Anand Madanmohan Jaiswal vs Smt. Pratibha W/O Rammohan ...
2017 Latest Caselaw 7451 Bom

                                          1




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                NAGPUR BENCH : NAGPUR



First Appeal No. 784 of 2017 



Appellant :             Anand Madanmohan Jaiswal, aged about 

                        42 years, Occupation :  Business, resident of 

                        MC House No. 122 (old) 411 (New), CS

                        No.  2170, mouza Sitabuldi, Mohan Nagar, 

                        Nagpur

                        Versus

Respondents:            1) Smt Pratibha w/o Rammohan Jaiswal, 

Aged about 47 years, Occ: Housewife,

Resident of 137, Ramayan, Sanjeevni

Nagar, Gada, Jabalpur, MP

2) M/s Shewalkar Developers Limited, a

Company incorporated under the Indian

Companies, 1956, having its Regional Office

At Laxmi Bhuwan Square, WHC Road,

Acting through its Managing Director Shri

Ashutosh s/o Ram Shewalkar, aged about

51 years, Occ: Business, resident of

Daga Layout, North Ambazari Road, Nagpur

Shri R. M. Sharma, Advocate for appellant

Shri Shyam Dewani, Advocate and Shri K. Dodani,

Advocate with him for respondents

Coram : S. B. Shukre, J

Dated : 22nd September 2017

Judgment

1. Heard. Admit. Since the appeal is preferred against the

judgment on preliminary issue, it is heard forthwith by consent of parties

and also in terms of order of this Court dated 29 th June 2017. As all the

related documents are forming part of this appeal, there is no need to call

for Record and Proceedings. This has also been conceded to by both the

parties.

2. This appeal takes exception to the legality and correctness

of the judgment on preliminary issue dated 15th April 2017 rendered in

Special Civil Suit No. 39 of 2015 by the 7th Joint Civil Judge, Senior

Division, Nagpur. By this judgment, suit of the appellant/plaintiff has

been dismissed with costs of Rs. 5000/- by the trial Court on the ground

that it is barred by limitation.

3. The appellant, claiming to have acquired a right in and title

to the suit property bearing City Survey No. 2213/01, Municipal

Corporation House No. 410 situated in Ward No. 65, Mohan Nagar,

Nagpur, more particularly described in plaint paragraph no. 1, filed a

suit against the respondents seeking declarations that the Will dated

4.3.1946 forebade the beneficiary under the Will or anybody claiming

through him to let out, sell or otherwise alienate the suit property; that

registered sale deed dated 11.4.2012 executed in respect of suit property

by respondent no. 1 in favour of respondent no. 2 was null and void and

thus was liable to be cancelled and relief for possession of suit property

and injuncting of the respondents from carrying out any construction over

the suit property or alienating or creating third-party interest in it.

4. According to the appellant, one Mohanlal Chironjilal Jaiswal

was the owner of the suit property and after his death, it was inherited by

Jainarayan Jaiswal. During his life time, Jainarayan bequeathed suit

property by registered Will dated 4.3.1946 to his son Chandanlal Jaiswal.

But such bequeathal of the suit property was subject to the condition that

Chandanlal shall strictly use the suit property for his own residential

prupose and shall have no right to let out, sell, mortgage, gift or otherwise

alienate the suit property in any manner and if he did so, it shall be taken

over and occupied by nephew of the testator, Lala Ganeshlal Harnarayan

Jaiswal. Appellant claimed himself to be a grand-son of Lala Ganeshlal

Harnarayan Jaiswal.

5. After the death of Mohanlal, the suit property came to

Chandanlal. Chandanlal used the suit property for his residential purpose

only and did not commit any breach of the condition of the Will dated

4.3.1946. However, after his death in 1970, his wife Laxmibai came into

possession of the suit property and it was after this point of time, it

appears that the attempts to deal with the suit property were made.

6. It was contended by the appellant that respondent no. 1,

falsely claiming herself to be the owner of the suit property, made an

attempt to sell the suit property to some third person. It was further

claimed by the appellant that on 18.7.2011, he learned about such an

attempt being made by respondent no. 1. He, therefore, applied to the

Zonal Office of the Nagpur Municipal Corporation under the Right to

Information Act, 2005 to obtain copies of documents relating to the suit

property and those documents were supplied to him on 26.7.2011.

