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2012 Supreme(Del) 2058
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRADEEP NANDRAJOG, MANMOHAN SINGH, JJ.
SHIVRAJ GUPTA – Appellant
Versus
DESHRAJ GUPTA & ANR – Respondents
RFA(OS) 107/2012
Decided On : November 16, 2012
Mr. Vikas Dhawan, Advocate and Mr. Abhimanyu Mahajan, Advocate.
The right to sue accrues when the claim is laid to the estate of the deceased, and the cause of action arises when the claim is disputed or there is a threat to deny.
Headnote:
Limitation - Inheritance - Hindu Succession Act 1956 - Limitation Act 1963 - [FACT OF THE CASE] The suit filed by the appellant, claiming that the defendants had incurred disqualification to inherit the estate of the deceased under Section 25 of the Hindu Succession Act 1956, was held to be barred by limitation. [FINDING OF THE COURT] The court found that the right to sue accrued when the claim was laid to the estate of the deceased by the propounder of the will, and not when the propounder lost the battle with reference to the will before the Supreme Court. [ISSUES] The issues revolved around the accrual of the right to sue and the interpretation of the Limitation Act 1963. [RATIO DECIDENDI] The court relied on legal principles from various decisions to determine when the right to sue accrues, emphasizing that the cause of action arises when the claim is disputed or there is a threat to deny. [FINAL DECISION] The court concurred with the view taken by the learned Single Judge and dismissed the appeal in limine.
PRADEEP NANDRAJOG, J.
1. Suit filed by the appellant has been held to be barred by limitation at the preliminary hearing itself.
2. Late Lala Hans Raj Gupta took the A train to heaven on July 03, 1985 and was survived by his wife Ms.Angira Gupta who has since expired and four sons named Deshraj Gupta, Shivraj Gupta, Rajendra Kumar Gupta and Mahendra Kumar Gupta as also two daughters Shashi Jai Krishna and Pratibha Khandelwal. His son Deshraj Gupta propounded a will stated to have been executed by late Lala Hans Raj Gupta on May 28, 1985 and sought probate thereof vide Test.Cas.No.62/1985 which will was supported by Mahendra Kumar Gupta but opposed by Shivraj Gupta. The challenge succeeded when a learned Single Judge dismissed the probate sought vide order dated May 11, 2009 against which appeal filed registered as FAO(OS) No.237/2009 was dismissed by a Division Bench on July 14, 2010. Deshraj Gupta took the matter before the Supreme Court but failed when SLP(C) No.28437/2010 was dismissed on October 25, 2010.
3. In other words, as per Shivraj Gupta, the plaintiff of the suit and the appellant before us, the estate of Late Lala Hans Raj Gupta devolved by intestacy and not testamentary disposition.
4. He filed a suit on May 10, 2012 impleading his brother Deshraj Gupta and his two sons Raviraj Gupta and Uday Gupta as also his brother Mahendra Kumar Gupta as defendants and sought a declaration that they had incurred the disqualification to inherit the estate of late Lala Hans Raj Gupta as per Section 25 of the Hindu Succession Act 1956. He alleged that his two brothers and his nephews had either murdered or actively connived in the murder of his father.
5. The suit has been held to be barred by limitation by treating that the plea that the defendants in the suit had murdered late Lala Hans Raj Gupta, who died on July 03, 1985. With reference to Article 113 of the Limitation Act 1963 it has been held that the right to sue accrued when claim was laid to the estate of the deceased by Deshraj Gupta when he sought probate of a will statedly executed by the deceased and that the right to sue did not accrue when Deshraj Gupta lost the battle with reference to the will before the Supreme Court.
6. Now, for purposes of inheritance the estate of a deceased opens on the death. There are only two modes of inheritance recognized by law :
(i) intestate succession; and
(ii) testamentary succession.
7. A natural heir claiming testamentary succession makes it known that he/she is laying a claim to the estate of his/her parent (the deceased) and it does not matter if the claim is opposed for the reason if the opposition is by pleading that the deceased did not execute any will, the defence itself would recognize the right of the propounder of the will to the estate of the deceased i.e. by succession.
8. If it is the case of a legal heir that some other legal heir of the deceased has suffered the disability under Section 25 of the Hindu Succession Act 1956, the said heir has to seek declaration the moment claim to the estate of the deceased is laid.
9. When does the right to sue accrue?
10. Way back in 1930, in the decision reported as AIR 1930 PC 270 Mt. Bolo v. Mt. Koklan, Sir Binod Mitter, speaking for the Council, with reference to Article 120 of the Limitation Act, 1908, which provision correspondence to Article 113 of the Limitation Act, 1963, stated as under: -
“There can be no “right to sue” until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.”
11. The view was cited with approval the next year in the decision reported as AIR 1931 PC 89 Gobinda Narayan v. Sham Lal. It was held that the expression ‘right to sue’ means the right to bring the particular suit with reference to which the plea of limitation is raised and that the starting point for limitation is when the rights are invaded.
