Delhi High Court
Sarla Devi vs Rajesh Sharma on 19 August, 2010
Author: Indermeet Kaur
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment : 19.08.2010
+ R.S.A. NO. 156/2010
SARLA DEVI
...........Appellant
Through: Mr. M. Tarique Siddiqui, Advocate.
Versus
RAJESH SHARMA
..........Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.(Oral)
1. This second appeal is impugned judgment dated 1.05.2010
which had endorsed the finding of the Civil Judge dated
16.09.2009. Vide judgment and decree dated 16.09.2009, the
application filed by the defendant under Order 7 Rule 11 CPC had
been accepted; the plaint of the plaintiff had been rejected on the
ground of limitation.
2. The plaintiff before the trial court was Smt. Sarla Devi. She
had filed a suit for declaration seeking a prayer that the adoption
ceremony dated 13.04.1977 and the Adoption Deed dated
12.08.1985 be declared null and void. This was the adoption
which had purportedly been made by Smt. Vidya Wati; adopting
Sh. Rajesh Sharma as her son.
3. Para 10 and 11 of the plaint are relevant and are reproduced
as follows:-
R.S.A. No. 156/2010 Page 1 of 3
"10. That the second wife of Shri. Madan Mohan
i.e. Smt. Vidya Wati also died issueless on
26.02.1996 leaving behind no legal heir.
Therefore, the said 1/8th shares of Smt. Vidya Wati
in movable and immovable properties also
devolves upon her legal heirs including the
plaintiff.
11. That husband of the plaintiff had filed a
Probate petition being PC No. 154/01 (earlier PC
No. 43/84) in respect of Will dated 02.04.73 before
District Judge, Delhi, wherein except Smt. Vidya
Wati, all other co-sharers had given their
respective no objection to the grant of probate in
favour of the husband of the plaintiff. During the
pendency of said probate case, Smt. Vidya Wati
also died and after the death of Smt. Vidya Wati in
the year 1996, the defendant i.e. Rajesh Sharma
came into picture allegedly claiming himself to be
the adopted son of Smt. Vidya Wati by way of
Adoption Deed dated 12.08.1985. A copy of the
said adoption deed dated 12.08.1985 is enclosed
herewith."
4. From the averments made in the aforestated paras, it is
clear that in the Probate Petition bearing no. 154/01, Sh. Rajesh
Sharma had claimed himself to be the adopted son of Smt. Vidya
Wati in terms of the Adoption Deed dated 12.08.1985. This was
known to the plaintiff in the year 1996.
5. The present suit has been filed in the year 2009 i.e. after the
lapse of almost 13 years. The trial judge had held that the suit is
barred by limitation; under Order 7 Rule 11 of the CPC, the plaint
had been rejected. The averments made in the plaint had alone
been taken into consideration.
6. The submission of the learned counsel for the appellant
before this court is that limitation is a mixed question of law and
fact; in this case, in October 2008, the plaintiff had received a
threat from the defendant Sh. Rajesh Sharma who had filed a suit
against him; limitation as such in the present suit would arise in
October 2008. This argument is totally misconceived; it has been
gone into by the trial judge.
R.S.A. No. 156/2010 Page 2 of 3
7. Learned counsel for the appellant has not been able to point
out any provision of law by which he gets an extended period of
limitation of 13 years in filing the present suit seeking declaration
that Sh. Rajesh Sharma was not the adopted son of Smt. Vidya
Wati and the Adoption Deed dated 12.08.1985 is null and void
when admittedly even as per his own case (averments in the
plaint), this fact was known to him in 1996 itself. The judgment
relied upon by the learned counsel for the appellant reported in
AIR 2008 Supreme Court 363 C. Natarajan Vs. Ashim Bai and Anr.
is distinct on facts, it is inapplicable, in the instant case, the
averments in the plaint has itself established that the suit is
barred by limitation.
8. No question of law much less any substantial question of law
has arisen, appeal is dismissed in limine.
INDERMEET KAUR, J.
AUGUST 19, 2010.
ss
