w w w . L a w y e r S e r v i c e s . i n



Lydia Agnes Rodrigues (Since deceased) through her legal heirs & Others v/s Joseph Anthony D'Cunha & Others


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

    Suit No. 517 of 2014

    Decided On, 02 May 2019

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE R.D. DHANUKA

    For the Plaintiff: Rajesh Shah along with Priyanka Kothari, Neha Bhatt I/by M/s . Bilwala & Co., Advocates. For the Defendants: Owen Menezes along with Ravi Gadagkar I/by Johnson John, Advocates.



Judgment Text

1. By an order dated 22.9.2016 passed by this court a preliminary issue under Section 9A of the Code of Civil Procedure, 1908 was framed in view of the defendant raising an issue of limitation, as follows: Whether the Suit as filed is barred by the law of limitations?

2. In view of the said preliminary issue framed by this court, both the parties through their respective counsel have addressed this court only on the said preliminary issue which is being dealt with by this court in the later part of the judgment. Some of the relevant facts for the purpose of deciding the preliminary issue are as under.

3. It is the case of the defendants that one Andrew Satiro D'cunha was the absolute owner of the property known as “Villa Bemvinda” comprising of land and house consisting of ground plus first floor situated at St, Alexius Road, Bandra (West), Mumbai 400050. The Andres D'cunha had five children i.e. two sons and three daughters namely Joseph, Annie, Lydia, Edwin and Ivy. On 20.2.1971 the said Andrew D'Cunha executed a Will. It is the case of the defendants that under the said Will dated - 20.2.1971 the said Andrew D'Cunha bequeathed the said immovable property known as Villa Bemvinda and the land absolutely to his son Joseph. The said son Joseph was appointed as the sole executor of the said Will on 20.2.1971. The said Andrew D'Cunha expired at Mumbai. Sometime in the year 1979 the said Joseph D'Cunha who was appointed as an executor under the said Will filed Probate Petition No.851/1979 in this Court inter alia praying for grant of probate in respect of the Will dated 20.2.1971 executed by the said deceased Mr. Andres D'Cunha.

4. In the schedule annexed to the said testamentary petition, the executor included the land with building thereon known as Villa Bemvinda as the property forming part of the estate of the said deceased Andres D'Cunha. The plaintiffs filed their consent affidavits in the said Probate proceedings. It is the case of the defendants that the plaintiffs were thus fully aware that the said executor Mr. Joseph was claiming the entire property including land by virtue of the said Will dated 20.2.1971 executed by the said deceased. On 3.7.1980 this Court granted probate in favour of Joseph D'Cunha who was the executor of the said Will. It is the case of the defendants that the plaintiffs accepted the monetary consideration given to them under the said Will dated 20.2.1971 by the said deceased.

5. The plaintiffs filed a Misc. Petition bearing No.86 of 2013 in the said Petition No.851 of 1979 and impleaded the defendant Nos. 1 to 7 as parties to the said petition under Section 263 of the Indian Succession Act, 1925 inter alia praying for revocation of probate granted by this Court in favour of Joseph D'Cunha on 3.7.1980 in Testamentary Suit No. 851 of 1979 in respect of the Will dated 20.2.1971. The executor appointed under the said Will was Joseph Andrew D'Cunha. By a Judgment dated 14.10.2013 this Court dismissed the said Misc. Petition No.86 of 2013 filed by the plaintiffs herein. On 13.3.2014 the defendant Nos. 1 to 7 on one hand and defendant no.8 on the other hand entered into joint development agreement in respect of the said land and the building constructed thereon. On 13.3.2014 the Defendant No.8 had put up its board on the suit property.

6. On 22.12.2012, the defendant No.8 issued Public notice in the newspaper in Free Press Journal informing the members of the public that the defendants have agreed with defendant No.8 to jointly develop the piece and parcel of land admeasuring 639.6sq.meters known as Villa Bemvinda. It is the case of the defendants that the correspondence thereafter were exchanged between the Advocate for the plaintiffs and the Advocate for the defendants and thus, under development agreement was entered into between defendant Nos. 1 to 7 on one hand and defendant No.8 developer on the other hand at the relevant time in the month of March, 2014. On 26.6.2014 the plaintiffs filed a partition suit bearing No. 517 of 2014 against all the defendants including the developer Acknur Property Developers inter alia praying for declaration that the plaintiffs have 3/5th plus 3/4th share of their deceased father's undivided 1/5th right title and interest in the said plot of land and for partition of the said 3/5th share plus 3/4th share of the said deceased father's undivided 1/5th share of the said plot of land. The plaintiffs also prayed for decree against the defendants in this court of the said agreement dated 13.3.2014 and prayed for cancellation of the said document. The plaintiffs also prayed for a preliminary decree as provided for under Order XX Rule 18 of the Civil Procedure Code, 1908. The plaintiffs also applied for various alternative reliefs in the suit. The plaintiffs filed Notice of Motion No.893 of 2014 in the said suit for interim reliefs.

7. By an order dated 10.2.2015 this Court granted injunction in favour of the plaintiffs in the said suit. On 8.7.2016, the Division Bench of this court passed an order in Appeal No.243 of 2015 filed by the defendants herein vacating interim injunction granted by the learned Single Judge and disposed of the said appeal. This Court directed the learned Single Judge to frame the preliminary issue of limitation on the application made by the parties and to decide the same expeditiously on merits in accordance with law after permitting both the parties to lead evidence if required. In pursuant to the said order dated 1.7.2016, on 22.9.2016 the learned Single Judge of this Court framed a preliminary issue under Section- 9A of the Code of Civil Procedure, 1908 i.e. Whether the Suit as filed is barred by the law of limitations?

8. The learned Single Judge observed in the said order that this is not a matter that requires any evidence at all. Even on a plain reading of paragraph 24 of the written statement, there is no question of evidence being lead simply because the basis of the plea of limitation is on two undisputed facts i.e. the date of grant of probate and the date of filing of the suit. The learned counsel for the defendants accepted the said position.

9. On 26.9.2016, the defendants filed a praecipe pointing out that when the matter had appeared on board on 22.9.2016, the defendants were not aware as to for what directions the matter was placed on board and thus, the counsel for the defendants required some time to take instructions from the defendants. By the said praecipe the defendants prayed for an opportunity to lead evidence. On 30.9.2016 this Court accordingly directed the defendants to file affidavit of evidence and compilation of documents on or before 18.11.2016 and directed the office to place the matter for marking documents of the defendants. The plaintiffs had filed an appeal against the order dated 30.9.2016 passed by this court granting an opportunity to the defendants to lead oral and documentary evidence. The said appeal was withdrawn by the plaintiffs on 15.12.2016.

10. This Court recorded that the plaintiffs have chosen not to lead any evidence on the preliminary issue. The defendants however chose to lead evidence on the preliminary issue. This court made it clear that this court was not making any observations at all on the point whether the plaintiffs were or were not entitled in law to lead any evidence in rebuttal and application for that purpose will be made at the appropriate time and will be considered on its own merits. This Court kept all the contentions left open, including as to whether any such application is even maintainable. This court accordingly marked various documents relied upon by the defendants as Exhibits and appointed Court Commissioner for recording the evidence. The defendants accordingly filed an affidavit of evidence dated 15.11.2016 of Joseph D'cunha defendant No.1 along with compilation of documents. Defendant No.1 was cross examined by the plaintiffs' through their learned counsel before the learned Court Commissioner on various dates.

11. The matter thereafter appeared before this court on 24.2.2017. This Court recorded the statement made by the plaintiffs through their learned counsel that within one week from the date of the said order the plaintiffs would file list of witnesses should the plaintiff wish to lead evidence. This court accordingly adjourned the matter to 10.3.2017 for directions. On 2.3.2017 the plaintiffs through their learned counsel made a statement that the plaintiff did not wish to lead any evidence in rebuttal and made a statement that the evidence under Section 9A of the Code of Civil Procedure,1908 would be treated as closed. This Court accordingly closed the evidence of the plaintiffs and placed the matter for arguments on the said preliminary issue framed under Section 9A of the Code of Civil Procedure, 1908 on 3.2.2017.

12. Both the learned counsel appearing for the parties made various submissions on the issue of limitation.

13. The learned counsel for the plaintiffs invited my attention to the public notice dated 14.12.2012 which was published on 22.12.2012 informing the members of the public that defendant No.8 had agreed to carry out development on the suit land. The plaintiffs through their Advocate's notice dated 2.1.2013 informed the learned Advocate for the defendants that the plaintiffs are the legal heirs of late Andrew D'Cunha and have undivided 4/5th share in the said property and thus, the defendants cannot deal with the said property without prior consent of the plaintiffs. The said reply was in response to the public notice dated 13.12.2012 which appeared in Free Press Journal on 22.12.2012. He submits that on 13.1.2014 there was a board put up on the suit property by the developers. It is submitted by Mr. Shah, learned counsel for the plaintiffs that the limitation for filing suit arose when the public notice was issued by the defendants on 22.12.2012. In the alternate on 29.3.2014 when the board was put up by the developer on the suit property. The suit was filed on 26.3.2014.

14. The learned counsel for the plaintiffs invited my attention to the will annexed to the petition and would submit that the said will would clearly indicate that the bequest of the testator directing that Villa Bemvinda should not be disposed of and shall be retained in his family and in the event of the said Villa will be sold the share should be divided in the manner provided therein would clearly indicate that the said bequest was conditional bequest. It is submitted that the development agreement between the defendant Nos. 1 to 7 on one hand and defendant No.8 on other hand was by sale agreement in respect of the suit property in favour of the defendant No.8 and thus cause of action had commenced either on 22.12.2012 or on 29.3.2014 and thus, the suit filed for partition on 26.3.2013 is within the period of limitation.

15. The learned counsel for the plaintiffs invited my attention to the various averments in the plaint and more particularly paragraph Nos. 7, 12, 14, 20 and 44 and would submit that those averments would clearly indicate that the bequest made by the testator was conditional bequest and only in the event of the defendants taking steps to sell the suit property, the plaintiffs would have share in the said property and not otherwise. He submits that the plaintiffs would not have taken any share in the suit property till the defendants would have taken steps to sell the suit property.

16. Learned counsel for the plaintiffs submits that the name of the executor under the said will left by the deceased testator was recorded in the property card on 12.12.1980 as per the order passed by this court on 13.7.1978. On 8.9.2011 a son of the said deceased testator expired. It is submitted that the entry in the property card in the name of the executor was without knowledge and consent of the plaintiffs. In the event the revenue entry does not take away the rights and title of the persons entitled any share in the suit property or does not confer any right on the person whose name was recorded in the revenue entry.

17. The learned counsel for the plaintiffs invited my attention to some of the averments and submissions made in the written statement filed by the defendants and documents relied upon in the written statement by the defendants. He submits that the bill issued by the Municipal Corporation in respect of the property tax and more particularly bill dated 10.5.2014 in the name of the executor appointed under the said will would not confer any right, title or interest in the defendants exclusively in the said property.

18. The learned counsel for the plaintiffs invited my attention to the affidavit of evidence filed by defendant No.1 before this court on the issue of limitation. He also invited my attention to the reply of the said witness examined by the defendants in his cross examination and more particularly, question Nos. 6 to 10 and 13 to 23 and would submit that the occupation of the suit property by the said Mr. Joseph D'Cunha was as an executor appointed under the said Will and not an owner of the suit property. The executor is the trustee and hold the property on behalf of the beneficiaries and thus, his possession in respect of the suit property would not commence any cause of action for filing the suit for partition.

19. The learned counsel for the plaintiffs also relied upon the cross examination of the witness examined by the defendants and more particularly in response to questions Nos. 29 to 36. He submits that the executor appointed under the Will died in the year 2014. Till the month of May, 2014 all the taxes were paid by the executor in his capacity as executor and not as an alleged owner of the suit property. The taxes were paid on behalf of the estate of the said deceased by the executor. The said witness examined by the defendants did not produce any other proof of the other expenses alleged to have been incurred by the executor. The rent collected by the executor was also in his capacity as executor and not as a owner.

