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  REPORTABLE

            IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION                  CIVIL APPEAL NO.8221 OF 2011   Surjit Kaur Gill & Anr.         ......Appellants

Versus

Adarsh Kaur Gill & Anr.           .....Respondents

J U D G M E N T

H.L.GOKHALE,J.

(1) This appeal seeks to challenge the judgment and order dated  

27.1.2009 rendered by a Division Bench of the High Court of Delhi in  

FAO (OS) No.290 of 2008 whereby the Division Bench has set aside in  

part  the  decision  rendered  by  a  learned  Single  Judge  who  had  

dismissed the  application moved by the respondent No.1 (defendant  

No.1) under Order VII Rule 11 of the Code  of Civil Procedure,1908  

by his judgment and order dated 7th April, 2008.

(2) Heard Mr. Shyam Diwan learned senior counsel appearing on  

behalf  of  the  appellants  and  Mr.  C.A.  Sundaram  learned  senior  

counsel appearing on behalf of the respondents.

(3)   The brief facts leading to this appeal are that one Ajit Singh  

filed a Suit bearing No.2167 of 1993, on the Original Side of Delhi  

High Court for partition of property against his sister Ms. Adarsh  

Kaur Gill and some others.  He filed the suit in his capacity as the

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Administrator of the Will of his deceased sister Smt. Abnash Kaur.  

The prayers in the suit were as follows:

(a) pass a preliminary decree of partition of the property  bearing No.3, South end Road, New Delhi, more particularly  shown  on  the  plan,  and  thereafter,  pass  a  final  decree  partitioning the said  property by metes and bounds and put  each  of  the  parties  to  the  suit  in  actual  physical  possession  of  the  portion  of  the  property  allotted  to  him/her.  If the partition of the property by metes and  bounds is not feasible, then the property may ordered to be  sold by public auction through Court and proceeds thereof be  divided between the parties to the suit in accordance with  their share and entitlement;

(b) pass a preliminary decree for partition of the movable  assets  belonging  to  the  estate  of  Smt.  Abnash  Kaur,  as  mentioned in the Schedule to the plaint and, thereafter,  pass a final decree and give to each of the party to the  suit his/her share of the said property.  In case it is not  feasible to distribute the movable assets belonging to the  estate of Smt. Abnash Kaur in the hands of defendants Nos.1  & 2 to each of the beneficiaries, as per the share and  entitlement, then the said movable assets may be ordered to  be sold by public auction through this Hon'ble Court and the  proceeds thereto may be divided amongst the parties, as per  their share and entitlement;

(c) pass a decree for rendition of accounts and enquiry into  the same with respect to the rental income of the property  received  by  defendant  No.1  from  the  tenant  of  property  bearing No.3, South End Road, New Delhi, w.e.f. 1.1.1980 to  30.11.1990;

(d) pass a decree for rendition of accounts and enquiry into  the same with respect to the profits made by defendant Nos.1  and 2 from the business which they have been carrying on by  investing the funds from the estate of Smt. Abnash Kaur;

(e)   Pass a decree for declaration that there has been no  lease  deed  executed  by  Smt.  Abnash  Kaur  in  favour  of  Defendant No.1 and that defendant No.1 is not a lessee in  the property, 3, South End Road, New Delhi, and she is not  entitled to give the said property to any person on sub- lease basis;

(f) pass a decree of declaration to the effect that  defendant No.1 is not a subrogatee of the mortgage deeds  executed  by  late  Smt.  Abnash  Kaur  with  respect  to  the

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property in favour of Smt. Sushila Daphtary and her son Mr.  Anil Daphtary said mortgage deeds have been redeemed out of  the estate left by Smt. Abnash Kaur;   

(g)   Pass  a  decree  of  declaration  to  the  effect  that  defendants  Nos.1  &  2  have  dis-entitled  themselves  from  getting any share in the estate left by Smt. Abnash Kaur and  that the plaintiff and defendants Nos.3, 4 & 5 are the only  beneficiaries under the Will of Smt. Abnash Kaur and are  entitled to get the entire estate left by Smt. Abnash Kaur  divided and partitioned in four equal shares;   

(h)   Pass  a  decree  for  permanent  injunction  against  Defendant  No./1  restraining  her  permanently  from  transferring, alienating, letting out or parting with the  possession of the property No.3, South End Road, New Delhi,  or  any  part  thereof  and  from  making  any  additions  and  alterations in the same in any manner whatsoever;  

(i)  Any relief which this Hon'ble Court may deem fit and  proper in the circumstances of the case may also be granted  to the plaintiff and other beneficiaries under the Will of  Smt. Abnash Kaur; and   

(j) Cost of the Suit may also be awarded against defendants  Nos.1 and 2.

