SURJIT KAUR GILL & ANR.versusADARSH KAUR GILL & ANR.

                     [2014] 2 S.C.R. 167


                SURJIT KAUR GILL & ANR.                             A
                               v.
               ADARSH KAUR GILL & ANR.
              (Civil Appeal No. 8221 of 2011)
                     JANUARY 30, 2014
                                                                    8
      [H.L. GOKHALE AND KURIAN JOSEPH, JJ.]

    CODE OF CIVIL PROCEDURE, 1908:

     0. 7, r. 11 - Suit for partition and rendition of account on   c
the basis of a will - Application for rejection of plaint - Held:
For deciding an application under 0. 7, r. 11, one has to look
at the plaint and decide whether it deserved to be rejected for
the ground raised - The issue of limitation is always a mixed
question of facts and law and, therefore, it could not be held      0
that no case was made out for proceeding for a trial -- The
application made under 0. 7, r. 11 will stand rejected.

     A suit was filed before the High Court, inter alia, for
partition of property, rendition of accounts etc. on the
basis of a will. The plaintiff filed the suit in the capacity       E
of the administrator of the will of his deceased sister.
After the issues had been framed and the plaintiff had
tendered his affidavit in lieu of the examination-in-chief,
an application was made under 0 7, r. 11 of the Code of
Civil Procedure, 1908, contending that the suit was                 F
barred by law and, therefore, it ought to be rejected under
0. 7, r. 11 (d). The single Judge of the High Court
dismissed the application holding that all the prayers
were inter-connected, and they were related essentially
to the principal prayer (a) for partition of the property of        G
the deceased. However, the Division Bench of the High
Court allowed the appeal in part and allowed the
application moved by respondent No.1 under 0. 7, r. 11
to the extent of prayer clauses (b) to (f) holding the same
                             167                                    H
    168       SUPREME COURT REPORTS             [2014] 2 S.C.R.

A as time barred.

          Allowing the appeal, the Court

       HELD: 1.1 The issue of limitation is always a mixed
  question of facts and law and, therefore, it could not be
B held that no case was made out for proceeding for a trial.
  The submission that respondent No.1 disputed the
  writing dated 12.2.1991 and it had to be forensically
  tested, all the more justifies that the trial had to proceed.
  [para 9] [17 4-D-E]
c
      1.2 For deciding an application under 0.7, r. 11, one
  has to look at the plaint and decide whether it deserved
  to be rejected for the ground raised. The view taken by
  the Division Bench of the High Court being clearly
D erroneous, its judgment and order impugned is set aside.
  The application made under 0. 7, r. 11 moved by
  respondent No.1 will stand rejected. [para 9] [174-F-G]

        Popat and Kotecha Property vs. State Bank of India Staff
    Association, 2005 (2) Suppl. SCR 1030 = (2005) 7 SCC 510
E -referred to.
                         Case Law Reference:
          2005 (2) Suppl. SCR 1030         referred to    para 4
F       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8221 of 2011.
        From the Judgment and Order dated 27.01.2009 of the
    High Court of Delhi at New Delhi in FAQ (OS) No. 290 of 2008.
G       Shyam Diwan, Gaurav Choudhary, Nirman Sharma,
    Gaurav Kejriwal for the Appellants.
          C.A. Sundaram, Rohini Musa, Zafar lnayak, Govin Singh
    for the Respondents.
H         The Judgment of the Court was delivered by
SURJIT KAUR GILL & ANR. v. ADARSH KAUR GILL & 169
                    ANR.
     H.L. GOKHALE, J. 1. This appeal seeks to challenge the        A
judgment and order dated 27 .1 .2009 rendered by a Division
Bench of the High Court of Delhi in FAQ (OS) No.290 of 2008
whereby the Division Bench has set aside in part the decision
 rendered by a learned Single Judge who had dismissed the
application moved by the respondent No.1 (defendant No.1)          s·
under Order Vil Rule 11 of the Code of Civil Procedure,1908
by his judgment and order dated 7th April, 2008.

     2. Heard Mr. Shyam Diwan learned senior counsel
appearing on behalf of the appellants and Mr. C.A. Sundaram        C
learned senior counsel appearing on behalf of the respondents.

