Full Judgment Text
NON-REPORTABLE
2025 INSC 485
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. OF 2025
(Arising out of S.L.P. (C) No. 13459 of 2024)
NIKHILA DIVYANG MEHTA & ANR. …APPELLANT(S)
VERSUS
HITESH P. SANGHVI & ORS. …RESPONDENT(S)
J U D G M E N T
PANKAJ MITHAL, J.
1. Leave granted.
2. Heard Shri Gaurav Agarwal, learned senior counsel for the
appellants and Shri Bhadrish S. Raju, learned counsel for the
respondent(s).
3. The plaint of the civil suit was rejected by the court of first
instance on an application of the defendants filed under Order
1
VII Rule 11 of the Code of Civil Procedure . The High Court has
Signature Not Verified
Digitally signed by
SNEHA DAS
Date: 2025.04.15
17:43:00 IST
Reason:
1
In short ‘CPC’
1
reversed the aforesaid order and has allowed the appeal of the
defendant restoring the plaint for decision on merits.
4. The impugned judgment and order of the High Court dated
08.02.2024 setting aside the order dated 23.10.2018 of the
Chamber Judge, City Civil Court, Ahmedabad, and directing to
restore the Civil Suit No.1758/2017 for decision on merits in
accordance with law, has been assailed in this appeal.
5. The plaintiff-Shri Hitesh P. Sanghvi instituted Suit
No.1758/2017 in the City Civil Court, Ahmedabad, against
four persons including Smt. Harshaben Vijay Mehta, Smt.
Nikhila Divyang Mehta, Smt. Ami Rajesh Parikh and Shri Nilav
Divyang Mehta as defendant Nos.1, 2, 3 and 4 respectively
seeking direction from the court to declare the Will dated
04.02.2014 and the Codicil dated 20.09.2014 executed by his
late father Pramod Kesurdas Sanghavi and all consequential
actions thereof to be null and void as also for grant of
permanent injunction restraining the defendants from entering
into any transaction in furtherance of the aforesaid Will and
Codicil.
2
6. The plaint categorically states that the plaintiff-Shri Hitesh P.
Sanghvi is the son of deceased Pramod Kesurdas Sanghavi who
died at his residence on 21.10.2014. He was survived by his
wife, his three daughters-defendant Nos.1, 2 and 3 and a
grandson-defendant No.4 (son of defendant No.2). The plaint
further categorically, in unequivocal terms, states that the
deceased took his last breath on 21.10.2014. Then in the first
week of November, 2014, defendant Nos.1, 2 and 3 revealed to
the plaintiff that the deceased had executed a Will and a Codicil
as referred to above and he was taken by surprise.
7. The plaintiff further stated that the cause of action for the suit
had arisen on three occasions, first on 04.02.2014 i.e., when
the Will executed by his father was registered, again on
20.09.2014 i.e., when the Codicil was registered and then
finally on 21.10.2014 when his father died.
8. The dispute in the suit is the family members
per se inter se
i.e., the son and daughters of the deceased Pramod Kesurdas
Sanghavi in connection with his Will and Codicil and for the
purposes of seeking the reliefs claimed in the plaint i.e., for
declaration of the Will and the Codicil to be null and void, the
3
plaintiff contended that the cause of action for such a suit arose
first on 04.02.2014, secondly on 20.09.2014 and lastly on
21.10.2014.
9. In the above background, defendant No.2 moved an application
(Exh.25) purported to be under Order VII Rule 11 CPC for the
rejection of the plaint on the allegation that the plaintiff had
not made any averment with regard to the suit to be within
limitation and it is the primary duty of the plaintiff to show that
the suit was instituted within the prescribed period of
limitation. In the absence of such pleadings, the plaint is liable
to be rejected under Order VII Rule 11 CPC.
