Bombay High Court
Sajnbir Singh Anand And 2 Ors vs Raminder Kaur Anand And 8 Ors on 4 May, 2018
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.2955 OF 2011
IN
SUIT NO.1869 OF 2011
Sajanbir Singh Anand and Ors. ....Plaintiffs
Vs.
Raminder Kaur Anand and Ors. ....Defendants
WITH
APPEAL NO.244 OF 2016
WITH
NOTICE OF MOTION NO.2434 OF 2016
WITH
NOTICE OF MOTION NO.420 OF 2008
IN
SUIT NO.338 OF 2008
Khalid Omar Wakani ....Appellant
Vs.
Mahmood Omar Wakani and Ors. ....Respondents
----
Dr. Birendra Saraf a/w. Mr. Jay Sanklecha, Ms. Sanaya Dadachanji and
Mr. Rohit Lalwani i/b. M/s. Manilal Kher Ambalal and Co. for appellants in
appeal no.244 of 2016 a/w. Notice of motion no.420 of 2008 in suit no.338 of
2008.
Mr. Cyrus Ardheshir a/w. Mr. Shlok Parekh, Mr. Nilesh Modi and
Ms. Priyanka Pandya i/b. Rustomji and Ginwala for respondent no.1 (original
plaintiffs) in notice of motion no.420 of 2008 in suit no.338 of 2008.
Mr. Kunal Dwarkadas a/w. Mr. Rachit Thakar, Mr. Bhairavnath Jadhav and Mr.
Kshitij Kadam i/b. Hemangi Modi for respondent no.2 (original defendant no.2)
in notice of motion no.420 of 2008 in suit no.338 of 2008.
Mr. Biswadeep Chakarvarty i/b. Dave and Girish and Co. for defendant no.4 in
notice of motion no.2955 of 2011 in suit no.1869 of 2011.
Ms. Sonal a/w. Ms. Nupur Awasthi i/b. SBG and Associates for plaintiffs in suit
no.1869 of 2011.
Ms. Dhanashree Gaikaiwari i/b. Bilawala and Co. for defendant no.3 in suit
no.1869 of 2011.
----
CORAM : S.C. DHARMADHIKARI,
A.A. SAYED &
K.R.SHRIRAM, JJ.
RESERVED ON : 19th JANUARY, 2018
PRONOUNCED ON : 4 MAY, 2018 th
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PER K.R. SHRIRAM, J.:
1 The two questions of law referred to us, vide order dated
27th September, 2012 by a Division Bench, are as under :
(i) Whether Article 110 of the Limitation Act,1963 has any application
to a suit for administration of the estate of a deceased person?
(ii) What is the period of limitation for filing of a suit for
administration and partition of the property, both movable and
immovable left by deceased? and Whether there would be different
periods for such a suit for immovable property and such a suit for
movable property?
2 A brief factual narration of suit no.1869 of 2011 with a view to
provide a context and a basis for the questions to be answered by the Full
Bench, are as under :
The suit was filed for administration of the estate of one
Mrs. Roop Keshavraj Sakraney (the deceased) in accordance with her Will &
Testament dated 14th May 2001. The deceased was the wife of defendant
no.1. Plaintiffs are beneficiaries under the said Will. Plaintiff no.1 is also an
executor under the said Will. It is plaintiffs' case that though the deceased
died on 24th October 2007, the said Will was suppressed by defendant
nos. 1 to 5, especially defendant no.1, and the existence of the said Will
came to light in or about April 2012. As attempts to amicably resolve the
issues between the parties came to a naught, the present suit came to be filed
on 16th March 2015.
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3 The defendants raised an issue of limitation contending that the
period of limitation for filing the suit was three years (under Article 113 of
the Limitation Act, 1963) and the period would begin from the date of the
death of the deceased, i.e., 24 th October 2007. Consequently, in the notice of
motion, the Learned Single Judge, by an Order dated 26 th September 2016,
was pleased to frame a preliminary issue as to "whether the suit is barred by
limitation?".
4 It is plaintiffs' case that the suit falls under the provisions of
Article 106 of the Limitation Act, 1963 which provides period of limitation to
be 12 years when the legacy or share become payable or deliverable and
hence is filed within the period of limitation.