    3. The brief facts leading to this appeal are that one Ajit
Singh filed a Suit bearing No.2167of1993, 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     D
capacity as the Administrator of the Will of his deceased sister
Smt. Abnash Kaur. The prayers in the suit were as follows:

    (a) pass a preliminary decree of partition of the property
    bearing No.3, South end Road, New Delhi, more                  E
    particularly shown on the plan, and thereafter, pass a final
    decree partitioning the said property by metes and bounds
    and put each of the parties to the suit in actual physical
    possession of the portion of the property allotted to hini/
    her. If the partition of the property by metes and bounds is
                                                                   F
    not feasible, then the property may ordered to be sold by
    public auction through Court and proceeds thereof be
    divided between the parties to the suit in accordance with
    their share and entitlement;

    (b) pass a preliminary decree for partition of the movable     G
    assets belonging to the estate of Smt. Abnash Kaur, as
    mentioned in the Schedule to the plaint and, thereafter,
    pass a final decree and give to each of the party to the
    suit his/her share of the said property. In case it is not
    feasible to distribute the movable assets belonging to the     H
    170        SUPREME COURT REPORTS                [2014] 2 S.C.R.


A         estate of Smt. Abnash Kaur in the hands of defendants
          Nos.1 & 2 to each of the beneficiaries, as per the share
          and entitlement, then the said movable assets may be
          ordered to be sold by public auction through this Hon'ble
          Court and the proceeds thereto may be divided amongst
B         the parties, as per their share and entitlement;

          (c) pass a decree for rendition of accounts and enquiry into
          the same with respect to the rental income of the property
          received by defendant No.1 from the tenant of property
          bearing No.3, South End Road, New Delhi, w.e.f. 1.1.1980
c         to 30.11.1990;

          (d) pass a decree for rendition of accounts and enquiry into
          the same with respect to the profits made by defendant
          Nos.1 and 2 from the business which they have been
D         carrying on by investing the funds from the estate of Smt.
          Abnash Kaur;

          (e) Pass a decree for declaration that there has been no
          lease deed executed by Smt. Abnash Kaur in favour of
          Defendant No.1 and that defendant No.1 is not a lessee
E
          in the property, 3, South End Road, New Delhi, and she
          is not entitled to give the said property to any person on
          sub-lease basis;

          (f) pass a decree of declaration to the effect that defendant
F         No.1 is not a subrogatee of the mortgage deeds executed
          by late Smt. Abnash Kaur with respect to the property in
          favour of Smt. Sushila Daphtary and her son Mr. Anil
          Daphtary said mortgage deeds have been redeemed out
          of the estate left by Smt. Abnash Kaur;
G
        (g) Pass a decree of declaration to the effect that
        defendants Nos.1 & 2 have dis-entitled themselves from
        getting any share in the estate left by Smt. Abnash Kaur
      . and that the plaintiff and defendants Nos.3, 4 & 5 are the
        only beneficiaries under the Will of Smt. Abnash Kaur and
H
SURJIT KAUR Gill & ANR. v. ADARSH KAUR GILL & 171
           ANR. [H.L. GOKHALE, J.]
    are entitled to get the entire estate left by Smt. Abnash        A
    Kaur divided and partitioned in four equal shares;

    (h) Pass a decree for permanent injunction against
    Defendant No./1 restraining her permanently from
    transferring, alienating, letting out or parting with the
                                                                      8
    possession of the property No.3, South End Road, New
    Delhi, or any part thereof and from making any additions
    and alterations in the same in any manner whatsoever;

    (i) Any relief which this Hon'ble Court may deem fit and
    proper in the circumstances of the case may also be               C
    granted to the plaintiff and other beneficiaries under the
    Will of Smt. Abnash Kaur; and

     (j) Cost of the Suit may also be awarded against
     defendants Nos.1 and 2.                                          D
     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 E
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 F
came to the conclusion that all the prayers were inter-
connected, and they were related essentially to the principal
prayer (a) for partition of the property of deceased Smt.Abnash
Kaur on the basis of the Will which she had executed.The
learned Single Judge relied upon the dicta of this Court in G
Popat and Kotecha Property vs. State Bank of India Staff
Association reported in (2005) 7 SCC 510 which held that the
plaint without addition or subtraction must show that it is barred
by any law to attract application of Order 7 Rule 11. The
language of various paragraphs in the plaint and the pleadings
                                                                       H
    172      SUPREME COURT REPORTS                 [2014] 2 S.C.R.


