IMPORTANT POINT
A suit challenging the validity of a Will is subject to the limitation period specified in Article 59 of the Limitation Act, and knowledge of the Will's existence can bar a claim if the suit is filed after the limitation period.

JUDGMENT/ORDER

1. The appellant, who is the original plaintiff in Special Civil Suit No.7 of 2017, has filed this second appeal against the judgment and order dtd. 31/07/2023 passed by the learned District Judge-1, Latur (hereinafter referred to as 'the learned first appellate court) in RCA No.30 of 2018, whereby the judgment and order dtd. 12/01/2018 passed by the learned Civil Judge Senior Division, Latur (hereinafter referred to as 'the learned trial court') in aforesaid suit, was confirmed.

2. Background facts are as under :

The appellant / plaintiff is the brother of all the respondents. Their father - Keshavlal Shah allegedly died intestate on 15/01/2004. Their mother- Jostna is also no more and she died on 23/07/2005. As such, the appellant/ plaintiff and respondents are the legal representatives of Keshavlal and Jostna. Keshavlal had acquired a plot No.53 at Latur, admeasuring East-West Southern side 51 ft., 6 inches and Northern side of 40 ft., 9 inches and North-South Eastern side 76 ft., and Western side 74 ft. Out of the said plot, father of the appellant / plaintiff decided to sell Southern side portion of the said plot to plaintiff and accordingly the plaintiff purchased the same by way of a registered sale deed on 21/06/1999 for a consideration of Rs.1, 50, 000.00. The remaining part i.e. Northern portion of the entire plot No.53 is now the plot in dispute. The appellant / plaintiff claimed that his father Keshavlal died intestate but the respondents / defendants in collusion with each other, prepared a forged and fabricated Will-deed dtd. 27/01/2000 by taking disadvantage of ill-health of his father. According to him, the said Will stood in favour of respondent Nos.2 and 3, was in fact illegal and void and therefore, he filed a suit for partition in respect of the said suit property. The respondents after appearance, contested the suit by filing written statement and supported the Will. According to them, the suit of the plaintiff/appellant was hopelessly barred by limitation since he was already knowing about the execution of the Will much prior to the filing of present suit. They contended that the appellant / plaintiff had in fact admitted the said Will by producing an affidavit of respondent No.2 in his own suit i.e. RCS No.409 of 2013 which he had filed against Municipal Corporation, Latur on 25/09/2013. Thus, they claimed that the appellant/plaintiff by way of crafty drafting and by indirectly challenging the said Will tried to file suit which was completely barred by limitation. They also filed applications Exhibits-19 and 20 for rejection of the plaint under Order VII Rule 11 of the CPC by contending that the suit was barred by limitation. The learned trial court on the basis of those applications, framed preliminary issue 'as to whether the suit of the appellant / plaintiff was barred by limitation' and ultimately rejected the plaint by passing an order dtd. 12/01/1918. The appeal preferred by the present appellant / plaintiff before the learned first appellate court has also been dismissed and hence this second appeal.

3. The learned counsel for the appellant / plaintiff vehemently argued that the present appeal, involves following substantial questions of law :

i) Whether both the learned courts below failed to appreciate that for rejection of the plaint under Order VII Rule 11 of CPC only averments of the plaint are required to be considered and not the defence ?

ii) Whether the issue of limitation being a mixed question of law and fact, was-- ought to have been decided on the basis of evidence?

iii) Whether the learned first appellate court was justified in dismissing the appeal without framing proper points for consideration ?

He further submitted that both the learned courts below erred in rejecting the plaint despite the guiding principle in the aforesaid substantial questions of law.

4. The learned counsel for the appellant / plaintiff also relied on following judgments :

A) R. Kempraj vs. Barton Son