20. The learned counsel for the plaintiffs placed reliance on the definition of “executor” under Section 2 (c) of Section 211 and Section 213 of the Indian Succession Act, 1925 and submits that the executor was the legal representatives of the said deceased for all the purposes. He submits that even grant of probate issued by this court in favour of the executor and the rights conferred under Section 211 of the Indian Succession Act, 1925 upon the said executor were not absolute but were subject to the provisions of the Indian Succession Act, 1925.

21. The learned counsel for the plaintiffs placed reliance on an unreported Judgment of this Court in the case of Geeta Patel D'souza vs. Girnar Apartments Co-op. Housing Society Ltd. dated 8.1.2019 in Chamber Summons No. 424 of 2015 in Suit No. 341 of 2014 and other connected matters and more particularly paragraphs 19 and 20 in support of the submission that the said executor continued to hold the property on behalf of the legal heirs till his death in the year 2004. Since 2004 all the children of the executor had migrated except one son who was occupying the said property till 2012. He submits that under the said will the said property was to remain with family and was not to be disposed off.

22. It is submitted that the testator however made it clear that if the said property was sold, the plaintiffs as well as some of the defendants would have share in the suit property. It is submitted that merely because one of the son was in possession of the property that possession would not preclude other legal heirs of the deceased testator in the suit property from claiming rights therein. He invited my attention to the reply of the witness of the defendants to Question No.26 and would submit that the said witness admitted that the said son was staying in the suit property as member of the father's family. The son Basin expired in the year 2012.

23. The learned counsel for the plaintiffs placed reliance on the Judgment of this Court in the case of Pravina Vikrant Ghotge vs. Vinayak R, Dindorikar reported in 2015 (1) Mh.L.J. 875 and in particular paragraph 15 in support of the submission that the property of the deceased vests in the executor who is the representative of the deceased for all the purposes. The vesting of such property was solely for the purpose of representation and administration. There is no absolute vesting of the property in the executor. The executor is bound by the contents of the will.

24. In support of the submission that mutation entry in respect of the property does not confer any right, title or interest in the property, the learned counsel for the plaintiffs placed reliance on the Judgment of the Supreme Court in the case of Bhimabai M. Kambekar (D) through legal heirs vs. Arthur Import and Export Company and others reported in 2019 SCC OnLine SC 99 and in particular, paragraph 8. The learned counsel also placed reliance on the judgment of the Supreme Court in the case of Suraj Bhan and others vs. Financial Commissioner and others reported in (2007) SCC 186 and in particular, paragraph 9 in support of the submission that entires in the revenue record does not confer any title or interest in the name recorded in the record of rights. He also placed reliance on the Judgment of the Supreme Court in the case of Sawarni vs. Inder Kaur and ors. reported in (1996) 6 SCC 223 and in particular, Paragraph 7 in support of the aforesaid submissions.

25. The learned counsel for the plaintiffs placed reliance on Article 58 of the Schedule to the Limitation Act, 1963 which provides as to when the cause of action commences for filing a suit for declaration and would submit that in this case right to sue for declaration arose when the defendants took action to sell the property by issuing public notice and by putting a board on the suit property. He submits that under no circumstances it can be said that the suit filed by the plaintiffs for various reliefs is barred by the law of limitation.

26. The learned counsel for the plaintiff placed reliance on Article 65 of the Limitation Act and would submit that cause of action for filing a suit for possession is 12 years. The right to claim possession arose only when the defendants took steps to sell the suit property. He submits that one of the co-owner of the property includes other co-owners. He submits that it is the case of the defendants that they were in adverse possession of the suit property. In support of the aforesaid submission the learned counsel for the plaintiff placed reliance on the Judgment of the Supreme Court in the case of Govindammal vs. R. Perumal Chettiar and ors. reported in (2006) 11 SCC 600 and particularly in paragraphs 8,12 and 15. The learned counsel for the plaintiffs placed reliance on the Judgment of this court in the case of Banubi w/o Sheikh Irbrahim and others vs. Sheikh Ahmad Sheikh Mahamood and others reported in 2008(6) Mh.L.J. 288 and in particular, paragraphs 9 and 10 in support of the submission that the possession of the property by the defendants who were also the co-owners of the suit property was on behalf of the plaintiffs who were the other co-owners and thus their possession of the suit property cannot render their possession adverse to the other co owners not, in possession thereof.

27. The learned counsel also placed reliance on the Judgment of this Court in the case of Fulsing Ramsingh Rajput and anr. vs. Durgabai w/o. Shivsingh Rajput reported in 1996(2) Mh.L.J. 770 and in particular, paragraphs 5 and 9 in support of the submission that the possession of the co owners was on behalf of the other owners who were not in possession.

28. Mr. Menezes, learned counsel for the defendants invited my attention to various averments made in the plaint and in the written statement, the enclosures to the plaint as well as to the oral evidence, various orders passed by this court from time to time in this suit as well as the orders passed by this court in Misc. Petition No.86 of 2013 filed by the plaintiffs. He also tendered a compilation of authorities in support of their contentions on various submissions.

29. The learned counsel for the defendants placed reliance on the Will dated 20.2.2071 executed by the said deceased Andrew D'cunha and would submit that in the said Will the said deceased had appointed Mr. Joseph D'Cunha one of the son of the said deceased as the sole executor of the said Will. He submits that in the said Will it was clearly stated that the said deceased in his previous Will had bequeathed his house Villa Bemvinda to his son Joseph D'Cunha and Edwin Anthony jointly but now as his son Edwin had bought a house and would reside permanently in England, deceased gave the bequest in respect of Villa Bemvinda to his son Joseph. The said executor had directed his son Joseph to pay his four children namely Annie, Lydia, Edwin and Ivy a sum of Rupees Five Thousand each.

30. The learned counsel for the defendants submits that though the said deceased had given the said immovable property to Joseph exclusively, in the later part of the said Will the said testator directed that it was his earnest desire that the said house should not be demolished but shall be retained in his family. It was further directed that in the event of said house being sold the sale proceeds after deducting expenses should be divided into six shares two of which should go to Joseph and the other children one share each. It is further provided if any of his children predeceased his or her share should be divided among between his children. The said Will was witnessed by two witnesses. He submits that the plaintiffs had also filed their consent affidavit in the aid testamentary petition filed by the executor. He submits that the second part of the Will providing for share in the sale proceeds is void.

31. The learned counsel submits that this court has already granted probate in favour of the said executor on 3.7.1980 to the knowledge of the plaintiffs. He submits that in the schedule annexed to the said testamentary petition the said executor had disclosed the land as well as the building constructed thereon as the estate of the said deceased. This court had granted probate in favour of the executor in accordance with the said schedule which is annexed to the petition. It is submitted that Misc. Petition filed by the plaintiffs for revocation of the said grant of probate is already dismissed by this Court by passing a detailed Judgment. The Misc. Petition was filed by the plaintiffs after 33 years against the order of granting probate in favour of the executor.

32. Mr. Menezes, learned counsel for the defendants submits that when the testamentary petition was filed by the executor appointed under the will of the deceased testator the plaintiffs had also filed consent affidavit for grant of probate. The learned counsel submits that by an order dated 22.9.2016 this court framed issue under Section 9A of the Civil Procedure Code 1908 on the ground of limitation. This Court though had initially observed that this case did not require any evidence at all, by a subsequent order dated 24.2.2017 granted an opportunity to the plaintiffs to lead evidence in rebuttal if the plaintiffs so desire. The matter was adjourned on this ground to give an opportunity to the plaintiffs to lead evidence in rebuttal. The plaintiffs however made statement before this court that the plaintiffs did not desire to lead any oral evidence before this court.

33. Learned counsel invited my attention to a praecipe filed by his clients on 26th September, 2016 inter-alia praying for an opportunity to lead evidence. On 30th September, 2016, this Court issued the directions to the defendants to file affidavit of evidence, affidavit of documents and compilation of documents on the preliminary issue under section 9-A of the Code of Civil Procedure, 1908. It is submitted that the plaintiffs have not led any evidence on the preliminary issue. His clients however had examined a witness.

34. Learned counsel appearing for the defendants invited my attention to the averments made in paragraphs, 6, 7, and 17 of the plaint and also to the prayers. He submits that there is no averment in the plaint as to why the suit filed by the plaintiffs is not filed within three years from the date of probate. He submits that prayer clauses (a) and (b) are ex-facie barred by law of limitation. Learned counsel invited my attention to the deposition of the defendant no.1 in the affidavit of evidence and in particular paragraphs 3 to 6 and would submit that there was no cross-examination on any part of that deposition by the plaintiffs’ counsel which evidence was led on the issue of limitation. He submits that there was also no cross-examination on the deposition of the defendant no.1 that no demand was made by the plaintiffs for claiming any share in the property for 37 years after the death of the deceased testator. He submits that the probate was admittedly granted by this Court on 3rd July, 1980, whereas the petition was filed in the year 2013. He submits that the Misc. Petition filed by the Petitioner has been already dismissed by a detailed judgment rendered by this Court.

35. Insofar as the knowledge of the Will of the deceased testator is concerned, it is submitted that the plaintiffs were fully aware of the fact that the original defendant no.1 was claiming absolute right, title and interest in the suit property. No suit however, came to be filed by the plaintiffs since 1980 till 2014. Learned counsel for the defendants invited my attention to the averments made by the plaintiffs in paragraph 17 of the plaint and would submit that it is the case of the plaintiffs that by the said Will dated 20th February, 1971, the said deceased had bequeathed the said bungalow to his son Joseph D’Cunha with a condition that in the event the said Joseph D’Cunha were to sell the property, each one of his other children would be entitled to a share and the said Joseph D’Cunha would be entitled to two shares. He submits that the bungalow bequeathed by the said deceased in favour of Joseph D’Cunha includes the land.

36. Learned Counsel invited my attention to the deposition of the defendant no.1 in paragraph 8 of the affidavit in lieu of examination in chief stating that bequest in favour of the said Joseph D’Cunha in respect of the immovable property was absolute bequest. There was however, no cross-examination on the said part of deposition of the defendant no.1 by the plaintiffs. The plaintiffs independently did not lead any evidence, though an opportunity was rendered by this Court.

37. Learned counsel for the defendants invited my attention to the judgment of this court delivered on 14th October, 2013 in Miscellaneous Petition No.86 of 2013 filed by the plaintiffs herein inter-alia praying for revocation of probate granted by this Court o 3rd July, 1980 in favour of the said Joseph D’Cunha in respect of the Will and Testament of the said deceased. He strongly placed reliance on the findings rendered by this Court in paragraphs 12, 15 and 17 to 21 and would submit that this Court has categorically held that the plaintiffs were fully aware of the Will of the said deceased and the said miscellaneous petition inter-alia praying for revocation for grant of probate was barred by law of limitation. He submits that there was no appeal preferred by the plaintiffs against the said judgment rendered by this Court on 14th October, 2013. The said judgment is binding on the plaintiffs.

38. Learned counsel for the defendants placed reliance on various other paragraphs of the affidavit in lieu of examination in chief of the defendant no.1 stating that the original defendant no.1 was the absolute owner in respect of the said immovable property i.e. bungalow as well as the land, however, there was no cross-examination by the plaintiffs on the said part of deposition. The plaintiffs also did not cross-examine the said witness on the deposition that the plaintiffs had no share in the immovable property. The plaintiffs had also not paid any compensation for last 37 years. He submits that the finding in that regard is already rendered by this Court in the said judgment.

39. Learned counsel for the plaintiffs submits that after the expiry of 34 years, the plaintiffs cannot be allowed to contend that the properties included in the schedule annexed to the testamentary petition could not have included the land in the said schedule. The plaintiffs themselves filed the consent affidavits in the said testamentary petition in which the schedule clearly included the bungalow as well as the land. He submits that the plaintiffs were fully aware of the Will since 20th February, 1971.

