Limitation under Article 58 for challenging Will and sale deeds thereunder accrues not from mere knowledge of Will but from infringement via execution of deeds and mutation in records, amid pending probate proceedings.

ORDER :

AMIT S. JAMSANDEKAR, J.

1. By the present Civil Revision Application, the Applicant has challenged the order dated 4^th June 2025 (the impugned order passed by the Learned Civil Judge, Civil Senior Division, Mapusa Goa (the Learned Judge) in SCS No. 16 of 2025. By the impugned order, the Learned Judge has rejected the Application filed by the Applicant under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908.

2. The 1^st Respondent (original Plaintiff) filed the suit, inter alia seeking a declaration that the last Will and Testament dated 31st May 2008 (the said Will) is illegal and null and void. The 1^st Respondent also sought a declaration that the Deeds of Sale dated 16^th August 2024 are illegal, unlawful and void ab initio, and consequently, has sought cancellation of the same. A relief of permanent injunction is also sought by the 1st Respondent.

3. The Applicant filed an Application under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908 and sought rejection of the plaint on the ground that the suit is barred by the Law of Limitation. It is the main contention of the Applicant that the said Will is a registered document and therefore, limitation shall commence from the date of registration. In any case, it is the case of the Applicant that the 1^st Respondent admittedly was aware of the existence of the said Will at least since 21^st February 2019. The suit was filed by the 1st Respondent only on 25th January 2025. Therefore, the suit is barred by the provisions of Section 3 read with Article 58 of the Law of Limitation, 1963. The Application was opposed by the 1st Respondent.

4. The Learned Judge dismissed the Application filed by the Applicant, inter alia, holding that the commencement of the period limitation can be determined only after proper adjudication of the matter. The Learned Judge has taken a view that, in the facts and circumstances of the present case, the issue of limitation, being a mixed question of law and facts, has to be thoroughly examined.

5. The 2^nd Respondent, who is the 2^nd Defendant in the suit, had also filed an Application under Order VII Rule 11 of the Code of Civil Procedure alleging that the plaint does not disclose any cause of action and therefore, the plaint ought to be rejected. This Application was also dismissed. The 2nd Respondent has not challenged that order of dismissal of the Application. Mr. Lawande, the Learned Counsel for the 2nd Respondent, submitted that though the 2^nd Respondent has not challenged the order, he is supporting the Applicant’s plea in the present Civil Revision Application that the suit is barred by the Law of Limitation.

6. Mr. Nadkarni and Mr. Lawande agreed that the present Civil Revision Application is only confined to the plea under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908. Accordingly, the hearing of the present Civil Revision Application is confined only to the plea of the Applicant that the suit is barred by the Law of Limitation.

7. Mr. Nadkarni, the Learned Counsel for the Applicant, submitted that in view of the admitted facts about the knowledge of the 1^st Respondent of the said Will, the plaint ought to have been rejected. The impugned order, therefore, in the face of it, proceeds on a wrong footing. He formulated his propositions in the following manner:-

a. The primary challenge/relief against the said Will in th