the heirs and legal representatives of the deceased defendant no.1-Jayshivsinh Rudradattsinh Vaghela, were permitted to be brought on record as his heirs and legal representatives. The heirs and legal representatives of the deceased defendant no.1 had moved application at Exh.40 under Order VII Rule 11(a)(d) of the Code, 1908, on the ground that the plaint does not disclose any cause of action and is barred by law of limitation.
[7.] The learned Judge, upon hearing the respective parties, by impugned judgment and order, has allowed the aforesaid application preferred by the defendant nos.1.1 to 1.3 thereby rejecting the plaint under Order VII Rule 11(a)(d) of the Code, 1908. Hence, the present appeal at the instance of the original plaintiff. Page 9 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025
NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined SUBMISSIONS ON BEHALF OF THE APPELLANT :
[8.] Learned senior advocate Mr. Mehul Suresh Shah appearing with Mr. Jenil M. Shah, learned advocate on record for the appellant, at the outset, has referred to the pleadings of the plaint and has highlighted the prayers sought for. According to him, the suit is filed challenging the genuineness of the registered WILL on the ground that the WILL has been executed without the authority in as much as the properties, which were intended to be bequeathed upon the original defendant no.1 was in respect of the ancestral property. While inviting my attention to the pleadings made in the plaint, learned senior advocate Mr. Shah has submitted that the plaintiff has clearly pleaded her case by contending that the suit properties were ancestral properties and the deceased father Rudradattsinh Jayvantsinh Vaghela had derived such property as the Karta of Hindu undivided family, and was therefore, not self acquired properties of the deceased Rudradattsinh Jayvantsinh Vaghela. It was further submitted that the WILL has not been acted upon in its entirety as the defendant no.1 has taken benefit of the WILL only for the purpose of transferring the properties by mutating it on the basis of WILL exclusively in his name, whereas the bare reading of the recitals of the WILL suggest that he was required to adhere to the wishes of the deceased father.
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NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined [8.1] Learned senior advocate Mr. Shah has further invited my attention to the contents of the application preferred under Order VII Rule 11 of the Code, 1908, wherein the defendants have projected their defense by highlighting that the plaintiff had derived the knowledge about the existence of WILL, immediately after the death of the father, whereas in the plaint, it is mentioned that after the death of the father, the knowledge was gathered about the WILL. He has, therefore, submitted that the learned Judge, while entertaining the application preferred by the defendant under Order VII Rule 11 of the Code, 1908, had miserably failed to appreciate the settled legal position that at the stage of Order VII Rule 11, the courts are strictly required to confine to the pleadings of the plaint. According to learned senior advocate Mr. Shah, sufficient explanation has been offered by the plaintiff with regard to the fact, under what circumstances, knowledge of the existence of the WILL was derived by her, which gave cause of action to approach the competent court. Learned senior advocate Mr. Shah has further submitted that aforesaid misreading of the pleadings of the plaint has been dealt with by the plaintiff by filing suitable reply to such application preferred under Order VII Rule 11 of the Code, 1908. Despite this, the learned Judge has failed to take into consideration the case of the plaintiff in its true perspective. Referring to the reply given to such Page 11 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined application, learned senior advocate Mr. Shah has pointed out that WILL was in fact never operated during the aforesaid period by the legatee. In such circumstances, as regards the cause of action pleaded by the plaintiff, the learned Judge ought to have given an opportunity to prove the material facts as mentioned in the plaint by permitting her to lead evidence at the stage of trial. According to him, sufficient material facts have been pleaded to demonstrate the cause of action and the suit being filed within the prescribed period of limitation. [8.2] Inviting my attention to the findings and reasons assigned by the learned Judge, learned senior advocate Mr. Shah has pointed out that the Trial Court has noticed that the right to sue accrued in the year-2001 i.e. when the father of the plaintiff expired, whereas the suit has been filed only in the year-2016, almost after a period of 15 years. Learned senior advocate Mr. Shah has further pointed out that the learned Judge has committed serious error in applying the provisions of Article 65 of the Limitation Act, in the facts of the case. While referring to the aforesaid provision, learned senior advocate had submitted that present suit was not filed based on title or claiming possession on the ground of adverse possession. According to him, the prayer, which was sought for, was seeking cancellation of the registered WILL, and therefore, Article 59 of the Limitation Act Page 12 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined would be applicable whereby starting point of limitation relates to not the date of registered document or the execution of Will, but from the date of knowledge about the WILL derived. He has further submitted that as regards the prayer for partition sought for, according to him, there is no period of limitation prescribed in a suit seeking partition. At the most, even if the provisions of Article 110 of the Limitation Act are to be applied then also the starting point of limitation would be when the plaintiff was excluded from seeking share in the property. By making aforesaid submissions, learned senior advocate Mr. Shah has submitted that in both the situations, the emphasis would be on the date of deriving the knowledge. In such circumstances, the date of knowledge would be required to be tested from the ascertainment of the question of facts, which according to him, would be a subject matter of evidence.
[8.3] As regards the findings and the reasons assigned by the learned Judge about the registered WILL and the doctrine of deemed knowledge being made applicable, learned senior advocate Mr. Shah has submitted that the concept of deemed knowledge is embodied in Section 3 of the Transfer of Property Act. The word "deem" itself suggests that the law permits the Courts to raise presumption, which according to him, can always be displaced by leading evidence. He has, Page 13 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined therefore, submitted that it cannot be a subject matter, to be examined at the stage of Order VII Rule 11 of the Code, 1908. Even otherwise, according to him, it does not operate in the facts of the case, as according to him, the plaintiff cannot be presumed to have track of the properties of the father after his death. Such doctrine can only be made applicable in the cases where a purchaser of property before proceeding with sale deed is under obligation to inquire into the title of property. He has, therefore, submitted that the issue of limitation is a mixed question of facts and law, in the facts of the present case. At the most, the Court could have called upon the plaintiff to lead the evidence by framing the issue of limitation as a preliminary issue.
[8.4] As regards the suit being not entertained on the ground of no cause of action, learned senior advocate Mr. Shah has submitted that the learned Judge committed serious error in misconstruing the provisions of Section 6 of Hindu Succession Act, in the facts of the case. Learned senior advocate Mr. Shah has pointed out the prayer clause and has submitted that the learned Judge failed to appreciate the fact that the registered WILL itself was challenged and in case, if the plaintiff was able to demonstrate by leading cogent material and the court having arrived at a conclusion that the father had no Page 14 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined authority to execute the WILL in respect of ancestral properties and the WILL being not operated and implemented qua the share of the plaintiff, there was no disposition of the right and interest of the plaintiff in the ancestral properties, and therefore, invoking the provisions of Section 6 of the Hindu Succession (Amendment) Act, 2005, was attracted. Learned senior advocate Mr. Shah has, therefore, submitted that it was too premature for the learned Judge to entertain the plea of the suit being not maintainable on the ground of no cause of action at this stage of Order VII Rule 11 of the Code, 1908, by holding that the properties stood disposed by virtue of the registered WILL executed by the deceased father prior to the Hindu Succession (Amendment) Act, 2005, which was made applicable with effect from 20.12.2004. Learned senior advocate Mr. Shah has, therefore, submitted that once the WILL was challenged and the plaintiff had exclusively demonstrated before the Court of her status as coparcener and the property being not disposed prior to Amendment Act, 2005, she was entitled to the relief of partition as a natural corollary. He had, therefore, submitted that there was no germane reason to dismiss the suit at threshold on the ground of no cause of action by invoking the provisions of Order VII Rule 11 (a) of the Code, 1908.
