1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Suit No.2999 of 1994 Kobad Rustomji Noble .. .. Plaintiff Versus Miss Nelly Rustomji Noble .. .. Defendant Mr.Chirag Balsara with Ms.Falguni Thakkar i/by M/s.Doijoide, Phatarphekar & Associates for plaintiff. defendant No.1. Mr.S.A. Ahmed with Mr.Bali i/by M/s.Thakkar & Bali for defendants. ------ CORAM : SMT.ROSHAN DALVI, J. Dated : 2nd June, 2008 JUDGMENT : 1.Parties are brother and sister. They have filed their pleadings. Issues have been framed. It is the contention of the defendant-sister that the plaintiff' s suit is barred by the Law of Limitation as seen from the plaint itself. The issue of limitation is to be decided as a preliminary issue under the provisions of Order XIV Rule 2 of the Code of Civil Procedure. It is accordingly framed. The Advocates of the parties have been heard upon the issue of limitation. 2.The suit is filed for accounts of the movable properties and 2 assets left by the deceased Jerbai Rustomji Noble (the mother of the parties) and for administration of the same. The suit is also for a declaration that the plaintiff and the defendant are each entitled to half of the movable properties and assets of the deceased. The suit is further for a direction for the division of the properties and assets in equal shares between the plaintiff and the defendant and for the ancillary reliefs of making inquiries and passing orders for the aforesaid purpose. 3.It is clear that the suit is in respect only of movable properties. These properties are stated to be the ones left by the deceased/mother of the parties, forming her estate. They be administered by the Court for payment of an equal share to both the parties. The mother expired on 23rd May 1978. She died intestate. Her movable estate was to be administered within three years from that date. The plaintiff and the defendant are admittedly the only heirs. They are, therefore, admittedly entitled to half share in the estate, if any, of the mother. 4.Though the factum of the death of the mother and the heirs left by her are admitted as also the shares of the heirs, the estate of the mother is not admitted. The plaintiff-brother 3 has shown the estate of the mother contained in the shares of Companies listed in Exhibits A and B, the Bank Accounts listed in Exhibit-C, the jewelries listed in Exhibit-E and the garas and sarees in Exhibit-F. The defendant has not admitted that that constitutes her mother's estate. That would have to be proved by the plaintiff in the suit. Issues in that regard have been framed. 5.The Court must first consider whether the suit is within limitation, given the factum of the death of the mother in 1978 and the filing of the suit in 1994 for the accounts and administration of only her movable estate. 6.It is the essential claim of the plaintiff, who claims a share in the movable estate, that the shares belonged to the deceased who held them jointly with the defendant-sister and had a “desire” that after her death the plaintiff' s name must be included jointly with the defendant in all shares. It is the case of the plaintiff that the mother's desire was carried out and the shares were held by the plaintiff with the defendant in joint names. It is the plaintiff's case that thereafter the defendant took away the shares and raised the false disputes when the plaintiff refused the transfer of the shares by the defendant. 4 7.It is the case of the defendant that the suit for accounts and administration of the movable estate of the deceased-mother is required to be filed within 3 years of the death of the mother for claiming a half share in her estate under Article 113 of the Limitation Act, 1963. It is the case of the plaintiff that it must be filed within 3 years of the dispute having been raised by the defendant and a claim having been made by her. Upon such a case of the plaintiff, the point of time when the dispute arose and the first claim was made is to be seen. 8.In paragraph 18 of the plaint, it is averred that in 1989- 1990, the defendant-sister took away the suitcase along with the shares, documents and records. The averments in paragraph-20 of the plaint show that the defendant-sister made the first claim that she had purchased the shares out of her own monies in July 1990. The plaintiff has sought to rely upon the correspondence between the parties with regard to that claim. The correspondence is not annexed to this plaint. It is annexed to the suit filed by the defendant- sister being Suit No.1661 of 1991 for a declaration that she is the owner having full and exclusive beneficial, right, title and interest in the shares, debentures and bonds and other 5 ancillary reliefs. The list of documents relied upon by the plaintiff and annexed to this plaint shows, inter alia, at item No.6, the correspondence between the parties prior to High Court Suit No.1661 of 1991. That is the correspondence entered into in July/August 1990, annexed at Exhibits-B and D to the plaint in Suit No.1661 of 1991 filed by the defendant-sister. 9.It would be worthwhile to refer to that correspondence since the first claim is made therein. The notice sent by the Advocate of the defendant-sister dated 30.7.1990 to the plaintiff-brother herein specifically states that the the sister had purchased out of her earnings as Medical Practitioner certain shares in Public Limited Companies. After her mother's death she added the name of her brother to the shareholdings out of convenience only. The brother had no beneficial interest thereto. He signed the share transfer forms as and when required by the sister. Sometimes prior to July 1990, he refused to sign as before and hence, the legal notice. 