Ms. Nayan Bharti vs Dr. S.S.Srivastava And Ors.
2012 Latest Caselaw 2768 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS) 2612/2008

MS. NAYAN BHARTI                              ..... Plaintiff
                              Through:   Ms. Amrit Kaur Oberoi,
                                         Advocate.

                     versus

DR. S.S.SRIVASTAVA AND ORS.       ..... Defendants
                   Through: Dr. Shyamala Pappu,
                            Sr. Advocate with
                            Mr. R.Krishnaamorthi,
                            Advocate for the defendant
                            No.1.

%                             Date of Decision : April 27, 2012

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

                              JUDGMENT

: REVA KHETRAPAL, J.

IA No.15229/2010 (under Order VII Rule 11 read with Section 151 CPC filed by the defendant No.1)

1. The defendant No.1 in the aforesaid suit has filed the present

application under Order VII Rule 11 of the Code of Civil Procedure

for rejection of the plaint inter alia on the ground that the same is

barred by limitation.

2. The prayer in the present plaint is for a decree of partition by

metes and bounds in favour of the plaintiff and handing over of the

vacant physical peaceful possession of one-fifth portion of the suit

property being House No.R-66, Greater Kailash-I, New Delhi

measuring 311 square yards to the plaintiff and against the

defendants and in case the same is not possible, for sale of the suit

property and division of the sale proceeds in equal shares i.e. one-

fifth share each between the parties to the suit. The plaintiff further

prays for a decree for mesne profits/damages for unauthorized use

and occupation of four-fifth portion of the suit property by the

defendant No.1 as contemplated under Order XX Rule 12 of the

Code of Civil Procedure with effect from 01.12.2008 till the date of

handing over of the possession of one-fifth share of the suit property

to the plaintiff. A decree of permanent injunction restraining the

defendants from selling, alienating, transferring, mortgaging or

parting with the possession of the suit property is also prayed for.

3. It is averred in the plaint that Shri Ram Singh Srivastava,

father of the parties to the suit, who died intestate on 06.11.1988 was

the owner of the suit property. The plaintiff is the daughter and one

of the legal heirs of late Shri Ram Singh Srivastava. The defendant

No.1 is the son and the defendants No.2 to 4 are the daughters of the

deceased. The wife of the deceased Shri Ram Singh Srivastava and

mother of the parties to the suit, Smt. Dhanwati Srivastava died in

the year 1995 and thus, the plaintiff and the defendants No.1 to 4 are

his only legal representatives.

4. The defendant No.1 filed a probate petition being Probate

No.52/1999 in this Court propounding a Will dated 28.08.1977,

whereby the entire house was stated to be bequeathed to him to the

exclusion of the plaintiff and the defendants No.2 to 4. The plaintiff

asserts that in her reply to the said probate petition, she had

specifically alleged that her father - late Shri Ram Singh Srivastava

had died intestate and no Will was executed by him, and the Will set

up by the defendant No.1 was a forged and fabricated document.

The defendant No.2 also filed a reply propounding another Will

dated 28.10.1987 alleged to have been executed by late Shri Ram

Singh Srivastava. The parties adduced their respective evidence and

by its order and judgment dated 05.02.2007, this Court dismissed the

probate petition holding inter alia that the defendants No.1 and 2

had failed to prove the execution of the Wills dated 28.08.1977 and

28.10.1987 respectively. At the time of the filing of the present suit,

none of the parties had gone in appeal against the aforesaid judgment

and accordingly, it was asserted by the plaintiff that the said

judgment has become final for all intents and purposes.

5. The plaintiff claims that all the surviving legal representatives

were entitled to an equal share i.e. one-fifth each, as per the

provisions of Section 6 of the Hindu Succession Act, 1956 in the

estate of late Shri Ram Singh Srivastava. The plaintiff having learnt

from her relatives that the defendant No.1, who was in occupation of

the suit property was trying to dispose of the same, approached the

defendant No.1, who feigned ignorance. The plaintiff asked for her

share in the suit property in the last week of November, 2008 by

partition of the suit property to which the defendant No.1 bluntly

refused and hence the present suit.

6. The defendant No.1 filed a written statement in which it was

categorically denied that the judgment dated 05.02.2007 rendered by

this Court has become final. The defendant No.1 contended that the

Probate Petition No.52/1999 had been dismissed qua the defendant

No.1 on the ground that he had failed to produce the attesting

witness to the said Will. He stated that he had preferred a review

petition being RA NO.339/2008 against the aforesaid order and

judgment in Probate Case No.52/1999. However, the same was

dismissed as withdrawn vide order dated 26.09.2008 with liberty to

invoke such legal remedy as may be available to him in accordance

with law. Thereafter, he filed an appeal being FAO(OS)

No.419/2008.

