Administration Suit No. 1865 of 1980. Case: Antony Eugene Pinto and Ors. Vs Eugene Cajetan Pinto and Anr.. High Court of Bombay (India)
| Case Number | Administration Suit No. 1865 of 1980 |
| Counsel | For Appellant: Zal Andhyarujina and Thakkar and Javed Gaya, Advs. and For Respondents: Haresh Mansukhani and A.B. Shreekhande, Advs. |
| Judges | Dalvi Roshan, J. |
| Issue | Limitation Act, 1963 - Schedule - Articles 65 and 113; Specific Relief Act - Section 5; Civil Procedure Code (CPC), 1908 - Section 35 - Order 7, Rule 11 - Order 14, Rule 2 - Order 20, Rule 13(1) |
| Citation | 2009 (1) BomCR 828 |
| Judgement Date | September 15, 2008 |
| Court | High Court of Bombay (India) |
Judgment:
Dalvi Roshan, J.
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This Suit has been directed to be tried along with and immediately after the Testamentary Suit No. 5 of 2004 is disposed of granting or refusing letters of Administration with the last Will and Testament of Prof. Cosmas Damian T. Pinto (the deceased), dated 12th February, 1963 annexed thereto.
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That is because the parties in the Testamentary Suit are also the parties in this Suit and the evidence with regard to the estate of the deceased would be overlapping.
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The original plaintiffs, defendants 1 and 2 and the husband of defendant No. 3 are the 8 children of the said deceased. The plaintiff Nos. 1, 2 and 3 have expired after the filing of the Suit. Their heirs have been brought on record as party plaintiffs.
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The defendant Nos. 1 and 2 have sought to propound the Will of the deceased dated 12th February, 1963. Hence they are required to probate the Will. Accordingly they have filed Testamentary Petition No. 5 of 2004. The original plaintiff No. 3 has filed Caveat thereto. Evidence on behalf of the plaintiffs herein (on behalf of the Caveator therein) and on behalf of the defendants herein (the petitioners therein) has been recorded. For reasons stated in Testamentary Suit No. 5 of 2004, Letters of Administration with the carbon copy of the verbatim handwritten copy of the said Will has been granted.
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This Suit is for administration of the estate of the deceased. The estate will be required to be administered in accordance with the directions of the deceased under his Will dated 12th February, 1963.
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The deceased expired on 29th June, 1975. The Suit has proceeded as on intestacy. Each of the plaintiffs have claimed 1/8th share in the net estate left by the deceased.
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The plaintiffs have sought directions for disclosure of the properties, both movable and immovable left by the deceased and for administration thereof. The correspondence annexed to the Plaint (which has been taken on record by consent of the parties as Exhibit-I (colly) in Testamentary Suit No. 5 of 2004, mentions about a Will left by the deceased, but which was until then not found, and requires the defendant No. 1 herein to administer the estate as per said Will. Nevertheless it is claimed that each of the heirs would be entitled to 1/8th share in the estate of the deceased left by him as on the date of the death of the deceased on his intestacy.
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The estate stated to have been left by the deceased is enumerated in the list Exhibit-C to the plaint.
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The defendant No. 1 has filed his written statement on 31st March, 1981. He relied upon the Will dated 12th February, 1963 which has been annexed as Exhibit- 1 to his written statement. He has averred about the admitted immovable properties of the deceased and how the deceased himself dealt with and disposed them off during his lifetime. He has also averred about the movable properties left by the deceased being certain shares and a bank account standing in the joint names of the deceased, defendant No. 1 and the husband of defendant No. 3 in Grindlay's Bank, Santacruz Branch. He has shown how most of the shares and securities of the deceased inherited or acquired by the deceased came to be utilized by the deceased in the construction of the building called Damiano on one of the plots of his land.
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The defendant No. 1 has interpreted the Will with regard to the bequest of the bungalow/house of the deceased called Marie Ville.
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The written statement shows how on 2 open plots of land 2 buildings, Cosmos and Damiano, came to be constructed during the life time of the deceased and how the flats therein came to be appropriated also during the life time of the deceased. A large part of the Will of the deceased, therefore, came to be acted upon during his life time. The assets enumerated in Exhibit- C. to the plaint would be required to be dealt with in accordance with the directions in the last Will and testament of the deceased dated 12th February, 1963.
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Much after the Testamentary Suit No. 5 of 2004 proceeded and after evidence was led, the defendants have amended the written statement to add the averment with regard to the bar of the Suit under the Limitation Act, 1963.
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It may be mentioned that an administration suit is required to be filed within three years from the accrual of the right to sue under Article 113 of Part X of Schedule-I to the Limitation Act, 1963. The right to sue accrued to the plaintiffs on the date of the death of the deceased i.e. on 29th June, 1975. The Suit is filed on 21st November, 1980. The Suit is, therefore, seen to be barred by the Law of Limitation unless the plaintiffs show if the bar is saved by any act or event. This issue is required to be tried as preliminary issue under the provisions of Order XIV, Rule 2 of the C.P.C.
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If the Suit is within Limitation, since the Will has been probated, (Letters of Administration granted), a preliminary decree for administration of the estate of the deceased would be required to be passed under the provisions of Order XX, Rule 13(1) of the C.P.C. Consequently, in that event each of the properties of the deceased would have to be separately considered for its due administration for taking accounts and making inquiries as necessary.
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In the event the suit is seen from the averments in the plaint itself to be barred by Limitation, it would have to be dismissed without directing administration of the estate of the deceased.
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This would be dependent upon the determination of the issue of Limitation as a preliminary issue. The Issues are framed and answered as follows:
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ISSUE No. 1: (RE-LIMITATION): The deceased expired on 29th June, 1975. This Suit is for administration of the estate of the deceased on intestate. The plaintiffs claim 1/8th share in the estate of the deceased. The plaintiffs have valued their share in the estate left by their deceased father at Rs. 50,000/- each, being the 1/8th share in the aggregate. No period of limitation is fixed for an Administration Suit. Consequently...
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