10. A similar application was filed by defendant No.3 again under
Order VII Rule 11 (Exh.28) for the rejection of the plaint
contending that the suit has not been instituted within the
prescribed period of limitation and the plaintiff has failed to
aver, show and establish that the suit has been filed within
time. The plaintiff had acquired knowledge of both the Will and
the Codicil in the first week of November, 2014, but the suit
was not instituted within three years from the first week of
4
November, 2014, rather it was filed on 21.11.2017 and as such
is ex-facie barred by limitation.
11. Another application (Exh. 33) to the same effect was filed by
defendant No.4, contending that it is the primary duty of the
plaintiff to show that the suit is prima facie instituted within
the prescribed period of limitation. As the suit was filed on
21.11.2017, it was more than three years after the plaintiff
came to know about the Will and the Codicil and as such is
clearly barred by law of limitation on the plain reading of the
averments of the plaint.
12. The plaintiff filed response to the above applications
contending that the suit was instituted within time and that
the parties should be allowed to adduce the evidence to prove
as to whether the same is within time or beyond the period of
limitation.
13. The above three applications under Order
(Exh. 25, 28 and 33)
VII Rule 11 came up for consideration before the City Civil
Court, Ahmedabad. The court, upon the plain reading of the
averments made in the plaint, held that the action for the suit
first arose in the first week of November, 2014 whereas the suit
5
was filed on 21.11.2017. As per the averments made by the
plaintiff that he had come to know of the Will and the Codicil
in the first week of November, 2014, in view of Article 58 of the
2
Limitation Act, 1963, the suit ought to have been filed within
three years when the right to sue first accrued. Since the suit
was not filed within three years i.e., by the first week of
November, 2017, it is patently barred by limitation.
Accordingly, applications Exh.25, 28 and 33 were allowed and
the plaint was ordered to be rejected under Order VII Rule 11
CPC.
14. The above judgment and order was, however, reversed by the
High Court by the impugned judgment and order dated
08.02.2024 for the reason that the parties ought to have been
permitted to lead evidence on the point of limitation and that
the plaint was not liable to be rejected in part, as apart from
seeking declaration of the Will and the Codicil to be null and
void, there were other reliefs which were sought in the plaint.
15. In the above factual background, we have been called upon in
this appeal to express our opinion if the suit instituted on
2
Hereinafter referred to as ‘the Act’
6
21.11.2017 for the declaration of the Will dated 04.02.2014
and the Codicil dated 20.09.2014 as null & void, is barred by
limitation in the light of the averments contained in the plaint.
16. It is clear from the plaint that the prayers made therein are
primarily for seeking declaration of the aforesaid Will and
Codicil to be null and void as also all actions in pursuance
thereof. The relief for permanent injunction is dependent upon
the success of the first relief. Therefore, the relief of permanent
injunction is simply a consequential relief. The primary relief
being for declaring the Will and the Codicil to be null and void.
17. There is no dispute to the fact that the Will was executed and
registered by the father of the plaintiff on 04.02.2014 and the
Codicil came to be executed and registered on 20.09.2014. The
plaintiff, as per his own averments in plaint, had acquired
knowledge of the aforesaid Will and Codicil through defendant
Nos. 1, 2 and 3 (sisters), only in the first week of November,
2017.
18. Admittedly, a suit for declaration has to be governed by Part III
of the Schedule contained in the Act. Part III of the Schedule
provides for the limitation for filing suits relating to
7
declarations. Article 56 deals with declaration with regard to
the forgery of an instrument issued or registered and Article 57
relates to declaration in respect to adoption.
19. The relief of declaration claimed in the suit at hand does not
fall under Articles 56 and 57 and, therefore, by necessary
implication, Article 58 would stand attracted which provides
for a limitation period of three years to obtain any other
declaration other than that mentioned under Articles 56 and
57. It provides that for such a declaration, the limitation is
three years from the date when the right to sue first accrues.
20. The use of the words “ when the right to sue first accrues ” as
mentioned in Article 58 is very relevant and important. It
categorically provides that the limitation of three years has to
be counted from the date when the right to sue first accrues.