7. It may be noted at this juncture that during the pendency of

the present suit, the aforesaid appeal being FAO(OS) No.419/2008

was dismissed by the Division Bench by its judgment and order

dated 08.10.2010 on the ground that the appeal had been filed only

after the respondents had demanded their share in their father's

property and after a delay of 513 days for which no sufficient cause

had been shown. Aggrieved by the aforesaid order dismissing the

appeal, the defendant No.1 filed a Special Leave Petition, which was

dismissed by the Hon'ble Supreme Court on 04.02.2011 by passing

the following order:-

"The special leave petition is dismissed. However, it is made clear that dismissal of the appeal by the High Court as barred by time and dismissal of the special leave petition by this Court shall not prejudicially affect the cause of the petitioner in any other pending litigation."

8. It is in the aforesaid backdrop that the present application filed

by the defendant No.1 under Order VII Rule 11 of the Code of Civil

Procedure for rejection of the plaint is to be considered. The

defendant No.1 asserts that the cause of action arose to the plaintiff

on 06.11.1988, when the father of the plaintiff died. The plaintiff

slept over her rights for a period of 20 years and has filed this suit on

16.12.2008 and therefore the suit is clearly barred by limitation. The

defendant No.1 further asserts that the plaintiff has placed reliance on

Section 6 of the Hindu Succession Act, 1956 in support of her

contention that her father died intestate and the brothers and sisters

are entitled to equal share as per Section 6 of the aforesaid Act,

however, Section 6 of the Hindu Succession Act, 1956 would not

apply since Section 6 deals only with coparcenary property,

whereas the suit property is the self-acquired property of late Shri

Ram Singh Srivastava, as stated in para 5 of the plaint. The

defendant No.1 also states that the suit property being a dwelling

house on the date of the death of late Shri R.S.Srivastava on

06.11.1988 (the date when cause of action arose according to the

defendant No.1), the present suit is barred under Section 23 of the

Hindu Succession Act. The defendant No.1 further contends that the

mesne profits being claimed by the plaintiff from 01.12.2008 i.e. the

date of the filing of the suit are suggestive of the fact that the plaintiff

is treating the possession of the defendant No.1 from 06.11.1988 to

01.12.2008 (the date of filing of the suit) as lawful possession. The

defendant No.1 also contends that the suit has not been properly

valued for the purpose of court fees. The plaintiff has valued the

relief of partition at Rs.1 crore, but has valued the relief of permanent

injunction at Rs.200/- only. The relief of the permanent injunction

also has to be valued on the same basis. Further the plaintiff has

asked for partition and for handing over possession of her share but

has paid court fees for only one relief i.e partition, whereas the relief

of partition and possession have to be valued separately and separate

court fees has to be paid. For all the aforesaid reasons the plaint is

liable to be rejected.

9. A detailed reply to the aforesaid objections raised by the

defendant No.1 to the maintainability of the suit has been filed by the

plaintiff to which rejoinder is filed by the defendant No.1. Elaborate

submissions at the bar were also made by the counsel for the plaintiff

and the counsel for the defendant No.1.

10. Dr. Shyamala Pappu, the learned senior counsel appearing for

the defendant No.1 placed reliance on the pronouncement of the

Division Bench of this Court reported in 2009 II AD (Delhi) 81 titled

Maha Singh (Shri) vs. Shri Anand Singh and Anr. and the

pronouncement of a learned Single Judge reported in 151 (2008)

DLT 527 titled Paramjit Singh vs. Charanjit Singh and Ors. in

support of her submission that the instant suit for partition is barred

by limitation; and is even otherwise not maintainable in view of the

fact that the provisions of Section 6 of the Hindu Succession Act,

1956 relied upon by the plaintiff have no application to the present

suit. Dr. Pappu contended that the ratio of the decision in Maha

Singh's case (supra) is squarely applicable to the present case. The

suit in the said case was filed by the appellant in May, 1986, more

than twelve years from the date of the exclusion from rent by the

respondent. In such circumstances, a Division Bench of this Court

held that it appeared that the appellant had knowingly not filed the

suit for declaration, since Article 58 of the Limitation Act provides

the period of three years to obtain declaration from the date when the

right to sue accrues and thus, the contention of the appellant that

there was no limitation for partition had no force.