Amongst the supplied documents, was the Will dated 4.3.1946 which

made it clear to the appellant that suit property could not be sold or

alienated in any manner by Chandanlal or for that matter, anybody

claiming through him. The appellant, therefore, issued a notice to

respondent no. 1 to desist from disposing of the suit property in any

manner, but in vain. It appears that there was one suit filed by respondent

no. 1 against this appellant, which was Regular Civil Suit No. 3912 of

2012 seeking relief of permanent injunction against the appellant. It was

in respect of possession of the suit property only. The appellant had filed

his Written Statement also in that suit as he learnt from the pleadings in

that suit that the suit property had been sold to respondent no. 2. But,

that suit was subsequently withdrawn by respondent no. 1. It was

thereafter the appellant realized that it was necessary for him to file a

civil suit against both the respondents so that full effect to the intention of

the testator could be given effect to by seeking appropriate declarations

and relief relating to possession and injunction. Accordingly, suit being

Special Civil Suit No. 39 of 2015, the present suit, was filed by the

appellant against both the respondents.

7. Respondents strongly resisted the suit. They also filed an

application under Order VII, Rule 11 read with Section 9A and Section

151 of the Code of Civil Procedure for rejection of plaint and deciding the

jurisdiction as a preliminary issue. The main thrust of the application was

on the point that the suit as filed by the appellant was barred by

limitation. After hearing both sides, the trial Court framed a preliminary

issue on the question of jurisdiction under Section 9A of CPC. This issue

was decided on merits by the trial Court by this judgment rendered on

15th April 2017. It is this judgment which is the cause for filing of present

appeal by the appellant, the original plaintiff.

8. I have heard Shri R. M. Sharma, learned counsel for the

appellant and Shri Shyam Dewani, learned counsel for the responents. I

have gone through the paper book of this appeal. Now, the following

point arises for my determination:

Whether the suit filed by the appellant is barred by

limitation ?

9. Learned counsel for the appellant submits that serious error

of fact and law has been committed by the trial Court in recording a

finding that the suit filed by the appellant is hopelessly barred by Law of

Limitation. He submits that declarations sought by the appellant in the

suit were of such nature as they could not have been sought till the time a

clear right to sue accrued to the appellant and in this case, clear right to

seek these declarations accrued to the appellant only when it became

clear to the appellant that the suit property had been agreed to be sold by

respondent no. 1 to respondent no. 2 sometime on 17.3.2012 when an

agreement to sell was executed by respondent no. 1 in favour of

respondent no. 2, which was followed by sale deed dated 11.4.2012. He

submits that under Article 58 of the Limitation Act, the limitation period

prescribed for obtaining declarations of the nature as are sought in the

present suit, is of three years and it begins to run when the right to sue

first accrues. According to him, right to sue in the instant case first

accrued on 17.3.2012 as it became clear on that date only that there had

been alienation of the suit property in violation of the condition contained

in the Will dated 4.3.1946. He places reliance upon Archana Bhimrao

Randaye v. Dr Kavita Dilip Changole reported in 2017 (3) Mh. L. J.

589 and Mrs Geeta Patkar v. Chandrakant Kantilal Shah & ors

reported in 2015 (5) ALL MR 794.

10. Learned counsel for the appellant further submits that while

considering the ground of limitation for the purpose of rejection of plaint

under Order VII, Rule 11 (d) of the Code of Civil Procedure, the Court has

to consider only averments in the plaint and it cannot go beyond those

averments. For this purpose, he relies upon Sundeep Polymers Pvt Ltd,

Mumbai v. Maharashtra State Electricity Distribution Company Ltd.,

Nagpur reported in 2009 (5) Mh. L. J. 327 and Sushilabai wd/o

Bomenshaw Byramji v. Kamlarukh wd/o DPR Cassad and anr reported

in 2014 (3) Mh. L. J. 404.

