IRSHAD ALI Vs. SHAHABA BEGUM

JUDGEMENT

(1.) The main question is: whether the suit of the plaintiff is liable to be dismissed under Order 7 Rule 11 Civil Procedure Code as being out of time on the basis of the facts stated in para 13 of the plaint? The facts necessary to appreciate this question are as follows:-

(2.) The defendant Smt.Shahaba Begum is stated to be the real sister of the plaintiff. The plaintiff, the defendant and Mr.Dilbar Hussain Malik, their brother, are the only legal heirs of Smt.Mumtaz Chowdharan who died on 14th October, 1988. Smt.Mumtaz Chowdharan executed a Will dated 30th October, 1982. The plaintiff asserts that the Will was obtained by the defendant by exercising fraud on Smt.Mumtaz Chowdharan. The plaintiff also states in para 8 of the plaint that the Will dated 30th October, 1982 could not be executed by Smt.Mumtaz Chowdharan for whole of the property in favour of the defendant only as according to the Shariat Law, a Mohammedan cannot dispose off more than a third of the surplus of his estate after the payment of funeral expenses and debt except where all the heirs consent to the bequest after the death of a Testator. It is the allegation of the plaintiff that it came to know about the execution of the Will only on 1st January, 1991. The plaintiff is stated to have approached the defendant on 16th March, 1994 and 4th January, 1995 for discussion in regard to the Will executed by Smt.Mumtaz Chowdharan including the question of money received by the defendant from the sale of her (testatrix) properties, but the defendant refused to discuss the issue. The plaintiff instituted the instant suit for declaration to the effect that any transaction or deal entered into by the defendant, inter-alia on the basis of the abovesaid Will dated 30th October, 1982 as null & void.

(3.) The defendant in her abovesaid application under Order 7 Rule 11 Civil Procedure Code inter-alia pleaded that as per the facts disclosed in para 13 of the plaint, the suit instituted on March 29, 1995 is barred under Article 58 of the Limitation Act, 1963. She has pointed out that in para 13 of the plaint it has been unequivocally stated that cause of action for institution of the suit arose on 1st January, 1991 when the plaintiff came to know about the Will of Smt.Mumtaz Chowdharan.