21. It would be beneficial to reproduce paragraph 3 (o), paragraph
4 and paragraph 6 of the plaint which contains averments
about the knowledge of the Will and the Codicil, the cause of
action and the reliefs claimed:
“3 (o). After a brave struggle with Cancer, the
deceased took his last breath on 21.10.2014 at
10.35 pm. Pursuant to his death, defendant nos. 1
to 3 in the first week of November, 2014 disclosed to
8
the plaintiff that the deceased had not only executed
a Will but had even executed a Codicil ……………….
4. The cause of action has arisen on 04.02.2014,
when the Will bearing Registration No. 707 was
registered before the Sub-Registrar-3 (Memnagar),
which was executed by the father of the Plaintiff
Shri Pramodray Sanghavi and the cause of action
further arose on 20.09.2014, when Codicil to the
said Will bearing Registration No. 6213 was
executed before the Sub-Registrar-3 (Memnagar).
The cause of action also arose on 21.10.2014, when
the father of the Plaintiff expired and thereafter, the
Will and Codicil of the father of the Plaintiff came to
the knowledge of the Plaintiff. The said Will and
Codicil are absolutely illegal, false and fabricated
and therefore, are required to be declared as null
and void. Further, an injunction is required to be
ordered against the Defendants for not to sell,
transfer or alienate any of the properties as per the
directions of the Will and to maintain status quo till
the final disposal of the Suit. Hence, the present
Suit.
6. The plaintiff prays as under:
a. The Hon'ble Court may be pleased to
declare the Will dated 04.02.2014, bearing
Registration No. 707 was registered before the
Sub-Registrar-3 (Memnagar) as well as the
Codicil dated 20.09.2014, bearing
Registration No. 6213 was registered before
the Sub-Registrar-3 [Memnagar] as null and
void;
b. The Hon’ble Court may be pleased to grant
permanent injunction against the defendants,
restraining them from entering into any
9
transaction in furtherance of the directions in
the Will or Codicil;
c. The Hon'ble Court may be pleased to
declare all the subsequent action taken in
furtherance of the said Will and Codicil as null
and void status quo ante may be restored;
d. Such other and further relief/s as may be
deemed fit and appropriate may be granted; ”
22. A bare reading of paragraph 3(o) of the plaint would reveal that
the father of the plaintiff died on 21.10.2014 and that the
plaintiff acquired knowledge of the Will and the Codicil left
behind by him in the first week of November, 2014. Paragraph
4 of the plaint reveals that the cause of action for filing of the
suit first arose on 04.02.2014, then on 20.09.2014 and finally
on 21.10.2014 i.e., when the Will was executed, when the
Codicil was executed and when the father of the plaintiff died
respectively. Therefore, according to the plaintiff’s own
admission, the cause of action for filing the suit commenced on
04.02.2014 and ended on 21.10.2014.
23. In view of the above, according to the plaintiff’s own averments
the suit had to be brought within time of three years either from
the commencement of the cause of action on 04.02.2014 or
lastly on 21.10.2014 when his father died or at best when he
10
acquired knowledge of the Will and the Codicil i.e., the first
week of November, 2014.
24. There is no dispute to the fact that the limitation for filing of
the suit falls under Article 58 of the Schedule to the Act wherein
the limitation prescribed is three years. It may be pertinent to
note that the limitation of three years is from the date when the
cause of action first arose. So, according to the plaintiff’s case,
the cause of action first arose on 04.02.2014 and, therefore,
the limitation would end on 04.02.2017. However, even if the
limitation is calculated from the date of knowledge of the Will
and/or the Codicil, it would run from the first week of
November, 2014 and would end in the first week of November,
2017. The suit admittedly was instituted on 21.11.2017; much
beyond the first week of November, 2017 and as such is
apparently barred by limitation, for which neither any defence
is required to be looked into nor any evidence in support is
needed to be adduced.