11. Shri Dewani, learned counsel for the respondents submits

that the impugned order is correct on law and facts and, therefore, needs

no interference. He invites my attention to some of the pleadings in the

plaint which, in his opinion, clearly show that though the first cause of

action to file the suit in the own words of the appellant, accrued on

26.7.2011, as stated in paragraph 24 of the plaint, the suit seeking a

declaration that the suit property cannot be let out, sold, mortgaged or

bequeathed or alienated in any manner together with other declaratory

reliefs was filed in January 2015 and, it was clearly beyond the period of

limitation prescribed under Article 58 of the Limitation Act. He also

submits that declaration regarding the sale deed dated 11.4.2012 being

bad and not binding upon the appellant, could not be sought unless the

will dated 10.9.1999 executed in respect of the suit property by deceased

Laxmibai in favour of respondent no. 1 is also challenged for its validity

and as it has not been done by the appellant, it has to be said that the suit

does not disclose cause of action which is nothing but every fact and

bundle of facts which, if controverted, would have to be proved by the

plaintiff in order to get the relief sought in the suit. He places his reliance

upon the cases of Hardesh Ores (P) Ltd. v. Hede And Company

reported in (2007) 5 SCC 614; Church of Christ Charitable

Trust And Educational Charitable Society v. Ponniamman Education

Trust reported in (2012) 8 SCC 706 and I. S. Sikandar v. K. Subramani

& ors reported in (2013) 15 SCC 27.

12. In the case of Archana Bhimrao Randaye and Mrs Geeta

Patkar (supra), it has been held that limitation under Article 58 begins to

run only when there is a clear threat to right asserted by the plaintiff. In

the cases of Hardesh Ores and Church of Christ (supra), it has been

held that in order that a plaint discloses cause of action, every fact and

every bundle of facts which, if controverted, would be required to be

proved by the plaintiff in order to seek relief in his favour, must be

pleaded and that the Court must guard against the attempts of the party

to camouflage the bar of limitation through illusions of cause of action

created by a clever draftsman and if such essential facts are not pleaded,

the plaint would have to be held as not disclosing cause of action. In the

case of I. S. Sikandar (supra), it was held that when the agreement for

sale of which specific performance was sought by the plaintiff itself was

terminated owing to failure of plaintiff to perform his part of contract, any

suit for specific performance of agreement to sell and consequential relief

of decree for permanent injunction, could not be maintained in law unless

a relief to declare the termination of agreement for sale as bad in law, is

also sought.

13. There can be no dispute about these principles of law and

bearing them in mind, now the rival arguments would be considered.

14. Since the question of bar of suit on the ground of limitation

has been raised, it would be appropriate that the reliefs claimed in the

suit are considered first. The suit filed by the appellant seeks following

reliefs :

"It is, therefore, prayed that this Hon'ble Court be kindly

pleased to :

(1) Declare that late Shri Jaynarayan son of Mohanlal Jaiswal

have executed a WILL dated 4.3.1946 and according to the

said WILL, the suit property cannot be let out, Sale,

mortgaged or gift, WILL or alienate in any manner.

(2) Declare that according to the WILL dated 4.3.1946,

possession of suit property shall be taken and occupied by late

Lala Ganeshlal Harnarayan Jaiswal and thereafter plaintiff

being legal heir of late Lala Ganeshlal Harnarayan Jaiswal.

(3) Declare that Registered Sale Deed dated 11.4.2012 in

respect of suit property executed by defendant no. 1 in favour

of defendant no. 2 is null and void, illegal and not binding on

the plaintiff.

(4) Declare that Sale Deed dated 11.4.2012 executed by

defendant no. 1 in favour of defendant no. 2 stands cancelled

in respect of suit property.

(5) Restrain defendants from carrying out any construction

on suit property or suit plot and from alienating or creating

any third party interest or transfer any portion of the suit

property in favour of any third person till disposal of this suit.

(6) Pass a decree of possession in respect of suit property in

favour of plaintiff and direct the defendants to handover

physical possession of the suit property to plaintiff in view of

WILL dated 4.3.1946.

(7) Saddle the cost on the defendants, and

(8) be further please to pass any such other order as may be

deemed fit and proper in the facts and circumstances of the

case for which act of kindness the plaintiff shall remain duty

bound and ever pray."

15. A minute perusal of these reliefs would make it clear to us

that the first relief seeking a declaration that as per the Will dated

4.3.1946, the suit property cannot be let out or sold or alienated in any

manner is the main relief based on which are the remaining reliefs

incorporated in prayer clauses (2) to (6). It would then follow that the

other reliefs in prayer clauses (2) to (6) are only consequential to the

main relief sought in clause (1) and if main relief is granted, then only

these consequential relief could be granted. It would also mean that if

main relief is not granted, the other reliefs being consequential in nature,

must necessarily fail.

