*

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS (OS) No. 1574/2006 & IA Nos.8992-8993/2006,

13731/2006, 2066/2007

Decided on : August 29^th, 2008

AMRIT KAUR

......PLAINTIFF

Through : Mr.K.T.S. Tulsi, Sr. Advocate with

Ms. Susha Unni, Advocate

versus

SARABJEET SINGH & ORS

...... DEFENDANTS

Through : Mr. R.M. Bagai, Advocate

CORAM:

Mr. Justice S. Ravindra Bhat

1. Whether reporters of local papers may be

allowed to see the judgment?

Yes

2. To be referred to the Reporter or not?

Yes

3. Whether the judgment should be reported

in the Digest?

Yes

Mr. Justice S. Ravindra Bhat:

2008:DHC:2500

IA No.7743/2007

1.

This order proposes to dispose of an application, (IA

7743/2007) filed by the defendants, for rejection of the plaint, under

Order VII, Rule 11 (d) Code of Civil Procedure, 1908 (hereafter called

“CPC”) on the ground of its being time barred.

2.

The plaintiff a decree partitioning properties mentioned in

Schedule A (to the suit) and other properties which may come to

light in the course of the trial in these proceeding, which might have

been purchased out of funds of the assets owned by her father, by

metes and bounds, and declared her to be entitled to 1/5^th share of

the partitioned property. The plaintiff also claims a decree for

rendition of accounts.

3. The plaintiff avers that Desh Raj Singh, her father was born in

1918. He went to Karachi for earnings and started his transport

business there in a small scale. After partition, he started his

business in Delhi under the name and style of “Karachi Taxi Co”. The

plaintiff’s father and his family were living at 34/42, Punjabi Bagh,

New Delhi. It is averred that the defendants, all sons of the said

2008:DHC:2500

Desh Raj Singh, after attaining majority, joined him in the business

and were inducted as Directors of the company. It is also averred

that from the earnings of the said business, her father Desh Raj

Singh acquired properties listed in Schedule A. With advancing age,

Desh Raj Singh’s interest in the business started to wane.

Accordingly, the first defendant, being his eldest son, started acting

as the Karta of the Hindu Undivided Family.

4. The further material averments in the plaint, are extracted

below:

2008:DHC:2500

2008:DHC:2500

2008:DHC:2500

2008:DHC:2500

partnership firm till date.”

5. Learned counsel for the applicant defendant submits that the

plaint has to be rejected. Being an action seeking enforcement of

rights in the joint family property, the relevant provision concerned

is Article 110 of the schedule to the Limitation Act, 1963 (“the Act”)

which prescribes that the period of limitation is 12 years. Counsel

submitted that the period of limitation begins when the exclusion

(from the property) becomes known to the aggrieved party or the

plaintiff. He submitted that according to the plaintiff, immediately

after her father’s death, she was excluded from her share in the

properties left by him. As such the cause of action for the suit

commenced from 19-8-1988; the limitation thus expired on 18-8-

2000.

2008:DHC:2500

6. Learned counsel submitted that the plaintiff did not have any

cause of action to approach this court and file the suit. Being a

daughter of the late Desh Raj Singh, she was not a coparcener, in

the Hindu undivided family. Counsel submitted that the plaintiff

could not take advantage of amendment to Section 6 of the Hindu

Marriage Act, since it was brought into force in 2005, and operated

prospectively. Learned counsel submitted that the court should

exercise its power under Order VII, Rule 11 and reject the plaint, to

avoid what is a patently frivolous and vexatious litigation, filed

speculatively.

7. Mr. K.T.S. Tulsi, learned senior counsel for the plaintiff, urged

that the suit clearly reveals a