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NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined [8.5] Learned senior advocate Mr. Shah has further pointed out that in fact, multiple reliefs have been prayed for by the plaintiff, inasmuch as, apart from seeking cancellation of the WILL, the declaration has been sought for of having right, interest and share in other ancestral properties of deceased Rudradattsinh Jayvantsinh Vaghela followed by relief of partition in all such properties as well as praying for injunction against the defendant from transferring the aforesaid properties in any manner. In such circumstances, if the suit is found maintainable even in respect of one part of the prayer sought for, the entire plaint could not have been rejected at the threshold under Order VII Rule 11 of the Code, 1908.
[8.6] In support of his submissions, learned senior advocate Mr. Shah has placed reliance upon the following authorities of the Hon'ble Supreme Court and of this Court in cases of:
(I) Rohit Chauhan vs. Surinder Singh & Ors.
reported in 2013 (9) SCC 419; (Para 11)
(II) Vallimmai Achi vs. Nagappa Chettiar and
Another reported in 1967 SCC Online SC 32 (Para 10);
(III) V. Kalyanaswamy (D) By Lrs. Vs. L. Bakthavatsalam (D) By Lrs. reported in 2020 (9) Scale Page 16 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 367 (Paras 103 to 108);
(IV) Kantibhai Ishwarbhai Patel Through His Heirs and Legal Representatives vs. Chandrakant Ishwarbhai Patel reported in 2006 (1) G.L.H. 171, (V) Vineeta Sharma vs. Rakesh Sharma and Others reported in (2020) 9 SCC 1;
(VI) Arshnoor Singh vs. Harpal Kaur and Others reported in (2020) 14 SCC 436 (Para 6 to 9);
(VII) Sri Biswanath Banik vs. Sulanga Bose reported in 2022 (7) SCC 731 (Para 7.1);
(VIII) Gujarat Maritime Board vs. Jogadia Polymers Pvt. Limited reported in (2018) 3 GLH 571 (para 20);
(IX) Geetha, D/o Late Krishna & Ors.
Nanjundaswamy & Ors. reported in 2023 (0) AIR (SC) 5516 (paras 7 to 10, 11 to 13);
(X) Daliben Valjibhai vs. Prajapati Kodarbhai Kachrabhai reported in 2024(0) INSC 1049;
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NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined (XI) Vidya Devi Alias Vidya Vati vs. Prem Prakash reported in 1995 (4) SCC 496 (Para 17);
(XII) P. Kumarakurubaran vs P. Narayanan and Others (Neutral Citation: 2025 INSC 598);
(XIII) Daya Singh & Anr vs Gurdev Singh(Dead) By Lrs. & Ors reported in 2010 (2) SCC 194,( Para 14); (XIV) Bardoli Shreerang Exhibitors Private Limited vs. Maheshbhai Babubhai Hirpara reported in 2022 (2) GLR 1061; (Para 41);
(XV) State Of Orissa vs Klockner And Company & Ors reported in 1996 (8) SCC 377 (para 24);
(XVI) Chotanben vs Kiritbhai Jalkrushnabhai Thakkar reported in 2018 (6) SCC 422 (para nos. 11, 12 and 16);
(XVII) Govindammal vs R.Perumal Chettiar & Ors reported in 2006 (11) SCC 600; and (XVIII) Shyam Narayan Prasad Vs Krishna Prasad reported in 2018 (7) SCC 646.
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NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined [8.7] By making the aforesaid submissions, Learned senior advocate has urged this Court to quash and set aside the impugned judgment and order, and has further prayed to restore the suit to its original file.
SUBMISSIONS ON BEHALF OF RESPONDENTS :
[9.] Per contra, learned senior advocate Mr. Mihir Thakore appearing with Mr. Vimal A. Purohit and Mr. Abhishek Sharma, learned advocates on record for the respondents/ original defendant nos. 1.1,1.2 and 1.3 on caveat, has vehemently objected to the aforesaid submissions made on behalf of the appellant. At the outset, learned senior advocate has invited my attention to the prayer sought for in the plaint, and has submitted that reading of Prayer Clause -A suggests that it includes two fold prayers. According to him, the first part of the Prayer Clause-A suggest that declaration of shares in all the ancestral properties of deceased- Rudradattsinh Jayvantsinh Vaghela has been sought for, whereas the second part of Prayer Clause-A is confined to in respect of the properties referred in the WILL. It was further submitted that the first part of the Prayer Clause -
A can be entertained only if the plaintiff demonstrates that she derives her right in the said properties as a member of HUF. In Page 19 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined contradiction, learned senior advocate has further pointed out the pleadings of the plaint, wherein she claimed her right as heir of the deceased - Rudradattsinh Jayvantsinh Vaghela. In such circumstances, according to learned senior advocate Mr. Thakore, the entitlement of share in the property shall arise only after the death of Rudradattsinh Jayvantsinh Vaghela. He has emphasized on the fact that the deceased Rudradattsinh Jayvantsinh Vaghela was the ruler of erstwhile State of Sanand, and mode of succession would require a different approach. He has further submitted that her claim in the property of Rudradattsinh Jayvantsinh Vaghela is based on Pedhinama, and therefore, according to him, the case of the plaintiff was based on being heir of deceased Rudradattsinh Jayvantsinh Vaghela and not as coparcener having derived right during his lifetime. [9.1] Learned senior advocate Mr. Thakore has further submitted that reading pleadings of the plaint, it is specifically averred that after the death of her father, she derived knowledge of the WILL. However, she has chosen to remain silent on the date on which she derived such knowledge. He has, therefore, submitted that in absence of any absence of any averment with regard to the date on which she had derived the knowledge about the WILL, a vague pleading about knowledge has been made by the plaintiff. Her silence on the Page 20 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined aforesaid aspect has rightly been treated as fatal by the learned Judge as the death of the father had taken place in the year-2001, whereas the suit has been filed in the year-2016. Even otherwise, one would inquire into the status of the properties, even after the Amendment Act, 2005, whereby by virtue of Section 6 of the amended Act, the daughters were equally treated as coparceners. Despite the aforesaid provisions of law introduced in the year-2005, the plaintiff has chosen to remain silent from year-2005 till year-2016 in absence of any claim being raised. According to learned senior advocate, the close reading of the pleadings suggest that there is no challenge to the WILL at all. The only grievance which is voiced in the pleadings, is that the property as mentioned in the WILL is not administered as per the WILL. There is no challenge of the WILL on the ground of being fraudulently created by the defendant. Even bare reading of the prayer-clause, it cannot be said that the plaintiff has challenged the WILL. Merely because the pleading is made about doubt being created about the way in which WILL has been operated and implemented, could not be a germane to seek prayer for cancellation of the WILL. On the contrary, the WILL is a registered document, and therefore, a deemed knowledge can be attributed to the plaintiff of be ing aware about the existence of WILL. He has, therefore, submitted that no error can be found with the findings and reasons assigned by the Page 21 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined learned Judge by holding the suit preferred by the present appellant- original plaintiff beyond the prescribed period of limitation. [9.2] Learned senior advocate had, however, fairly pointed out that the provisions of Article 65 of the Limitation Act would not be applicable in the facts of the case, as relied upon by the learned Judge, while passing the impugned order. According to him, WILL is not an instrument in fact, as it is not entered upon between the parties and it comes into force only after the death of the executor. According to learned senior advocate Mr. Thakore, the suit would be clearly barred by the provisions of Article 113 of the Limitation Act, which prescribes a limitation period of 3 years from the date when the right to sue first accrues. He has further submitted that indisputably the suit was instituted on 08.09.2016, which is more than 25 years from the date of execution of registered WILL dated 19.09.1991 and more than 15 years after the testator's death on 02.01.2001. [9.3] Learned senior advocate has placed heavy reliance upon the judgment of the Hon'ble Supreme Court in the case of Rajeev Gupta & Ors. Vs. Prashant Garg & Ors. reported in 2020 5 SCC OnLine 889 (Neutral Citation: 2025 INSC 552). While referring to the relevant observations as recorded in paras 17 to 21, learned senior Page 22 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined advocate has submitted that where a composite suit had been filed for cancellation, the limitation period is required to be considered with respect to the substantive relief. In the present case, it would be Prayer- Clause A, which would be three years from the date of knowledge of the right to sue first accrued. He has, therefore, submitted that irrespective of the fact that no period of limitation would arise for consideration in case of the relief of partition, which according to him, is a consequential relief, the suit has rightly not been entertained on the ground of limitation.