25. Section 3 of the Act contemplates that every suit instituted
after the period prescribed under the Act shall be dismissed
even if limitation has not been set up as a defence. The
11
aforesaid provision is of a mandatory nature and cannot be
ignored by the courts even if not pleaded or argued by the
defence. It is obligatory upon the court to dismiss the suit if it
is, on the face of it, barred by limitation. The aforesaid provision
has been enacted for public good and to give quietus to a
remedy after lapse of a particular period, as a matter of public
policy, though without extinguishing the right in certain cases.
Therefore, once a limitation prescribed for instituting a cause
of action expires and even if limitation is not set up as a
defence, it obliges the court to dismiss the suit as barred by
limitation.
26. In the present case, the plaintiff not only categorically states
that he acquired knowledge of the Will and the Codicil in the
first week of November, 2014 but also that the cause of action
for the suit first arose on 04.02.2014 and lastly on 21.10.2014.
The suit was filed on 21.11.2017. As such on the own
averments of the plaintiff, the suit was instituted beyond
limitation attracting Order VII Rule 11 (d) CPC.
27. The submission that limitation is a mixed question of law and
fact and that it cannot be decided without allowing the party to
12
lead evidence is of no substance. In the present case, we have
earlier noted that the suit was admittedly instituted on
21.11.2017 whereas according to the plaint averments the
cause of action first arose on 04.02.2014. Even assuming that
the cause of action last arose in the first week of November,
2014, the suit ought to have been filed by 07.11.2017. The suit
was filed on 21.11.2017. It was ex-facie barred by limitation for
which, no evidence was required to be adduced by the parties.
The above issue is purely an issue of fact and in the admitted
facts as per the plaint, allegations stand concluded for which
no evidence is needed.
28. The other contention that the plaintiff acquired knowledge of
the Will and Codicil in the first week of November, 2014, but
that was not a complete knowledge as probably he could read
the same subsequently. In dealing with the submission, the
appellate Court distinguished between “ ” and
having knowledge
“ full knowledge ” to hold that the suit is not barred by limitation
as the limitation would reckon from the date of full knowledge.
It is a complete fallacy to make any distinction between
“ knowledge ” and “ full knowledge ”. First of all, the limitation has
13
to run from the date when the cause of action first accrued and
not any subsequent date for the cause of action. According to
the plaintiff himself, the cause of action for the suit had arisen
much earlier. Secondly, the plaintiff has not pleaded any date
on which he acquired complete knowledge and that such
argument is only an afterthought and appears to be a simple
creation of the first appellate Court.
29. Lastly, the first appellate Court has ruled that in the suit, the
plaintiff has claimed different reliefs and even if the plaint is
barred by limitation in respect of one of the reliefs, it cannot be
rejected in toto . The aforesaid submission is also without
substance as upon the plain reading of the prayers made in the
plaint, it is apparent that the primary relief claimed therein is
to declare the Will and the Codicil to be null and void and also
all subsequent proceedings thereto. In addition to it, the
plaintiff has claimed permanent injunction. The other reliefs
are dependent upon the first relief and cannot be granted until
and unless the plaintiff succeeds in the first relief. Therefore,
once the plaint or the suit in respect of the main relief stands
14
barred by time, the other ancillary relief claimed therein also
falls down.
30. In view of the aforesaid facts and circumstances and the
discussion, we are of the opinion that the High Court
manifestly erred in law in passing the impugned judgment and
order dated 08.02.2024, reversing the judgment and order
dated 23.10.2018 of the court of first instance rejecting the
plaint of the plaintiff in exercise of powers under Order VII Rule
11 CPC.
31. Accordingly, the judgment and order of the High Court dated
08.02.2024 is set aside and that of the trial court is restored.
The plaint stands rejected as barred by limitation under Order
VII Rule 11 (d) CPC.
32. The appeal is allowed accordingly.
...................………………………….. J.
(PANKAJ MITHAL)
.............……………………………….. J.
