ASHOK BAJAJ Vs. GOVERNMENT OF NCT OF DELHI

JUDGEMENT

(1.) I.A.No.19641/2014 (u/O VII Rule 11 CPC)

(2.) Arguments have been addressed on the aforesaid application. On behalf of the applicant, it is pointed out that this petition is liable to be rejected for two reasons. The first is the ground of limitation and the second is because of the contrary pleas which have been taken by the petitioner. On the ground of limitation, it is pointed out that as per averments made in the petition, the deceased had left a Will dated 10.10.1976 which was followed by a Codicil dated 14.10.1976. Even as per the own showing of the petitioner, the petitioner learnt about this Codicil from his mother in the year 1994. In the year 1994 itself, the petitioner had signed a registered Declaration Deed wherein he had given up all claims qua the share of his father in property bearing No. 1, Golf Links, New Delhi (subject matter of the Will dated 10.10.1976 and the Codicil dated 14.10.1976). Submission is that the limitation to file the present petition commenced in the year 1994. Without prejudice to this contention, the additional submission of the petitioner is that the petitioner in his petition has further stated the he became suspicious about this Will (dated 10.10.1976) in the year 2006 when his mother expired and he learnt about her Will (dated 05.05.2016) wherein one third share in the suit property (owned by his mother) fell to the share of the petitioner. Submission of the applicant being that even if this submission is taken as correct limitation would even then expire on or before 05.10.2009. Present petition which has been filed in the year 2014 by no stretch of imagination can be said to be within the period of limitation. All RTI queries/responses would not extend statute of limitation; at best it can be a ground to condone laches but the statutory bar cannot be overcome. Counsel for the applicant has placed reliance upon a Judgment of the Apex Court reported as (2009) 11 Supreme Court Cases 537 Krishan Kumar Sharma Vs. Rajesh Kumar Sharma to substantiate his submission that the statute of limitation is applicable to a probate petition; even presuming that the strict application of a period of three years is not to be applied. Reliance has also been placed upon the judgment of the Apex Court reported as 2010 VII AD (DELHI) 442 Basant Dayal Vs. State and Others to support the submission that the petition is time barred. Reliance has been placed upon a third judgment of the Division Bench of this Court reported as RFA 575/2014 2013 SCC Online Del 3582 Om Prakash Vs. Shanti Swaroop; for the same proposition; this petition is time barred.

(3.) The second submission of counsel for the applicant is that contrary pleas have been taken by the petitioner (as is evident from pleadings in the present petition); the petition is liable to be rejected on this ground also. Submission being that the petitioner in the present petition [para 5(q)] has stated that the signatures of the deceased on the Codicil dated 14.10.1976 were forged and fabricated. This contention of the petitioner in the petition is distinct from the stand taken by the petitioner in the deed of declaration dated 25.08.1994 (document filed and signed by the petitioner) wherein on page 113 he has stated that the Codicil had been executed by the deceased under duress and misrepresentation. Submission being that the stand of the petitioner is conflicting, whereas in the petition he had stated that the signatures of the deceased on the Codicil were forged yet in the registered declaration deed he had set up the case that the signatures of the deceased on the Codicil had been obtained under pressure and misrepresentation. Submission being that the question of forgery is distinct from the stand of misrepresentation. These two contrary pleas also make out a case of the rejection of plaint. For this submission, counsel for the applicant has placed reliance upon a judgment of the Bench of this Court reported as (2014) 5 High Court Cases (Del) 377 2014 SCC Online Del 2962 Pankaj Bajaj Vs. Meenakshi Sharma and Ors; submission being that where there is a patent contradiction as is so in this case a clear case of rejecting the plaint under Order 7, Rule 11 Civil P.C. is made out.