In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya And The Hon’ble Justice Uday Kumar F.A. No.89 of 2023 With CAN 1 of 2019 (Old No: CAN 158 of 2019)

CAN 9 of 2024 Smt. Shefali Mallick, since deceased, her legal heirs and representatives Smt. Laxmi Mallick and others Vs.

Durga Chakraborty (Rakshit), since deceased, her legal heirs and representatives Sri Krishnendu Chakraborty and others For the appellant : Mr. Prasad Bhattacharyya Mr. Prantick Ghosh For the respondent : Mr. Rahul Karmakar Mr. Sourav Guchhait Heard on : 20.02.2025, 27.02.2025

05.03.2025, Judgment on : 11.03.2025 Sabyasachi Bhattacharyya, J.:-

1. The present appeal has been preferred at the behest of the defendants in a suit for declaration that a partition deed dated April 7, 1997 is void ab initio, for declaration of the title and shares of the parties and for partition as well as consequential reliefs. The learned Trial Judge, while observing that the said deed of partition was void ab initio and as such the relief of declaration sought in respect thereof was superfluous, arrived at the conclusion that the suit was not barred by limitation on account of the said declaration having been sought beyond the limitation period as stipulated in Article 59 of the Schedule to the Limitation Act, 1963. Consequentially, the shares of the parties were declared in preliminary form. Being thus aggrieved, the present appeal has been preferred.

2. Learned counsel appearing for the appellants argues that the relief of declaration was mandatory and the primary relief, since the partition deed cast a cloud over the plaintiffs‟ title. Even if Article 59 of the Limitation Act was not applicable, it is argued that the suit would be governed by Article 113 of the Limitation Act which stipulated the starting point of limitation to be when the right to sue accrues. Kamala, plaintiff no.1, being a party to the deed, the right to sue accrued on the date of execution and registration of the partition deed on April 7, 1979.

Hence, the suit of 2013 is palpably time-barred.

3. In support of his contentions, learned counsel cites Khatri Hotels Private Limited and Another v. Union of India and Another, reported at (2011) 9 SCC 126 and Prem Singh and Others v. Birbal and Others, reported at (2006) 5 SCC 353. It is argued that unless the partition deed, being Exhibit-13, is set aside, the plaintiffs are not entitled to seek the other reliefs, including that of declaration of their shares by ignoring the said partition deed and partition. Moreover, as evident from the evidence of the parties, in particular the admissions of P.W.1 and P.W.5, the partition deed was acted upon by the parties.

4. Learned counsel cites Ranganayakamma and Another v. K.S. Prakash (Dead) By LRs. and others, reported at (2008) 15 SCC 673 in such context.

5. Learned counsel for the appellants also relies on the judgment of T.

Arivandandam v. T.V. Satyapal and another, reported at (1977) 4 SCC 467, in support of the contention that the limitation period cannot be stretched on the basis of Exhibit-9, a legal notice dated October 3, 2012, since the cause of action first arose in the year 1979.

6. It is argued that the allegation that Lalita was the daughter of Indumati, in which case the non-allocation of Lalita‟s shares in the partition deed would vitiate the deed, has not been proved. P.W.3, who sought to prove such relationship, was not a member of Lalita‟s family and as such was not competent to prove the same. Also, Exhibit-19, a letter given by the concerned Authority, does not prove the relationship between Lalita and Indumati.

7. It is pointed out by learned counsel for the appellants that Kamala, the alleged daughter of Lalita, admitted in her cross-examination that Lalita was not her mother, which also ought to have been considered by the learned Trial Judge.

8. Learned counsel for the respondents alleges that the existence of Lalita is admitted by Exhibit-1