40. Learned counsel for the defendants invited my attention to the cross-examination of the defendant no.1 and more particularly to answers to question nos.14 to 28, 31, 33, 38, 40 and 43 to 49. He submits that there was no question asked to the witness of the defendants as to why the defendants did not inform the plaintiffs about the mutation entry. Learned counsel for the defendants invited my attention to the paragraph 6 of the plaint and would submit that the plaintiffs did not enter the witness box to prove that they had no knowledge about the execution of the Will of the said deceased. The plaintiffs also did not file any proceedings independently inter-alia praying for administration of estate in respect of the land of the said deceased on the basis of intestacy.

41. In support of the submission that the expression “building” includes the land, Mr.Menezes, learned counsel for the defendants placed reliance on the judgments of the Hon’ble Supreme Court in case of T. Lakshmipathi & Ors. vs. P. Nithyananda Reddy & Ors., (2003) 5 SC 150 and in particularly paragraph 23 and in case of Jai Narain Parasrampuria & Ors. vs. Pushpa Devi Saraf & Ors., (2006) 7 SCC 756 and more particularly paragraphs 71 and 72.

42. Learned counsel for the defendants invited my attention to a copy of the Will and would submit that in the said Will, the said deceased had made a bequest in favour of the original defendant no.1 in respect of the land and the building. The plaintiffs were fully aware of the said bequest in respect of the land and building both. It is submitted that in any event the plaintiffs ought to have filed a suit for partition within 12 years from the date of grant of probate i.e. the date when the defendants became entitled to claim the entire property i.e. land and the building. This Court shall draw an adverse inference against the plaintiffs for not leading any oral evidence, though an opportunity was granted by this Court. The plaintiffs did not take any steps of whatsoever nature for claiming any right, title and interest in the suit property for 37 years. The initial onus was on the plaintiffs to prove that the suit filed by them was within time.

43. It is submitted by the learned counsel that even on perusal of the Will, it is clear that the bequest in favour of the original defendant no.1 by the said deceased was absolute bequest. He submits that even if the second part of the bequest is considered by this court, the same being repugnant to the first bequest is invalid and cannot be relied upon. He submits that in the first part of the Will, the property was exclusively bequeathed in favour of the original defendant no.1. The second part of bequest giving any share to the other members of the family in the later part of the Will is of no significance. In support of this submission, leaned counsel placed reliance on the judgment of the Hon’ble Supreme Court in case of Mauleshwar Mani & Ors. vs. Jagdish Prasad & Ors., (2002) 2 SCC 468 and in particular paragraphs 8,11 and 12 thereof.

44. It is submitted by the learned counsel for the defendants that since there was no cross-examination of the defendant no.1 on various part of deposition, the case of the defendants was established. The entire evidence of the defendants has to be thus accepted by this Court. In support of this submission, learned counsel for the defendants placed reliance on the judgment of the Hon’ble Supreme Court in case of Muddasani Venkata Narsaiah vs. Muddasani Sarojana, (2016) 12 SCC 288 and in particular paragraphs 15 and 16.

45. In support of the submission that the initial onus was on the plaintiffs to prove that the suit filed by them was within time and not barred by law of limitation, learned counsel for the defendants placed reliance on the judgment of the Madras High Court in case of The Ramanathapuram Market Committee, Virudhunagar & Ors. vs. East India Corporation Limited, Madurai, AIR 1976 Madras, 323 and more particularly paragraphs 9, 14 and 17. He submits that since the plaintiffs did not enter the witness box to prove as to why the suit filed by them was within the period of three years from the date of grant of probate by this Court, the suit is liable to be dismissed on the ground of limitation.

46. Learned Counsel also placed reliance on the judgment of the Hon’ble Supreme Court in case of Dilboo & Ors. vs. Dhanraji & Ors., (2000) 7 SCC 702 and in particular paragraph 20, in support of his submission that the plaintiffs had deemed knowledge of grant of probate by this Court. The order passed by this Court granting probate was the judgment in rem. The suit for partition thus could be filed by the plaintiffs only within 12 years from the date of grant of probate. In support of this submission, learned counsel for the defendants placed reliance on the judgment of the Hon’ble Supreme Court in case of Union of India & Ors. vs. Vasavi Co-op. Housing Society Ltd. & Ors., 2014(2) ALL MR 415 (S.C.) and more particularly paragraphs 12, 14, 15 and 22.

47. In support of the submission that the suit is ex-facie barred by law of limitation and the plaintiffs having failed to prove that the suit was within the period of limitation, the suit deserves to be dismissed on the ground of limitation itself, learned counsel for the defendants placed reliance on the following judgments:-

(i) The judgment of the Supreme Court in case of Radhika Devi vs. Bajrangi & Ors., (1996) 7 SCC 486 and in particular paragraphs 2, 4 and 6;

(ii) The judgment of this Court in case of Ashok Daga Patil vs. Daga Yadav Patil & Ors., (2003) 1 Mh.L.J. 686 and in particular paragraph 6;

(iii) The judgment of this Court in case of Naresh Lachmandas Aswani vs. Haridas @ Hardas Lachmandas Aswani & Ors., 2016 (4) ALL MR 286 and in particular paragraphs-15, 33, 48 to 52, 55 and 57 to 64;

(iv) The judgment of this Court in case of Nina Agarwalla vs. Ashok Gupta & Ors., 2013 (4) Mh.L.J. 464 and in particular paragraphs 11 to 14; and

(v) The judgment of the Supreme Court in case of Ajay Gupta vs. Raju @ Rajendra Singh Yadav, 2016 (5) ALL MR 443 (S.C.) and in particular head note – B.

48. In support of his submission that initial onus was on the plaintiffs to prove that the suit was within time and not barred by law of limitation, and the plaintiffs having failed to discharge the said onus, the suit deserves to be dismissed on that ground also, the learned counsel for the defendants placed reliance on the following judgments:-

(i) The judgment of the Supreme Court in case of Iswar Bhai C. Patel vs. Harihar Behra & Anr., (1999) 3 SCC 457 and more particularly paragraphs 17 and 21 to 29;

(ii) The judgment of the Supreme Court in case of Vidhyadhar vs. Manikrao & Anr., (1999) 3 SCC 573 and more particularly paragraph 17;

(iii) The judgment of the Division Bench of this Court in case of Ashok Udaram Pathrabe vs. Maharashtra Remote Sensing Application Centre, Nagpur & Ors., 2007(1) Mh.L.J. 519 and more particularly paragraphs 34 and 36 to 38;

(iv) The judgment of the Supreme Court in case of Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale & Ors., 2007 (6) Mh.L.J. 609 and more particularly paragraph 13;

(v) The judgment of a learned single Judge of this Court in case of Canara Bank, Bombay vs. Eastern Mechanical Works, Bombay & Anr., 2008 (5) Mh.L.J. 720 and more particularly paragraphs 33 to 37;

(vi) The judgment of the Supreme Court in case of Parimal vs. Veena @ Bharti, 2011 (3) Mh.L.J. 725 and more particularly paragraph 15; and

(vii) The judgment of a learned single Judge of this Court in case of Bhat Nagarkar Developer vs. Dilip Dhondiba Gaikwad & Ors., 2018 (2) Mh.L.J. 673 and more particularly paragraphs, 10, 14 to 16, 18 and 19.

49. Mr. Menezes, learned counsel for the defendants distinguished the judgments relied by Mr. Shah, learned counsel for the plaintiffs on the ground that all those judgments deal with an issue of adverse possession, whereas the suit filed by the plaintiffs is on the basis of grant of probate. He submits that reliance place on Article 58 to Schedule – I of the Limitation Act, 1963 by the learned counsel for the plaintiffs is not at all relevant. He submits that on 3rd July, 1980 right to sue in favour of the plaintiffs had already accrued. Insofar as Article 65 of Schedule to the Limitation Act, 1963 is concerned, it is submitted that none of the conditions mentioned therein, including explanation would apply to the facts of this case. Similarly Article 106 to the Schedule of the Limitation Act, 1963 would not apply.

50. Mr. Shah, learned counsel for the plaintiffs placed reliance on various Rules of the Bombay High Court (Original Side) Rules and would submit that the probate petition could be filed by the executor named in the Will. He placed reliance on Rule 374. Under section 111 of the Indian Succession Act, 1925, the property vests in the executor on the death of the deceased testator. He submits that even if immovable properties were disclosed in the schedule annexed to the testamentary petition filed by the original defendant no.1, it could not operate adverse to the claim of the plaintiffs. There was thus no question of commencement of any limitation from the date of filing of the testamentary petition by the original defendant no.1 or from the date of grant of probate.

51. Learned counsel for the plaintiffs invited my attention to the averments made in paragraph 7 of the plaint and would submit that till 2004, the suit properties were held by the executor in his capacity as the executor and not as an owner of the suit property. Merely because the property taxes were paid by the executor, that would not commence any cause of action in favour of the plaintiffs to file a suit for partition. He submits that during the period 2004 and 2014, all the children of the executor had migrated to another country except one son. The son of the deceased testator who was in possession of the suit property was in possession as a family member of the executor and not as an owner of the suit property. He submits that in any event, the son of the executor was holding the suit property on behalf of the other co-owners. The plaintiffs are the married daughters of the said deceased.

52. It is submitted that the plaintiffs had failed in the miscellaneous petition filed by them before this Court inter-alia praying for revocation for grant of probate. The plaintiffs have accepted the said decision of this Court and could file this suit only when the defendants took steps to sell the suit property under second part of the Will. In support of this submission he invited my attention to a letter dated 2nd April, 2014 and would submit that the claim made by the plaintiffs is on the basis of the sale, being one of the legatee under such sale which bequest would become operative in favour of the plaintiffs in the net sale proceeds of the suit property agreed to be sold.

53. Learned counsel invited my attention to the averments made in paragraph 17 of the plaint and would submit that it is the case of the plaintiff that the said bequest in respect of the immovable property in the said Will was ex-facie conditional bequest. The quantum of share is a matter of law. The defendant nos.1 to 7 were constructive trustees in respect of the suit property. He submits that since the land was in possession of the other co-owners, till third party rights were not created by the defendant nos.1 to 7, the rights of the plaintiffs were not affected till then. It is submitted that the plaintiffs could not have separated the land from the building till the land was proposed to be sold by the defendant nos.1 to 7.

54. It is submitted by the learned counsel for the plaintiffs that the suit filed by his clients is for administration of the estate of the said deceased. Article 65 of Schedule – I to the Limitation would apply. He submits that the claim for seeking title in favour of the plaintiffs in this case had arisen only when the defendants took steps to sell the suit property. He strongly placed reliance on the judgment of the Full Bench of this Court in case of Sajanbir Singh Anand & Ors. vs. Raminder Kaur Anand & Ors., 2018 (3) Mh.L.J. 892 and in particular paragraphs 1, 9 to 17 and 22 to 25. He placed reliance on the judgment of this Court in case of Parmeshwari Devi Ruia vs. Krishnakumar Nathmal Murarka & Ors., 2007(6) Bom.C.R., 180 and in particular paragraphs 3 to 8, 23 to 30, 34 to 39, 42 and 46 in support of his submission that the cause of action in this case commenced only when the defendants took steps to sell the suit property which was forming part of the said Will.

55. Insofar as the issue raised by the defendants that the plaintiffs ought to have led oral evidence on the issue of limitation is concerned, Mr. Shah, learned counsel for the plaintiffs invited my attention to the averments made in paragraphs 4, 7, 14 and 17 to 20 and would submit that it was the case of the plaintiffs in the plaint that there was no bequest in favour of the original defendant no.1 in case of land on which the suit bungalow was constructed. He submits that the defendants have not disputed issuance of public notice. The defendants have also not disputed the existence of correspondence exchanged between the parties which is relied upon by the plaintiffs in the plaint. The Will is already probated by this Court which is now accepted by the plaintiffs. The plaintiffs were thus not required to lead any evidence on the existence of Will. The defendants have put up the board on the suit property which fact is not disputed by the defendants. No evidence was thus required to prove the said fact.

