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SCA/4465/2010 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4465 of 2010
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LILAVATIBEN
RANCHHODLAL D/O BAPALAL MANILAL KADIA & 1 - Petitioner(s)
Versus
INDUMATIBEN
W/O SHAMALDAS BAPALAL & 7 - Respondent(s)
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Appearance :
MR
SK BUKHARI for the Petitioners.
MR MA KHARADI for the Respondent
nos. 1 - 7.
- for Respondent(s) :
8.
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 19/04/2010
ORAL ORDER
The
present petition is filed by the original plaintiffs being aggrieved
by the orders dated 4.12.2009 passed below exh. 28 as also the order
passed below plaint exh. 1 of Civil Suit No. 1865 of 2008 produced
at Annexures “A” and “B” to this petition. Heard
learned advocate Mr. Bukhari for the petitioners-original plaintiffs.
On the last occasion, when the matter was heard i.e. on 12.4.2009,
the learned advocate sought time to place on record specific
averments with regard to the fact that, “how come the
plaintiffs acquired the knowledge about the Will dated 6.10.1970
executed by the deceased father of the petitioner no.1, who died on
3.8.1989, in the year 2007.”
2. Learned
advocate Mr. Bukhari tendered an affidavit wherein it is stated that:
“3. I say
that my father Bapalal Manilal Kadia expired on 3.8.1989 at the
residence of my brother Shamaldas Bapalal Kadia and Shamaldas
Bapalal Kadia expired on 12.8.2002.” (Emphasis
supplied)
This
is required to be appreciated in light of the averments made in
para-1 which are as under:
“1.
I say that as my father deceased Bapalal Manilal Kadia, had
no good relations with the son Shamaldas Bapalal Kadia
(Husband of respondent no.1 and father of respondents no. 2 to 6
hereinabove), my father deceased Bapalal Manilal Kadia was residing
with me. I say that for the cruel treatment of his son deceased
Shamaldas Bapalal, my father deceased Bapalal Manilal had to file two
criminal complaints against his son deceased Shamaldas Bapalal, in
which deceased Shamaldas was convicted and said conviction was also
upheld by the Hon’ble High Court. I have annexed both the orders of
the High Court…..”.
It is after
these averments that the explanation comes as to how the petitioners
acquired the knowledge about the Will of the year 1970 in the year
2007 i.e. almost after 37 years. In this regard, para-5 is material
which reads as under:
” 5. I say
that there are about 15-20 one room-two room properties of deceased
Bapalal Manilal which were given on rent to various tenants, against
whom various cases were filed by deceased Bapalal Manilal and papers
of all those cases were lying at my residence in two bunches
alongwith one diary. I did not touch all those papers for long period
thinking that since all papers are with respect to cases against
tenants, let it be remained as it is.”
“6. I say
that however, during the year 2007, I alongwith my two children
namely Kalpesh and Nayan decided to dispose of the aforesaid case
papers and before disposing of the papers, we decided to check all
papers and during checking we found a registered will dated 6.10.1970
executed by my deceased father Bapalal Manilal in favour of me and my
sister Induben mother of petitioner no.2.”
3. The
aforesaid averments do not inspire any confidence whatsoever. A
daughter with whom father was residing was not told by her father
that he has executed a Will in her favour and in favour of his
another daughter, is not believable. Besides, what is not believable
is that the father shifted to the residence of his son, against whom
he filed two criminal complaints and got a conviction awarded, which
was confirmed in this Court. Further, at the time of shifting, he
did not take with him all case papers of the properties. Not only
that, son (brother of petitioner no.1) also expired in the year 2002.
After expiry of the father in the year 1989, and brother in the year
2002, on one fine morning in the year 2007, the petitioners are able
to trace the Will and claim the properties by virtue of the same.
4. Learned
advocate Mr. Bukhari vehemently submitted that the provisions of the
Limitation Act will not be applicable to the facts of the present
case and in this regard, he relied upon the decision of this Court in
the matter of Khetiwadi
Utpadan Bazar Samiti through its Secretary vs. Nitinkumar Maganlal
Kalaria reported in 1995(1) G.L.H.1136 and also on a
decision of the Calcutta High Court in the matter of Sm.
Suhashini Dasi, Plaintiff-Appellant vs. Ahi Bhusan Da and others,
Defendants-Respondents reported in AIR 1963, Calcutta 520
and submitted that as laid down in the aforesaid two decisions, the
provisions of the Limitation Act will have no application to the suit
filed by the present petitioners-original plaintiffs. He submitted
that the provisions of the Limitation Act will be applicable only if
the suit is filed against an executor.
This Court is
of the opinion that this point may not fall for consideration because
the matter can be decided definitely on the ground of delay and
latches, the Court below is right in not entertaining the suit and
passing an order below application exh. 28 filed under the provisions
of Order VII Rule 11 of Civil Procedure Code. To believe a daughter
saying that a father who was residing with her, having strained
relations with the son against whom he filed two criminal complaints
and obtained order of conviction which were fought upto High Court
and the conviction was confirmed, lateron shifted to the place of his
son and he did not take the daughter in confidence while executing a
Will in favour of his two daughters is too bald a proposition. This
Court is not able to accept the same despite all sincere efforts of
the learned advocate who tried for the same. Therefore, this Court
is prima facie of the opinion that the case is definitely bad in law
on the ground of “delay and latches”. The orders do not
require any interference at the hands of this Court. The petition
having been found without any substance is dismissed.
(Ravi R.Tripathi,J)
***vcdarji
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