[9.4] Referring to the pleadings made in Paragraph 3 of the plaint, learned senior advocate has submitted that it is clearly born out that the appellant explicitly acknowledges the fact of acquiring knowledge of WILL after her father's death on 02.01.2001. The appellant has deliberately omitted specifying any exact date or month about her alleged knowledge. He has, therefore, submitted that by intentionally making vague statements, the attempt is made to bring the suit within the prescribed period of limitation. In such a situation, as per settled legal position, the Courts are under obligation to deal with such situations, by taking note of the fact that the WILL is a registered document and the appellant is presumed to have constructive notice thereof about the date of execution of the WILL, Page 23 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined which came into force upon the death of her father in the year-2001. In this regard, learned senior advocate have placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Smt. Dilboo (Dead) By Lrs. & Ors vs Smt. Dhanraji (Dead) And Ors. reported in 2000 (7) SCC 702, (paragraph no.20) and of this Court in the case of Becharbhai Zaveribhai Patel vs. Jashbhai Shivabhai Patel and Ors. reported in 2013 (1) GLR 398 (Para 6.2), wherein this Court has followed the aforesaid decision of Hon'ble Supreme Court, which laid down that whenever a document is registered, the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by claiming that he had no knowledge.
[9.5] Learned senior advocate has further demonstrated that the pleadings of the plaint are vague and frivolous, as the plaintiff has failed to specify in what manner the alleged fraud was committed or resorted to. By merely raising a suspicion on the manner in which the Will has been implemented to the limited extent, cannot be a germane or meet with the allegations of fraud. He has further pointed out that in the entire plant, the plaintiff has not clearly in Page 24 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined detail specified any dates, events, persons involved and precisely circumstances, and therefore, without any specific pleadings merely by alleging a word of fraud is not sufficient and the plaint is required to be rejected at the threshold. The deliberate omission on part of the plaintiff is nothing but demonstrates the clever drafting intended solely to harass the respondents. In the present case, according to learned senior advocate, in the entire plaint there is no averment made or any specific allegation made about the signature being forged nor even challenge is made to the attestation of the WILL by competent witness, by challenging it before competent forum, nor the question with regard to mental capacity of the testator, has been raised.
[9.6] The reliance was placed on the decision of the Hon'ble Supreme Court in the case of C.S. Ramaswami vs. V.K. Senthil and Ors. reported in 2022 SCC OnLine SC 1330, more particularly, paras 24, 30 and 32. Learned senior advocate Mr. Thakore referring to the various decisions being referred to and relied upon by Hon'ble Supreme Court in cases of T. Arivandandam vs T. V. Satyapal & Another reported in 1977 (4) SCC 467 followed by The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs. M/s Ponniamman Educational Page 25 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined Trust represented by its Chairperson/Managing Trustee reported in (2012) 8 SCC 706 and A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem reported in 1989 (2) SCC 163 as well as in the case of Sopan Sukhdeo Sable & Ors vs Assistant Charity Commissioner & Ors. reported in 2004 (3) SCC 137 and Madanuri Sri Rama Chandra Murthy vs Syed Jalal reported in 2017 (13) SCC 174 and lastly in case of Ram Singh & Ors vs Gram Panchayat Mehal Kalan & Ors. reported in 1986 SCC (4) 364., and has submitted that once the suits are barred by law of limitation, the Courts are under obligation to exercise their power conferred under Order VII Rule 11 of the Code, 1908, more particularly, noticing that if clever drafting of the plaint has created the illusion of a cause of action, the Court is bound to nip the bud at the earliest so that bogus litigation comes to an end at the earlier stage.
[9.7] As regards the application of Section 6 of Hindu Succession (Amendment) Act, 2005, in the facts of the case is concerned, learned senior advocate has submitted that WILL in question had remained unchallenged for approximately 25 years after its execution and 15 long years following the death of the testator. Apart from unexplained delay combined with the lack of substantial challenge to the WILL itself, in absence of any suspicious Page 26 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined circumstances being alleged invalidating the WILL, the appellant has rightly been ousted at the threshold. Even otherwise, on the issue of cause of action, the testator being the ruler of Sanand State was possessed with necessary knowledge, mental capacity and assistance through legal counsel, and had thereafter, made a testamentary disposition to his son which is both rational as well as lawful. In this regard, the reliance was placed on the decision of the Delhi High Court in the case of K.L.Malhotra vs. Sudershan Kumari & Anr. reported in 2008 SCC OnLine Del 435 (para 29). Learned senior advocate has further submitted that even bare reading of the pleadings of the plaint, the appellant incorrectly seeks to invoke rights under Section 6 of the Act of Hindu Succession Act, 1956 as amended by Act of 2005 by claiming her status as a coparcener. According to learned senior advocate, it is an established legal position that Amendment Act, 2005 applied prospectively and would not revive succession matters settled before its effective date of 09.09.2005.