56. It is submitted by the learned counsel that the issue raised by the plaintiffs that bequest in the said Will was a conditional bequest or that the land was bequeathed along with bungalow in the said Will is a matter of interpretation and is not required to be proved by leading any oral evidence. The plaintiffs claim co-ownership in the said immovable property which is not required to be proved by leading any evidence and would be pure question of law.

57. It is submitted by the learned counsel for the plaintiffs that the agreement entered into between the defendants inter-se is not a development agreement but an agreement for sale itself. The existence of such agreement is not disputed by the defendants. The plaintiffs were thus not required to prove the existence of the said agreement. The entitlement of the plaintiffs and the ratio in the said property is a matter of law and does not require any oral evidence. Learned counsel for the plaintiffs invited my attention to various clauses of the agreement entered into between the defendants inter-se in support of his submission that the agreement between the parties was an agreement for sale and not a development agreement in true sense.

58. Learned counsel for the plaintiffs distinguished the judgment of the Supreme Court in case of Mauleshwar Mani & Ors. (supra). He invited my attention to paragraph 8 of the said judgment and would submit that the facts before the Supreme Court in the said judgment were totally different. He submits that in the said Will executed by the said deceased, no right of alienation has been given to the original defendant no.1. The said Will clearly provided that the house should not be disposed of but shall be retained in the family and in case the sale, the sale proceeds to be distributed amongst all the legal heirs including the plaintiffs. He submits that the said bequest was not thus absolute bequest. He submits that section 131 and 138 of the Indian Succession Act, 1925 would apply case of such conditional bequest.

59. Learned counsel for the plaintiffs placed reliance on section 58 of the Evidence Act and would submit that the admitted facts are not required to be proved. He also placed reliance on section 103 of the Evidence Act in support of his submission that in view of the defendants having admitted the relevant facts in the written statement or having not denied most of the averments made in the plaint, the plaintiffs were not required to lead any evidence. He submits that in this case, burden was already shifted to the defendants. The plaintiffs had extensively cross-examined the witness of the defendants. He relied upon the judgment of this Court in case of Meher Singh vs. Deepak Sawhny & Anr., 1998 (3) Mh.L.J. 940.

60. The learned counsel for the plaintiffs distinguished the judgments relied upon by Mr. Menezes, learned counsel for the defendants and submits that in the facts and circumstances of this case, the plaintiffs were not required to enter the witness box. In this case, the starting point of limitation for filing the present suit was on the date when the notice board was put up on the site by the defendants and not prior thereto. Insofar as the judgment of the Madras High Court in case of The Ramanathapuram Market Committee, Virudhunagar & Ors. (supra) is concerned, learned counsel for the plaintiffs submit that the said judgment has been already dealt with by the Full Bench of this Court already relied upon by the plaintiffs.

61. Learned counsel for the plaintiffs distinguished the judgment of this Court in case of Anand Laxmi Enterprises (supra) on the ground that the suit in the said matter was based on contract, whereas this case is for an administration of estate and partition. Learned counsel for the plaintiff distinguished the judgment of the Supreme Court in case of Dilboo & Ors. vs. Dhanraji & Ors. (supra) on the ground that the plaintiffs in this case have already established starting point of limitation i.e. from the date of their knowledge derived about the steps taken by the defendants to sell the immovable property when the board was put up on the suit property.

62. Learned counsel for the plaintiffs distinguished the judgment of the Supreme Court in case of Union of India & Ors. (supra) on the ground that the plaintiffs in this case have already established their case. The plaintiffs are claiming their rights based on the conditional bequest in the Will which condition was triggered by the defendants when a public notice was issued by the defendants and the board was put up on the said immovable property. The plaintiffs have to succeed on the strength of their own case and not on the basis of the defendants’ case.

63. Learned counsel for the plaintiffs distinguished the judgment of this Court in case of Rajasthan State Road Transport Corporation & Anr. (supra) on the ground that in this case the pleadings of the plaintiff in the plaint are sufficient and clear. Since all the relevant facts are already admitted by the defendants, the plaintiffs were not required to lead any oral evidence. Learned counsel for the plaintiffs distinguished the judgment of the Supreme Court in case of Radhika Devi (supra) on the ground that the said judgment was delivered by the Supreme Court in the facts of that case. The case of the plaintiffs in this case is based on the conditional bequest which is on happening of event and thus the cause of action would arise only if such event had happened and not earlier.

64. Learned counsel for the plaintiffs distinguished the judgment of this Court in case of Ashok Daga Patil (supra) on the ground that the plaintiffs in this case had filed the suit within three years from the date of knowledge of the steps taken by the defendants to sell the immovable property.

65. Learned counsel for the plaintiffs distinguished the judgment of this Court in case of Naresh Lachmandas Aswani (supra) on the ground that the said judgment was delivered in the facts of that case. Though the initial onus to prove that the suit was within time was on the plaintiffs, in view of the admitted facts, the plaintiffs were not required to enter the witness box first or even in rebuttal.

66. Learned counsel for the plaintiffs distinguished the judgment of this Court in case of Nina Agarwalla (supra) on the ground that in the said judgment, this Court had considered limitation under Article 137 of Schedule – I to the Limitation Act in filing a petition under section 263 of the Indian Succession Act, 1925 for revocation of grant of probate. He submits that the said judgment would not apply to the facts of this case. The plaintiffs in this case have proceeded on the basis of testament disposition and not on the basis of intestacy. He submits that the said judgment and more particularly paragraph 14 thereof would assist the case of the plaintiffs and not the defendants.

67. Learned counsel for the plaintiffs distinguished the judgment of Hon’ble Supreme Court in case of Ajay Gupta (supra) on the ground that the said judgment is totally distinguishable in the facts of this case and would not assist the case of the defendants.

68. Learned counsel for the plaintiffs distinguished the judgment of this Court in case of Bhat Nagarkar Developer (supra) on the ground that the facts before this Court in the said judgment were totally different and are clearly distinguishable in the facts of this case. He submits that since the case of the plaintiffs is based on happening of event prescribed in the said conditional bequest, the knowledge of the Will of the plaintiffs would not commence any cause of action.

69. Insofar as the submission of Mr. Menezes, learned counsel for the defendants that the plaintiffs have not contributed any amount towards maintenance or otherwise in respect of the suit property is concerned, it is submitted by the learned counsel for the plaintiffs that the defendants with other co-owners would hold the suit property on behalf of all the co-owners, including the plaintiffs. He submits that the plaintiffs are not claiming the rights on the basis of intestacy in this suit.

70. Mr. Menezes, learned counsel for the defendants submits that in the schedule annexed to the testamentary petition, the original defendant no.1 had disclosed the land and building while seeking grant of probate. The plaintiffs had already given the consent in the said proceedings. This Court had granted probate in respect of all the properties forming part of the said schedule, including the land on which the suit bungalow was constructed. It is not the case of the plaintiffs that the land would devolve on the basis of intestacy.

71. Learned counsel for the defendants once again placed reliance on the judgment of the Supreme Court in case of Mauleshwar Mani & Ors. (supra) in support of his submission that the bequest in respect of the immovable property was absolute bequest and not conditional bequest and in any event even if the second part of the Will is considered as conditional bequest, the bequest absolute made in the earlier part cannot become void in view in view of the later part in the Will. He also relied upon the judgment of the Supreme Court in case of Madhuri Ghosh & Anr. (supra) and more particularly paragraphs 4, 6 and 13 and would submit that in this case there was no right of alienation granted in favour of the defendants under the said Will. The said bequest was absolute and not conditional as sought to be canvassed by the learned counsel for the plaintiffs.

72. It is submitted that the subsequent restriction is void. The condition has to be part of the main clause to make it conditional bequest and not by separate clause. He relied upon the illustration I and II of section 134 of the Indian Succession Act, 1925. It is submitted that since the bequest in this case was absolute, the cause of action would commence on the date of grant of probate and not when public notice was issued or any board was put up on the said immovable property. The plaintiffs were fully aware that the defendants were claiming right in the land as well as bungalow. Learned counsel placed reliance on the judgment of the Andhra Pradesh High Court in case of Sri Sanjay Kumar Patengay (supra) and in particular paragraphs 1, 5, 31 and 39 to 41.

73. Learned counsel distinguished the judgment of this Court in case of Meher Singh (supra) relied upon by the plaintiffs on the ground that the facts before this Court in the said judgment were totally different. Several opportunities were given to the plaintiffs in that case. He also distinguished the judgment of this Court in case of Sajanbir Singh Anand & Ors. (supra) on the ground that no probate was granted by that Court. He submits that the suit filed by the plaintiffs is for partition of the properties and not for administration of estate as sought to be canvassed by the plaintiffs. There is no prayer for seeking administration of estate of the said deceased.

74. Learned counsel for the defendants distinguished the judgment of this Court in case of Parmeshwari Devi Ruia (supra) on the ground that the facts before this Court were totally different. In the said judgment, a prayer was for recall of the consent terms. No probate was granted in the said proceedings.

75. Insofar as the issue as to whether the agreement entered into between the defendants inter-se was a development agreement or agreement for sale, it is submitted by the learned counsel that under clause 12 of the said agreement, the only right to develop the suit property was given to one of the defendant. He submits that the stamp duty payable under Article 25 and Article 5 (g-a) of the Maharashtra Stamp Act is the same. He submits that the issue of limitation thus raised by the defendants be held in favour of the defendants and the suit to be dismissed on that ground itself.

REASONS AND CONCLUSION

76. Some of the undisputed facts are that on 20th February, 1971, the said Andrew D’Cunha had executed a Will thereby bequeathing his properties in favour of his legal heirs as directed in the said Will. The said Andrew Satiro D’Cunha expired on 20th August, 1977 at Bombay. In 1979, Mr.Joseph D’Cunha, one of the son who was appointed as an executor under the said Will dated 20th February, 1971 applied for probate by filing a Probate Petition bearing No.851 of 1979 in this Court. It is not in dispute that in the schedule annexed to the said probate petition, the said Joseph D’Cunha had claimed the entire property i.e. the land and the building thereon known as “Villa Bemvinda” as the property of the said deceased Andrew Satiro De’Cunha and forming part of the estate of the said deceased.

77. The plaintiffs had filed their consent affidavit in the said probate petition. The plaintiffs were fully aware of the schedule annexed to the said Probate Petition No.851 of 1979 disclosing the land and the building as forming part of the estate of the said deceased. In the said probate petition, it was the case of the said executor Joseph D’Cunha that the entire immovable property i.e. land and the structure therein was bequeathed in his favour by the said deceased testator Andrew Satiro D’Cunha.

78. It is also not in dispute that this Court has granted a probate in respect of the said Will on 3rd July, 1980. It is also the case of the defendants that each of the plaintiffs had accepted the monetary consideration given to them by the said testator under the said Will dated 20th February, 1971. It is not in dispute that the plaintiffs had filed a Petition under section 263 of the Indian Succession Act, 1925 for revocation of the said grant of probate dated 3rd July, 1980 only in the month of July, 2013. By an order dated 14th October, 2013, this Court dismissed the said Petition No.86 of 2013. The plaintiffs did not challenge the said order and judgment dated 14th October, 2013 passed by this Court. The order granting probate in respect of the said Will dated 20th February, 1971 by an order dated 3rd July, 1980, thus attained finality.

79. It is also not in dispute that on 13th February, 2014, i.e. after expiry of appeal period, the defendant nos.1 to 7 entered into a writing with the defendant no.8 in respect of the said immovable property. On 13th March, 2014, the defendant no.8 had put up its board on the said property. It is not in dispute that the plaintiffs filed this suit only on 26th April, 2014 inter-alia praying for an order and declaration that the plaintiffs have 3/5th share plus 3/4th share of the deceased Andrew Satiro D’Cunha’s undivided 1/5th share, title, right and/or interest in the plot of land and for partition of the said plot by metes and bounds and for cancellation of the joint development agreement dated 13th March, 2014. The plaintiffs are the legal heirs of late Edwin D’Cunha, who was one of the son of Andrew Satiro D’Cunha.

