LAWS(CAL)-2025-3-6

SHEFALI MALLICK Vs. DURGA CHAKRABORTY (RAKSHIT)

Decided On March 11, 2025
Shefali Mallick Appellant
V/S
Durga Chakraborty (Rakshit) Respondents

JUDGEMENT

(1.) The present appeal has been preferred at the behest of the defendants in a suit for declaration that a partition deed dated April 7, 1997 is void ab initio, for declaration of the title and shares of the parties and for partition as well as consequential reliefs. The learned Trial Judge, while observing that the said deed of partition was void ab initio and as such the relief of declaration sought in respect thereof was superfluous, arrived at the conclusion that the suit was not barred by limitation on account of the said declaration having been sought beyond the limitation period as stipulated in Article 59 of the Schedule to the Limitation Act, 1963. Consequentially, the shares of the parties were declared in preliminary form. Being thus aggrieved, the present appeal has been preferred.

(2.) Learned counsel appearing for the appellants argues that the relief of declaration was mandatory and the primary relief, since the partition deed cast a cloud over the plaintiffs" title. Even if Article 59 of the Limitation Act was not applicable, it is argued that the suit would be governed by Article 113 of the Limitation Act which stipulated the starting point of limitation to be when the right to sue accrues. Kamala, plaintiff no.1, being a party to the deed, the right to sue accrued on the date of execution and registration of the partition deed on April 7, 1979. Hence, the suit of 2013 is palpably time-barred.

(3.) In support of his contentions, learned counsel cites Khatri Hotels Private Limited and Another v. Union of India and Another, reported at (2011) 9 SCC 126 and Prem Singh and Others v. Birbal and Others, reported at (2006) 5 SCC 353. It is argued that unless the partition deed, being Exhibit-13, is set aside, the plaintiffs are not entitled to seek the other reliefs, including that of declaration of their shares by ignoring the said partition deed and partition. Moreover, as evident from the evidence of the parties, in particular the admissions of P.W.1 and P.W.5, the partition deed was acted upon by the parties.