(S.V.N. BHATTI)
NEW DELHI;
APRIL 15, 2025
15
2025 INSC 485
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. OF 2025
(Arising out of S.L.P. (C) No. 13459 of 2024)
NIKHILA DIVYANG MEHTA & ANR. …APPELLANT(S)
VERSUS
HITESH P. SANGHVI & ORS. …RESPONDENT(S)
J U D G M E N T
PANKAJ MITHAL, J.
1. Leave granted.
2. Heard Shri Gaurav Agarwal, learned senior counsel for the
appellants and Shri Bhadrish S. Raju, learned counsel for the
respondent(s).
3. The plaint of the civil suit was rejected by the court of first
instance on an application of the defendants filed under Order
1
VII Rule 11 of the Code of Civil Procedure . The High Court has
Signature Not Verified
Digitally signed by
SNEHA DAS
Date: 2025.04.15
17:43:00 IST
Reason:
1
In short ‘CPC’
1
reversed the aforesaid order and has allowed the appeal of the
defendant restoring the plaint for decision on merits.
4. The impugned judgment and order of the High Court dated
08.02.2024 setting aside the order dated 23.10.2018 of the
Chamber Judge, City Civil Court, Ahmedabad, and directing to
restore the Civil Suit No.1758/2017 for decision on merits in
accordance with law, has been assailed in this appeal.
5. The plaintiff-Shri Hitesh P. Sanghvi instituted Suit
No.1758/2017 in the City Civil Court, Ahmedabad, against
four persons including Smt. Harshaben Vijay Mehta, Smt.
Nikhila Divyang Mehta, Smt. Ami Rajesh Parikh and Shri Nilav
Divyang Mehta as defendant Nos.1, 2, 3 and 4 respectively
seeking direction from the court to declare the Will dated
04.02.2014 and the Codicil dated 20.09.2014 executed by his
late father Pramod Kesurdas Sanghavi and all consequential
actions thereof to be null and void as also for grant of
permanent injunction restraining the defendants from entering
into any transaction in furtherance of the aforesaid Will and
Codicil.
2
6. The plaint categorically states that the plaintiff-Shri Hitesh P.
Sanghvi is the son of deceased Pramod Kesurdas Sanghavi who
died at his residence on 21.10.2014. He was survived by his
wife, his three daughters-defendant Nos.1, 2 and 3 and a
grandson-defendant No.4 (son of defendant No.2). The plaint
further categorically, in unequivocal terms, states that the
deceased took his last breath on 21.10.2014. Then in the first
week of November, 2014, defendant Nos.1, 2 and 3 revealed to
the plaintiff that the deceased had executed a Will and a Codicil
as referred to above and he was taken by surprise.
7. The plaintiff further stated that the cause of action for the suit
had arisen on three occasions, first on 04.02.2014 i.e., when
the Will executed by his father was registered, again on
20.09.2014 i.e., when the Codicil was registered and then
finally on 21.10.2014 when his father died.
8. The dispute in the suit is the family members
per se inter se
i.e., the son and daughters of the deceased Pramod Kesurdas
Sanghavi in connection with his Will and Codicil and for the
purposes of seeking the reliefs claimed in the plaint i.e., for
declaration of the Will and the Codicil to be null and void, the
3
plaintiff contended that the cause of action for such a suit arose
first on 04.02.2014, secondly on 20.09.2014 and lastly on
21.10.2014.
9. In the above background, defendant No.2 moved an application
(Exh.25) purported to be under Order VII Rule 11 CPC for the
rejection of the plaint on the allegation that the plaintiff had
not made any averment with regard to the suit to be within
limitation and it is the primary duty of the plaintiff to show that
the suit was instituted within the prescribed period of
limitation. In the absence of such pleadings, the plaint is liable
to be rejected under Order VII Rule 11 CPC.
