2008 Supreme(SC) 663
ALTAMAS KABIR, A.K.MATHUR
Kamlesh Babu – Appellant
Versus
Lajpat Rai Sharma – Respondent
Advocates appeared:
Mr. S.B. Sanyal, Senior Advocate, Mr. Naresh Kaushik, Mr. Satish Dayanandan, Mr. Manish Kaushik and Mrs. Lalita Kaushik, Advocates with him for the Appellants.
Ms. Rachana Srivastava, Advocate for the Respondents.
Judgement Key Points
Key Points
- The dispute concerns a registered Will dated 5th August, 1972, executed by Brijlal in favor of his grandchildren through his youngest son Onkar Prasad, excluding descendants of other sons; Brijlal died on 5th November, 1976; appellants sought mutation based on the Will, which was allowed on 29th April, 1977, while respondent No.1's mutation application was rejected.[1000436000001]
- Respondent No.1 filed a suit on 2nd January, 1978, seeking declaration that the Will was procured by fraud.[1000436000002]
- Trial Court framed issues including whether the Will was forged, plaintiff's entitlement to possession, valuation/court fee, Brijlal's right to execute the Will, his exclusive ownership, and relief.[1000436000002] (!) (!) (!) (!) (!)
- Trial Court decided all issues against plaintiff and held suit barred under Article 59 of Limitation Act, 1963, as plaintiff failed to prove lack of knowledge of Will within three years before suit filing.[1000436000003]
- First Appellate Court (Civil Judge, Aligarh) allowed plaintiff's appeal, reversed Trial Court without deciding limitation issue.[1000436000004]
- High Court dismissed defendants' second appeal on 6th February, 2006, affirming First Appellate Court, without addressing limitation.[1000436000005]
- Appellants argued that appellate courts erred by not addressing Trial Court's limitation finding under Article 59.[1000436000006][1000436000007]
- Respondents argued limitation plea not raised in appellate courts, is mixed question of law/fact, and no specific issue framed at trial (mere observation).[1000436000008][1000436000009]
- Section 3(1) of Limitation Act, 1963, mandates dismissal of time-barred suit even if limitation not pleaded as defense; duty on courts to address
ALTAMAS KABIR, J.
1. Leave granted.
2. This appeal involves a dispute between the parties who are related to each other, having a common ancestor. The dispute involves a registered Will dated 5th August, 1972, executed in favour of the appellants by one Brijlal (deceased), who had four sons. Except for his youngest son, Onkar Prasad, all the other sons were allegedly separated from him and were staying separately. Brijlal was staying with Onkar Prasad and excluding the descendants of his other children executed the said Will dated 5th August, 1972, in favour of his grand-children through Onkar Prasad. Brijlal died on 5th November, 1976, and on the basis of the Will executed by him, the appellants moved an application for mutation of the bequeathed properties in their names. The respondent No.1, who is one of the grand-sons of the testator through another son, Shanti Swarup, also filed an application for mutation, which was rejected. An appeal preferred therefrom was also dismissed. On 29th April, 1977, the Tehsildar passed an order for mutation of the properties in the name of the appellants on the basis of the aforesaid Will dated 5th August, 1972.
3. On 2nd January, 1978, the respon
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