80. In the plaint filed by the plaintiffs, it was averred that by the said Will dated 20th February, 1971, the said deceased had bequeathed the said bungalow to his son Joseph D’Cunha on the condition that in the event of the said Joseph D’Cunha were to sell the property, each of his other children would be entitled to equal share and the said Joseph D’Cunha would be entitled to two shares. It is contended by the plaintiffs in the plaint that the said bequest was not an absolute bequest but was with a condition attached. The said Joseph D’Cunha had taken bequest subject to the said condition.

81. It is averred that the land was not bequeathed by the deceased under his Will and was therefore, governed by intestate succession and thus all the children of the deceased would therefore, have an equal share in the said land. It is contended that the defendant nos.1 to 7 were constructive trustees in respect of the said property and were holding the said land and the said bungalow for the benefit of all the parties. The plaintiffs and the defendants were the co-owners of the said land.

82. It is also contended in the plaint that under the guise of the development agreement which is really but nothing a sale by the defendant nos.1 to 7 to the defendant no.8, the defendants are seeking to defeat those alleged rights of the plaintiffs i.e. to receive a share from the sale proceeds of the said bungalow. In paragraph 34 of the plaint, it is averred that the claim in the suit is not barred by law of limitation. The cause of action to file the suit arose on 29th March, 2014, when the plaintiffs witnessed the board of the defendant no.8 on the suit property.

83. A perusal of the prayer clauses (a) and (b) clearly indicates that the plaintiffs have prayed for a declaration and partition in respect of the alleged share of Edwin D’Cunha in the plot of land described in Exhibit “B” to the plaint. There is no share claimed in the bungalow i.e. “Villa Bemvinda”. In the written statement filed by the defendants on 1st August, 2014, the defendants denied the claims of the plaintiffs in toto and raised an issue of limitation and more particularly in paragraph 24 thereof. It is contended by the defendants that the plaintiffs had knowledge of the probate granted by this Court as far back in the year 1980 and were deemed to have full knowledge of the contents of the Will and had acquiesced to the same for 37 years. It is contented that the claim for declaration sought by the plaintiffs in accordance with the terms of the Will is filed after 34 years of the grant of probate by this Court and not having been filed within three years from the date of grant of probate of Will, the suit is barred by law of limitation.

84. In view of the said objection of limitation raised by the defendants in the written statement, this Court by an order dated 22nd September, 2016 framed an issue of limitation under section 9-A of the Code of Civil Procedure, 1908. In the written statement, the defendants also contended that the plaintiffs never contributed any amounts towards the repairs of the said structure “Villa Bemvinda” for more than 37 years or even did not contribute any share towards the municipal tax, N.A. taxes, estate duty and other expenses including maintenance which had been paid exclusively by the executor and the sole beneficiary under the said Will and after his demise by the defendant nos.1 to 7 especially Joseph D’Cunha.

85. In the written statement, the defendants denied the averments of the plaintiffs that the bequest of the said bungalow by the said Will dated 20th February, 1971 was conditional bequest or that the defendant nos.1 to 7 were holding the land and the bungalow for the benefit of all the parties or were constructive trustees in respect thereof. The defendant also contended that the said agreement was not an agreement for sale but was joint development agreement and therefore, the provisions of the Will were even otherwise not attracted. The defendants also denied that there was no bequest in respect of the land in favour of Joseph D’Cunha. The defendants strongly placed reliance on grant of probate dated 3rd July, 1980 in support of the submission that the said order of grant of probate was a judgment in rem and was binding the whole world.

86. A perusal of the order dated 22nd September, 2016 passed by this Court indicates that though in paragraph 5, it was observed by this Court that this was not a matter that required any evidence at all, the defendants thereafter had filed a Praecipe before this Court on 26th September, 2016, inter-alia praying for an opportunity to lead evidence. This Court accordingly issued a direction on 30th September, 2016 to the defendants to file affidavit of evidence, affidavit of documents and compilation of the defendants on the preliminary issue under section 9-A of the Code of Civil Procedure, 1908. The plaintiffs did not choose to lead any oral evidence though an opportunity was rendered by this Court. On 15th December, 2016, this Court recorded that the plaintiffs had not chosen to lead any evidence on the preliminary issue.

87. The defendants thereafter led evidence of one of the witness. On 24th February, 2017, this Court recorded the statement made by the learned counsel for the plaintiffs that within one week from the date of the said order, the plaintiffs would file the list of witnesses if the plaintiffs wish to lead evidence in rebuttal. On 2nd March, 2017, the plaintiffs through their learned counsel made a statement before this Court that the plaintiffs did not wish to lead any evidence in rebuttal. This Court recorded the said statement and closed the evidence on the issue under section 9-A of the code of Civil Procedure, 1908 framed by this Court.

88. On 15th November, 2016, the son of the original defendant no.1 filed an affidavit of evidence under Order XVIII Rule 4 of the Code of Civil Procedure, 1908. It is deposed that in the Probate Petition No.851 of 1979 filed by the executor under the said Will dated 20th February, 1971, in the schedule of assets, not only the house “Villa Bemvinda” was mentioned but also the immovable property admeasuring 765 square yards. The plaintiffs were fully aware of the Will as far back as in the year 1979-80 when the consent affidavits were filed in the probate proceedings in which the executor had contented that the said deceased had bequeathed land and building to him.

89. It is further deposed in the said affidavit that the plaintiffs were fully aware of the Will dated 20th February, 1971 of the late Andrew Satiro D’Cunha and they were not entitled to any legacy under the said Will save and except the monetary consideration payable under the said Will. The plaintiffs had accepted the monetary consideration under the said Will. It was deposed that the plaintiffs had not contributed any amount or not even addressed a single letter since last 36 years to the original defendant no.1 claiming a share in the immovable property. On 12th December, 1980, the name of the executor was also recorded in the property card in respect of the said immovable property.

90. The said witness was cross-examined by the learned counsel for the plaintiffs. In reply to question no.10, the said witness admitted that after Edwin D’Cunha migrated to England and all three daughters of the said deceased were married, Joseph D’Cunha the executor of the said Will appointed under the said Will was only the person residing with the deceased testator. In reply to question no.13, the said witness admitted that after the death of the deceased testator, the original defendant nlo.1 i.e. Joseph D’Cunha continued to occupy the ground floor portion of “Villa Bemvinda” as an executor under the Will of the said deceased testator. He paid all the outgoings in respect of the said “Villa Bemvinda” in his capacity as an executor under the said Will. He also admitted that the said property was transferred in the name of Joseph D’Cunha in his capacity as an executor under the said Will of the deceased testator.

91. In reply to question no.24, the witness answered that his brother Basil D’Cunha was residing in “Villa Bemvinda” at the time of death of his father Joseph D’Cunha. He admitted that during the life time of Joseph D’Cunha also, Basil D’Cunha was residing with Joseph D’Cunha as the member of his father’s family and continued to occupy the said property as the member of his father’s family after the death of his father - Joseph D’Cunha. He admitted that after the defendant nos.1 to 7 migrated to the different places and till the death of Joseph D’Cunha, none of the defendant nos.1 to 7 resided in the suit property. The said witness did not inform the plaintiffs before an application was made to mutate the names of the defendant nos.1 to 7 in the property register card. He had informed the concerned authority that his father was holding the suit property as an executor under the Will.

92. In reply to question no.43, the witness answered that when the defendant nos.1 to 7 took a decision to develop the suit property, they did not consent the plaintiffs for the same and that the said development agreement had been entered into by them with the defendant no.8 without the knowledge and consent of the plaintiffs. He also denied the suggestion that it was false to say that under the Will of Andrew Satiro D’Cunha, the entire land on which “Villa Bemvinda” was situated was also bequeathed to Joseph D’Cunha.

93. The question that arises for the consideration of this Court is whether the bequest in the said Will dated 20th February, 1971 executed by the said Andrew Satiro D’Cunha insofar as the immovable property is concerned was a conditional bequest or absolute. The question also arises for consideration of this Court is when the cause of action had arisen for filing a suit for the reliefs claimed in the plaint by the plaintiffs and consequently whether any part of the relief claimed by the plaintiffs is barred by law of limitation or not.

94. A perusal of the plaint in the suit indicates that in so far as the suit land is concerned, the Plaintiffs have prayed for an order and direction that the Plaintiffs have certain shares in the suit plot of land described in Exhibit 'B' to the plaint and have also prayed for partition of the said plot of land by metes and bounds. In so far as these two prayers in respect of the alleged share in the said plot of land is concerned, a perusal of the plaint indicates that it is the case of the Plaintiffs that the Will did not mention about the said plot of land and therefore, the said land devolved intestate in each of the five children in equal share in the plot of land. In paragraph 17 of the plaint, it is averred that the suit land was not bequeathed by the said deceased under the said Will and is governed by the intestate succession and all the children of the deceased would have an equal share in the said land. In paragraph 34 of the plaint, it is averred that the suit is not barred by law of limitation. The cause of action to file the suit allegedly arose on 29th March, 2014, when the Plaintiffs witnessed the board of defendant no.8 on the suit property. It is alleged that the suit has been filed within three years therefrom.

95. On the other hand, the case of the defendants is that the bungalow mentioned in the said Will of the deceased includes the land and in any event in the Testamentary Petition filed by the executor appointed under the said Will and the Testamentary Petition No.851/1979 in the schedule appended to the said Testamentary Petition, the land as well as the bungalow were shown as the properties of the said deceased and the probate was applied in respect of the said Will on the basis of the schedule appended to the said Testamentary Petition.

96. Since it is the case of the Plaintiffs themselves that the suit plot of land was not bequeathed by the said Will of the deceased and since the said property would be governed by intestate succession, this Court will have to decide as to when the period of limitation, the contention in so far as the prayer for declaration and partition in respect of the said part of the land is concerned commenced. It is not in dispute that the said deceased Mr. Andrew Satiro D'Cunha was the owner of the said plot of land. The said deceased died on 20.08.1977. The Petitioners were aware about the death of the said deceased. The Petitioners have also filed a consent affidavit in the Testamentary Petition filed by the executor appointed under the said Will dated 20.02.1971 i.e. in Testamentary Petition No.851/1979.

97. This Court in the judgment dated 14.10.2013, in Misc. Petition No.86 of 2013 which was filed by the Plaintiffs herein inter alia praying for revocation of probate granted by this Court on 03.07.1980 in favour of Joseph Anthony D'Cunha in respect of the Will and testament of the said deceased. This Court in the said judgment has rendered a finding that since the Plaintiffs herein were fully aware of the said Will, even if according to the Plaintiffs, the same was surrounded by suspicious circumstances, the Plaintiffs could have filed a separate proceedings for administration of estate of the said deceased or would have called upon the executor to take appropriate steps for administration of estate of the said deceased. This Court also rendered a finding that the consent affidavits of the legal heirs of the said deceased were filed along with the petition and signatures of such legal heirs were identified by Mr. Karande, retired Superintendent of this Court. The signatures on the said affidavits were attested by an Associate of this Court.

98. This Court rejected the submission of the learned counsel for the Plaintiffs herein that since the signatures of the executor who has filed the petition in person or parties on the consent affidavit were not identified by the Advocate it would amount to forgery. It is thus clear beyond reasonable doubt that the Plaintiffs herein were fully aware that the executor appointed under the said Will had included the said plot of land also in the said Testamentary Petition in which this Court had granted probate as far as back on 03.07.1980. The suit for declaration and seeking partition of the said plot of land on 26.04.2014 in prayer clauses (a) and (b) are thus expressly barred by law of limitation on this ground alone.