(4)   There is no dispute that after the suit was filed issues have  

been framed and at a later stage the plaintiff had tendered his  

affidavit in lieu of the examination-in-chief.  It is at that stage  

that  the  application  made  under  Order  VII  Rule  11  (though  made  

earlier), came to be pressed into service and decided by the learned  

Single Judge.  The contention on behalf of the respondent-defendant  

was that as can be seen from the statements in the plaint, the suit  

was barred by law, and therefore it ought to be rejected under Order  

7 Rule 11 sub-clause (d).  The learned Single Judge went into the  

issues and came to the conclusion that all the prayers were inter-

connected,   and  they  were  related  essentially  to  the  principal  

prayer (a) for partition of the property of deceased Smt.Abnash Kaur

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on the basis of the Will which she had executed.The learned Single  

Judge  relied upon  the dicta  of this  Court in  Popat and  Kotecha  

Property vs.  State  Bank  of  India  Staff  Association  reported  in  

(2005) 7 SCC 510 which held that the plaint without addition or  

subtraction  must  show  that  it  is  barred  by  any  law  to  attract  

application of Order 7 Rule 11. The language of various paragraphs  

in the plaint and the pleadings have to be seen in their entirety to  

ascertain its terms.  The application was, therefore, dismissed by  

the learned Judge by his judgment and order dated 7.4.2008.

(5) Being aggrieved by the said judgment and order an appeal was  

preferred to the Division Bench of the Delhi High Court, and the  

Division Bench by the impugned judgment and order has allowed that  

appeal  in  part.   It  has  allowed  the  application  moved  by  the  

respondent  No.1  under  Order  7  Rule  11  to  the  extent  of  prayer  

clauses (b) to (f) as time barred.  Being aggrieved by that judgment  

this appeal has been filed.

(6) Mr.  Diwan,  learned  senior  counsel  appearing  for  the  

appellants pointed out that all the abovereferred prayers  are inter  

related, and they are essentially  concerning the partition which  

the original plaintiff was seeking. The original plaintiff having  

died, the appellant has transposed herself as the appellant.    He  

pointed out that the estate was essentially of Smt.Abnash Kaur who  

had received it from her husband, and there were disputes between  

her  step  sons  and  herself,  and  to  protect  the  property  certain

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arrangements  had  been  made  amongst  the  siblings  of  Smt.  Abnhash  

Kaur. It is as a result of that arrangement that a lease deed was  

executed  by  Smt.  Abnash  Kaur  in  favour  of  the  respondent  No.1  

herein.  Similarly various other arrangements were made with the  

understanding of all the family members.  It was in 1992 that the  

respondent, for the first time, resiled from all those arrangements  

and understanding, and that is how it became necessary  for the  

original plaintiff to file the suit.  The suit filed in 1993 was  

well within time and the prayers therein could not be segregated.

(7) Mr. C.A. Sundaram learned senior counsel, on the other hand,  

took us through the various prayers of the  suit,  particularly the  

prayers (b) to (f).  As far as prayer (b) is concerned he pointed  

out  that  this  prayer  seeks  the  partition  of  the  movable  assets  

belonging to said Smt Abnash Kaur.  Smt Abnash Kaur died in 1976 and  

therefore  this  prayer  is  time  barred  under  Article  69  of  the  

Schedule to the Limitation Act, 1963  since this claim is not made  

within three years therefrom.  In respect of prayer clause(c), he  

pointed out that the accounts are sought with respect to the rental  

income for the period from 1.1.80 to 30.11.90 and since the suit is  

filed  in  September,  1993,  at  the  highest  the  claim  could  be  

maintainable for the last four months, and the claim for the earlier  

period would be time barred  under Article 69 of the Limitation Act.  