5 When the notice of motion was taken up for hearing, the
Learned Single Judge (D.G. Karnik, J, as he then was) could not agree with
the view expressed by the Learned Single Judge in two cases that a suit for
administration of the estate of a deceased is governed by Article 113 of the
Limitation Act, 1963 and is required to be filed within three years from the
date of death even if it contains a prayer for partition and possession of share
in a immovable property and referred the following question to a larger
Bench :
"What is the period of limitation for filing of a suit for possession of an
movable as well as immovable property filed by one of the heirs against
another heir for partition and separate possession of the inherited
property?"
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6 A Division Bench ( S.A. Bobde & R.G. Ketkar, JJ.) that was
considering the question, recast the question as under :
"What is the period of limitation for filing of a suit for administration
and partition of the property, both movable and immovable left by
deceased? and Whether there would be different periods for such a suit
for immovable property and such a suit for movable property?
As noted in paragraph 1, the Division Bench also added question
no.1.
7 During the course of hearing, the Division Bench came across a
judgment of a Division Bench of this Court in Sadbuddhi Brahmesh Wagh
and Ors. Vs. Sheela Mahabaleshwar Wagh and Ors. 1 in which the Court
had held that a suit for administration of the property of a deceased is a suit
"by heir excluded from joint family property to enforce a right to his share
and that has to be filed within 12 years under Article 110 of the Limitation
Act and when exclusion becomes known to plaintiff". The Division Bench
hearing the instant motion/reference observed that the Division Bench in
Sadbuddhi BrahmeshWagh (Supra) had taken a view that such a suit would
be governed by Article 110 of the Limitation Act, 1963 where the prescribed
period of limitation is 12 years.
8 Relying on that judgment, the counsel, who was representing
plaintiffs, submitted that plaintiffs' suit is a similar suit and is governed by
Article 110 on the premise if his contention that the suit is governed by
1. 2003(6) Bom.C.R. 787
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Article 65, was not upheld. The Division Bench could not agree with the
findings of the Division Bench in Sadbuddhi BrahmeshWagh (Supra) and
found that Article 110, ex-facie, does not deal with a suit for administration
of the estate of a deceased but deals with a suit by a person excluded from
joint family property to enforce a right to share therein. The Division Bench
also observed that Article 65 was not brought to the notice of the Division
Bench which decided Sadbuddhi BrahmeshWagh (Supra). The Court
therefore, considered it appropriate to refer the questions, as quoted in
paragraph 1 above, for decision by a Larger Bench.
9 It is settled law that plea of limitation cannot be decided as an
abstract principle divorced from facts, as in every case, the starting point of
limitation has to be ascertained, which is, entirely a question of fact. A plea
of limitation is a mixed question of law and fact. (Ramesh B. Desai Vs. Bipin
Vadilal Mehta2).
Therefore, what would be the period of limitation in a suit will
depend on the cause of action and nature of the relief sought in the suit.
10 Before we proceed further, let us examine the object of the Law
of Limitation, the principle behind it and what it intended to achieve.
11 The Apex Court in Nav Rattanmal Vs. State of Rajasthan 3
2. (2006) 5 SCC 638
3. AIR 1961 SC 1704
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observed that the theory underlying statutes of limitation was designed to
effectuate a beneficent public purpose, viz., to prevent the taking away from
one what he has for long been permitted to consider his own and on the faith
of which he plans his life, habits and expenses. The Apex Court in paragraph
10 of the said judgment observed -
"First and foremost there is this feature that the Limitation Act,
though a statute of repose and intended for quieting titles, and in that
sense looks at the problem from the point of view of the defendant
with a view to provide for him a security against stale claims, also
addresses at the same time to the position of the plaintiff. Thus, for
instance, where the plaintiff is under a legal disability to institute a
suit by reason of his being a minor or being insane or an idiot, it
makes provisions for the extension of the period taking into account
that disability.
In Rajendar Singh Vs. Santa Singh4 the Apex Court elucidated
that the object of the law of limitation is to prevent disturbance or
depreviation of what may have been acquired in equity and justice by long
enjoyment or what may have been lost by a party's own inaction, negligence,
or laches. The Apex Court further held that it is the duty of the Court to
apply the bar of limitation, where, on patent facts, it is applicable even
though not specifically pleaded.
In Tara Nath Chakraverty Vs. Iswar Chandra Das Sarkar 5 the
Calcutta High Court held that "all statutes of limitation have for their object
the prevention of the rearing up of claims at great distances of time when
evidences are lost, and in all well regulated countries, the quieting of possession
4 .AIR 1973 SC 2537
5. 1911 The Calcutta Weekly Notes (Vol. XVI) Page 398
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is held an important point of policy. The Calcutta High Court followed the
principle explained by Sir Thomas Plumer M. R. in Cholmondeley Vs.