11. As noted above, Dr. Pappu also relied upon the decision in

Paramjit Singh's case (supra) rendered by a learned Single Judge of

this Court. The learned Single Judge, in the said decision, pointed

out that on the basis of possession obtained by an interim order of the

court, during the pendency of the suit, the plaintiff could not avoid

making payment of court fees on the suit. It was further held that

the suit was also not maintainable on the ground of limitation. The

cause of action had arisen in favour of the plaintiff in the year 1996,

when he got possession of one-fourth portion of the suit plot. He

filed the suit in 2006, i.e. after the lapse of 10 years, and limitation

for filing the said suit was three years. The suit, therefore, was

barred by limitation and liable to be dismissed.

12. Responding to the contentions of the learned senior counsel

for the defendant No.1, Ms. Amrit Kaur Oberoi, the learned counsel

for the plaintiff submitted that the present application was an abuse

of the process of the Court and hence liable to be dismissed, whereas

the suit deserved to be decreed in view of the order dated November

16, 2009. Strong reliance having been placed by the learned counsel

for the plaintiff on the aforesaid order passed by this Court (Hon'ble

Mr. Justice Ravindra Bhat), the said order for the sake of ready

reference is being reproduced hereunder:

"The plaintiff seeks a decree for partition by metes and bounds and claims 1/5th portion of the suit property being R-66, Greater Kailash-I. The defendant Nos.3 & 4 support the plaintiff's claim for partition. Learned counsel for the parties contend that defendant No.2 who has been set

down ex parte - had initially set up a case of relinquishment of her share in favour of defendant No.1 on the condition of his sharing with the said portion, equally amongst the plaintiff and the other defendants.

Defendant No.1 contests the present Suit and has set up a Will dated 28.07.1977 claiming that the entire property was bequeathed to him.

It is a matter of record - and none of the parties dispute - that the first defendant's Probate Petition No.52/1999 was dismissed in respect of the said Will. Learned counsel for the said defendant states that the appeal against the decision is pending.

Learned counsel for the parties did not dispute that in the event of the defendants' claim under the Will not being accepted, no issues would survive consideration and the Suit would have to be decreed.

In the circumstances, list before the Court th on 19 April, 2010"

13. Ms. Oberoi pointed out that the case was thereafter adjourned

from time to time to await the order of the Division Bench on the

appeal filed by the defendant No.1. The said adjournments are

reflected from a perusal of the order sheets. The present application,

she stated, was set down for hearing only before the dismissal of the

appeal. Ms. Oberoi contended that the appeal of the plaintiff having

been dismissed, no issue survives for consideration and the suit is

liable to be decreed forthwith in terms of the aforesaid order.

14. On the aspect of limitation, the contention of Ms. Oberoi was

that there was a fine albeit clear distinction between the right to

claim and the right to sue in respect of movable/immovable

properties. Ms. Oberoi contended that there can be no right to sue

until there is an accrual of the right asserted in the suit and

infringement of that right. In support of her said contention, she

relied upon the following dictum enunciated by the Privy Council in

AIR 1930 Privy Council 270 Mt. Bolo vs. Mt. Koklan and Ors.:-

"There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt Mt. Koklan's right to the property arose on the death of Tara Chand, but in the circumstances of this case their Lordships are of opinion that there was no infringement of, or any clear and unequivocal threat to her rights till the year 1922, when the suit, as stated above, was instituted."

15. Ms. Oberoi next relied upon a recent decision of the Supreme

Court reported in AIR 2010 Supreme Court 3240 "Daya Singh and

Anr. vs. Gurdev Singh through LRs". In the said case the Supreme

Court, after noting the observations made by Privy Council in the

case of Mt. Bolo (supra), noted that a similar view had been taken in

the case of "C.Mohammad Yunus vs. Syed Unnissa and Ors" AIR

1961 SC 808. The relevant part of the said decision is reproduced

hereunder:-

"8. A similar view was reiterated in the case of C. Mohammad Yunus v. Syed Unnissa and Others. (AIR 1961 SC 808) in which this Court observed:

"the period of 6 years prescribed by Article 120 has to be computed from the date when the right to sue accrued and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right."

9. In the case of C. Mohammad Yunus (supra), this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is atleast a clear and unequivocal threat to

infringe that right. Therefore, the mere existence of an adverse entry into the revenue record cannot give rise to cause of action.

