Surjit Kaur Gill & Anr vs Adarsh Kaur Gill& Anr

(3) The brief facts leading to this appeal are that one Ajit Singh filed a Suit bearing No.2167 of 1993, on the Original Side of Delhi High Court for partition of property against his sister Ms. Adarsh Kaur Gill and some others. He filed the suit in his capacity as the Administrator of the Will of his deceased sister Smt. Abnash Kaur. The prayers in the suit were as follows:

2. (4) There is no dispute that after the suit was filed issues have been framed and at a later stage the plaintiff had tendered his affidavit in lieu of the examination-in-chief. It is at that stage that the application made under Order VII Rule 11 (though made earlier), came to be pressed into service and decided by the learned Single Judge. The contention on behalf of the respondent-defendant was that as can be seen from the statements in the plaint, the suit was barred by law, and therefore it ought to be rejected under Order 7 Rule 11 sub-clause (d). The learned Single Judge went into the issues and came to the conclusion that all the prayers were inter-connected, and they were related essentially to the principal prayer

(9) with respect to these submission, Mr. Diwan pointed out that in fact there is a clear writing of the respondent No.1 herein executed on 12.2.91 which clearly states, amongst others, in paragraph (d) that she will not claim any tenancy right or charge on the above referred property. In paragraph (b) of that writing she agreed to render the accounts with respect to the rental income received from 1.1.80 to 30.11.90. In paragraph (c) of that writing she states that with respect to the two mortgages redeemed in her name, she will not claim any charge as the amounts paid for redeeming the said mortgages were paid from the estaste of Smt. Abnash Kaur. Mr. Diwan states that after executing this writing, the disputes between the parties were supposed to get settled, but then unfortunately it did not happen. The respondent No.1 started construction on the particular property in her own right. This having happened in 1992, the original plaintiff was constrained to file the suit for the partition of the property belonging to Smt.Abnash Kaur. Smt. Abnash Kaur having made a Will about her property, the original plaintiff had to see to it as the administrator of the will that the property is distributed in accordance therewith. This being the position, in his submission it is Article 58 which is the relevant Article for all these prayers, which provides for a period of 3 years when the right to sue first accrues. In the present case, it will be when the dispute arose because of the conduct of the respondent No.1 herein. The issue of limitation is always a mixed question of facts and law, and therefore, it could not be held that no case was made out for proceeding for a trial. Mr. C.A. Sundaram submitted that the respondent No.1 disputed the writing dated 12.2.1991, and it had to be forensically tested. This submission all the more justifies that the trial had to proceed. For deciding an application under Order 7 rule 11, one has to look at the plaint and decide whether it deserved to be rejected for the ground raised. In our view, the view taken by the Division Bench is clearly erroneous. The appeal is therefore allowed and the judgment and order of the Division Bench is set aside. The application made under Order 7 Rule 11 moved by the respondent No.1 herein will stand rejected. We may however clarify that all the observations herein are only for the purpose of deciding this appeal.

(10) We request the learned Single Judge to hear and decide the suit expeditiously since it is pending for the last 10 years. The parties will bear their own costs.

JANUARY 30, 2014.