Bombay High Court
Sharad Dattatray Bal And Anr vs Ratnabai Ramdas Kolhe And Ors on 12 September, 2023
Bench: Amit Borkar
2023:BHC-AS:26693
905-cra-248-2022.doc
Nikita
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.248 OF 2022
Sharad Dattatray Bal and Anr. ... Applicants
NIKITA
KAILAS V/s.
DARADE
Digitally signed
by NIKITA
KAILAS DARADE
Ratnabai Ramdas Kolhe and Ors. ... Respondents
Date: 2023.09.13
10:09:55 +0530
Mr. Siddhesh Bhole a/w Mr. Poras Shah i/b SSB Legal
& Advisory for the Applicants.
Mr. Nagesh Chavan i/b Chnbas D. Konale for
Respondent Nos. 1 to 4.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 12, 2023
P.C.:
1. By this application under Section 150 of Code of Civil
Procedure, 1908, the applicants ( defendant Nos. 1 and 2) seek
rejection of plaint under clauses (a) and (d) of the Order 7 Rule 11
of Code of Civil Procedure, 1908.
2. The respondents (original plaintiffs) filed a suit for
declaration, partition and injunction. The relief of declaration is in
respect of registered sale deed dated 10 th September 1997,
impounded on 9th January 1998 and consequential injunction
restraining defendants from creating third party rights or
developing the suit properties.
3. The applicants filed an application under Order 7 Rule 11,
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contending that as per paragraph No.20 of the plaint, the plaintiffs
had knowledge of sale deed on 10th September 1997, and 9th
January 1998. Therefore, suit filed in the year 2019 is barred by
limitation. It is also contended that the plaintiffs No.1 to 3, are
daughters. Suit properties vest with defendant Nos. 1 to 4 before
2005.Therefore, plaintiffs Nos. 1 to 3, have no cause of action to
sue for relief of partition and consequential injunction.
4. The Trial Court rejected the application, hence the defendant
Nos. 1 to 4 have filed present application.
5. Learned advocate for the applicants submitted that the
plaintiff No.1 to 3 had no cause of action to seek relief of partition
as all suit properties vest with defendant No.4 prior to amendment
of 2005 in Section 6 of the Hindu Succession Act. According to
him, plaintiff No.4, in 1994 executed agreement to sale in favour
of defendant No.1 to 4 as regards to suit properties, which was
converted into sale deed and, therefore, plaintiff No.4 had deemed
knowledge of the sale deed. According to him, based on averments
made in paragraph No.20 of the plaint, plaintiffs had knowledge of
the sale deed executed in the year 1997 impounded on 9 th January
1998. Therefore, suit filed in the 2019, is barred under Clause (d)
of the Order 7 Rule 11 of the Code of Civil Procedure, 1908.
6. On perusal of the plaint and documents annexed along with
the plaint, in my opinion, there is no averment and material to
indicate that the plaintiffs had knowledge of sale deed executed on
10th September 1997 impounded on 9th January 1998.
Undisputedly, plaintiffs are not signatories to the sale deed. The
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cause of action pleaded is in relation to execution of document
which according to plaintiffs is not binding, however such
averment do not indicate knowledge of such transaction to the
plaintiffs. Reading of the plaint along with the documents as a
whole, there is no indication either in the plaint or in the
documents annexed along with the plaint that the plaintiffs were
aware about the execution of sale deed dated 10th September
1997.
7. Taking into consideration the averments in the plaint, Article
applicable would be Article 110 of the Limitation Act, 1963. As per
Article 110 of the Limitation Act, 1963, the limitation to file suit
for partition begins from the date from exclusion become known to
the plaintiffs. In the absence of the averments in the plaint or
documents annexed along with the plaint indicating plaintiffs were
aware of their exclusion from said property, the application under
Order 7 Rule 11 (d) cannot be allowed.
8. In so far as the objection under said clause (a) of the Order 7
Rule 11 of the Code of Civil Procedure, 1908, is concerned, there is
substance in the submission of the defendant Nos. 1 to 4, prima
facie that the suit property vested with the defendant No.1 to 4,
before the amendment of 2005. However, it is well settled that the
partial plaint cannot be rejected under Order 7 Rule 11. Right of
the plaintiff No.4 (son) to seek partition of ancestral property
cannot be taken away based on the averments in the plaint.
9. According to learned advocate of the applicants, the
limitation would start from the date when succession opens.
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Pandharinath, who is grandfather of the plaintiff No.4 died in the
year 2002 and, therefore, according to defendant No.1 to 4,
limitation to file suit for partition started in the year 2002. In my
opinion, there is no substance in the said submission. As observed
earlier, the limitation for filing suit for partition begins when the
succession become known to the plaintiff. Opening of succession
by itself would not amount to exclusion of co-sharers from the
joint family properties. The exclusion as contemplated under
Article 110 is some positive act or commission of certain acts
which has effect of excluding co-sharers from their possession
(actual or constructive) of the joint family properties. In the
absence of the averments in the plaint, or documents along with
the plaint, indicating such exclusion of co-sharers, opening of
succession by itself cannot be construed as exclusion of co-
sharers from joint family property. Therefore, in my opinion, the
Trial Court was justified in rejecting the application under Order 7
Rule 11.
10. The learned advocate for the applicants place reliance upon
judgment in the case of Uttam Vs. Saubhang Singh and Ors.
reported in (2016) 4 SCC 68. The supreme Court in the said case
was concerned with the rights of grand-son born after the death of
male Hindu and his right to maintain the suit for partition. In the
facts of the present case, grand son that is plaintiff No.4, was born
before the death of grand father. Therefore the judgment in the
case of Uttam (supra) is not applicable.
11. There is neither error of jurisdiction nor perversity.
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12. The civil revision application is, therefore, rejected.
13. Ad-interim relief granter earlier shall continue for period of
three weeks from today.
(AMIT BORKAR, J.)