[9.8] In this regard, Learned senior advocate has, once again, invited my attention to the fact that the deceased father - Rudradattsinh Jayvantsinh Vaghela expired way back in the year-2001, when the succession opened and the question as to devolution of estate arose. He has, therefore, submitted that the applicability of Page 27 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined amended Section 6 of the Act, in the facts of the case, is unsustainable. Even otherwise, admittedly the WILL has been executed as registered on 19.09.1991, long before, the aforesaid amendment was brought on the statue. Section 30 of the Hindu Succession Act read with Explanation appended to Section 6 explicitly permits a Hindu male to dispose of his coparcenary interest through a WILL, and therefore, such testamentary disposition was legally permissible and cannot be treated as void ab initio merely because it is sought to be voidable at the instance of a coparcener. Learned senior advocate has, however, submitted that in fact on the date of execution of the WILL and upon the death of the testator, the appellant had not derived the status of coparcener in absence of any legal provision, and therefore, the very basis of a challenge to the WILL, if it is to be accepted, is without any locus. Additionally, no challenge has been made as regards the genuineness of the signature or the competency of the testator. The sole ground of challenge to the WILL, as can be gathered from the pleadings, is mainly on the basis that the properties at the hands of father were ancestral properties, and the father had no authority to dispose of the property by executing a WILL in the year-1991. Learned senior advocate has further pointed out that in fact, the provision of Section 6(1) of the Amendment Act, 2005, explicitly safeguards the prior alienation and Page 28 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined testamentary disposition from invalidation. Hence, according to learned senior advocate, Amendment Act, 2005, cannot be applied retrospectively to invalidate a lawful testamentary disposition made before its enactment. In this regard, learned senior advocate has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma & Ors. reported in 2020 (9) SCC 1. Much emphasis was made on the relevant observations quoted in paragraph nos.51, 56, 60 and 137. By referring to the aforesaid observations, learned senior advocate has submitted that in fact, looking to the facts of the case and relevant dates where the disposition has taken place by virtue of WILL executed way back in the year-1991 and upon death of testator in the year-2001, which is much prior to come into force of the Amendment Act, 2005 with effect from 09.09.2005, the appellant lacks the locus standi to raise such grievance. In such circumstances, no error can be found with the approach of the learned Judge in arriving at a conclusion that no cause of action had arisen for the plaintiff to approach the competent court. [9.9] Having made the aforesaid submissions, learned senior advocate has firmly asserted that in fact, the properties mentioned in the plaint are the self acquired properties of the deceased father Rudradattsinh Jayvantsinh Vaghela. In this regard, learned senior Page 29 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined advocate has placed heavy reliance upon Section 8 of the Hindu Succession Act, 1956. Admittedly, according to him, even as can be born out from the pleading of the plaint, the properties at the hands of the deceased father were derived from his forefathers or from his deceased father, and therefore, devolution of such properties in favour of of the deceased father of the plaintiff was governed by Section 8 of Hindu Succession Act, 1956, and are therefore, not to be treated as ancestral properties as contended by the plaintiff. In support of his submissions, learned senior advocate has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Commissioner of Wealth Tax, Kanpur vs. Chander Sen reported in 1986 (3) SCC 567. The emphasis was made on relevant observations of the Hon'ble Supreme Court in para nos.16 and 17, wherein the Hon'ble Supreme Court, upon appreciation of the aforesaid provisions, has clearly held that under the Hindu Law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the date of death of father or inheritance from the father, but with the very fact of his birth. Learned advocate has therefore firmly asserted that the suit properties devolved upon late Rudradatsinh by virtue of Section 8 of the Hindu Succession Act, 1956 and thus are not ancestral in character or acquired it as Karta of his own undivided family, but takes it in his Page 30 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined individual capacity.
[9.10] In support of his submissions, learned senior advocate Mr. Thakore has placed reliance upon following authorities of the Hon'ble Supreme Court in cases of::
(I) Sheela Devi And Ors vs Lal Chand And Anr.
reported in 2006 (8) SCC 581;
(II) Makhan Singh (Dead) by LRS. vs. Kulwant Singh reported in 2007 (10) SCC 602;
(III) Bhanwar Singh vs. Puran and Others reported in 2008 (3) SCC 87;
(IV) Uttam vs. Saubhag Singh and Others reported in 2016 (4) SCC 68;
(V) M. Arumugam vs. Ammaniammal and Others reported in (2020) 11 SCC 103.
[9.11] Lastly, learned senior advocate Mr. Thakore has submitted that once the suit is found not maintainable qua the substantive relief sought for, as recorded in Prayer Clause-A, the ancillary relief with regard to partition of the suit properties, does not survive. It is Page 31 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined submitted that the Will covers all the properties held by the testator whether the ancestral property as claimed for or the self acquired property of the deceased- Rudradattsinh Jayvantsinh Vaghela. According to learned senior advocate, the deceased has validly bequeathed his entire properties to his son Jayshivsinh Rudradattsinh Vaghela during his lifetime, and therefore, no property remains available for partition. Even otherwise, it is a settled legal position of law that when the primary relief fails, ancillary relief depended upon it must also fail. The reference was made to paragraph nos.13 and 14 of the decision of the Hon'ble Supreme Court in the case of Rajpal Singh vs. Saroj reported in 2022 (15) SCC 260.
[9.12] By making the aforesaid submissions, learned senior advocate Mr. Thakore has urged this Court that the impugned judgment and order is legally sound and requires no interference at the hands of this Court in the present Appeal, and prayed to dismiss the present appeal with cost.
ANALYSIS:-
[10.] Considered the arguments of the respective parties in light of the pleadings in the plaint and the settled legal principles as Page 32 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined referred to and relied upon. The principal point for determination which arises for consideration is whether the learned Judge committed any error in rejection of the plaint at threshold by invoking power conferred under Order VII Rule 11(a) (d) of the Code of Civil Procedure, 1908.?
ISSUE OF PLAINT DOES NOT DISCLOSE CAUSE OF ACTION:-
[11.] In order to appreciate the controversy involved, appropriate would be to take into consideration certain admitted and material facts of the case. Admittedly, the plaintiff is the daughter of the deceased Rudradatsinh Vaghela. It is specifically averred in the plaint that the deceased had acquired interest in the properties of his father by inheritance. The said fact is undisputed as even in the WILL, the deceased has expressly stated that the properties were inherited by him from his late father Maharana Shri Jayavantsinhji Ranmalsinhji and other ancestors. In view of the aforesaid undisputed facts, there is reason to hold that the property in the hands of the late Rudradatsinh was ancestral in character. It can also be held that by birth the original defendant had acquired rights in the Joint Family properties as coparcenar and the properties in the hands of late Rudradatsinh were coparcenary properties.
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NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined [12.] Considering the rival submissions made, the first question which arises for consideration is whether after coming into force of Hindu Succession Act, 1956, whether the properties in the hands of late Rudradatsinh, subsequently bequeathed by registered WILL upon defendant, would retain the character of coparcenary properties in the hands of defendant, in light of Old Mitakshara law or would be treated as an individual / self acquired property of the defendant, by virtue of explanation 1 of section 6 read with section 8 and 30 of the Hindu Succession Act, 1956.