99. If according to the Plaintiffs, the said plot of land was not bequeathed by the said deceased in favour of any of the parties and that the part of the property had to be devolved according to the intestate succession, the Plaintiffs ought to have filed a suit for declaration and partition in respect of such property. The Plaintiffs ought to have filed a suit for partition in respect of such property within 12 years from the date of death of the said deceased. Admittedly, this suit has not been filed within 12 years from the death of the said deceased. Merely because the public notice was issued in the newspaper on 22.12.2012 by Joseph D'Cunha, Advocate for the third party a fresh cause of action for filing a suit for partition and declaration based on this public notice in so far as the suit plot of land is concerned, would not commence. The period of limitation in respect of the suit plot of land had expired much earlier.

100. Be that as it may, the executor appointed under the said Will in the Testamentary Petition filed in this Court i.e. 851/1979 in which the Plaintiffs or their predecessor in title had filed the consent affidavits, the said part of the plot of land was included in the schedule which would also indicate that the Plaintiffs or their predecessor in title were fully aware about the inclusion of the said plot of land and or their predecessor had given consent for grant of probate. The suit filed by the Plaintiffs after more than 34 years for seeking partition of the suit plot of land is expressly barred by law of limitation on that ground also. In my view, once the limitation for filing the suit has commenced, it does not stop unless there is an acknowledgment of liability or there is any part payment in view of Section 9 of the Limitation Act, 1963.

101. Except making bald averments in paragraph 34 of the plaint that the cause of action to file the suit arose on 29.03.2014 when the Plaintiffs witnessed the board of defendant no.8 on the suit property and that the suit has been filed within a period of three years therefrom, the Plaintiffs have not explained as to how the suit for partition and the declaration is within time.

102. Admittedly, in this case, pursuant to the order passed by the Division Bench, this Court had framed an issue of limitation on 22.09.2016. Both the parties were given opportunity by this Court to lead oral as well as the documentary evidence on the issue of limitation. It is not in dispute that the Defendants had examined the witness on the issue of limitation. Even after recording of evidence of the defendants, this Court had granted an opportunity to the Plaintiffs to lead evidence even in rebuttal. The Plaintiffs however declined to lead any oral evidence. This Court has recorded the statement made by the Plaintiffs not to lead any oral evidence on the issue of limitation either initially or at rebuttal. The defendants had in their written statement denied various averments made by the Plaintiffs and had raised a plea of limitation specifically.

103. This Court in the case of Naresh Lachmandas Aswani (supra) has held that initial onus to prove that the suit was filed within time is on the plaintiffs and thus the Plaintiff is required to lead his evidence on question of limitation. Since the plaintiff has failed to discharge this initial onus to prove that the suit is filed within time, the onus to prove is shifted on the defendants. The Supreme Court in the case of Union of India Vs Vasavi Co-op. Housing Society Ltd ., reported in 2014(2) ALL MR 415 (S.C.), has held that in a suit for declaration of title and possession of a land, the plaintiff has to make out his own case and not on the weakness, if any, of the defendants.

104. The Supreme Court in the case of Dilboo Vs Dhanraji (supra) has held that it is always for the party who files the suit to show that the suit is within time. It is held that where the suit is filed within the period of limitation, the Plaintiffs would have to aver and then prove that the suit was within the period of limitation. In the absence of any averment or proof to show that the suit is within the time, it is the Plaintiffs who would fail. It is held that whenever a document is registered, the date of registration becomes the date of deemed knowledge. In other cases, where the fact could be discovered by due diligence, then deemed knowledge would be attributed to the Plaintiff because the party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.

105. In the facts of this case, the Plaintiffs were duly aware of the Will executed by the said deceased and were also fully aware of the averments of the petition and schedule annexed thereto showing the said plot of land also as one of the properties of the said deceased. This Court in the said judgment in the case of revocation petition filed by the plaintiffs has held that the Testamentary proceedings are the proceedings in rem. This Court also rendered a finding in the said judgment that the Plaintiffs were fully aware about the said Will dated 20.02.1971. Various findings rendered by this Court in the said judgment have attained finality. The judgment of the Supreme Court in the case of Dilboo (supra) and the judgment of this Court in the revocation petition filed by the Plaintiffs apply to the facts of this case. I am respectfully bound by the said judgments.

106. The Madras High Court in the case of Ramanathapuram Market Committee (supra) has adverted to the judgment of this Court in the case of Martand Vs Radhabai, AIR 1931 Bom 97 in which it has held that it is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case. In my view, initial the onus to prove that the suit for declaration, partition and possession in respect of suit plot of land was within limitation, was on the Plaintiffs exclusively. Despite granting by this Court to the Plaintiffs opportunity to lead evidence at the first instance and also in rebuttal, the Plaintiffs have chosen not to lead oral or documentary evidence before this Court to prove that the suit was within the period of limitation. The Plaintiffs not having entered the witness box, in my view the Plaintiffs have failed to discharge the initial onus cast on them to prove that the suit was within the period of limitation. The Plaintiffs thus cannot be allowed to urge that the defendants have failed to prove that the suit was barred by law of limitation.

107. Be that as it may, in this case the defendants had examined the witness to prove that the suit filed by the Plaintiffs was barred by law of limitation. A perusal of the affidavit in lieu of examination in chief filed by the defendant no.1 dated 15.11.2016 clearly indicates that in paragraph 5 of the said affidavit, it is deposed by the said witness that in the schedule of assets of the said deceased mentioned in the probate petition no.851/1979 filed by the executor under the said Will, it had been mentioned therein that not only the house “Villa Bemvinda” but also the immovable property admeasuring 765 square metres yards. The plaintiffs were thus fully aware the fact as far as back in 1979-80 when the consent affidavits were filed in the said Testamentary proceedings. The said Testamentary proceedings were not only in respect of the said bungalow but also the entire land on which the said structure was situated.

108. In paragraph 19 of the said affidavit, the said witness has deposed that right from the date of death of the said deceased on 20.08.1977, the father of the witness who was a sole beneficiary of the immovable property under the said Will was the absolute owner of the immovable property to the knowledge of the Plaintiffs. The Plaintiffs however had not addressed even a single letter for last more than 36 years to the father of the witness claiming a share in the immovable property. It was further deposed that all taxes and outgoing in respect of the suit property were also borne by the said executor appointed under the said Will.

109. A perusal of the cross examination of the said witness clearly indicates that there was hardly any cross examination on most of the deposition made in lieu of examination in chief in respect of the issue of limitation. The said witness had specifically deposed that the said Will was acted upon. The said executor, who was the father of the said witness had paid monetary benefits to all the legal heirs who were provided testament under the said Will. There was cross examination on this issue on that part of the deposition also. There was no cross examination on the deposition that all the Plaintiffs have filed consent affidavits in the Testamentary petition filed by the father of the said witness in which the said plot of land was also included as property of the said deceased in the said Testamentary proceedings.

110. The substantial part of the cross examination of the said witness by the Plaintiffs was only on the issue that all the taxes and outgoing taxes were paid by the said executor in a capacity as an executor, he had applied for including his name in the property records as an executor of the said Will, the possession of the property of the said executor or other family members were in exclusive possession of the property held by the said executor in a capacity as an executor. In my view this part of the cross examination or deposition of the said witness accepts that the property taxes and other outgoing taxes were paid by the executor in a capacity as an executor or that he had applied for inclusion of his name in the property records or that he was in possession of the property as an executor would not assist the case of the Plaintiffs in so far as the issue of limitation is concerned. The Plaintiffs were required to prove their own case by leading oral as well as documentary evidence and to demonstrate before this Court that the suit filed by them was within the period of limitation.

111. The Supreme Court in the case of Rajasthan State Road Transport Corporation (supra) has held that a party has to plead the case and produce sufficient evidence to substantiate his submissions made in the plaint and in case the pleadings are not complete, the Court is under no obligation to entertain the plea. In absence of evidence, the Court is under no obligation to entertain the plea. In my view, the plea of limitation raised by the Plaintiffs and more particularly, in paragraph 34 of the plaint itself is very vague, without particulars and in any event not substantiated by leading evidence and thus such plea cannot be accepted by this Court. The principles laid down by the Supreme Court clearly apply to the facts of this case. I am respectfully bound by the said judgment.

112. The supreme Court in case of Iswar Bhai C. Patel (supra) has held that adverse inference shall be drawn against the party who refused to enter the witness box in order to rebut the allegations made against him or to support his pleadings. In my view, the principles laid down by the Supreme Court in the said judgment would apply to the facts of this case. The Plaintiffs not having entered the witness box to substantiate the averments made in the plaint on the issue of limitation or even in rebuttal after completion of the evidence of the defendants has failed to discharge the burden cast on the defendants. In my view, the suit, in so far as the prayer clauses (a) and (b) is concerned is thus expressly barred by law of limitation.

113. In so far as the judgment of this Court in the case of Meher Singh (supra) relied upon by the learned counsel for the Plaintiffs is concerned, a Division Bench of this Court in the said judgment has held that the determination of preliminary issue as provided in Section 9A has to be decided after giving opportunity to the parties to lead evidence. In my view, since the opportunity was given to the Plaintiffs to lead evidence but the Plaintiffs did not enter the witness box, the law laid down by the Division Bench of this Court would assist the case of the defendants and not the plaintiffs. Reliance placed by the Plaintiffs on the said judgment is totally misplaced.

114. In so far as the judgment of this Court in the case of Parmeshwari Devi Ruia (supra) relied upon by the learned counsel for the Plaintiffs is concerned, in the facts of that case a composite suit was filed for relief of administration of the estate of the deceased on the basis of specific cause of action emanating from execution of fraudulent consent terms and development agreement and conveyance deed in relation to the suit property, which was done by playing fraud on the plaintiff and other co-owners of the property. It is held that the cause of action for such action therefore has no relevance to the date of death of the owner and thus the date of death cannot be the starting point of limitation. Since it is the case of the Plaintiffs themselves that in so far as the suit plot of land is concerned, same shall be governed by the intestate jurisdiction, there is no question of any fraud alleged to have been committed by the defendants in so far as the said suit plot of land is concerned. The reliance placed by the learned counsel for the plaintiffs on the said judgment in Parmeshwari Devi (supra) is totally misplaced.

115. In so far as the judgment delivered by Full Bench of this Court, in Sajanbir Singh Anand (supra) relied upon by the learned counsel for the Plaintiffs is concerned, this Court had considered whether Article 110 of the Limitation Act, 1963 has any application to the suit for administration of estate of the deceased person. In the plaint, the Plaintiffs have not prayed for administration of the estate of the said deceased but has applied for declaration and partition in respect of the immovable property. The said judgment delivered by the Full Bench of this Court would not apply to the facts of this case.

116. In so far as the judgment of this Court in the case of Geeta Patel D'Souza (supra), relied upon by the learned counsel for the Plaintiffs is concerned, it is held by this Court in the said judgment that the executor or administrator as the case may be of a deceased person is mentioned for all the purposes and all the properties of the deceased vest in him as such. There is no dispute about this proposition of law laid down by this Court in the said judgment of interpretation of Sections 2(c), 2(h), 211 and 213 of the Indian Succession Act, 1925 and Section 2(11) of the Code of Civil Procedure, 1908. In my view, this judgment would be of no assistance to the Plaintiffs since it is the case of the Plaintiffs that the said plot of land was not bequeathed by the said deceased under the said Will to the executor appointed under the said Will. Similarly, the arguments advanced by Mr. Shah, learned counsel for the Plaintiffs that all the payments of outgoing taxes were paid by the executor in a capacity of an executor or the name of the executor was recorded in the property records or that he was holding the possession of the property as an executor under the said Will is of no significance. The Judgment of this Court in the case of Geeta Patel D'Souza (supra) clearly distinguishable in the facts of this case and would not support the case of the Plaintiffs.