10.The reply of the Attorneys of the plaintiff-brother dated 21st August 1990, Exhibit-D in Suit No.1661 of 1991, calls for inspection of the share certificates as well as various other 6 related documents of the defendant-sister. It makes out a specific case that the defendant-sister hardly earned anything from her medical practice and, therefore, the brother and the sister entered into the arrangement that the brother would maintain the sister and pay for her food, rent, electricity bills and other maintenance expenses and as a part of the arrangement, the sister “from her small earnings as also from the dividends/interest received from the shares/debentures” appropriated by her, would purchase shares in the joint names of the brother and the sister and would also look after the portfolio. The beneficial interest of the sister was denied. The fact that she regularly purchased the shares from her own earnings was denied. The plaintiff- brother claimed the beneficial interest in all the shares wherein his name appeared and contended that he had a discretion not to sign the transfer forms. 11.Under the same letter/reply to the notice, the plaintiff- brother made a claim to several items of jewelry in paragraph 6 thereof. The jewelry came to be vaguely described and enumerated thereunder. It was claimed in that notice that the jewelry was kept in a Bank Locker, the key of which remained with the sister only who paid the rent of the locker. Repeated oral requests for the jewelry did not yield any 7 response from the sister. The plaintiff-brother claimed half share in the jewelry owned by his mother at the time of her death which, it was contended, was always denied by the defendant-sister. The plaintiff-brother made a further claim that he owns certain shares and debentures in which the sister' s name was added for the sake of convenience, for which she had refused to sign the share transfer forms and called upon her to do so and threatened to claim damages. 12.By further letter dated 17.9.1990, Exhibit-E to the Plaint in Suit No.1661 of 1991, the defendant-sister rejoined. The contents of that letter need not be reiterated. 13.It is clear that the claim was made by the sister on 30 th July 1990. The claim was refuted by the brother on 21 st August 1990. The brother made a separate claim for jewelry on 21st August 1990. This was about 12 years after the death of their mother. 14.The claim of the sister arose upon the refusal of the brother to sign the shares which were in the joint names of the sister and the brother. The claim of the brother was in his reply to the sister' s claim. The jewelry always remained with the sister as is mentioned in the Attorneys' letter dated 21st 8 August 1990. That claim arose upon the death of the mother if the brother claimed half share in her estate, of which those jewelries formed a part. The claim of the plaintiff-brother to the shares and debentures standing in his name in which he claimed that his sister's name was added for the sake of convenience was upon the sister' s refusal to sign the share transfer forms. 15.After such correspondence showing the initial claim of the defendant-sister, the brother' s denial thereto, as well as the brother's' claim to the jewelry arising upon the death of his mother, the defendant-sister filed her suit being Suit No.1661 of 1991 in respect only of the shares, debentures and bonds standing in the joint names of the brother and the sister in which she claimed the entire beneficial interest upon the fact that the entire consideration was paid by her out of her own separate earnings from her medical practice and her brother's name was joined therein only for the sake of convenience. 16.The plaintiff-brother herein has averred about filing of the suit in paragraphs 19 and 21 of the plaint. He claims that the disputes were raised by the defendant-sister wrongfully only in the said suit filed on 30 th May 1991 . That averment 9 is seen to be distinctly incorrect in view of the averments in paragraphs 18 and 20 of the plaint recited hereinabove. 17.It is seen that the first claim was made by the defendant- sister with regard to the shares and bonds under her Notice dated 30th July 1990. In any event, even if the defendant- sister had not raised that claim, the plaintiff-brother having contended that that was a part of the estate of his late mother, should have sued for accounts and administration of such estate of the movable properties upon the death of the mother and not after his sister claimed the full beneficial interest thereto. 18.No claim has been made by the sister in respect of any Bank Accounts of the mother, the jewelries of the mother or the sarees of the mother. The half share which the plaintiff- brother claimed in such estate and properties as having been left by his mother is, therefore, not dependent upon any claim made by the sister in her suit or otherwise. It is dependent solely upon the mother's death. He has to claim half share in the mother' s estate upon her death. The estate is only movable. Hence, his claim to the movables is required to be made within three years from the death of the mother. He has not shown any claim made by the sister 10 with regard thereto in her suit or otherwise. It is seen that his claim to the shares, debentures and bonds shown in Exhibit-A to the suit is also upon the mother' s death since he has claimed the half share therein. It matters not that the sister has filed the suit. She may not