16. The main relief claimed in clause (1) is of the declaration

and there is no dispute between the parties that limitation period

prescrtibed for such a declaration is covered under Article 58 in the

Schedule to the Limitation Act. It lays down that to obtain such a

declaration, the period of limitation is three years and it begins to run

when right to sue first accrues. We have seen from the ratio of the case

laws referred to earlier that this right to sue has been interpreted to be a

"clear right to sue" when there is a clear and unequivocal threat to the

right sued upon. In order to determine as to when such clear right to sue

first accrued to the appellant in the present case, it would be necessary for

us to refer to the pleadings in the plaint and evidence led. At this

juncture, I must say that what is being decided by this Court is the legality

and correctness of the judgment delivered on the preliminary issue

framed under Section 9A of CPC and, therefore, it would be permissible

for this Court to not only consder the pleadings in the plaint, but also the

pleadings of the respondent and evidence adduced by the parties on the

preliminary issue and, therefore, the cases of Sundeep Polymers and

Sushilabai wd/o Bomenshaw Byramji (supra) relied upon by learned

counsel for the appellant would have no application to the present case.

17. In paragraph 13 of the plaint, the appellant has averred that

sometime on 18.7.2011 he came to know or got a hint that respondent

no. 1 was trying to sell the suit property and, therefore, he applied to the

Zonal Office of the Corporation under the Right to Information Act to

obtain documents relating to the suit property and that he also received

them on 26.7.2011 in which there was a copy of Will dated 4.3.1946. It is

the contention of the appellant that Will dated 4.3.1946 contained a

clause that suit property was bequeathed to Chandanlal for the sole

purpose of his residential use and that he was debarred from selling or

alienating in any manner the suit property and if he did so, the said

property was to be taken over and occupied by the nephew of the testator,

Lala Ganeshlal Harnarayan Jaiswal, who is claimed to be the grand-father

by the appellant. So, what had become clear to the appellant was the fact

that an attempt was being made by respondent no. 1 to sell the suit

property, knowledge about which was acquired by him on 18.7.2011 and,

respondent no. 1 could not do so in view of the condition imposed in the

Will dated 4.3.1946, knowledge about which was obtained by him on

26.7.2011. In other words, by 26.7.2011 it had become clear to the

appellant that the suit property could not be sold or alienated in any

manner by respondent no. 1 and yet respondent no. 1 was making efforts

to sell the same. Thus, the first right to sue in the present case, which was

a clear right to sue, accrued to the appellant on 26.7.2011.

18. In paragraph 24 of the plaint, the appellant also admits the

fact that the cause of action for the suit arose on 26.7.2011 when he

pleads thus :

"(24) The cause of action for this suit arose at Nagpur on

26.7.2011 when plaintiff got copy of WILL dated 4.3.1946

from the Office of Nagpur Municipal Corporation,

Nagpur........."

19. In the oral evidence adduced by the appellant also, the

appellant admits that in the year 2011, he learned about the Will.

So, the own pleadings of the appellant and his admissions given in

his oral evidence, would together show that on 26.7.2011, he was

well aware that the suit property could not be alienated in any

manner by its occupant and that there were attempts made by the

occupant to sell the suit property. Such knowledge of the appellant

constituted a clear right to sue to get a relief which is the main

relief in prayer clause (1) to the effect that as per Will dated

4.3.1946, the suit property cannot be let out, sold, mortgaged,

bequeathed or alienated in any manner. For getting such a

declaration, it was enough for the appellant to apprehend, founded

on reasonable basis, that the suit property was likely to be alienated

and such apprehension would have constituted and in fact, it being

already there has constituted in the present case, a cause of action

for filing of a suit seeking such a relief by the appellant. So, the

limitation for this relief in the present case began to run on

26.7.2011 and that means, suit for this relief should have been filed

on or before 25.7.2014. But, suit has been filed in January 2015

and, therefore, the main relief sought in the present suit would

have to be said as barred by law of limitation as prescribed under

Article 58 of the Limitation Act, which I do so.

