Sajanbir Singh Anand v. Raminder Kaur Anand

1/17 NMS-2955-2011.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2955 OF 2011 SUIT NO.1869 OF 2011 Sajanbir Singh Anand and Ors. .Plaintiffs 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 SUIT NO.338 OF 2008 Khalid Omar Wakani .Appellant 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 : 4th MAY, 2018 Gauri Gaekwad 2/17 NMS-2955-2011.doc 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. Gauri Gaekwad 3/17 NMS-2955-2011.doc

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., 24th October 2007. Consequently, in the notice of motion, the Learned Single Judge, by an Order dated 26th 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? Gauri Gaekwad 4/17 NMS-2955-2011.doc

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 Gauri Gaekwad 5/17 NMS-2955-2011.doc 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, exfacie, 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 Rajasthan3

2. (2006) 5 SCC 638

3. AIR 1961 SC 1704 Gauri Gaekwad 6/17 NMS-2955-2011.doc 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 Sarkar5 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 Gauri Gaekwad 7/17 NMS-2955-2011.doc 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 Gauri Gaekwad 8/17 NMS-2955-2011.doc

14 In Salebhai Abdul Kader Basrai Vs. Bai Safiabu8 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, subrule (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 Gauri Gaekwad 9/17 NMS-2955-2011.doc 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 : Gauri Gaekwad 10/17 NMS-2955-2011.doc Description of suit Period of limitation Time from which period begins to run

106. 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 against an executor or an administrator or some other person legally charged with the duty of distributing the estate. Twelve years When the legacy or share becomes payable or deliverable.

110. By a person excluded from a jointfamily property to enforce a right to share therein. Twelve years When the exclusion becomes known to the plaintiff.

113. Any suit for which no period of limitation is provided elsewhere in this Schedule. Three years. When the right to sue accrues 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 Gauri Gaekwad 11/17 NMS-2955-2011.doc 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, exfacie, 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 Gauri Gaekwad 12/17 NMS-2955-2011.doc 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 Gauri Gaekwad 13/17 NMS-2955-2011.doc 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 Gauri Gaekwad 14/17 NMS-2955-2011.doc 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 Gauri Gaekwad 15/17 NMS-2955-2011.doc 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 coheir in the estate as against certain other heirs for administration, Article 106 would not apply as the suit would be one between coheirs. [(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 Gauri Gaekwad 16/17 NMS-2955-2011.doc 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 Gauri Gaekwad 17/17 NMS-2955-2011.doc 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.) Gauri Gaekwad