Clinton6 that "the public have a great interest in having a known limit fixed by
law to litigation for the quiet of the community, and that there may be a
certain fixed period, after which the possessor may know that his title and right
cannot be called in question".
12 An administration suit is essentially one where reliefs claimed
relate to seeking administration of the estate of a deceased under orders of
the court. The classic aspect which qualifies any suit for being called an
administrative suit is that the reliefs claimed involve the administration of
the estate of the deceased. Such reliefs may be sought by the heirs of the
deceased or the beneficiaries or even an absolute third party, such as a
creditor.
13 It has been always understood that the Limitation Act does not
explicitly provide for a period of limitation for an administration suit [See
Nandlal Chunilal Vs. Gopilal Manilal7]. It has been held in that decision
that in England the principle is that "actions for the administration of the
estates of deceased persons can only be instituted by persons whose claims to
recover are not barred by any statute of limitation". The Division Bench held
that the same principle should be made applicable in India (See page 319).
6. 2 Jack and W. 140 (1820)
7. (1907) Vol. IX BLR 316
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14 In Salebhai Abdul Kader Basrai Vs. Bai Safiabu 8 it was held by
this Court that Article 120 is merely an Article referring to suits for which
there is no other provision made in the Schedule. It is not an Article referring
specifically to administration suits.
15 In a judgment rendered by the Privy Council - Mahomedally
Tyebally & Ors. Vs. Safiabai & Ors. 9, it has been held that to a suit for
administration against certain Mahomedan coheirs by a person entitled to
part of the interest of an heir, neither Article 106 nor Article 123 of the Old
Limitation Act 1908 is applicable. The heirs of a Mahomedan succeed to his
estate in specific shares as tenants in common and such suit as regards
immovable property is governed by Article 144 and as regards movables by
Article 120 of the then Limitation Act, l963 (see Page 219).
16 Order XX Rule 13 of the Code of Civil Procedure deals with
decree in administration suit. The decree in a suit for an account of any
property and for its due administration by the Court, obliges the Court to
pass a preliminary decree before passing a final decree. That preliminary
decree must order such accounts and inquiries to be taken and made and
giving such other directions as it thinks fit. Then follows Order XX Rule 13,
sub-rule (2). Thus, for an effective, meaningful and complete decree to be
passed in administration suit consistent with the mandate of the Code of
8. (1911) Vol. XIII BLR 1025
9. AIR 1940 Privy Council 215
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Civil Procedure, what period of limitation specified in the Limitation Act
should be applied, depends on the nature of the suit and the parties before
the Court.
17 If one considered the Limitation Act, 1963, it does not prescribe
a specific article for determining the period of limitation in an administration
suit. The period of limitation for a suit for administration would depend on
the basis of the nature of the suit and also plaintiffs before the court. This is
because an administration suit could be by a creditor for recovery of his debt
or legal heirs as done in this suit. Thus, an administration suit is not a type of
a suit which would be governed by a fixed or designated article, but is one in
which the Article to be applied for determining the period of limitation
would depend entirely on the nature of the reliefs claimed therein. There can
never be a straitjacket formula for ascertaining the period of limitation for an
administration suit let alone deciding the period of limitation for a suit for
possession of movable or immovable property of the deceased filed by any of
the legal heirs. The pleadings and the prayers in a suit for administration
would have to be analysed and thereafter, the relevant article is to be made
applicable.
18 At this point, it will be useful to reproduce Article 106, 110 and
113 of the Limitation Act, 1963 which read as under :
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Description of suit Period of Time from which period
limitation begins to run
106. For a legacy or for a share of a Twelve years When the legacy or share
residue bequeathed by a testator or becomes payable or
for a distributive share of the deliverable.
property of an intestate against an
executor or an administrator or some
other person legally charged with the
duty of distributing the estate.
110. By a person excluded from a Twelve years When the exclusion becomes
joint-family property to enforce a known to the plaintiff.
right to share therein.
113. Any suit for which no period of Three years. When the right to sue
limitation is provided elsewhere in accrues
this Schedule.
It should also be noted that it is well settled principle of the Law
of Limitation that where two articles of such law may be wide enough to
cover a given right of suit and it can be postulated of neither of them that the
one applies more specifically than the other, then the Court should lean in
favour of the application of the provision which would keep the right of suit
alive in preference to that which would destroy it (Nathulal Vs. Sualal10).