[12.1] As observed by the Hon'ble Supreme Court in the case of Shyam Narayan Prasad (supra), the essential feature of ancestral property , according to Mitakshara Law, is that the property inherited by a male Hindu from his father's father or father's father's father is an ancestral property. The property thus in the hands of the original defendant Jayshivsinh Rudradatsinh Vaghela, bequeathed through registered WILL, will continue to be the ancestral properties. However, looking at the contention raised by the respondents about applicability of section 8 of the Hindu Succession Act,1956 and the principles of inheritance in an individual capacity and not property of Joint Hindu Undivided Family is concerned, examining the aforesaid contention would amount to accepting the defence and travelling Page 34 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined beyond the pleadings of the plaint, more so , when there is no averments made in the plaint specifically referring to the date on which succession opened upon death of father of late Rudradatsinh. Also, it would amount to entering into the zone of examining an issue of fact and law as to whether the late Rudradatsinh acquired said properties as self acquired property or ancestral property, which can only be examined by appreciation of evidence. In my view, the judgements relied upon right from Chander Sen (supra) as followed in subsequent decisions in Sheela Devi (supra), Makhan Singh (supra), Bhanwar Singh(supra), Uttam (supra), M. Arumugam (supra), would not be applicable at this stage of deciding Order VII Rule 11 of the Code, 1908. Having noted so, I am of the view that looking at the pleadings in the plaint, the properties in the hands of the original defendant had retained the character of coparcenary property. [12.2] This further leads to examination as to whether late Rudradatsinh was within his authority to dispose of his interest in the coparcenary properties by WILL and what would be its effect.? Apt would be to consider section 6 of the Hindu Succession Act, 1956 prior to the Amendment Act, 2005, which provides the mode and manner of devolution of interest in coparcenary property in case of death of male Hindu after commencement of this Act, more so , in respect of Page 35 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined his interest in a Mitakshara coparcenary property. It provides that his interest shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act. Even after testamentary disposition through registered WILL, it does not cease to be ancestral property or coparcenary property. It is a settled legal position of law as enunciated by the honourable Supreme Court in number of decisions, right from the case of Valliammai Achi vs. Nagappa Chettiar and another, 1967 SCC OnLine SC 32, where in the court held that the property of a joint family is not entitled to be given away by way of a WILL and merely devolving a Mitakshara coparcenary property through WILL, no difference to the title of the property is affected. The court further observed that no coparcener can turn a joint family property into an absolute property as it is well settled that the share which is obtained on partition of property remains a coparcenary property. The principal was also followed in the case of Sundara Adapa vs. Girija, 1962, where in the record recognise the priorities of not involving the property through A when the status of Mitakshara property has not been severe. Further, in the case of MN Arya Murthy vs. M. D. Subarayya Setty, 1972, the court reiterated the principles that a coparcener cannot dispose of a joint Hindu family property or any part thereof, by way of a WILL. The court further observed that "a coparcener cannot devise joint family Page 36 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined property by Will, because, on the date of his death, when the Will takes effect, there is nothing for the Will to operate on, as, at the moment of his death, his interest passes by survivorship to the other coparceners." The Court in the case of Arshnoor Singh vs. Harpal kaur and others, reported in (2020 ) 14 SC 436, held that even if property partitioned then also the amongst sons, property inherited by them would remain coparcenary property qua their male descendants up to three degrees below them. Thus, the Court ruled out that when Succession opened prior to the date of commencement of Hindu Succession Act, parties to whom Mitaskshara Law applied would continue to be governed by the same. Appropriate would be to consider the decisions of the Hon'ble High Court of Kerala in Sarvamma v. U.R. Virupakshaiah, 2010 SCC OnLine Kar 136 wherein it was said that ancestral property is inherited up to four generations of male lineage and must remain undivided throughout the period of lineage. In Gurdip Kaur v. Ghamand Singh, 1964 SCC OnLine Punj 180, the Court held that an ancestral property was said to be a property inherited from father, father's father or great grandfather. [13.] In view of the aforesaid legal position, as regards the locus of the plaintiff being questioned, admittedly the plaintiff had cause to avail the remedy from the Civil Court by challenging the Page 37 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined WILL, seeking declaration of her undivided share and partition in the suit properties. Looking at the case pleaded, the claim is based on the ground of having derived interest in the Joint Family property as coparcener by virtue of Amendment Act, 2005. The amended section 6 of the Hindu Succession Act confers status of coparcener on the daughter born before or after the amendment in the same manner as son with the same rights and liabilities. As answered by the Hon'ble Supreme Court in the reference in the case of Vineeta Sharma (supra), the Court held as under :
"137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.
137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.
137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.
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NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. 137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."
Thus, the court held that section 6 of the amended act is Page 39 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined retroactive in nature by overruling the verdict of Phulvati case and partly overruling the verdict In the case of Danamma, the court held that the rights are bestowed upon the daughters on and from 9th September 2005, but it has been created on and by the birth of the daughter. The court went further by clarifying that section 6 of the Amended Act is not an amendment but only a substitution. It ruled that the joint Hindu family property to be an unobstructed heritage where the right of partition is absolute and is created by the birth of the daughter. It is immaterial whether the father of the daughter was alive or had expired on 9th September 2005.The court further ruled that death of the daughter does not extinguish her right to claim right in such property, even if she is not alive, then also it can be claimed through her nominee or legal heirs.
[14.] Considering the aforesaid legal position, in my view, when the specific pleadings have been made challenging the WILL itself both on the aspect of genuineness as well as its validity to execute the WILL of coparcenary properties, it cannot be said that having derived status of coparcener, the plaintiff had no locus and has therefore no cause of action to question such WILL and claim share by partition when the properties in the hands of the original defendant continue to be coparcenary properties. As observed by the Hon'ble Page 40 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined Supreme Court in para 25 in the case of Vineeta Sharma (supra), only a coparcener has a right to claim partition. Therefore, when the daughter qualifies as coparcener and there exists a coparcenary property, the cause of action survives to seek partition. For the reasons assigned earlier, the property in the hands of the defendant brother continued to have shades of ancestral properties. The learned Judge has ignored the validity / the genuineness of the WILL being questioned. The learned Judge applying explanation under section 6(1) of the Amended Act of 2005 observed that the father has disposed/ bequeathed the ancestral properties by WILL , and such transaction being recognised as valid under section 30 of the Act of 1956; in the opinion of this Court would be an attempt to conclude on validity of the WILL akin to acceptance of the defence as well as adjudication on correctness of the case pleaded. Even otherwise as held by the Hon'ble Supreme Court in the case of Klockner and Company (supra), a plaint cannot be rejected under Order VII Rule 11 of the Code on the ground that the plaintiff had no cause of action. Having held so, as rightly pointed out by learned senior advocate Mr. Shah , the present case does not fall in the category where the plaint does not disclose any cause of action. Hence, the impugned order of rejection of the plaint on the ground of no cause of action under Order VII Rule 11(a) of the Code of Civil Procedure, is erroneous. Page 41 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025
NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined ISSUE OF PLAINT BARRED BY LAW OF LIMITATION:-
[15.] Lastly, on the issue of limitation, senior learned advocates appearing for respective parties are at ad idem about Article 65 of the Limitation Act,1963, being erroneously applied by learned Judge, in the facts of the case. However, as regards applicability of correct provision, according to learned senior advocate for the appellant Article 59 would be attracted whereas as per respondent counsel, Article 113 would be applicable. It would be germane to mention that it was the defendant's contention that the suit is barred by Article 59 and now before this Court in the appeal, it is contended that it would be in fact governed by Article 113 and not Article 59. The contention raised as regards non applicability of the Article 59 by the respondent is that WILL cannot be treated as an 'instrument' so as to attract Article 59.
[15.1] The question therefore arises as to whether the suit was barred by any of the provisions of the Limitation Act, 1963.? Secondly, whether the question of limitation was a mixed question of fact and law and hence the suit could not have been dismissed by rejection of plaint under Order VII Rule 11(d) of the Code of Civil Procedure, 1908.?
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NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined [15.2] Looking at the prayer clause in the plaint, though the plaintiff has challenged the registered WILL dated 19.09.1991; if one examine the prayer clause on touchstone of pleadings in the plaint then essentially the plaintiff has challenged validity as well as genuineness of the WILL by pleading that the suit properties are ancestral properties and the father had no right to bequeath entire properties including her share in the ancestral properties by WILL; suspected execution of WILL by referring to grandmother's property and WILL actually not given effect if the entire content of the WILL is read as it is. The plaintiff has also prayed for partition of suit properties by claiming her share.