A   have to be seen in their entirety to ascertain its terms. The
    application was, therefore, dismissed by the learned Judge by
    his judgment and order dated 7.4.2008.

       5. Being aggrieved by the said judgment and order an
B appeal was preferred to the Division Bench of the Delhi High
  Court, and the Division Bench by the impugned judgment and
  order has allowed that appeal in part. It has allowed the
  application moved by the respondent No.1 under Order 7 Rule
  11 to the extent of prayer clauses (b) to (f) as time barred. Being
  aggrieved by that judgment this appeal has been filed.
c
       6. Mr. Diwan, learned senior cc...msel appearing for the
  appellants pointed out that all the abovereferred prayers are
  inter related, and they are essentially concerning the partition
  which the original plaintiff was seeking. The original plaintiff
D having died, the appellant has transposed herself as the
  appellant. He pointed out that the 1..state was essentially of
  Smt.Abnash Kaur who had received it from her husband, and
  there were disputes between her step sons and herself, and
  to protect the property certain arrangements had been made
E amongst the siblings of Smt. Abnhash Kaur. It is as a result of
  that arrangement that a lease deed was executed by Smt.
  Abnash Kaur in favour of the respondent No.1 herein. Similarly
  various other arrangements were made with the understanding
  of all the family members. It was in 1992 that the respondent,
  for the first time, resiled from all those arrangements and
F understanding, and that is how it became necessary for the
  original piaintiff to file the suit. The suit filed in 1993 was well
  within time and the prayers therein could not be segregated.
        7. Mr. C.A. Sundaram learned senior counsel, on the other
G hand, took us through the various prayers of the suit, particularly
  the prayers (b) to (f). As far as prayer (b) is concerned he
  pointed out that this prayer seeks the partition of the movable
  assets belonging to said Smt Abnash Kaur. Smt Abnash Kaur
  died in 1976 and therefore this prayer is time barred under
H Article 69 of the Schedule to the Limitation Act, 1963 since this
SURJIT KAUR GILL & ANR. v. ADARSH KAUR GILL & 173
           ANR. [H.L. GOKHALE, J.]
claim is not made within three years therefrom. In respect of       A
prayer clause(c), he pointed out that the accounts are sought
with respect to the rental income for the period from 1.1.80 to
30.11.90 and since the suit is filed in September, 1993, at the
highest the claim could be maintainable for the last four months,
and the claim for the earlier period would be time barred under     B
Article 69 of the Limitation Act. With respect to prayer clause
(d), though he opposed the inclusion of the prayer in the plaint,
he very fairly stated that perhaps this prayer could have been
allowed by the Division Bench.

      8. His main objection was to prayer clauses (e) and (f) C
which according to him, the Division Bench has rightly struck
off. According to him they contained separate causes of action.
The prayer clause (e) seeks a decl~ration that there has been
no lease deed executed' by Smt Abnash Kaur in favour of the
defendant No.1, and that she was not the lessee of the D
concerned property situated at 3, South end Road, New Delhi
and that she was not entitled to give the property to any other
person on sub-lease basis. Mr. C.A. Sundaram submitted that
in the Will itself it is pointed out that the lease has been given
to the respondent No.1 herein, and this was all to the E
knowledge of the plaintiff, and therefore the said declaration
could not be sought by filing a suit in 1993. It would be barred
under Article 58 of the Limitation Act. With reference to prayer
clause (f) which seeks a declaration that the defendant No.1 is
not a subrogatee in respect of the mortgage deed executed
by Smt. Abnash Kaur with respect to the property in favour of F
Smt. Shushila Daphtary and Mr. Anil Daphtary, Mr.C.A.
Sundaram submitted that, this transaction had taken place on
20.2.78 and that being so, again the prayer would be hit by
Article 59 of the Limitation Act.
                                                                    G
      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 H
    174       SUPREME COURT REPORTS                   [2014] 2 S.C.R.


A   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
8   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.
C   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
D   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.
E   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
F   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
G   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.
H R.P.                                                Appeal allowed.