10. A similar application was filed by defendant No.3 again under
Order VII Rule 11 (Exh.28) for the rejection of the plaint
contending that the suit has not been instituted within the
prescribed period of limitation and the plaintiff has failed to
aver, show and establish that the suit has been filed within
time. The plaintiff had acquired knowledge of both the Will and
the Codicil in the first week of November, 2014, but the suit
was not instituted within three years from the first week of
4
November, 2014, rather it was filed on 21.11.2017 and as such
is ex-facie barred by limitation.
11. Another application (Exh. 33) to the same effect was filed by
defendant No.4, contending that it is the primary duty of the
plaintiff to show that the suit is prima facie instituted within
the prescribed period of limitation. As the suit was filed on
21.11.2017, it was more than three years after the plaintiff
came to know about the Will and the Codicil and as such is
clearly barred by law of limitation on the plain reading of the
averments of the plaint.
12. The plaintiff filed response to the above applications
contending that the suit was instituted within time and that
the parties should be allowed to adduce the evidence to prove
as to whether the same is within time or beyond the period of
limitation.
13. The above three applications under Order
(Exh. 25, 28 and 33)
VII Rule 11 came up for consideration before the City Civil
Court, Ahmedabad. The court, upon the plain reading of the
averments made in the plaint, held that the action for the suit
first arose in the first week of November, 2014 whereas the suit
5
was filed on 21.11.2017. As per the averments made by the
plaintiff that he had come to know of the Will and the Codicil
in the first week of November, 2014, in view of Article 58 of the
2
Limitation Act, 1963, the suit ought to have been filed within
three years when the right to sue first accrued. Since the suit
was not filed within three years i.e., by the first week of
November, 2017, it is patently barred by limitation.
Accordingly, applications Exh.25, 28 and 33 were allowed and
the plaint was ordered to be rejected under Order VII Rule 11
CPC.
14. The above judgment and order was, however, reversed by the
High Court by the impugned judgment and order dated
08.02.2024 for the reason that the parties ought to have been
permitted to lead evidence on the point of limitation and that
the plaint was not liable to be rejected in part, as apart from
seeking declaration of the Will and the Codicil to be null and
void, there were other reliefs which were sought in the plaint.
15. In the above factual background, we have been called upon in
this appeal to express our opinion if the suit instituted on
2
Hereinafter referred to as ‘the Act’
6
21.11.2017 for the declaration of the Will dated 04.02.2014
and the Codicil dated 20.09.2014 as null & void, is barred by
limitation in the light of the averments contained in the plaint.
16. It is clear from the plaint that the prayers made therein are
primarily for seeking declaration of the aforesaid Will and
Codicil to be null and void as also all actions in pursuance
thereof. The relief for permanent injunction is dependent upon
the success of the first relief. Therefore, the relief of permanent
injunction is simply a consequential relief. The primary relief
being for declaring the Will and the Codicil to be null and void.
17. There is no dispute to the fact that the Will was executed and
registered by the father of the plaintiff on 04.02.2014 and the
Codicil came to be executed and registered on 20.09.2014. The
plaintiff, as per his own averments in plaint, had acquired
knowledge of the aforesaid Will and Codicil through defendant
Nos. 1, 2 and 3 (sisters), only in the first week of November,
2017.
18. Admittedly, a suit for declaration has to be governed by Part III
of the Schedule contained in the Act. Part III of the Schedule
provides for the limitation for filing suits relating to
7
declarations. Article 56 deals with declaration with regard to
the forgery of an instrument issued or registered and Article 57
relates to declaration in respect to adoption.
19. The relief of declaration claimed in the suit at hand does not
fall under Articles 56 and 57 and, therefore, by necessary
implication, Article 58 would stand attracted which provides
for a limitation period of three years to obtain any other
declaration other than that mentioned under Articles 56 and
57. It provides that for such a declaration, the limitation is
three years from the date when the right to sue first accrues.
20. The use of the words “ when the right to sue first accrues ” as
mentioned in Article 58 is very relevant and important. It
categorically provides that the limitation of three years has to
be counted from the date when the right to sue first accrues.
