Notice of Motion No. 738 of 2014. Case: Paresh Damodardas Mahant Vs Arun Damodardas Mahant. High Court of Bombay (India)
| Case Number | Notice of Motion No. 738 of 2014 |
| Counsel | For Applicant: Sanjay Jain, C. D. Mehta, a/w. D. R. Mehta, a/w Lalan Gupta, i/b M/s. Dhruve Liladhar and Co., Advs. and For Respondents: Dr. Birendra Saraf, a/w. Ms. Jyoti Ghag, a/w Ms. Shivani, i/b. Ms. Thakore Jariwala Associates, Pooja Kshirsagar, i/b. Kalpesh Joshi, Ms. Sonu Tandon, Advs. |
| Judges | Mrs. Roshan Dalvi, J. |
| Issue | Hindu Succession Act (30 of 1956) - Section 6 |
| Citation | AIR 2015 BOM 24 |
| Judgement Date | October 13, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
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Preliminary issue of limitation has been framed thus:
(1) Whether the suit is barred by the Law of Limitation.
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It is required to be decided under Section 9A of the CPC. Both counsel state that the parties do not desire to lead any evidence and the issue be decided upon the pleadings.
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The suit is filed by the plaintiff for an undivided 1/5th share right, title and interest in the suit property claimed by him. The plaintiff claims as one of the heirs and legal representatives of the deceased Damodardas and also as a co-owner with defendant Nos. 1 to 4 having an undivided share right, title and interest in the suit property. The suit property consists of a tenanted building with a temple on a ground floor called Hanuman Temple. The suit is for partition of the property by metes and bounds as also for administration of the estate of the deceased father.
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The plaintiff has averred in paragraph 6 of the plaint that the suit property was originally owned and managed by the lineal ascendants of the plaintiff since the time of his great great grandfather one Mohandasji who was the Mahant of the temple. The plaintiff has claimed his lineage through Kuvarbai, the wife of Mohandasji, her adopted son Dharamdasji, the plaintiffs great grandfather who was bequeathed the suit property and upon the death of the Dharamdasji to his son Ramdas who was his grandfather. The plaintiff has claimed that thereafter the property was managed by the wife of Ramdas, Ratanbai, who is the plaintiffs grandmother after which the plaintiff's deceased father came to be the owner and manager of the suit property and the Mahant of the temple therein. These averments are accepted by the defendants as true.
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The suit property is, therefore, not the self acquired property of the plaintiff's father. It was his ancestral property. In any event the property became ancestral in the hands of the plaintiff and defendant Nos. 1 to 4 upon the death of their father, Damodardas. The property register card also shows the property formerly belonging to Ramdas and then to Damodardas and then sought to be made out in the name of defendant No. 1.
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In paragraph 8 of the plaint the plaintiff has averred about the death of his father on 14th September, 2002 upon which the plaintiff and defendant Nos. 1 to 4 as heirs and legal representatives each got an undivided 1/5th interest in the suit property though it is claimed to be ancestral property.
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A reading of the entire plaint also shows that the plaintiff claims 1/5th share right, title and interest as an undivided interest, but upon the death of his father. Though defendant Nos. 1 to 4 are shown to be the heirs and legal representatives of the deceased Damodardas, the property is stated to be ancestral or joint family property which is shown to have devolved upon them as co-owners. The plaintiff would contend that he is a co-owner and a suit by such co-owner for partition can be filed at any time.
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The plaintiff has shown how the property has been managed for a number of years with regard to the temple. The plaintiff has shown how the eldest son is the Mahant of the temple which is as per the rule of primogeniture.
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The plaintiff has claimed in paragraph 9 of the plaint that in April, 2014 he came to learn from a random search that defendant No. 1 is alone entered as owner of the suit property to the exclusion of the other heirs and legal representatives of his deceased father who are siblings. The fact that it is so shown is not denied. Defendant No. 1 has accepted that that was shown by mistake. He has sought to make amends. He has executed an indemnity in that behalf which he claims cancelled the entry. In view of the admission, the knowledge acquired by the plaintiff in April, 2014 about that fact becomes inconsequential.
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It is argued on behalf of the defendant that the plaintiff should have led evidence about his search and the consequent knowledge and would require to be cross-examined. It is argued that only because of that averment the suit is sought to be saved from the bar of limitation though it is a suit for administration of the estate of the deceased father of the plaintiff who expired in 2002 and hence is barred by limitation, it having been filed 12 years after the cause of action accrued.
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If the suit is taken to be the suit for administration of the estate of the deceased, the plaintiff would be entitled to a separate and distinct 1/5th share as devolving upon the intestacy of the plaintiff's father who left behind 4 sons and 1 daughter in 2002.
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In fact the defendants have claimed in paragraph 9 (v) that the father died testate but application for probate of his Will has not been made. The defendant No. 1 claimed that under the Will the father left his property to his four sons in equal shares. In that event the plaintiff would be entitled to 1/4th admitted share in the suit property. In paragraph 9 (v) (b) it is claimed that the temple in suit property was not HUF property and consequently not ancestral property. This would implicitly show that the rest of the property was HUF property. A reference to the co-owners has been made in paragraph 31 of the affidavit-in-reply showing the disclosure of accounts made to them in respect of the income of the temple.
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Even if the suit property is ancestral it would devolve by succession and not survivorship under the initial part of Section 6 of the Hindu Succession Act, 1956 (HSA) since there is female in the family, the plaintiff's sister, defendant No. 3. The succession opened in 2002. The HSA, 1956 was in operation then.
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Dr. Saraf on behalf of the defendants, relied upon the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen etc., AIR 1986 SC 1753 in which the Supreme Court considered the purport of the amendment to old Hindu Law upon the enactment of the HSA as reflected in the preamble to the Act.
In that case there was a...
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