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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, A.A. SAYED, K.R.SHRIRAM, JJ.
Sajanbir Singh Anand and Ors. – Plaintiffs
Versus
Raminder Kaur Anand and Ors. – Defendants
Notice of Motion No.2955 of 2011 In Suit No.1869 of 2011, Appeal No.244 of 2016 With Notice of Motion No.2434 of 2016, 420 of 2008 In Suit No.338 of 2008
Decided On : 04-05-2018
Constitution Of India,1950 - Article 106 - Divorce - Claim benefit - Plaintiff is also an executor said Will- It is plaintiffs’ case that though deceased died said Will was suppressed by defendant especially defendant and existence of said Will came to light in or about - As attempts to amicably resolve issues between parties came to a naught present suit cam defendants raised an issue of limitation contending that period of limitation for filing suit was three years and period would begin from date of death of deceased - Consequently in notice of motion Learned Single Judge by an Order was pleased to frame a preliminary issue as to “whether suit is barred by limitation When notice of motion was taken up for hearing Learned Single Judge (D-G- Karnik J as he then was) could not agree with view expressed by Learned Single Judge in two cases that a suit for administration of estate of a deceased is governed by Article Limitation Act and is required to be filed within three years from date of death even if it contains a prayer for partition and possession of share in a immovable property and referred following question –Held, administration suit is in essence one in which plaintiff seeks special relief administration of estate of a deceased person be he a debtor a testator or an intestate by and under direction of Court for better realisation of specific claim regarding which plaintiff has a cause of action- Therefore period of limitation applicable to such a suit would depend on who plaintiff is and what his specific cause of action is- It is for that reason that Limitation Act has not explicitly provided a period of limitation for such a suit- If suit is by creditor cause of action is to recover debt appropriate article applicable to a suit for debt would govern and period of limitation would be three years- It real nature of claim that counts and if suit for legacy involves administration of estate of deceased conflict between two periods of limitation one of which longer is applicable to all circumstances and other shorter to special circumstances only longer term given by statute to bring suit ought to applied unless there is clear proof of special circumstances which would make shorter term applicable and it is upon party claiming benefit of a shorter period of limitation to establish that case fell within special rule limiting period of a shorter time cannot be a straitjacket formula to determine period of limitation for filing an administration suit pleadings and prayers of a suit for administration would have to be analysed and thereafter relevant Article is to be made applicable onus will be on party claiming benefit of shorter period of limitation to establish that case fell within special rule limiting period of a shorter time- If in a situation two articles of law may be wide enough to cover a given right of suit and Court is unable to come to a conclusion that one applies more specifically than other then it should lean in favour of application which would keep right of suit alive in preference to that which would destroy - Order accordingly
K.R. SHRIRAM, J.
1. The two questions of law referred to us, vide order dated 27th September, 2012 by a Division Bench, are as under :
(i) Whether Article 110 of the Limitation Act,1963 has any application to a suit for administration of the estate of a deceased person?
(ii) What is the period of limitation for filing of a suit for administration and partition of the property, both movable and immovable left by deceased? and Whether there would be different periods for such a suit for immovable property and such a suit for movable property?
2. A brief factual narration of suit no.1869 of 2011 with a view to provide a context and a basis for the questions to be answered by the Full Bench, are as under :
The suit was filed for administration of the estate of one Mrs. Roop Keshavraj Sakraney (the deceased) in accordance with her Will & Testament dated 14th May 2001. The deceased was the wife of defendant no.1. Plaintiffs are beneficiaries under the said Will. Plaintiff no.1 is also an executor under the said Will. It is plaintiffs’ case that though the deceased died on 24th October 2007, the said Will was suppressed by defendant nos. 1 to 5, especially defendant no.1, and the existence of the said Will came to light in or about April 2012. As attempts to amicably resolve the issues between the parties came to a naught, the present suit came to be filed on 16th March 2015.
3. The defendants raised an issue of limitation contending that the period of limitation for filing the suit was three years (under Article 113 of the Limitation Act, 1963) and the period would begin from the date of the death of the deceased, i.e., 24th October 2007. Consequently, in the notice of motion, the Learned Single Judge, by an Order dated 26th September 2016, was pleased to frame a preliminary issue as to “whether the suit is barred by limitation?”.
4. It is plaintiffs' case that the suit falls under the provisions of Article 106 of the Limitation Act, 1963 which provides period of limitation to be 12 years when the legacy or share become payable or deliverable and hence is filed within the period of limitation.
5. When the notice of motion was taken up for hearing, the Learned Single Judge (D.G. Karnik, J, as he then was) could not agree with the view expressed by the Learned Single Judge in two cases that a suit for administration of the estate of a deceased is governed by Article 113 of the Limitation Act, 1963 and is required to be filed within three years from the date of death even if it contains a prayer for partition and possession of share in a immovable property and referred the following question to a larger Bench :
“What is the period of limitation for filing of a suit for possession of an movable as well as immovable property filed by one of the heirs against another heir for partition and separate possession of the inherited property?”
6. A Division Bench (S.A. Bobde & R.G. Ketkar, JJ.) that was considering the question, recast the question as under :
“What is the period of limitation for filing of a suit for administration and partition of the property, both movable and immovable left by deceased? and Whether there would be different periods for such a suit for immovable property and such a suit for movable property?
As noted in paragraph 1, the Division Bench also added question no.1.
7. During the course of hearing, the Division Bench came across a judgment of a Division Bench of this Court in Sadbuddhi Brahmesh Wagh and Ors. Vs. Sheela Mahabaleshwar Wagh and Ors., 2003(6) Bom.C.R. 787 in which the Court had held that a suit for administration of the property of a deceased is a suit “by heir excluded from joint family property to enforce a right to his share and that has to be filed within 12 years under Article 110 of the Limitation Act and when exclusion becomes known to plaintiff”. The Division Bench hearing the instant motion/ref
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