It is also well settled rule of construction of the Limitation Act
that when there is a specific article dealing with a specific subject, then that
article is applicable in preference to a general and residuary article (Shri
Mahadeoji Idol vs. Desai11).
The Apex Court in Kalipada vs. Palani Bala12 has held that
when there is a specific article in the Limitation Act which covers a particular
10. AIR 1962 Rajasthan 83
11. AIR 1964 Madhya Pradesh 207
12. AIR 1953 SC 125
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case, it is not proper to apply another article, the application of which is not
free from doubt. But which article would apply would depend on the relief
sought in the suit and the cause of action alleged.
19 In the referral order, the Division Bench did not agree with the
findings of the Division Bench in Sadbuddhi Brahmesh Wagh (Supra) and
found that Article 110, ex-facie, does not deal with a suit for administration
of the estate of a deceased but deals with a suit by a person excluded from a
joint family property to enforce a right to share therein. The Division Bench
also observed that Article 65 was not brought to the notice of the Division
Bench which decided Sadbuddhi Brahmesh Wagh and hence considered it
appropriate to refer the questions, as quoted above in paragraph 1, for
decision by a Larger Bench. We are of the view that the question of anybody
bringing to the notice of Division Bench in Sadbuddhi Brahmesh Wagh
(Supra) the provisions of Article 65 did not arise. The prayers in Sadbuddhi
Brahmesh Wagh (Supra) were (a) seeking a dissolution of WFAS from the
date of filing of the Suit, its accounts and directions to deliver the share of
Mahabaleshwar to him from the properties of WFAS which were described in
Exhibit 'K' to the Plaint. Prayer Clause (b) sought a declaration that
Mahabaleshwar had 1/8th share in the estate of Late Shri Vinayakrao and
prayer (c) sought a declaration that the properties described in Exhibit 'L'
formed the estate of Late Shri Vinayakrao. Prayer Clause (d) was an
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alternative prayer that in the event this Court comes to the conclusion that
WFAS was not a partnership Firm, then in the alternative to prayer Clause
(a), it be declared that WFAS also formed a part of estate of late Shri
Vinayakrao and lastly, prayer (e) sought a direction that the entire estate of
Late Shri Vinayakrao be administered according to law, under the orders and
directions of this Court. The contest was between the legal heirs of one Late
Shri Vinayakrao who was a reputed sculptor of Mumbai and had set up a
studio known as "Wagh's Fine Art Studio" (WFAS), at Chowpatty, Girgaon,
Mumbai. There was no prayer for possession of immovable property or any
interest therein based on title. Article 65 was not applicable in the facts and
circumstances of that case. Article 65, though in the explanation to that
article refers to a devisee or Hindu or Muslim entitled to the possession of
immovable property on the death of a Hindu or Muslim female, it is
primarily for a suit for possession of immovable property or any interest
therein based on title, not seeking administration of the estate of a deceased
under orders of the Court or for any of the reliefs sought in Sadbuddhi
Brahmesh Wagh (Supra). A suit under Article 65 does not cover
"administration of the estate of the deceased". At the same time, in a suit in
which plaintiff is claiming administration of estate, plaintiff may also seek for
possession of immovable property or any interest therein based on title in a
joint family property of which the deceased might have been a member.
Moreover, since the administration suit is essentially one where reliefs
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claimed purely relate to seeking administration of the estate of a deceased
under orders of the court and if reliefs are restricted to only administration
of an estate, it is immaterial whether the estate includes movable and/or
immovable property and the question of applying different periods for
immovable and movable property would not arise. Infact in our view, that
may create an incongruous situation wherein plaintiff, a legal heir or a
creditor for recovery of his debt, files a suit for administration of the estate of
the deceased and for movable assets a particular period of limitation would
apply and for immovable assets some other period of limitation would apply.
20 So far as Article 106 is concerned, it is applicable to a suit that is
filed against an executor or an administrator or some other person legally
charged with the duty of distributing the estate for a legacy or for a share of
a residue bequeathed by a testator or for a distributive share of the property
of an intestate. The time prescribed is 12 years and the time begins to run
from the date when the legacy or share becomes payable or deliverable. So if
a suit is not against an executor or administrator or some other person
legally charged with the duty of distributing the estate, Section 106 may not
apply [Sadbuddhi Brahmesh Wagh (Supra)]
21 An administration suit, as noted earlier, is essentially one where
reliefs claimed relate to seeking administration of the estate of a deceased
under orders of the court. The quintessential aspect which qualifies any suit
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for being called an administrative suit is that the reliefs claimed involve the
administration of the estate of the deceased. A suit for a legacy or for a share
of a residue bequeathed by a testator or for a distributive share of the
property of an intestate can only be by a legal heir. In such a suit, Article 106
will be applicable. But while an administration suit by a creditor for recovery
of his debt, there is no specific period provided and therefore, the residuary
Article 113 will be applicable.