21. It would be beneficial to reproduce paragraph 3 (o), paragraph
4 and paragraph 6 of the plaint which contains averments
about the knowledge of the Will and the Codicil, the cause of
action and the reliefs claimed:
“3 (o). After a brave struggle with Cancer, the
deceased took his last breath on 21.10.2014 at
10.35 pm. Pursuant to his death, defendant nos. 1
to 3 in the first week of November, 2014 disclosed to
8
the plaintiff that the deceased had not only executed
a Will but had even executed a Codicil ……………….
4. The cause of action has arisen on 04.02.2014,
when the Will bearing Registration No. 707 was
registered before the Sub-Registrar-3 (Memnagar),
which was executed by the father of the Plaintiff
Shri Pramodray Sanghavi and the cause of action
further arose on 20.09.2014, when Codicil to the
said Will bearing Registration No. 6213 was
executed before the Sub-Registrar-3 (Memnagar).
The cause of action also arose on 21.10.2014, when
the father of the Plaintiff expired and thereafter, the
Will and Codicil of the father of the Plaintiff came to
the knowledge of the Plaintiff. The said Will and
Codicil are absolutely illegal, false and fabricated
and therefore, are required to be declared as null
and void. Further, an injunction is required to be
ordered against the Defendants for not to sell,
transfer or alienate any of the properties as per the
directions of the Will and to maintain status quo till
the final disposal of the Suit. Hence, the present
Suit.
6. The plaintiff prays as under:
a. The Hon'ble Court may be pleased to
declare the Will dated 04.02.2014, bearing
Registration No. 707 was registered before the
Sub-Registrar-3 (Memnagar) as well as the
Codicil dated 20.09.2014, bearing
Registration No. 6213 was registered before
the Sub-Registrar-3 [Memnagar] as null and
void;
b. The Hon’ble Court may be pleased to grant
permanent injunction against the defendants,
restraining them from entering into any
9
transaction in furtherance of the directions in
the Will or Codicil;
c. The Hon'ble Court may be pleased to
declare all the subsequent action taken in
furtherance of the said Will and Codicil as null
and void status quo ante may be restored;
d. Such other and further relief/s as may be
deemed fit and appropriate may be granted; ”
22. A bare reading of paragraph 3(o) of the plaint would reveal that
the father of the plaintiff died on 21.10.2014 and that the
plaintiff acquired knowledge of the Will and the Codicil left
behind by him in the first week of November, 2014. Paragraph
4 of the plaint reveals that the cause of action for filing of the
suit first arose on 04.02.2014, then on 20.09.2014 and finally
on 21.10.2014 i.e., when the Will was executed, when the
Codicil was executed and when the father of the plaintiff died
respectively. Therefore, according to the plaintiff’s own
admission, the cause of action for filing the suit commenced on
04.02.2014 and ended on 21.10.2014.
23. In view of the above, according to the plaintiff’s own averments
the suit had to be brought within time of three years either from
the commencement of the cause of action on 04.02.2014 or
lastly on 21.10.2014 when his father died or at best when he
10
acquired knowledge of the Will and the Codicil i.e., the first
week of November, 2014.
24. There is no dispute to the fact that the limitation for filing of
the suit falls under Article 58 of the Schedule to the Act wherein
the limitation prescribed is three years. It may be pertinent to
note that the limitation of three years is from the date when the
cause of action first arose. So, according to the plaintiff’s case,
the cause of action first arose on 04.02.2014 and, therefore,
the limitation would end on 04.02.2017. However, even if the
limitation is calculated from the date of knowledge of the Will
and/or the Codicil, it would run from the first week of
November, 2014 and would end in the first week of November,
2017. The suit admittedly was instituted on 21.11.2017; much
beyond the first week of November, 2017 and as such is
apparently barred by limitation, for which neither any defence
is required to be looked into nor any evidence in support is
needed to be adduced.