[15.3] Keeping in mind the aforesaid features of the plaint, as regards applicability of Article 65 to Schedule I of the Limitation Act, 1963 it prescribes a timeline of 12 years, within which an aggrieved person may file a suit for recovery of possession of immovable property or any interest therein based on proprietary title. Looking at the second prayer clause for partition and share definitely it is a suit for possession of immovable property and interest therein based on proprietary title. Simultaneously, the relief is also sought for cancellation of WILL as based on such deed the defendant has raised an adverse claim of exclusive title. In other words, the ouster of the Page 43 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined plaintiff from coparcenary properties is claimed by virtue of said WILL. It is a well settled legal position that under Hindu Succession Act there is no period of limitation prescribed for a coparcener to file suit for partition and possession of his share unless his right is lost by ouster or claim of exclusive possession for a statutory period of 12 years. At this stage, the question arises what would be the starting point of the period of limitation in the facts of the case; would it be upon death of father or whether from the date of Hindu Succession Amendment Act, 2005 brought in force or when the claim for share was refused by the defendant? For the reasons recorded earlier, the death of the father prior to 2005 has no bearing as regards entitlement in ancestral properties are concerned. If the properties in the hands of the defendant still retain character as ancestral properties, then on the date 2005 Act came into force, plaintiff having derived the right to claim her share, the period of limitation has to be reckoned when her right was denied. The point when the possession of the defendant became adverse to the interest of the plaintiff is certainly a question of fact which has to be ascertained and examined in light of the pleadings made in the plaint. Though defendant claimed exclusive rights from the date of implementation of WILL in 2001 upon death of their father , for plaintiff it would be when legislation recognised their equal rights as coparcener, the plaintiff became Page 44 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined capable to sue to seek her right and when based on such rights when she gathered knowledge about denial of her share in suit properties, cause of action has arisen. Thus, in my view the applicability of Article 65 cannot be ruled out at this stage, however, looking at the pleadings it certainly raises the question of fact and law about starting point of limitation.
[15.4] This brings me to the controversy raised as regards applicability of Article 113 and not Article 59 of the Limitation Act, on the ground that WILL cannot be treated as 'instrument'. The aforesaid issue has been examined by the Allahabad High Court in the case of Ganga Prasad vs Munna Lal & Others reported in AIR 2018 (NOC) 619 (ALL), wherein the Allahabad High Court has taken into consideration the decision of the Calcutta High Court in the case of Hamida Begum alias Alo Bibi vs. Umran Bibi & Ors. reported in 2005 (NOC) 2423 (Cal.) it was noted that there is no dispute that the suit was filed by virtue of the right created under Section 31 of the Specific Relief Act, 1963. The period of limitation of filing such suit is 03 years according to Article 59 of the Limitation Act. The time runs when the facts entitling the plaintiffs to have the instrument cancelled or set aside first become known to them. It has also been held that if a party admits execution of a deed of transfer is vitiated by Page 45 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined fraud either as to the contents or as to the nature of transaction, he is under obligation to file a suit under Section 31 of the Act for avoiding such transaction within the period of limitation provided in Article 59 of the Limitation Act. The Court has also held that if a suit is not covered by any of the specific articles prescribing a period of limitation it must fall within the residuary article. Article 113 (corresponding to Article 120 of the Act of 1908) is a residuary article for cases not covered by any other provisions of the Act. It prescribes a period of three years when the right to sue accrues. Paragraphs 13, 19, 20, 26 and 27 of the judgment are relevant, which read as under:-
"13. There is no dispute that the said suit was filed by virtue of the right created under Section 31 of the Specific Relief Act, 1963 and the period of limitation for filing such suit is 3 years according to Article 59 of the Limitation Act. The time runs when the facts entitling the plaintiffs to have the instrument cancelled or set aside first become known to them.
19. At this stage, it will be relevant to refer to Section 31 of the Specific Relief Act and the same is quoted below:
"31. When cancellation may be ordered.--(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it Page 46 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."
20. A combined reading of Sections 31 of the Specific Relief Act and Section 27 of the Limitation Act makes it abundantly clear that if a party admits execution of a deed of transfer in favour of another but claims that the said transaction is vitiated by fraud either as to the contents or as to the nature of the transaction, he is under obligation to file a suit under Section 31 of the Act for avoiding such transaction within the period of limitation provided in Article 59 of the Limitation Act and the period is 3 years and the time starts running when the facts entitling the plaintiff to cancel or set aside the instrument first become known to him. If the remedy becomes time barred, his right to resist a claim over the said property based on such deed will automatically be barred because of the provisions contained in Section 27 of the Limitation Act even if he remains in possession of the property unless he asserts adverse possession and claims to have perfected his title by such adverse possession after the execution of the deed.
26. In this connection, we may profitably refer to a three Judges Bench decision of the Supreme Court in the case Page 47 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined of State of Punjab vs. Gurdev Singh reported in AIR 1991 SC2219 where the question was whether for avoiding an ultra vires order of dismissal, an employee is required to approach a Court within a specified time prescribed by the law of limitation. The argument was based on the principle that for challenging a void order, there is no period of limitation and the aggrieved person can approach the Court at any time. In that context, the Apex Court held as follows:-
"First of all, to say that the suit is not governed by the law of limitation runs afoul of our Limitation Act. The Statute of Limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed "period of limitation" must subject to the provisions of Sections 4 to 24 be dismissed although limitation has not been set up as a defence. Section 2(J) defines the expression "period of limitation"
to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 2(J) also defines, "prescribed period" to mean the period of limitation computed in accordance with the provisions of the Act. The Court's function on the presentation of plaint is simply to examine whether, on the assumed facts, the plaintiff is within time. The Court has to find out when the "right to sue" accrued to the plaintiff. If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fall within the residuary article. The purpose of the residuary article is to provide for cases which could not be covered by any Page 48 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined other provision in the Limitation Act. The residuary article is applicable to every variety of suits not otherwise provided for. Article 113 (corresponding to Article 120 of the Act of 1908) is a residuary article for cases not covered by any other provisions in the Act. It prescribes a period of three years when the right to sue accrues. Under Article 120 it was six years which has been reduced to three years under Article 113. According to the third column in Article 113, time commences to run when the right to sue accrues. The words "right to sue"
ordinarily mean the right to seek relief by means of legal proceedings. Generally, 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 (See: (i) Mt. Bole v. Mt. Koklam, AIR 1930 PC 270 and (ii) Gannon Dunkerley and Co. v. -Union of India, AIR 1970 SC 1433).
In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal, inoperative and not binding on the. They wanted the Court to declare that their dismissal Page 49 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs. But none the less the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council, (1956) AC 736 at p. 769 Lord Redcliffe observed:
"An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
Apropos to this principle, Prof. Wade states: the principle must be equally true even where the 'brand of invalidity' is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the Court (see : Administrative Law 6th Ed. p. 352). Prof. Wade sums up these principles:
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NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined "The truth of the matter is that the Court ,will invalidate an order only If the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another." (Ibid p. 352) It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for."
