JAI RAM GURNANI Vs. KAMLA GIDWANI

JUDGEMENT

(1.) This is an application filed on behalf of the defendant No.2 under Order 7 Rule 11 for rejection of the plaint on the ground that it does not disclose a cause of action qua the defendant No.2 and secondly that this suit is barred by limitation. The learned counsel for the applicant / defendant No.2 referred to the decision of a learned single Judge of this court in the case of Maha Singh v. Anand Singh Mann: 116 (2005) DLT 378.

(2.) The background of this case is that the property in question, i.e., BB- 10, Greater Kailash Enclave-II, New Delhi stood in the name of the deceased husband (late Shri S.K. Gurnani) of the defendant No.2. There was a perpetual lease executed by the Delhi Development Authority (DDA) in favour of the said late Sh. S.K. Gurnani some time in 1970. The property in question continued in his name upto his death in December, 2000. It is the plaintiff's case that the property was a joint family property as it was purchased by the father of the plaintiffs 1 and 2 and the said late Shri S.K. Gurnani. The relationship between the parties is that the plaintiffs 1 and 2 and the said late Shri S.K. Gurnani are brothers and the defendant No.2 is the wife of late Shri S.K. Gurnani. It is alleged in the plaint that the defendant No.2 as well as Shri S.K. Gurnani had been residing in USA since 1973 and that the plaintiffs and other family members have been in possession of the suit premises throughout. Of course, there was a tenant in the front portion of the premises who was evicted after a protracted litigation in the year 2000. There is also an allegation in the plaint that the defendant No.2 and the late Shri S.K. Gurnani, although residing in US, were living separately for about 10-12 years prior to his death in the year 2000. According to the learned counsel for the plaintiff, the cause of action for filing the present suit arose when the defendant No.2 got the property mutated in the records of the DDA in her sole name on 20.01.2003 and thereafter got the same converted to free-hold vide Conveyance Deed dated 03.07.2003 and accordingly, the plaint was filed on 16.10.2003 claiming various reliefs, including the relief of declaration that the mutation, transfer and conversion into free-hold in the single name of the defendant No.2 was illegal null and void as also a declaration that the suit property was joint family property and that accordingly the same be partitioned by metes and bounds as per the shares in the joint family.

(3.) The learned counsel for the defendant / applicant states that the main ground on which he is moving this application under Order 7 Rule 11 is that the suit is barred by limitation and, therefore, the provisions of Order 7 Rule 11 (d) get attracted and the plaint is liable to be rejected. He submits that the period of limitation as provided by Article 58 in the Limitation Act which pertains to suit for declaration is three years from the date when the right to sue first accrues. According to him, the allegation that property is a joint family property is the very foundation and basis of this case and that the right to sue, therefore, first accrued in 1970 when the perpetual lease was executed by the DDA in favour of the said late Shri S.K. Gurnani. Much more than three years have elapsed since then and, therefore, the suit is barred by limitation. He cited the decision of Maha Singh (supra) in his support. However, I find that the aforesaid decision is not apposite because the facts here are entirely different. The situation that arises in this case is that the plaintiff has claimed that the property in question is a joint family property in which the plaintiffs and their deceased brother, S.K. Gurnani had shares. It is further the case of the plaintiff that this understanding continued amongst the brothers right upto the death of the late Shri S.K. Gurnani. Therefore, there was no occasion for coming to court for seeking any relief and the right to sue itself had not accrued during the life time of late Shri S.K. Gurnani because the understanding between the brothers continued upto the time of his death. Whether this submission made by the plaintiff is ultimately found to be correct is a matter of trial. It is to be seen on the basis of evidence whether this can be established. But if it is established, then the plaintiff would have a case. Therefore, it cannot be said at this stage that the plaint does not disclose any cause of action. As regards the question of limitation also, in view of the fact that the plaintiffs have urged that the understanding continued between the brothers right upto the death of the said Shri S.K. Gurnani, it becomes clear that the right to sue did not accrue during his life time. The said Shri S.K. Gurnani died on 10.12.2000. Even if that date is taken as the date on which the right to sue first accrued, then, three years running from that date would take us upto 10.12.2003. The present plaint was filed on 16.10.2003 and, therefore, according to the learned counsel for the plaintiff, the suit is within the time. He submitted that in any case the right to sue first accrued when the defendant No.2 got the suit property mutated in her name on 20.01.2003 and thereafter again on 03.07.2003 when the Conveyance Deed was executed in her sole name.