Case Note & Summary
The dispute arose over Villa Bemvinda, a property in Bandra, Mumbai, originally owned by Andrew D'Cunha. He executed a will on 20.2.1971 bequeathing the property to his son Joseph and appointed him executor. After Andrew's death, Joseph filed Probate Petition No.851/1979 in the Bombay High Court, and the plaintiffs, who are other legal heirs, filed consent affidavits. On 3.7.1980, the court granted probate to Joseph. The plaintiffs later challenged the probate by filing Misc. Petition No.86/2013 under Section 263 of the Indian Succession Act, 1925, seeking revocation. That petition was dismissed on 14.10.2013. Subsequently, on 13.3.2014, the defendant siblings (Joseph D'Cunha and others) entered into a joint development agreement with defendant No.8, Acknur Property Developers, for the property. A public notice regarding the development was issued by the developer on 22.12.2012. The plaintiffs then filed Suit No.517/2014 on 26.6.2014, claiming a 3/5th plus 3/4th share in their deceased father's undivided 1/5th share of the property and sought partition, declaration, cancellation of the development agreement, and a preliminary decree under Order XX Rule 18 of the Code of Civil Procedure, 1908. They also applied for interim relief in Notice of Motion No.893/2014. A learned Single Judge initially granted an interim injunction on 10.2.2015. The defendants appealed (Appeal No.243/2015), and the Division Bench, by order dated 8.7.2016, vacated the injunction and directed the Single Judge to frame a preliminary issue of limitation and decide it expeditiously. Pursuant to this, on 22.9.2016, the Single Judge framed the preliminary issue: 'Whether the Suit as filed is barred by the law of limitations?' The Judge observed that the plea of limitation was based on two undisputed facts—the date of probate grant and the date of suit filing—and thus no evidence was required. However, the defendants later sought to lead evidence, and on 30.9.2016, the court allowed them to file affidavits and evidence, while the plaintiffs chose not to lead any evidence. The plaintiffs' appeal against this order was withdrawn on 15.12.2016. The court then proceeded to hear arguments on the preliminary issue of limitation. The counsel for both parties addressed the court only on this issue. The judgment does not contain the final decision on the limitation issue, as the text provided is incomplete. The matter was reserved for judgment on 18.2.2019 and pronounced on 2.5.2019, but the operative part is missing.
Headnote
A) Civil Procedure - Preliminary Issue of Limitation - Section 9A, Code of Civil Procedure, 1908 - The court framed a preliminary issue on limitation in a partition suit concerning a property bequeathed by will, where the plaintiffs challenged a development agreement after probate was granted and revocation petition dismissed. The court initially observed that the issue could be decided on undisputed facts without evidence, but later permitted the defendants to lead evidence on their request, while the plaintiffs chose not to lead evidence. Held that the defendants were entitled to lead evidence on the preliminary issue, with all contentions kept open (Paras 1, 2, 7, 8, 9, 10). B) Succession - Revocation of Probate and Limitation - Section 263, Indian Succession Act, 1925 - The plaintiffs' earlier petition seeking revocation of probate granted in 1980 was dismissed in 2013, which is relevant to computing the limitation period for the subsequent partition suit. The dismissal of the revocation petition may have triggered the limitation for challenging the will or the probate, impacting the maintainability of the suit (Paras 5, 6).
Issue of Consideration
Whether the Suit as filed is barred by the law of limitations?
Law Points
- Limitation
- Partition
- Probate
- Section 9A CPC
- Revocation of Probate
- Joint Development Agreement
- Interim Injunction
- Evidence on Preliminary Issue