117. In so far as the judgment of this Court in the case of Banubi w/o Sheikh Ibrahim (supra) relied upon by Mr. Shah, learned counsel for the Plaintiffs in support of his submission that mere entry of the name in the mutation register is not an indication of an adverse possession or one coowner is in exclusive possession cannot render his possession adverse to other co-owners not in possession would not apply to the facts of this case. In my view, there is no substance in the submission of Mr. Shah, learned counsel for the Plaintiffs that in so far as the suit plot of land is concerned, the possession of the executor of the Will in respect of said plot of land would be of no assistance to the Plaintiffs in so far as the issue of limitation in respect of plot of land is concerned in view of the specific case of the Plaintiffs that the same plot was not bequeathed under the said Will in favour of any party. The judgment of this Court in the case of Fulsing Ramsingh Rajput (supra) was clearly distinguishable in the facts of this case. In this case, the Plaintiffs are not claiming that the said plot of land was a joint property of all the parties to the suit but are claiming share in the said plot of land based on the case of intestacy in the said land.

118. In so far as the judgment of the Supreme Court in the case of Bhimabai Kambekar (supra) relied upon by Mr. Shah, learned counsel for the Plaintiffs is concerned, the Supreme Court has held that the mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. There is no dispute about this proposition of law. The defendants have not claimed the ownership based on the mutation entry in respect of the property in question is concerned.

119. In so far as the judgment of the Supreme Court in the case of Govindammal (supra) relied upon by Mr. Shah, learned counsel for the Plaintiffs is concerned, it is held by the Supreme Court that simply long possession is not a factor to oust a co-sharer but something more positive is required to be done. In the said judgment the defendants had raised a plea of adverse possession hostile to the interest of the Plaintiffs to her knowledge. The said judgment of the Supreme Court would not even remotely apply to the facts of this case and is clearly distinguishable on the facts of this case.

120. In so far as the prayer clause (d) is concerned, the Plaintiffs have prayed for a preliminary decree under Order XX Rule 18 of the Code of Civil Procedure, 1908. Since this Court is of the view that the prayer for declaration, partition and possession prayed in prayer clauses (a) and (b) are barred by law of limitation, this Court cannot pass any preliminary decree under Order XX Rule 18 of the Code of Civil Procedure, 1908 in respect of the said plot of land described in Exhibit 'B' in the plaint. This prayer is also barred by limitation.

121. In so far as the prayer clause (e) is concerned, the Plaintiffs have prayed for the value of the share, right, title and interest of the Plaintiffs in the said plot of land in the alternative, to prayer clauses (a) and (b). For the similar reasons, this Court cannot grant prayer clause (e) also being barred by law of limitation.

122. In so far as the prayer clause (f) is concerned, the Plaintiffs have prayed for an order and declaration that the defendant no.8 has no right, title or interest in the said land and bungalow and for an order of decree to hand over back the possession of the said land and bungalow. In my view, since the prayer clauses (a), (b), (d) and (e) in respect of the said plot of land are barred by law of limitation, the prayer for handing over the possession of the plot of land is also barred by law of limitation for the similar reasons.

123. In so far as the possession of bungalow which is part of the prayer clause (f) is concerned, and the prayer for an order and decree of payment of Rs.36,25,00,000/- prayed in prayer clause (g) is concerned, it is not in dispute that the said Will dated 20.02.1971 executed by the said deceased has been probated by this Court as far as back as on 03.07.1980. This Court has already rendered a finding that the Plaintiffs had filed consent affidavits and Testamentary petition filed by the executor appointed under the said Will. This Court has already dismissed the Misc. Petition filed by the Plaintiffs i.e. Misc. Petition No.86/2013 by a detailed judgment dated 14.10.2013 which has attained finality. This Court had also rendered a finding in the said judgment that the Plaintiffs were fully aware of the said Will and had also filed consent affidavits in the said petition.

124. However, in so far as the said bungalow is concerned, a perusal of the plaint indicates that it is the case of the Plaintiffs that by the said Will dated 20.02.1971, the said deceased had bequeathed the said bungalow to one of his sons Joseph D'Cunha i.e. father of the defendant nos.1 to 4 with a condition that if the said bungalow would be sold then the sale proceed after deducting expenses ought to divide into six shares, two of which would go to the said Joseph D'Cunha i.e. father of the defendant nos.1 to 4 and other children i.e. original plaintiff nos.1 and 2, Edwin D'Cunha and Annie D'Souza who would get one share each. It is the case of the Plaintiffs that in so far as their claim in the bungalow or monetary benefit arising out of the said bungalow is concerned, the cause of action has arisen only when the Plaintiffs witnessed a board of the defendant no.8 on the suit property.

125. It was also averred by the Plaintiffs in the plaint that it was not within the knowledge of any of the Plaintiffs that the father of the Defendant nos.1 to 4 had filed the said Testamentary Petition no.851/1979 for probate of the last Will dated 20.02.1971 in this Court or that this Court had granted probate in respect of the last Will and Testament dated 20.02.1971 on 03.07.1980. It is also the case of the Plaintiffs that on 22.12.2012, the Plaintiffs came across a public notice dated 14.12.2012 appearing in Free Press Journal stating that the defendant no.1 to 7 had entered or proposed to enter into an agreement with certain undisclosed developers to jointly develop the suit property. In paragraph 17 of the plaint, it is averred that the said bungalow was though bequeathed in favour of Joseph D'Cunha by the deceased testator, the said bequest was not an absolute bequest, but was a bequest with a condition attached. The executor appointed under the said Will, was also a beneficiary to the said bequest subject to a condition that in the event that the said Joseph D'Cunha were to sell the property, each one of his other children would be entitled to a share and the said Joseph D'Cunha would be entitled of two shares.

126. On the other hand, the defendants strongly contended that in the said Will left by the said deceased testator, it was clearly stated that in his previous Will, the said testator had bequeathed his house “Villa Bemvinda” to his son Joseph D'Cunha and Edwin jointly, but now Edwin has bou