have sued the brother. The brother's claim cannot be dependent upon the sister' s claim in a prior suit. 19.This suit is not filed within three years of the claim having been made on 30th July 1990 also. This suit is filed on 11th July 1994, about four years after the claim having been made by the defendant-sister. Even upon such a contention, the claim is distinctly barred by the Law of Limitation. The plaintiff-brother has sought to save the bar of limitation by filing of the suit of his sister and its service. It may be mentioned that this suit is not filed within three years of the filing of the sister' s suit also. The sister' s Suit No.1661 of 1991 has been filed on 30th May 1994. It is averred in paragraph 21 of the plaint that the writ of summons in the suit was served on 24th July 1991. The plaintiff realized “for the first time” about the claim of the sister in the shares, debentures and bonds listed in Exhibit-A to the plaint. Upon such service having been effected, he sued the sister 11 within three years thereafter on 11th July 1994. 20.Filing of such a suit is popularly called a “counter-blast” to the earlier suit. It is not an accrual of a cause of action. No suit by one party is an accrual of the cause of action even if the claim is made and made known to the defendant for the first time. The defendant merely has a right to defend that suit. The right of defendant to sue accrues only upon the happening of an event or denial of his claim. The happening of the event, in this case, was the mother's death. There has been no denial of his claim because the defendant never made a claim to half the estate of the mother between 1978 and 1990. He made a claim to a part of her estate as shown by himself initially under his Attorneys' letter dated 21st August 1990. 21.In paragraph 22 of the plaint, the plaintiff has referred to the said Attorneys' letter dated 21st August 1990 in which the claim with regard to the jewelry was made for the first time. It is averred that the defendant failed to comply with the plaintiff's demand with regard to the jewelry. It is, therefore, seen that though the claim is made by the plaintiff with regard to the jewelry of his mother in August 1990, no suit has been filed by him until the present suit filed on 11th 12 July 1994. Even in the suit aside from showing three Bank Accounts of the mother in the list Exhibit-C, and the sarees and Gara in Exhibit-F, there is no averment to show how the plaintiff claims half share therein. 22.To save the bar of limitation, another averment is made in paragraph 22 of the plaint that the plaintiff-brother noticed the defendant-sister “wearing” the jewelry as well as the Gara of the mother in March/April 1992. He, therefore, apprehended that the defendant removed the jewelry kept in the locker. The averments show that the defendant has not handed over to the plaintiff his half share in the jewelry as well as in the Gara forming a part of the estate of the mother. The suit is, therefore, filed upon the tort of appropriation/conversion as averred in paragraph 23 of the plaint. It may be mentioned the fact that the share was not handed over is also dependent upon the mother' s death and not upon the plaintiff noticing the defendant having worn the jewelry or the Gara. Such noticing of the defendant does not give a cause of action to the plaintiff to file a suit as is claimed in paragraph 26 of the plaint. 23.A reading of the plaint shows that the claim of the plaintiff- brother to movable properties and estate of his mother and 13 for its administration to give his half share arose upon the death of the mother on 23rd May 1978. The claim of the defendant-sister to the full beneficial interest in the shares, debentures and bonds was made by her on 30th July 1990. It was made known to the plaintiff upon the receipt of that claim under her Advocate's notice. It was denied by the plaintiff on 21st August 1990 under his Attorneys' letter of that date. It is, therefore, false to state that the plaintiff knew for the first time the claim of his sister when he was served the writ of summons in the suit filed by her. He knew of it much earlier than the filing of that suit in the correspondence that ensued between the parties' Advocates and Attorneys prior to that suit and which is a part of the list of documents relied upon by the plaintiff in this suit. 24.For suing upon such a claim to the movable estate of his mother, the plaintiff must file a suit within three years from the date of the death of his mother under Article 113, Schedule-1 to the Limitation Act, 1963. 25.Though it is not the case of the plaintiff in the plaint, his Counsel has contended that the suit is to be filed within 12 years of the legacy or share being payable to him under Article 106 of the said Schedule. 14 26.The entire plaint proceeds upon a claim under Article 113 of the said Schedule, albeit from the date of the knowledge of the claim. Hence, the averments in the plaint show the saving of the bar of limitation for a period of 3 years and not 12 years from any date. Nevertheless, since this is a contention of law, it must be considered. 27.It would be pertinent to set out Article 106 itself. It runs thus:- ----------------------------------------------------------------------------- Description of suit Period of Timefrom which limitation period begins to run 106. For a legacy or for Twelve years When the a share of a residue legacy or bequeathed by a testator share or for a distributive share becomes of the property of an payable or intestate against an deliverable. executor or an administrator or some other person legally charged with the duty of distributing the estate. This Article applies in the case of suits relating to : (a) a legacy (b) share of a residue bequeathed by a testator 15 (c) distributive share of the property of an intestate or administrator or some such person having the duty to distribute the estate. 