10. Keeping these principles in mind, let us consider the admitted facts of the case. In para 16 of the plaint, it has been clearly averred that the right to sue accrued when such right was infringed by the defendants about a week back when the plaintiffs had for the first time come to know about the wrong entries in the record of rights and when the defendants had refused to admit the claim of the plaintiffs. Admittedly, the suit was filed on 21st of August, 1990. According to the averments made by the plaintiffs in their plaint, as noted hereinabove, if this statement is accepted, the question of holding that the suit was barred by limitation could not arise at all. Accordingly, we are of the view that the right to sue accrues when a clear and unequivocal threat to infringe that right by the defendants when they refused to admit the claim of the appellants, i.e. only seven days before filing of the suit."

16. Reference was also made by Ms. Oberoi, the learned counsel

for the plaintiff to a three-Judge Bench decision rendered by the

Supreme Court in AIR 1957 SC 314 "P.Lakshmi Reddy vs.

L.Lakshmi Reddy". The relevant extracts of the said judgment are

reproduced hereunder:-

"7. The matter may be looked at from another point of view. It is well-settled that limitation cannot begin to run against a person unless at the time that person is legally in a position to vindicate his title by action. In Mitra's Tagore Law Lectures on Limitation and Prescription (6th Edition) Vol. I, Lecture VI, at page 159, quoting from Angell on Limitation, this principle is stated in the following terms:

"An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him who was in possession. (Angell, sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession."

The statute (of limitation) does not attach to a claim for which there is as yet no right of action and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained. Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result."

17. Ms. Oberoi next relied upon the judgment of the Supreme

Court in "Govindammal vs. R. Perumal Chettiar and Ors." AIR

2007 SC 204. The facts in the said case were that the appellant being

a co-sharer of certain immovable properties left behind by her

deceased husband, filed a suit for partition and separate possession

and also claimed rendition of accounts. A definite plea was taken by

the defendants in the said suit of adverse possession hostile to the

interest of the plaintiff to her knowledge. The defendants in order to

oust the claim of the plaintiff led evidence that a notice was sent by

the plaintiff on 02.11.1955 in which she claimed that she was not

given any income from the properties in which she claimed to be a

co-sharer. The defendants contended that her right in the properties

got extinguished when she gave notice in 1955 and did not claim

possession of the properties till 1979, when she woke up and filed the

suit for partition and separate possession. The High Court upheld

the defendants' contention. Setting aside the judgment of the High

Court, the Supreme Court opined that the finding arrived at by the

High Court did not appear to be a correct one. Once it is established

that she was the legally married wife of the deceased, she

automatically claims her share in the property from the estate of the

deceased by way of survivorship. Just because a notice was issued

by her and she did not pursue the same, that did not extinguish the

claim of the plaintiff thereby giving a handle in the hands of the

defendants by way of adverse possession. In order to oust by way of

adverse possession, definite evidence must be led by the plaintiff to

show that a person is holding possession hostile to the plaintiff's

interest. How that can be proved will depend upon the facts of each

case. The Supreme Court opined as follows:-

"We regret to say that this finding arrived at does not appear to be correct one. In fact after filing of the suit the notice, Ex.B 3 which she did not pursue any further, her right cannot be extinguished. Though she has denied issuance of such notice through Advocate but that is not sufficient to defeat the claim of the widow. This was only an infructuous circumstance that when she was thrown out of the house she could not pursue her legal remedy by filing the suit but when she found that the properties were being sold by the step sons, and it came to her knowledge, therefore, she woke up to file the suit for asserting her claim. There is no denial that she was the legally married wife of the deceased. This has been proved, established and accepted by all the three courts despite the fact that the plea of falsity of the marriage was raised by the step sons. Once it is established that she was the legally married wife of

Raju Naidu she automatically claims her share in the property from the estate of Raju Naidu by way of survivorship. Just because a notice was issued and she did not pursue the same that does not extinguish the claim of the plaintiff thereby giving a handle in the hands of the step sons by way of adverse possession. In order to prove adverse possession something more is required. Once it is accepted that she was the legally married wife of Raju Naidu then her right to claim partition and share in the property stands out and that cannot be defeated by the plea of ouster or adverse possession. In order to oust by way of adverse possession, one has to lead definite evidence to show that to the hostile interest of the party that a person is holding possession and how that can be proved will depend on facts of each case. In the present case, it is the widow who has been thrown out and she has been moving from pillar to post. The relief cannot be denied to her just because she sent notice claiming partition of the properties and she did not file any suit thereafter and the steps sons where (sic.) holding the properties adversely and hostile to her knowledge. It was the joint property of Raju Naidu and it shall devolve by way of survivorship i.e. two sons and his wife as the daughter has already given up her share in the property.