27. The aforesaid principle equally applies to a void transaction and in view of Section 31 of the Specific Relief Act, we are of the view that even void ab initio transaction must also be avoided by filing a suit within the period of limitation, otherwise, by virtue of an even void transaction, the title of the party would be lost." [15.5] In the case of Mohd. Noorul Hoda vs. Bibi Raifunnisa and Ors, reported in AIRONLINE 1995 SC 608, the Apex Court has Page 51 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined held that Article 59 of the Limitation Act is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. Paragraph 06 of the judgment is reproduced below:-
"6. The question, therefore is as to whether Article 59 or Article 113 of the Schedule to the Act is applicable to the facts in this case. Article 59 of the Schedule to the Limitation Act, 1908 had provided inter alia for suits to set aside decree obtained by fraud. There was no specific article to set aside a decree on any other ground. In such a case, the residuary Article 120 in Schedule III was attracted. The present Article 59 of the Schedule to the Act will govern any suit to set aside a decree either on fraud or any other ground. Therefore, Article 59would be applicable to any suit to set aside a decree either on fraud or any other ground. It is true that Article 59 would be applicable if a person affected is a party to a decree or an instrument or a contract. There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by s specific declaration whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument a contract or a decree on the ground of fraud, Article 59 is Page 52 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word ''person' in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him."
[15.6] From the above legal proposition, it is clear that the Will is an instrument within the meaning of Article 59 of the Limitation Act and in case of plea of fraud and fraudulence having been taken to Page 53 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined challenge the Will Deed, the period of limitation has to be counted from the date of knowledge of such fraud. Even if the document is question is to be treated void as pleaded by the plaintiff, in view of section 31 of Specific Relief Act, the plaintiff seeks avoidance of such instrument has been confer legal remedy to set it aside within period of three years from date when the facts entitling plaintiff to have decree to set aside instrument, first became known to her.
Looking at the aforesaid Articles:-
Article Description of Suit Period of Time from which Limitation period begins to run 59 To cancel or set aside Three years When the facts an instrument or entitling the decree or for the plaintiff to have the rescission of a instrument or contract. decree cancelled or set aside or the contract rescinded first become known to him.
Article Any suit for which no Three years When the right 113 period of limitation is to sue accrues.
provided elsewhere in this Schedule.
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NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined There is a distinction between events to be construed as the starting point of limitation. In cases governed by Article 113 of the Limitation Act, the period of limitation begins to run "when the right to sue accrues" and not when the right to sue "first" accrues as required under Article 59. The Hon'ble Supreme Court in the case of Shakti Bhog Food Industries Limited vs. Central Bank of India and another reported in (2020) 17 SCC 260, has observed as under:
"7. Indeed, Order VII Rule 11 of the CPC gives ample power to the Court to reject the plaint, if from the averments in the plaint, it is evident that the suit is barred by any law including the law of limitation. This position is no more res integra. We may usefully refer to the decision of this Court in Ram Prakash Gupta vs. Rajiv Kumar Gupta & Ors.2. In paragraph Nos. 13 to 20 of the reported decision, the Court observed as follows:
"13. As per Order 7 Rule 11, the plaint is liable to be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a 2 (2007) 10 SCC 59 time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by Page 55 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined the court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9."
14. In Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557] it was held with reference to Order 7 Rule 11 of the Code that:
"9. ... the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power ... at any stage of the suit -- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage,..." (SCC p. 560, para 9).
15. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with Page 56 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined a view to get out of Order 7 Rule 11 of the Code.
16. "The trial court must remember that if on a meaningful--no formal--reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, [it has to be nipped] in the bud at the first hearing by examining the party searchingly under Order 10 CPC." (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467], SCC p. 468.).
17. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487], only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
18. In Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] it was observed that the averments in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order 7 was applicable.
19. In Sopan Sukhdeo Sable v. Asstt. Charity Commr. [(2004) 3 SCC 137] this Court held thus: (SCC pp. 14647, para 15) Page 57 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined "15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hairsplitting technicalities."
20. For our purpose, Clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the court to verify the entire plaint. Order 7 Rule 12 mandates where a plaint is rejected, the court has to record the order to that effect with the reasons for such order."
9. We may also advert to the exposition of this Court Page 58 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined in Madanuri Sri Rama Chandra Murthy vs. Syed Jalal4. In paragraph 7 of the said decision, this Court has succinctly restated the legal position 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 4 (2017) 13 SCC 174 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 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 Page 59 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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."
12. From the averments in the plaint, if read as a whole, it would appear that the assertion of the appellant is that the respondents had extended financial facility with effect from 1.4.1997 till October, 2007, but somewhere in the month of July, 2000, the appellant noticed that the respondents were unilaterally charging interest/commission at the rate of Rs.4 per thousand rupees on local cheques and drafts in an arbitrary manner in violation of the assurance given to the appellant. Immediately thereafter, the appellant wrote to the respondentBank vide letter dated 21.7.2000 for taking corrective steps in the matter. Then correspondence ensued between the parties in that regard and the appellant was assured by the Regional Office of the respondentBank that an appropriate decision will be taken at the earliest. The relevant assertion in that regard is found in paragraph 11 of the plaint, wherein it is mentioned that the Assistant General Manager Shri P.S. Bawa of Regional OfficeB, Delhi, vide letter dated 9.7.2001 informed the appellant that comments from the concerned Branch Office have been invited and appropriate decision will be taken on its representation as early as possible. Page 60 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025
NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined Thereafter, on 8.5.2002, the Senior Manager of the respondent-Bank informed the appellant that the cheques were being purchased at the prevailing rates; which plea, according to the appellant, was to deviate from the position stated by the Assistant General Manager of Regional Office in his letter dated 9.7.2001 referred to earlier. Resultantly, the appellant wrote to the officials of the respondentBank vide letters dated 12.7.2002, 22.9.2002 and 24.3.2003.
17. The expression used in Article 113 of the 1963 Act is "when the right to sue accrues", which is markedly distinct from the expression used in other Articles in First Division of the Schedule dealing with suits, which unambiguously refer to the happening of a specified event. Whereas, Article 113 being a residuary clause and which has been invoked by all the three Courts in this case, does not specify happening of particular event as such, but merely refers to the accrual of cause of action on the basis of which the right to sue would accrue.
18. Concededly, the expression used in Article 113 is distinct from the expressions used in other Articles in the First Division dealing with suits such as Article 58 (when the right to sue "first" accrues), Article 59 (when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded "first" become known to him) and Article 104 (when the plaintiff is "first" refused the enjoyment of the right). The view taken by the trial Court, which Page 61 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined commended to the first appellate Court and the High Court in second appeal, would inevitably entail in reading the expression in Article 113 as - when the right to sue (first) accrues. This would be rewriting of that provision and doing violence to the legislative intent. We must assume that the Parliament was conscious of the distinction between the provisions referred to above and had advisedly used generic expression "when the right to sue accrues"
in Article 113 of the 1963 Act. Inasmuch as, it would also cover cases falling under Section 22 of the 1963 Act, to wit, continuing breaches and torts.
20. Similarly, in Khatri Hotels Private Limited & Anr. Vs. Union of India & Anr.6, this Court considered the expression used in Article 58 in contradistinction to Article 120 of the old Limitation Act (the Limitation Act, 1908). In paragraph 24, the Court noted thus:
24. The Limitation Act, 1963 (for short "the 1963 Act") prescribes time limit for all conceivable suits, appeals, etc. Section 2(j) of that Act defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 3 lays down that every suit instituted, appeal preferred or application made after the prescribed period shall, subject to the provisions of Sections 4 to 24, be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article. In other words, the residuary Page 62 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined article is applicable to every kind of suit not otherwise provided for in the Schedule."
