1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.1236 of 2007 IN Suit No.897 of 2007 Kalpana Ramesh Rao Patange .. .. Plaintiff v/s. Vimal Shrikrishna Bhavsar & ors. .. .. Defendants Mr.Roop M. Vasudeo for Plaintiff. Mr.N.P. Shimpi for Deft. Nos.1 to 3. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 2 nd March 2009 P.C. : 1. This is a Suit filed by the Plaintiff against her mother, brother and sister. The Plaintiff claims 1/4 th share in the suit properties shown in Exhibit- P to the Plaint as a co-owner. It is the Plaintiff's case that the suit property belonged to her father who expired in 1991. The Plaintiff claims that the suit properties were the self acquired properties of her father. She claims her 1/4 th share in the estate of her father under the provisions of Section 8 of the Hindu Succession Act. She however, calls herself a co-owner. She has claimed partition of the properties. She claims that the properties are not co- parcenary properties but self acquired properties of her father in which, consequent upon being a co-owner of the properties with the Defendants upon the death of her father, 2 she claims her 1/4 th share. The Plaintiff's claim is misconceived. If she claims as the heir and legal representative of her father, who left behind the suit properties, she claims her share in the estate of her father. The Plaintiff's Suit is accordingly an Administration Suit. She has to claim her share in the estate of her father within limitation. The limitation period is 3 years from the death of her father under Act 113 of the Limitation Act, 1963. The Plaintiff's right in the estate of her father is not denied. The Plaintiff was required to have sued for her claim under Section 8 of the Hindu Succession Act within 3 years from the death of her father. That has not been done. This is on the premise that without claiming her share, she became the co-owner along with the other heirs and legal representatives of her father who are the Defendants and hence in those properties she claims partition. 2. Mr.Vasudeo on behalf of the Plaintiff has contended that the Suit is governed by Article 106 of Schedule I of the Limitation Act, 1963. The contention is incorrect. Article 106 deals with a legacy or share in a residue bequeathed by a testator or a Suit for a distributive share of the property of an intestate against an executor or an administrator or any other person charged with the duty of distributing the estate. This Suit is simpliciter filed for partition of the share stated 3 to be co-owned by the Plaintiff. The Suit is, however, for properties admittedly of her father, since deceased. 3. The Plaintiff's Plaint buttresses her case. Knowing that the Suit as an Administration Suit is barred by limitation, the Plaintiff has chosen to term her Suit as the Suit for partition of the self acquired properties of her father claiming 1/4 th share under Section 8 of the Hindu Succession Act. 4. The Plaintiff claims both movable and immovable properties of her father. Each of these properties set out in Exhibit- P to the Plaint, shall have to be separately considered : The residential flat of her father . The Defendants reside in the flat. The Plaintiff is a married daughter. She lived with her husband at all material times. It is the case of the Defendants that she has sued upon the instigation of her husband. Prayer (a) in the Notice of Motion simply makes out that case. Under prayer (a) of the Notice of Motion the Plaintiff claims an injunction restraining the Defendants from entering into the suit flat No.8 in Suhas Co-operative Housing Society Limited and from restraining the Plaintiff from residing in the flat along with her husband and daughter. The Plaintiff, therefore, upon 4 claiming her 1/4 th share in the estate of her father, claims a mandatory order pending the hearing of the Suit to reside in the premises with her family. After the filing of the Suit and making the aforesaid prayer, the Plaintiff now claims that she has sued her husband for divorce and hence is entitled to reside in the father's flat! The Plaintiff has legal rights against her husband to claim maintenance (which includes residence). She cannot be granted the mandatory relief sought pending the Suit and pending her cross- examination with regard to her estranged relationship with her husband. 5. The Plaintiff has also claimed her 1/4 th share in the sale- proceeds of a garage, the rents of 2 galas which have been leased to third parties, 2 agricultural plots and the sinking fund of the Society. The entitlement of the Plaintiff in each of these properties shall have to be considered in the Suit at the final hearing. 6. As aforesaid, the 1/4 th share in each of the properties can be given to the Plaintiff if she has sued within the period of limitation. In any case, pending the Suit, at best, these properties are required to be protected against further transfers. 5 7. In paragraph 15 of the Affidavit- in-reply, the Defendants have offered to transfer the two Galas and the tenanted premises in Gupta House entirely to the Plaintiff. These are the tenanted premises which have been converted into ownership as per the case of the Plaintiff herself. The Plaintiff has valued these properties at Rs.36 Lakhs, Rs.4 Lakhs and Rs.6 Lakhs, respectively. The Defendants offer to transfer to the Plaintiff these 3 properties. There is a Fixed Deposit Receipt in the name of Defendant No.1 and the Plaintiff of Rs.5 Lakhs which also the Defendants have offered to transfer to the Plaintiff. The Defendants' offer is not only fair, reasonable and extremely just, given the valuation of the said properties put by the Plaintiff herself but would bring to an end the entire lis between the parties. 8. In fact upon the Defendants offering the Plaintiff her share as per her own valuation, no further issues would remain between the parties. Strictly under the provisions of Order XV Rule 1 of the Code of Civil Procedure, when the parties are seen to be not at issue at any point, the Court is required to at once pronounce the judgment. 9. The Plaintiff's valuation of the properties left by her father is Rs.51,64,578 /- . The Defendants have offered the properties worth Rs.51 Lakhs to the Plaintiff. Surprisingly, the Plaintiff 6 has rejected the said offer. The Plaintiff presses for the mandatory order of entering upon and residing with her daughter in the suit flat. In view of the fair offer, no further reliefs need be granted in favour of the Plaintiff in the Notice of Motion. Nevertheless, the Defendants' Advocate states that ad- interim order of injunction restraining the Defendants from creating further third party rights or from selling any of the properties be continued, pending the Suit. Hence, the following order:- ORDER (a) No case for appointment of the Court Receiver is made out. Hence, prayer (a)(i) is refused. (b) The Plaintiff has not made out any case for residing in the suit premises or for being granted any injunction as claimed in prayer (a)(ii) of the Notice of Motion. Prayer (a)(ii) is also refused. -(c) In view of the statement of the Defendants' Advocate above, the reliefs in terms of prayers (a)(iii) and (a)(iv) are granted. The Defendants shall not sell, part with possession or induct any third party in the suit properties, pending the Suit. 7 (d) The offer made by the Defendants in paragraph 15 of the Affidavit- in-reply is not accepted by the Plaintiff and hence no order in terms thereof is passed. 8. The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.)