..........................

8. In the case of Vidya Devi alias Vidya vati (dead) by LRs v. Prem Prakash and Ors. reported in AIR1995SC1789 the question was whether the plea of acquisition of title by adverse possession was available to the co-bhumidhar or not. In that

context, their Lordships held that when no period of limitation is fixed for filing a suit for partition by a co-bhumidhar against his other co- bhumidhars in respect of a joint holding, the question of the other co-bhumidhar acquiring his title to such holding by adverse possession for over 12 years can never arise. It was further observed that if that be so, such plea of perfection of title by adverse possession of a holding by a co- bhumidhar against his other co-bhumidhar as defence in the latter's suit for partition can be of no legal consequence.

9. In the case of Mohammad Baqar and Ors. v. Naim-un-Nisa Bibi and Ors. reported in AIR 1956 SC 548 it was observed that under the law possession of one co-sharer is possession of all co- sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession and exclusion and ouster following thereon for the statutory period. There can be no question of ouster, if there is participation in the profits to any degree.

10. In the case of Md. Mohammad Ali (dead) by LRs v. Jagadish Kalita and Ors. reported in : (2004) I SCC 27 this Court examined a series of decisions on the question of adverse possession and after extracting the legal propositions from various decisions, their Lordships concluded that long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer, as is well settled, becomes a constructive trustee of other co-

sharer and the right of a person or his predecessors-in-interest is deemed to have been protected by the trustees."

18. Ms. Oberoi next sought to distinguish the judgments of this

Court relied upon by Ms. Pappu, the learned senior counsel for the

defendant No.1 by pointing out that the judgment in Maha Singh's

case (supra) was rendered on all together different facts. In the said

case, it was not in dispute that the property in question was

purchased by the respondent in his own name on October 19, 1969 in

an auction held by the DDA. The suit was filed during the second

week of May, 1986. It was the admitted case of the parties that the

suit property was let out to a Bank at a monthly rent with effect from

September 1973. Admittedly, the respondent No.1 since then in

respect of the tenancy had been realizing the rent. It was in these

circumstances that the Division Bench opined that the suit having

been filed in May, 1986 more than twelve years from the date of the

exclusion of the rent by the respondents was barred by the provisions

of Article 58 of the Limitation Act, which provides a period of three

years for obtaining a declaration from the date when the right to sue

accrues.

19. Similarly, in the case of Paramjit Singh (supra), the facts

were altogether different. In the said case in an earlier suit for

partition of the properties of the partnership, firm after the

dissolution of the partnership, filed by the plaintiff in the year 1996,

the plaintiff had claimed that he was not in possession of the suit

property and had paid court fees, while in the subsequent suit he

claimed he was in possession of the property and did not pay court

fees. His claim to the possession of the property was on the basis of

an interim order passed by the High Court putting him merely in

interim possession till the rights of the parties were determined. On

the basis thereof, the plaintiff sought to avoid payment of court fees

on the suit. In these circumstances, the learned Single Judge held

that the suit was not maintainable since the plaintiff had not paid

court fees, relying upon an interim order of this Court. It was further

held that the suit was not maintainable also on the ground of

limitation, having been filed after ten years of the earlier suit filed in

the year 1996 i.e., in the year 2006.

20. Next adverting to the contention of Dr. Pappu that the suit was

barred by the provisions of Section 6 and 23 of the Hindu Succession

Act, 1956, it was contended by Ms. Oberoi on behalf of the plaintiff

that it is a well settled principle of law that non-mentioning or

wrong-mentioning of a provision of law would not be of any

relevance, provided the court had the requisite jurisdiction to

entertain the suit proceeding. Incorrectly labelling and mentioning

wrong provisions, Ms. Oberoi emphasized, neither conferred

jurisdiction nor denuded the court of its jurisdiction. Relief sought

for, if it falls within the jurisdiction of the court, cannot be thrown

out on the ground of wrong mentioning of provisions.

21. As regards the provisions of Section 23 of the Hindu

Succession Act, 1956 relating to right of inheritance of females in the

dwelling house, Ms. Oberoi submitted that the aforesaid Section

stood repealed by Amendment Act 39 of 2005 and therefore no

question arose of the present suit being hit by the provisions thereof.