ORDER VII RULE 11 OF THE CODE OF CIVIL PROCEDURE:-
[16.] Having noted the aforesaid broad principles laid down by the Hon'ble Supreme Court as regards applicability of Article 59 and 113 of the Limitation Act, 1963, vis-a-vis at the stage of Order VII Rule 11, when the findings and reasons assigned by the learned Judge are considered, the learned Judge in absence of any date of knowledge accrued in plaint, has presumed the date of death of the father in 2001 as the starting point of limitation for the purpose of computing period of 12 years and has held suit filed in 2016 as beyond limitation.
In my view, apart from applicability of provision for computation of period of limitation; the aforesaid approach is against the well settled principles of law. The Hon'ble Division Bench of this Court in the case of Bardoli Shreerang Exhibitors Private Limited (supra), held that at this stage of Order VII Rule 11, the Courts cannot go into the veracity or correctness of the pleadings made in the plaint. In the facts of the said case, the trial court had imputed bad faith upon plaintiff by observing that the plaintiff intentionally has not stated the date of filing of written statement which according to plaintiff led to knowledge of the impugned transaction. The Division Bench upon Page 63 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined appreciation of the entire averments of the plaint arrived at conclusion that it did not indicate a frivolous litigation or an illusory drafting to obviate the obstacle of Order VII Rule 11(d) of the Code and held that it was a case of trial. Also, the Court held that jurisdiction to invoke Order VII Rule 11(d) of the Code can only arise in cases where pleadings in plaint are sufficient to disclose the bar of the suit and not otherwise.
[16.1] The Hon'ble Division Bench of this Court in the case of Gujarat Maritime Board (supra) held that the Court is required to look at the plaint and the documents accompanying plaint and not the defence of the defendant or the documents relied upon by the defendants. The cause of action is to be culled out on a conjoint reading of all paragraphs of the plaint. It is not competent for the Court to go into correctness or otherwise of all the allegations constituting the cause of action. When the allegations made in the plaint prima facie discloses the cause of action, plaint cannot be rejected.
[16.2] The Hon'ble Supreme Court has reiterated the aforesaid principles on numerous occasions as followed by this Court. Appropriate would be to refer to the decision mentioned by the Page 64 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined learned advocate for the appellant in the case of Sri Biswanath Banik (supra), it is held that the Court cannot read only a few lines / passages and ignore other relevant parts of the plaint. CONCLUSION:-
[17.] Keeping in mind the aforesaid legal principles enunciated, if one looks at the cause of action pleaded in the light of the averments made in the plaint, in the opinion of this Court , the plaintiff derived right as coparcener by virtue of the amendment brought in section 6 of the Hindu Succession Act , 1956 in 2005. It is the case of the plaintiff that the defendant has deprived of her rights and shares and has transferred properties exclusively in his name on the basis of the registered WILL. The plaintiff has pleaded her knowledge about existence of the registered WILL by highlighting the facts that she got divorced from husband in 2007 and thereafter was faced with financial difficulties and when she approached her defendant brother seeking help and when the real brother had not taken care in any manner, cause arose for her to assert right / share in the ancestral properties. At that point, from relatives she came across the facts about transfer of properties by the defendant brother which led her to inquire about the status of ancestral properties and derived Page 65 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined knowledge about the existence of registered WILL. It is further pleaded that she had demanded her rights and share in the properties from the defendant who had denied her such right and had threatened her to do whatever she wanted to do. It is further pleaded that when she became aware about defendant attempts of transferring properties in arbitrary manner, the cause of action arose for her to approach for filing suit.
[18.] Looking at the aforesaid case of the plaintiff one cannot say that a vexatious or a Malafide litigation is brought before the Court to circumvent the provisions of limitation by deliberate omission of any exact date or month about precise knowledge and clever drafting by alleging fraud. Upon close examination of aforesaid case pleaded as against the Certified copy of WILL applied as annexed with a list of documents at Mark 3/ 2, it is evident that the same was provided on 20/2/15. The pedhinama of deceased Rudratsinh was drawn by the Talati cum Mantri, Sanand at the instance of plaintiff on 13/2/2015, which is produced at Mark3/1. Considering the aforesaid documents in light of the averments made in the plaint, prima facie the court finds reason to believe the case as pleaded in plaint that the date of her deriving knowledge about existence of WILL on obtaining certified copy of the WILL viz. would be around the month of Page 66 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined February, 2015. Whereas the suit is filed in April, 2016 which is within the period of limitation of three years from date of knowledge about WILL. Further, the plaintiff has initiated proceedings before SIT against the defendant about fraudulent transfer of her grandmother property on 21.03.2016. The aforesaid events prima facie correlates to the cause of action pleaded in the plaint.
[19.] For the foregoing reasons, it would be too premature to arrive at a conclusion from pleadings of the plaint that the suit was barred by law of limitation or no cause of action had arose to maintain suit. Looking at the controversy involved, at the most an issue of limitation can be framed and after giving opportunity to lead evidence, the Court can decide in accordance with law. In my view, this is certainly not a case to be dismissed at threshold by invoking Order VII Rule 11 of the Code.
[20.] For the foregoing reasons, the appeal is allowed. The impugned judgment and order dated 03.02.2025 passed below Exh. 40 under Order VII Rule 11 (a) (d) of the Code of Civil Procedure, 1908, thereby rejecting the Plaint of Special Civil Suit no. 65 of 2018 is hereby quashed and set aside. Since, the impugned order of dismissal of suit is quashed and set aside, the Special Civil Suit No. 65 of 2018 is Page 67 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined directed to be restored to its original file. The Trial Court is further directed to proceed with the trial. No order as to cost.
(NISHA M. THAKORE,J) FURTHER ORDER After the order was pronounced, Mr. Vimal Purohit, learned advocate appearing on behalf of the respondents has prayed for stay of the impugned order. He has submitted that the summer vacation is continue till 13.07.2025 before the Hon'ble Supreme Court of India and the hearing of the appeal may take some time. He has, therefore, prayed for stay of the order pronounced for two months.
The aforesaid prayer of the learned advocate for the respondents has been vehemently objected by Mr. Mehul Suresh Shah, learned senior advocate appearing on behalf of the appellant. He has submitted that after the suit was dismissed by the impugned judgment and order allowing the application preferred under Order- VII Rule 11(d) of the Code of Civil Procedure, 1908, the respondents have started entering into the various transactions with regard to the suit properties. He has, therefore, submitted that if the stay is Page 68 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025 NEUTRAL CITATION C/FA/780/2025 CAV JUDGMENT DATED: 11/06/2025 undefined granted against the order pronounced today, the original proceedings, which have been directed to be restored to its original file, would not be revived. In such circumstances, he would be unable to avail any remedy for restrain order against the respondents.
Considering the submissions of the learned advocates for the respective parties, noticing the fact that the original proceedings are still lying at the stage of hearing of Exh.5 application and the trial of the original suit proceedings is likely to take some time, this Court is not inclined to stay the order pronounced today.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA/AMAR RATHOD Page 69 of 69 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 23:39:44 IST 2025