With respect to prayer clause (d), though he opposed the inclusion  

of the prayer in the plaint, he very fairly stated that perhaps this  

prayer could have been allowed by the Division Bench.

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(8)   His main objection was to prayer clauses (e) and (f) which  

according  to  him,  the  Division  Bench  has  rightly  struck  off.  

According to him they contained separate causes of action.  The  

prayer clause (e) seeks  a declaration that there has been no lease  

deed executed by Smt Abnash Kaur in favour of the defendant No.1,  

and that  she was not the lessee of the concerned property situated  

at 3, South end Road, New Delhi and that she was not entitled to  

give the property to any other person on sub-lease basis.  Mr. C.A.  

Sundaram submitted that in the Will itself it is pointed out that  

the lease has been given to the respondent No.1 herein, and this was  

all  to  the  knowledge  of  the  plaintiff,  and  therefore  the  said  

declaration could not be sought by filing a suit in 1993.  It would  

be barred under Article 58 of the Limitation Act.  With reference to  

prayer clause (f) which seeks a declaration that the defendant No.1  

is not a subrogatee in respect of the mortgage deed executed by Smt.  

Abnash Kaur with respect to the property in favour of Smt. Shushila  

Daphtary and Mr. Anil Daphtary,   Mr.C.A.  Sundaram submitted that,  

this transaction had taken place on 20.2.78 and that being so, again  

the prayer would be hit by Article 59 of the Limitation Act.   

(9)  with respect to these submission, Mr. Diwan pointed out that in  

fact  there  is  a  clear  writing   of  the  respondent  No.1  herein  

executed  on  12.2.91  which  clearly  states,  amongst  others,  in  

paragraph (d) that she will not claim any tenancy right or charge on  

the above referred property.  In paragraph (b) of that writing she

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agreed to  render the accounts  with respect to the rental income  

received from 1.1.80 to  30.11.90. In paragraph (c) of that writing  

she states that with respect to the two mortgages redeemed in her  

name,   she  will  not  claim  any  charge  as  the  amounts  paid  for  

redeeming the said mortgages were paid from the estaste of Smt.  

Abnash Kaur. Mr. Diwan states that after executing this writing,  

the disputes between the parties were supposed to get settled, but  

then unfortunately it did not happen.  The respondent No.1 started  

construction on the particular property in her own right.  This  

having happened in 1992, the original plaintiff was constrained to  

file  the  suit  for  the  partition  of  the  property  belonging  to  

Smt.Abnash Kaur.  Smt. Abnash Kaur having made a Will about her  

property,  the  original  plaintiff  had  to  see  to  it  as  the  

administrator  of  the  will  that  the  property  is  distributed  in  

accordance therewith. This  being the position, in his submission it  

is Article 58 which is the relevant Article for all these prayers,  

which provides for a period of 3 years when the right to sue first  

accrues.  In the present case, it will be when the dispute arose  

because of the conduct of the respondent No.1 herein.  The issue of  

limitation  is  always  a  mixed  question  of  facts  and  law,  and  

therefore,  it  could  not  be  held  that  no  case  was  made  out  for  

proceeding  for a   trial.   Mr.  C.A. Sundaram  submitted that  the  

respondent No.1 disputed the writing dated 12.2.1991, and it  had to  

be forensically tested.  This submission all the more justifies that  

the trial had to proceed.  For deciding an application under Order 7  

rule 11, one has to look at the  plaint and decide whether it

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deserved to be rejected for the ground raised.   In our view, the  

view taken by the Division Bench is clearly erroneous.  The appeal  

is therefore allowed and the judgment and order of the Division  

Bench is set aside.  The application made under Order 7 Rule 11  

moved by the respondent No.1 herein will stand rejected.  We may  

however clarify that all the observations herein are only for the  

purpose of deciding this appeal.  

(10)  We request the learned Single Judge to hear and decide the  

suit expeditiously since it is pending for the last 10 years.  The  

parties will bear their own costs.

           ...........................J.     ( H.L. GOKHALE )                 

                               ...........................J.      (KURIAN JOSEPH )

NEW DELHI; JANUARY 30, 2014.