22. Having carefully considered the contentions of the learned

counsel for the parties, in my opinion, the pleas raised by the

defendant No.1 in the present application are wholly misconceived

and lacking in tenability. The essential facts are not in dispute in that

the predecessor-in-interest of the parties, Shri Ram Singh Srivastava

died on 06.11.1988. The Will dated 28.08.1977 relied upon by the

defendant No.1 first saw the light of the day only after eleven years

of the death of the father of the parties to the suit, when Probate Case

No.52/1999 was filed by the defendant No.1. From the outset, it was

the case of the plaintiff that the father of the parties died intestate,

leaving behind a self-acquired property which enured to the benefit

of all his legal representatives in equal proportion i.e. one-fifth share

each.

23. It is asserted in the plaint that the plaintiff did not opt for

partition on account of the specific bar of provisions of Section 23 of

the Hindu Succession Act, 1956. However, even when the defendant

No.1 for the first time propounded a Will dated 28.08.1977, the

plaintiff filed reply to the probate petition taking a categorical stand

that their late father had not left behind any Will and had died

intestate. The said probate petition was dismissed on 05.02.2007 and

the plaintiff's right to seek partition got crystallized on the dismissal

thereof, and also in view of the fact that in the meanwhile, Section 23

of the Hindu Succession Act, because of which the plaintiff could not

file the suit for partition of the property by metes and bounds, was

repealed by the Amendment Act 39 of 2005. The defendant No.1

refused the plaintiff's request for partition and in view of the said

refusal, the plaintiff was left with no alternative but to file the present

suit for partition. The plaintiff accordingly revoked her permission

in respect of the possession of the defendant No.1 in the suit property

qua her share and claimed damages in respect thereof.

24. Thus, keeping in view the fact that there was an embargo on

the right of a female Hindu to claim partition in respect of a dwelling

house under Section 23 of the Hindu Succession Act, 1956, which

embargo was removed by the Amendment Act 39 of 2005 by repeal

of the said section, and the further fact that the plaintiff on removal

of the said embargo and upon dismissal of the probate petition filed

by the defendant No.1, sought partition of the suit property, in my

considered opinion, the instant suit cannot be said to be barred by

limitation. The defendant No.1 was in occupation of the suit

property as co-owner and it is trite that the possession of one co-

owner is possession of all co-owners. It is only when the defendant

No.1 denied the right of the plaintiff in respect of the suit property in

November, 2008 that the right to sue accrued to the plaintiff. The

suit filed by the plaintiff in December, 2008 cannot therefore be said

to be barred by limitation.

25. The objection raised by the defendant No.1 in respect of the

valuation of the suit is also wholly misconceived. Section (7)(iv)(b)

of the Court Fees Act, 1870 gives liberty to the plaintiff to value

his/her reliefs. The plaintiff in the instant case has paid ad valorem

court fees on the sum of Rs. 1 crore estimated by her to be the value

of the suit for the purposes of court fees and jurisdiction for the relief

of partition and possession. No fault can be found with the said

valuation nor any was pointed out at the time of hearing.

26. As regards the plea of the defendant No.1 that the plaint is

liable to be rejected in view of the reliance placed by the plaintiff on

Section 6 of the Hindu Succession Act, 1956, there is no merit in the

said plea. The stand of the plaintiff all along has been that her father

had died intestate and she was entitled to a share in the property left

behind by him, which was his self-acquired property. In such a

scenario, it is not for the defendant No.1 to contend that there is no

merit in the plea of the plaintiff that by inadvertent typographical

error instead of Section 8 of the Hindu Succession Act, Section 6 of

the Hindu Succession Act has been typed. The entire suit of the

plaintiff is predicated on the suit property being the self-acquired

property of the father of the parties and the same has also been

clearly admitted by the defendants, including the defendant No.1.

The parties have understood their case and even given statement to

this effect, which is duly recorded in the order of this Court dated

16.11.2009. There can, therefore, be no dispute as to the fact that

Section 8 of the Hindu Succession Act which deals with general rules

of succession in case of a Hindu male dying intestate is the

applicable provision of law in the instant case as Section 6 relates to

devolution of interest of coparcenary property. The Court is

accordingly inclined to believe the statement of the plaintiff that

Section 6 instead of Section 8 has been inadvertently typed in the

plaint.

27. For all the aforesaid reasons, the Court is of the view that the

present application has been filed by the defendant No.1 merely with

a view to protract the proceedings and to delay the grant of relief to

the plaintiff. In the circumstances, the application is dismissed with

costs of Rs. 20,000/-.

REVA KHETRAPAL JUDGE April 27, 2012 ak