VANDANA SHARMA Vs. HEMLATA GOSWAMY

JUDGEMENT

(1.) By this application the Defendant No. 1 seeks rejection of the plaint filed by the Plaintiff, the daughter of Defendant No. 1.

(2.) Learned counsel for the Defendant No. 1/applicant contends that the present suit, filed by the Plaintiff is not maintainable and is liable to be dismissed in view of Order VII Rule 11 (a), (b) and (d) CPC inter alia being barred by limitation, as no cause of action has accrued in favour of the Plaintiff and the condition precedent for invoking provisions of Order XXXII Rule 15 CPC has not been complied with. Further the Plaintiff has not valued the property correctly for the purposes of court fee and jurisdiction and relief of partition cannot be granted to the Plaintiff. The Plaintiff having admitted the mother to be the owner of the property cannot claim herself as co-sharer of the property. The plaint is an abuse of the process of the court. The Plaintiff has no right in the property. The suit filed by the Plaintiff is mala fide and vexatious, without cause of action and contradictory and inconsistence pleas have been taken.

(3.) The claim of the Defendant No. 1/applicant for the suit being barred by limitation is based upon the fact that the right to sue accrued to the Plaintiff on 15th December, 1985 when the father of the Plaintiff late Shri M.V. Goswami executed a Will in favour of the Defendant No. 1, his wife to the exclusion of both his daughters, that is, the Plaintiff and Defendant No. 2. Assuming though not admitting that the Plaintiff had no knowledge of the Will dated 15th December, 1985 she certainly had the knowledge of the Will when the property was mutated in the name of the Defendant No. 1 based on the no objection given by the Plaintiff and admitted by her in Para-8 of the suit and her affidavit along with the no objection in DDA in 2011. Thus, the suit is barred by Section 113 of Limitation Act as the same has not been filed within three years from the date of accrual of the cause of action. Even as per Article 110 of the Limitation Act, 12 years is the period for filing a suit by a person excluded from the joint family property. Further in view of the provisions of Sections 114 and 115 of the Indian Evidence Act once a certificate is issued in the name of a person presumption is that he can transfer his membership to any person and judicial notice can be taken of the contemporaneous documents which have not been denied.