25. Section 3 of the Act contemplates that every suit instituted
after the period prescribed under the Act shall be dismissed
even if limitation has not been set up as a defence. The
11
aforesaid provision is of a mandatory nature and cannot be
ignored by the courts even if not pleaded or argued by the
defence. It is obligatory upon the court to dismiss the suit if it
is, on the face of it, barred by limitation. The aforesaid provision
has been enacted for public good and to give quietus to a
remedy after lapse of a particular period, as a matter of public
policy, though without extinguishing the right in certain cases.
Therefore, once a limitation prescribed for instituting a cause
of action expires and even if limitation is not set up as a
defence, it obliges the court to dismiss the suit as barred by
limitation.
26. In the present case, the plaintiff not only categorically states
that he acquired knowledge of the Will and the Codicil in the
first week of November, 2014 but also that the cause of action
for the suit first arose on 04.02.2014 and lastly on 21.10.2014.
The suit was filed on 21.11.2017. As such on the own
averments of the plaintiff, the suit was instituted beyond
limitation attracting Order VII Rule 11 (d) CPC.
27. The submission that limitation is a mixed question of law and
fact and that it cannot be decided without allowing the party to
12
lead evidence is of no substance. In the present case, we have
earlier noted that the suit was admittedly instituted on
21.11.2017 whereas according to the plaint averments the
cause of action first arose on 04.02.2014. Even assuming that
the cause of action last arose in the first week of November,
2014, the suit ought to have been filed by 07.11.2017. The suit
was filed on 21.11.2017. It was ex-facie barred by limitation for
which, no evidence was required to be adduced by the parties.
The above issue is purely an issue of fact and in the admitted
facts as per the plaint, allegations stand concluded for which
no evidence is needed.
28. The other contention that the plaintiff acquired knowledge of
the Will and Codicil in the first week of November, 2014, but
that was not a complete knowledge as probably he could read
the same subsequently. In dealing with the submission, the
appellate Court distinguished between “ ” and
having knowledge
“ full knowledge ” to hold that the suit is not barred by limitation
as the limitation would reckon from the date of full knowledge.
It is a complete fallacy to make any distinction between
“ knowledge ” and “ full knowledge ”. First of all, the limitation has
13
to run from the date when the cause of action first accrued and
not any subsequent date for the cause of action. According to
the plaintiff himself, the cause of action for the suit had arisen
much earlier. Secondly, the plaintiff has not pleaded any date
on which he acquired complete knowledge and that such
argument is only an afterthought and appears to be a simple
creation of the first appellate Court.
29. Lastly, the first appellate Court has ruled that in the suit, the
plaintiff has claimed different reliefs and even if the plaint is
barred by limitation in respect of one of the reliefs, it cannot be
rejected in toto . The aforesaid submission is also without
substance as upon the plain reading of the prayers made in the
plaint, it is apparent that the primary relief claimed therein is
to declare the Will and the Codicil to be null and void and also
all subsequent proceedings thereto. In addition to it, the
plaintiff has claimed permanent injunction. The other reliefs
are dependent upon the first relief and cannot be granted until
and unless the plaintiff succeeds in the first relief. Therefore,
once the plaint or the suit in respect of the main relief stands
14
barred by time, the other ancillary relief claimed therein also
falls down.
30. In view of the aforesaid facts and circumstances and the
discussion, we are of the opinion that the High Court
manifestly erred in law in passing the impugned judgment and
order dated 08.02.2024, reversing the judgment and order
dated 23.10.2018 of the court of first instance rejecting the
plaint of the plaintiff in exercise of powers under Order VII Rule
11 CPC.
31. Accordingly, the judgment and order of the High Court dated
08.02.2024 is set aside and that of the trial court is restored.
The plaint stands rejected as barred by limitation under Order
VII Rule 11 (d) CPC.
32. The appeal is allowed accordingly.
...................………………………….. J.
(PANKAJ MITHAL)
.............……………………………….. J.
(S.V.N. BHATTI)
NEW DELHI;
APRIL 15, 2025
15