28.Since the deceased did not leave a Will, there is no legacy. Hence, the first clause does not apply. The share mentioned in Article 106 is a share of residue bequeathed by a testator since there is no Will left by the deceased. Even that part of the Article does not apply. The distributive share of the property of an intestate is against an executor, administrator or the like. In this case, the suit is not filed against any executor or administrator or the like. The estate is in the hands of a party claiming the estate i.e. the plaintiff's sister. The plaintiff claims estate which is in the hands of the defendant. The defendant is not like an executor or administrator of the estate of the deceased-mother. A reading of the Article, therefore, shows that no part of it applies to the facts of the present case. 29.In any case, a share which became payable or deliverable to the plaintiff was upon the death of his mother and not upon his sister making a claim thereto or he noticing her wearing is a part of his mother' s estate! 30. The deceased died intestate. The estate has not been 16 administered. The estate is not even admitted by the defendant-sister. What constitutes the mother' s estate is not known. It is not understood how Article 106 would apply to this case and even if it did, the suit is yet barred by the Law of Limitation since it is not filed within 12 years of the legacy or share becoming payable (i.e. the date of the death of the mother). 31. Mr.Balsara on behalf of the plaintiff relied upon the judgment in the case of Sadbuddhi Brahmesh Wagh & ors. vs. Shella Mahabaleshwar Wagh & ors. reported in 2003(6) Bom. C.R. 787. It is held in that case that the suit filed by an heir excluded from the joint family property to enforce his share therein can be filed within 12 years from the exclusion becoming known to the plaintiff under Article 110 of the Limitation Act. I do not see how the plaintiff, in the present case, claims to be excluded from a joint family property or can claim to be enforcing a right to a share in a joint family property. 32. It is observed in paragraph 7 of that judgment that Article 106 of the Limitation Act would be applicable only if the defendant was an executor or administrator or a person legally charged with the duty of distributing the estate. If an 17 heir is excluded from the joint family property, he could file a suit within 12 years of such exclusion. The observations in that judgment will not apply to the facts of this case. 33. Mr.Ahmed on behalf of the defendant drew my attention to the judgment of this Court in the case of Parmeshwari Devi Ruia vs. Krishnakumar Nathmal Murarka reported in 2007 (6) Bom. C.R. 180 in which a distinction for applicability of Articles 110, 113 and 106 has been drawn. The suit in that case was filed for administration of the estate of the deceased as also for declaration and possession. It has been held that in the suit for administration the limitation period would depend upon who the plaintiff is and what his specific cause of action is. It is held that if the suit is filed by an heir against the person in possession for distribution of the estate where no Probate, Letters of Administration or Representation has been granted, the period would be 12 years for immovable property under Article 65 and three years for movable property under Article 113 of Schedule-1 of the Limitation Act. It is observed that Article 106 would apply only in a suit to recover a legacy and in a suit by a co-heir for claiming entitlement to the part of his interest as a co-heir, Article 106 would not apply. 18 34. Mr.Ahmed further drew my attention to the judgment of the Calcutta High Court in the case of Smt.Suhashini Dasi vs. Ahi Bhusan De & ors. reported in AIR 1963 Calcutta 520 which was a suit for partition and division of the suit property by metes and bounds. It was held that mere possession of the estate would not attract Article 106 of the Limitation Act (then Article 123 of the Limitation Act). It is held in that judgment that possession in such a case where Article 106 would apply is the possession of the person charged with duty to distribute the legacy. That lies ordinarily on an executor or administrator or somebody on whom the duty is cast either by the terms of the Will as executor or by an order of the Court as administrator. Therefore, if the suit is not against any of these but merely against the person in possession of the estate, Article 106 would not apply. 35. The Limitation Act makes no separate provision for limitation with regard to “administration suits” as they are dependent upon the special reliefs claimed as is observed in paragraph 37 of the judgment in the case of Parmeshwari Devi Ruia (supra). The plaintiff herein claims his half share in the movable estate of his mother. He claims accounts as 19 well as administration. His half share accrued to him upon the death of his mother. It is entirely in movable estate. He has to claim that share within the period of limitation. Since there is no provision for such a suit in Schedule-1 to the Limitation Act, Article 113 applies. He has to sue within three years when the right to sue accrues. The right to sue accrues upon the death