20. Once it is found that the main relief sought in the suit

itself is barred by limitation, the other reliefs contained in prayer

clauses (2) to (6), being consequential in nature, could also not be

granted and thus, for those reliefs also, the suit would not be

maintainable in law.

21. Consequential reliefs in prayer clauses (3), (4), (5) and

(6), I further find, can also not be sought in the present case as,

admittedly the appellant inspite of having acquired knowledge

about execution of Will dated 10.9.1999 by deceased Laxmibai in

favour of respondent no. 1 and which was the basis for respondent

no. 1 to sell the suit property to respondent no. 2, has not

challenged the Will for its validity in the present suit. Challenge to

this Will of 1999 was the foundation of the reliefs claimed in

clauses (3), (4) and (5), which formed only the edifice or the

manifestations or the consequences of the main or foundational

reliefs. Therefore, as held in the cases of Hardesh ores (P) Ltd.

and Church of Christ (supra), the plaint in this case does not

disclose complete cause of action in order to maintain the suit

seeking such declarations as the sale deed dated 11.4.2012 is null

and void and liable to be cancelled and for possession and such

relief as restraining the respondents from carrying out construction.

Even in the case of I. S. Sikandar (supra), the Hon'ble Supreme

Court has held that unless a foundational relief is sought, a suit

seeking consequential relief is not maintainable in law.

22. As if what is seen above is not enough, there is

onemore dimension involved in this case, which if considered,

would make one find that at the base of everything sought, lies the

desire of the appellant to achieve an impossibility. The appellant

by prayer clause (2) seeks a declaration that possession of suit

property be taken and occupied by "Late Lala Ganeshlal

Harnarayan Jaiswal", a dead person. Now, if this clause is also

considered as seeking equally a foundational relief vis-a-vis reliefs

in prayer clauses (3) to (6), and this relief is still-born, all rest of

the reliefs in clauses (3) to (6) must also meet the dead end.

23. On the aforestated additional grounds as well, I find

that the suit in respect of prayer clauses (2), (3), (4), (5) and (6) is

not maintainable in law.

24. At this juncture, learned counsel for the appellant has

invited my attention to the case of Savthri & ors v. Karthyayani

Amma & ors reported in (2007) 11 SCC 621 wherein it has been

held that one who propounds the Will, the burden of proving that

Will lies on him. He submits that the appellant is not relying upon

the Will dated 10.9.1999 and, therefore, his not seeking any relief

in the nature of declaration that Will dated 10.9.1999 is invalid and

bad in law, cannot be held against the appellant.

25. It is true that the appellant is not relying upon this

Will. Equally, it is true that the appellant has been made aware of

existence of this Will when he appeared in the previously instituted

suit against him by respondent no. 1, which was Regular Civil Suit

No. 3912 of 2012 filed on 5th May 2012. In that suit, it was made

clear by respondent no. 1 that she was in lawful possession of the

suit property for last so many years; that the Will dated 10.9.1999

in respect of the suit property was executed in her favour by

deceased Laxmibai; that she was paying property taxes to the

Corporation; that her name as possessor and owner of the suit was

duly mutated; that she was daughter of real sister of Laxmibai and

that Laxmibai had taken care of her since she was two years old,

that the suit property was bequethed to her by Laxmibai through

her Will dated 10.9.1999 and that she had entered into an

agreement for sale of the suit property with respondent no. 2. With

these facts having been brought to the knowledge of the appellant,

one has to say, it was essential for the appellant to also question

validity of the Will dated 10.9.1999 or otherwise, questioning the

validity of the sale deed dated 11.4.2012 would only be an

incomplete and half-hearted attempt on his part, not based upon

complete cause of action. This is what has happened in the present

case and, therefore, it was necessary for the appellant to have

questioned the validity of the Will dated 10.9.1999 as well. This

would enable me to further find that what was necessary on the

part of the appellant was not proving the Will dated 10.9.1999, but

proving its invalidity and, therefore, with due respect, I would say,

case of Savithri & ors (supra) would render no assistance to him.

26. In the result, I find that no error of fact or law could

be noticed in the impugned judgment and there is no need to make

any interference with it. The suit filed by the appellant is barred by

the law of limitation. The point is answered accordingly.

27. There is no merit in the appeal and it deserves to be

dismissed. Appeal is dismissed. Parties to bear their own costs.

S. B. SHUKRE, J

joshi