The judgment established that the knowledge of the Will cannot be held to be beyond limitation under the provisions of Order 7 Rule 11, CPC at the initial stage of the case.

Manmohan, J.:--

I.A. 15186/2014 in CS (OS) 1950/2013

1. Present application has been filed by the defendant Nos. 1 and 2 under Order 7 Rule 11, CPC for rejection of the plaint.

2. Mr. Siddharth Bhataagar, learned Counsel for defendant Nos. 1 and 2 applicants submitted that prayers in the suit for partition and declaration were on the face of it barred by limitation. He stated that as the Will dated 18th September, 2001 was a registered Will, the date of its registration i.e. 18th September, 2001 had to be presumed to be the date of deemed knowledge and consequently the present suit filed on 30th September, 2013 was well beyond the period of limitation. In support of his submission, he relied upon the judgment of the Supreme Court in Dilboo (Smt.) (Dead) By LRs. And Others v. Dhanraji (Smt.) (Dead) and Others, VI (2000) SLT 680=(2000) 7 SCC 702, wherein it has been held as under:

“20…………It is always for the party who files the suit to show that the suit is within time. Thus in cases where the suit is filed beyond the period of 12 years, the plaintiff would have to aver and then prove that the suit is within 12 years of his/her knowledge. In the absence of any averment or proof, to show that the suit is within time, it is the plaintiff who would fail. Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discov­ered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.”

3. On the other hand, Mr. Amit Sethi, learned Counsel for plaintiffs—non-applicants contended that the plaintiffs’ suit was within limitation and in support of his contention, he drew this Court’s attention to paras 13, 14 and 15 of the plaint. Since considerable emphasis was laid on paras 13, 14 and 15 of the plaint, the same are reproduced hereinbelow:

“13. That at the relevant time, since defendant No. 1 was already living on Ground floor, she requested the Plaintiffs and other legal heirs of her deceased brother i.e. defendant Nos. 3 & 4, to allow her to continue to live there. Considering her age and the fact that divorced daughter of Defendant No. 1 has started living on first floor, the plaintiff & defendant Nos. 3 & 4 did not object to same. The Plaintiffs about after about six months after the death of Dr. Sudershan Kumari, requested defendant No. 1, to sit across and formally divide the suit property. However defendant No. 1 owing to her illness and other pre-occupation deferred the issue stating that needful will be done soon. The said attitude of defendant No. 1 continued year after year and even the plaintiffs considering the fact that 50% of the portion on ground floor of the area forming part of portion shown as Green in the site plan, has to go in favour of defendant No. 1 by law of succession, allowed her to live in the built up portion on the Ground floor forming part of the portion shown as Green in the site Plan while remaining open portion, verandahs, lawns, drive way, passages, etc. continued to be in joint possession, occupation & use of Plaintiffs & even defendant Nos. 1 & 3.

14. That Dr. Akash Sud i.e. defendant No. 2 after an year or so i.e. sometimes in Jan-Feb 2007 also started temporarily living with her mother i.e. defendant No. 1 with a view to take care of her owing to age factor. The Plaintiffs and defendant Nos. 3 & 4 did Not object to same as at all times the defendant No. 1 kept on assuring that necessary partition will be done which will be acceptable to all and shall be beneficial for all the legal heirs of deceased Sudershan Kumari. The Plaintiffs owing to such positive attitude of defendant No. 1 and her continuous assurance kept quiet and at no point of time doubted her intentions and continued to bonafidely believe throughout the period from Oct. 2005 to Sep. 2012 that sooner or later Partition in respect o