22 A suit may contain a bouquet of reliefs one of which would be a
prayer for administration of a joint family property alongwith his share
therein. The other relief could be to enforce a right to share in a joint family
property alleging that he was excluded from the joint family property. In
such a situation, Article 110 may become applicable depending on the cause
of action and the reliefs sought. Merely because plaintiff has used the
nomenclature "administration suit", the suit does not become one only for
administration because other reliefs may also have been sought like to
enforce a right to share in a joint family property. The reliefs claimed by
plaintiff will have to be tested against the facts of each case and the aspect of
limitation would have to be considered in the context of those facts.
23 The term administration suit connotes a relief rather than a
cause of action. An administration suit is, in essence, one in which plaintiff
seeks special relief, viz., the administration of the estate of a deceased
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person, be he a debtor, a testator or an intestate, by and under the direction
of the Court for the better realisation of the specific claim regarding which
plaintiff has a cause of action. Therefore, the period of limitation applicable
to such a suit would depend on who the plaintiff is and what his specific
cause of action is. It is for that reason that the Limitation Act has not
explicitly provided a period of limitation for such a suit. If the suit is by a
creditor, the cause of action is to recover the debt, the appropriate article
applicable to a suit for debt would govern and the period of limitation would
be three years. It is the real nature of the claim that counts and if the suit for
legacy involves administration of the estate of the deceased, Article 106 will
govern (Rajamannar and Anr. Vs. Venkatakrishnayya and Anr13.). We also
find support for this view from Parmeshwari Devi Ruia Vs. Krishnakumar
Nathmal Murarka14. If the suit is by a person entitled to a part of the
interest of a co-heir in the estate as against certain other heirs for
administration, Article 106 would not apply as the suit would be one
between co-heirs. [(Mohomedally Tyebally and Ors. Vs. Safiabai and Ors.
(Supra)].
24 Even the Madras High Court in the case of T.A. Meenakshi
Sundarammal and Anr. Vs. K. Subramania Ayyar and Ors. 15 has
considered the judgments passed hitherto by the Privy Council and
13. 1902 (25) I.L.R. 361 (Madras)
14. 2007 (6) Bom. C.R. 180
15. AIR 1955 Madras 369
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confirmed that a suit filed as against an executor or administrator for a share
in the legacy, the relevant article would be Article 123 of the Limitation Act,
1908 (corresponds to Article 106 of the Limitation Act, 1963). This
proposition is also confirmed by a judgment of the Himachal Pradesh High
Court in the case of Mohinder Lal & Ors. v. Tule Ram & Ors.16. In the said
judgment, the Court has held that a suit claiming title to the property of a
deceased person or a portion of such property on the strength of a Will is in
the nature of a suit for a legacy as against the executor and the period of
limitation is 12 years under Article 106 of the Limitation Act, 1963.
In Tara Nath Chakraverty (Supra) the Court further held that :
"if there is a conflict between two periods of limitation, one
of which, the longer, is applicable to all circumstances, and
the other, the shorter, to special circumstances only, the
longer term given by the statute to bring the suit ought to
be applied, unless there is clear proof of the special
circumstances which would make the shorter term
applicable and it is upon the party claiming the benefit of a
shorter period of limitation to establish that the case fell
within the special rule limiting the period of a shorter
time".
25 In the circumstances, there cannot be a straitjacket formula to
determine the period of limitation for filing an administration suit. The
pleadings and the prayers of a suit for administration would have to be
analysed and thereafter, the relevant Article is to be made applicable. The
onus will be on the party claiming benefit of shorter period of limitation to
16. AIR 2006 Himachal Pradesh 103
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establish that the case fell within the special rule limiting the period of a
shorter time. If in a situation two articles of the law may be wide enough to
cover a given right of suit and the Court is unable to come to a conclusion
that one applies more specifically than the other, then it should lean in
favour of the application which would keep the right of suit alive in
preference to that which would destroy it.
26 Issues answered accordingly.
(S.C. DHARMADHIKARI,J)
(A.A. SAYED, J.)
(K.R. SHRIRAM, J.)
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