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ght a house and will reside permanently in England, he now gives and bequeaths “Villa Bemvinda” to his son Joseph. It is the case of the defendants that the said part of the bequest was an absolute bequest in favour of Joseph D'Cunha, father of the defendant nos.1 to 4. 127. In so far as further direction in the said Will that in the event of the said house is sold, the sale proceeds after deducting all taxes should be divided into six shares, two of which to Joseph D'Cunha and other children, one share each is concerned, it is strongly contended by the defendants that this part of direction is repugnant and contrary to the earlier part of the bequest bequeathing the said bungalow exclusively to Joseph D'Cunha, the father of the defendant nos.1 to 4 and thus cannot be relied upon by the Plaintiffs or unforeseeable. 128. The witness examined by the defendants has filed an affidavit in lieu of examination in chief on this issue also. The defendants also examined a witness to prove that the said bequest bequeathing the said bungalow in favour of father of the defendant nos.1 to 4 was an absolute bequest. In paragraph 8 of the said affidavit in lieu of examination in chief filed by the defendant no.1 the said witness has referred to a letter dated 02.01.2013 addressed by the defendants through their Advocate stating that the said bequest was an absolute bequest bequeathing the said bungalow in favour of Joseph D'Cunha was absolute bequest. The said stand was taken by the defendants in the other correspondence also. 129. A perusal of the cross examination of the said witness by the learned counsel for the Plaintiffs indicates that except putting a suggestion and more particularly in question 38 that it was false to say that under the Will of deceased testator an absolute bequest was made in favour of Joseph D'Cunha, father of the defendant no.1 to 4, there was no other cross examination on the said deposition of defendants' witness. The said witness denied the said suggestion put to him by the Plaintiffs' counsel. The Plaintiffs did not lead any independent evidence in support of their case that the said bequest bequeathing the bungalow to Joseph D'Cunha was a conditional bequest. In my view, since the Plaintiffs put a suggestion to the witness examined by the defendants that the said bequest was a conditional bequest and the deposition made by the said witness in that regard was false, the Plaintiffs ought to have examined a witness to prove their case that the said bequest was a conditional bequest and the cause of action for claiming their share in the said proceeds of the said bungalow would commence only if the defendants would have sold such bungalow in terms of the bequest made by the said deceased testator. 130. Admittedly, the Plaintiffs have not led any evidence to prove that there was a conditional bequest in so far as the said bungalow is concerned, or to prove as to when the cause of action had arisen for filing a suit for claiming share in the said bungalow or for consideration mentioned in the said agreement between the defendant nos.1 to 7 and 8. In so far as this prayer is concerned, since the plaintiffs did not enter the witness box and did not discharge the initial onus, the onus on the defendants did not shift. 131. This Court thus shall now deal with the submission made by the parties whether on plain interpretation of the bequest made in the said Will, it could be held that the said bequest in respect of the said bungalow was a conditional bequest or was absolute bequest. Paragraphs 4 to 6, as set out in the Will, which is admittedly accepted by the plaintiffs and in any event has been probated by this Court, are as under:- “In my previous Will I had bequeathed my house “Villa Bemvinda” to my son Joseph and Edwin jointly, but now as my son Edwin has bought a house and will reside permanently in England, I now hereby give and bequeath “Villa Bemvinda” to my son Joseph. It is my earnest desire that the house “Villa Bemvinda” should be disposed off but retained in my family and hence I hereby direct my son Joseph to pay my other four children, namely Annie, Lydia, Edwin and Ivy a sum of Rupees Five Thousand each. In the event of the house being sold, the sale proceeds after deducting the expenses, should be divided into six shares, two of which should be to Joseph and the other children one share each.” 132. A perusal of the aforesaid paragraph in the Will clearly indicates that in 4th paragraph of the Will, the deceased had directed that in his previous Will, he had bequeathed his house “Villa Bemvinda” to his son Joseph D'Cunha jointly. Since his son Edwin had already bought a house and would reside permanently in England he had now given and bequeathed the said “Villa Bemvinda” to his son Joseph D'Cunha. In 5th paragraph of the said Will, the said deceased further stated that it was his earlier desire that the house “Villa Bemvinda” should not be disposed off but retained in his family and directed the executor to pay his other four children namely Annie, Lydia, Edwin and Ivy a sum of Rs.5000/- each. It is clear that the said monetary benefit was not given to the executor Joseph who was already given and bequeathed the house “Villa Bemvinda” exclusively. It is proved beyond reasonable doubt in the Misc. Petition that the said executor had paid the said monetary bequest to Annie, Lydia, Edwin and Ivy. There was also no cross examination on this part of the deposition in the affidavit in evidence of defendant no.1. 133. In the 6th paragraph of the said Will, it was provided that if the house is sold, the sale proceeds after deducting the expenses should be divided into six shares, two of which should be to Joseph and other children, one share each. It is thus clear that in so far bequest in respect of the said house “Villa Bemvinda” is concerned, it was earlier bequeathed in favour of Joseph and Edwin in view of Edwin having purchased a house and would reside permanently in England, the said deceased Joseph clearly bequeathed the said “Villa Bemvinda” only to his son Joseph who was the father of the defendant nos.1 to 4. The said bequest was a separate bequest made in the 4th paragraph of the said Will. 134. In 5th paragraph of the Will, the said deceased expressed his desire that the house “ Villa Bemvinda” should not be disposed off but shall be retained in his family. In so far as the bequest in paragraph 6 is concerned which is sought to be strongly relied upon by the Plaintiffs to contend that the bequest in respect of house “Villa Bemvinda” was a conditional bequest is concerned, the said direction issued by the testator is separately provided in 6th paragraph of the Will. If the said testator would have intended to impose any such condition, he would have imposed such condition in 4th paragraph itself and not after giving absolute bequest in respect of the said bungalow in favour of Joseph D'Cunha i.e. the father of the defendant nos.1 to 4 and not in 6th paragraph. In my view, any such condition imposed on testator on enjoyment of the property bequeathed in favour of any person has to be part of the main clause to make it conditional bequest and not by a separate clause. 135. The Supreme Court in the case of Madhuri Ghosh (supra) has held that where an absolute bequest has been made in respect of certain property to certain persons,then a subsequent bequest made qua same property later in same Will to other persons will be of no any effect. It is held that absolute interest would prevail upon the subsequent bequest which is repugnant to the earlier bequeath. The Supreme Court considered the paragraph 2 of the Will by which the bequest was made in favour of the widow and the elder daughter of the testator and has held that the said bequest was an absolute right to the property. There was no word of limitation in that paragraph. Therefore, the Supreme Court rejected the contention of the opponent in the matter that such clause would not be construed as an absolute bequest. The principles laid down by the Supreme Court in Madhuri Ghosh (supra) would apply to the facts of this case. 136. In my view, Mr. Menezes, learned counsel for the defendants is right in his submission that the bequest in so far as the bungalow “Villa Bemvinda” is concerned, the said bequest in the said Will dated 20.02.1971 in favour of Joseph D'Cunha was an absolute bequest and thus condition imposed in 6th paragraph of the said Will would not override the absolute bequest made by the said deceased in favour of Joseph D'Cunha. The condition imposed in 6th paragraph of the Will being repugnant of the absolute bequest made in 4th paragraph of the Will, thus cannot be considered as binding upon the executor and is liable to be ignored. 137. Since this Court is of the view that 4th direction issued in the Will bequeathing the said bungalow “ Villa Bemvinda” in favour of executor Joseph D'Conha, the father of the defendant nos.1 to 4 was absolute bequest, the cause of action for claiming any share in the said bungalow and for filing a suit for such share in the said bungalow or for monetary benefit commenced on the date of granting probate in respect of the said Will by this Court on the said Will dated 20.02.1971 on 03.07.1980. It is already held that the Plaintiffs had filed a consent affidavit in the said Testamentary Petition and were fully aware of the said Will. The Plaintiffs however filed this suit for claiming share in the said bungalow or in the alternative monetary benefit only on 26.02.2014 which is ex facie barred by law of limitation. 138. In so far as the other judgments on the issue of limitation relied upon by Mr. Menezes, learned counsel on the part of the compilation tendered across the bar are concerned, those judgments would assist the case of the defendants. 139. In so far as the judgments relied upon by Mr. Menezes, learned counsel for the defendants on the issue that the bungalow “Villa Bemvinda” includes the land are concerned, this Court need not go into this issue in view of this Court having held that the prayer for share in the plot of land as well as in the bungalow “Villa Bemvinda” are barred by law of limitation by dealing with those prayers separately. 140. I, therefore, pass the following order : (a) The reliefs claimed in prayer clauses (a), (b), (d), (e), (f) and (g) are barred by law of limitation. (b) The issue of limitation framed by this Court is answered accordingly.
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28-04-2020 Kane Joseph Manoah Versus The Queen Court of Appeal of New Zealand
20-03-2020 Jollyamma Joseph @ Jolly Versus The State of Kerala Represented by Public Prosecutor, High Court of Kerala, Ernakulam & Another High Court of Kerala
17-03-2020 K.T. Joseph & Another Versus Revenue Divisional Officer, Kottayam & Others High Court of Kerala
11-03-2020 Shyla @ Shymol Kamalasanan & Another Versus Joseph High Court of Kerala
11-03-2020 M/s. Logical Developers Private Limited, New Delhi, Represented by Its Authorized Signatory Jose Joseph, Kochi & Another Versus M/s. Muthoot Mini Financiers Private Limited, Pathanamthitta, Represented by Its Chairman & Managing Director Roy M. Mathew & Others High Court of Kerala
10-03-2020 Shail Jiju Versus Biju Joseph & Another High Court of Kerala
09-03-2020 V.Y. Thomas @ Sajimon Versus V.Y. Joseph High Court of Kerala
03-03-2020 Jet Airways (India) Ltd., represented by its Airport Manager Versus Thomas Joseph Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
28-02-2020 Sabu Joseph Versus Kerala State Election Commission, Represented by Its Secretary, State Election Commission Office, Thiruvananthapuram & Another High Court of Kerala
20-02-2020 General Manager, Hmt Machine Tools Ltd., Through Its Deputy General Manager (Hr) Shri Joseph Pradeep Keshri Minz, Ajmer (Raj) & Others Versus Controlling Authority, Under Payment of Gratuity Act, 1972 & Assistant Labour Commissioner (Central), Ajmer (Raj) & Others High Court of Rajasthan Jaipur Bench
20-02-2020 Lalu Joseph Versus The State of Kerala, Represented by The Public Proseucutor, High Court of Kerala, Ernakulam for The Circle Inspector of Police, Nilambur High Court of Kerala
19-02-2020 Marthoma Syrian Church, Represented by Most Rev. Dr. Joseph, Marthoma Metropolitan, Thiruvalla & Others Versus Jessie Thampi (Died) & Others High Court of Kerala
19-02-2020 Joy Joseph Versus Desai Homes represented by V.R. Desai & Another Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
13-02-2020 E. Arputhadhas Versus E. Joseph (Died) & Others Before the Madurai Bench of Madras High Court
10-02-2020 Tonymon Joseph Versus General Manager, Southern Railway, Chennai & Others High Court of Kerala
31-01-2020 Kolli Venkata Mohana Rao & Another Versus Joseph Christian Krishnaraj (died) & Others High Court of Judicature at Madras
29-01-2020 J. Xavier Versus Joseph High Court of Judicature at Madras
20-01-2020 K. John & Others Versus John Joseph & Others High Court of Kerala
14-01-2020 Joseph Yemmiganoor @ Kadakoti Versus State, Through Police Inspector & Another In the High Court of Bombay at Goa
19-12-2019 Joseph Tajet Versus State of Kerala Represented by Chief Secretary To Government, Government Secretariat, Thiruvananthapuram High Court of Kerala
12-12-2019 Nobby M. George, Changanassery Tlauk, Rep. by Power of Attorney holder his mother Alice George, Changanassery Versus Jossy Joseph, Kuttanad Taluk, Now Staying With Her Sister Raji Joseph, Erskine Court, Nanuet 10954, New York, USA High Court of Kerala
10-12-2019 Joseph Charles & Others Versus State, Rep. by Inspector of Police, All Women Police Station-South, Madurai & Another Before the Madurai Bench of Madras High Court
06-12-2019 P.T. Joseph, Proprietor, Cheryl Enterprises, Elamakkara, Ernakulam Versus Kabeer Husain Minanna & Others High Court of Kerala
28-11-2019 Joseph Mathai @ Jose Versus State of Kerala, Thiruvampady Police Station, Crime No.199/07 High Court of Kerala
28-11-2019 M. Jeyamary Versus M. Joseph Before the Madurai Bench of Madras High Court
18-11-2019 Deepa Rachal George Versus Sherin Annie Joseph & Others High Court of Kerala
14-11-2019 Rev. Fr. L. Joseph Paulraj Versus St. Mary's Cathedral Trust Rep. by its Secretary-cum-Treasurer Rev. Fr. Devaraj & Others High Court of Judicature at Madras
11-11-2019 Joseph Antony Gerard Versus J.L. Malarvizhi High Court of Judicature at Madras
04-10-2019 IC 29547 L Bobby Joseph Versus Union of India & Others Supreme Court of India
26-09-2019 Priya Versus Biju Joseph High Court of Kerala
19-09-2019 M.M. Joseph Versus Yoonus & Others High Court of Kerala
19-09-2019 M/s. Kotak Mahindra Bank Ltd., Egmore, Chennai, Represented by Chief Manager, Stephen Joseph, Kochi Versus Joseph Mohanan & Another High Court of Kerala
17-09-2019 Alwin Joseph Versus The Superintendent of Police, Erode & Another High Court of Judicature at Madras
06-09-2019 Sushil Joseph Versus The Deputy Commissioner of Labour-II (Authority under the Payment of Wages Act) Chennai & Others High Court of Judicature at Madras
27-08-2019 Paul Joseph Shirole & Another Versus The State of Maharashtra High Court of Judicature at Bombay
26-08-2019 B.S. Shabana Versus Kevin Joseph Selvadoray High Court of Karnataka
22-08-2019 State of Kerala, Represented by deputy Commissioner of State Tax (Law), State Goods & Service Tax Department, Ernakulam Versus Raphel T. Joseph High Court of Kerala
21-08-2019 M/s Popular Vehicles & Services Ltd., V.H. Kammath Towers, Kadathy, Muvattupuzha Versus James K. Joseph & Another Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
09-08-2019 Charly Joseph Versus State of Kerala, Represented by The Secretary, Industries Department, Thiruvananthapuram & Others High Court of Kerala
09-08-2019 Joseph Thomas @ Jose & Others Versus State of Kerala, Represented by Public Prosecutor, High Court of Kerala, Ernakulam High Court of Kerala
30-07-2019 Sijo Joseph Versus The Transport Commissioner, Vazhuthacaud, Thiruvananthapuram & Others High Court of Kerala
29-07-2019 Geemol Joseph, Represented by her Power of Attorney holder Losan Joseph Versus Kousthabhan & Another High Court of Kerala
19-06-2019 Joseph Thomas @ Thampi Kannanthanam & Others Versus Molly George @ Molamma High Court of Kerala
14-06-2019 C. Joseph Versus The District Collector, Coimbatore & Others High Court of Judicature at Madras
14-06-2019 V.M. Joseph Versus Kadanad Grama Panchayath, Represented by Its Secretary, Kottayam & Others High Court of Kerala
11-06-2019 Clarence Joseph Bhengra Versus State of Jharkhand High Court of Jharkhand
07-06-2019 L'Oratoire Saint-Joseph du Mont-Royal Versus J.J Supreme Court of Canada
30-05-2019 D.B. Jatti & Another Versus Kambam Sudhir Joseph Reddy & Another High Court of Karnataka
30-05-2019 Thresiamma Manshoven Versus Manshoven Jacques Joseph High Court of Kerala
29-05-2019 Asha, Rep. by the Power of Attorney Holder Jonh D'cruz Versus P.K. Joseph & Another High Court of Kerala
26-04-2019 Viji Joseph & Another Versus P. Chander & Others High Court of Judicature at Madras
25-04-2019 Management of St. Joseph of Cluny Montessori School, Pondicherry Versus The Director of School Education, Government of Pondicherry & Others High Court of Judicature at Madras
09-04-2019 Joseph Santhosh Kottarathil Alexander & Others Versus The Superintendent of Customs (Aiu), Cochin International Airport, Nedumbassery, Kochi & Others High Court of Kerala
29-03-2019 Joseph Peter & Others Versus Elizabath Manuel & Others High Court of Kerala
25-03-2019 Commissioner, West Arni Panchayat Union, Thiruvannamalai Versus St. Joseph Social Welfare Centre, Rep by Brother & Others High Court of Judicature at Madras
14-03-2019 Joseph Saldhana Versus State of Karnataka, Represented by the Deputy Commissioner & Others High Court of Karnataka
08-03-2019 K.A. Joseph Versus The District Collector, Kottayam & Others High Court of Kerala
07-03-2019 Sebastian Joseph Versus The Governor, Reserve Bank of India, Mumbai Others High Court of Kerala
06-03-2019 James Joseph Murren as Trustee of the James J Murren Spendthrift Trust & Daniel Lee Versus Glenn Schaeffer Court of Appeal of New Zealand
27-02-2019 Tushar Versus Internal Complaints Committee Christ University, Rep. by its Presiding Officer Dr. Mayamma Joseph & Others High Court of Karnataka
22-02-2019 Shali Joseph & Another Versus S.K. Sasikumar High Court of Kerala
19-02-2019 P.B. Dineshan Pillai Versus Joseph @ Jose High Court of Kerala
18-02-2019 Joseph Versus State of Karnataka & Others High Court of Karnataka
13-02-2019 HDB Financial Services Limited, Ernakulam, Represented by Its Legal Officer (Kerala) & Authorized Officer, A.C. Pratheesh Versus M/s. Kings Baker Private Limited, Kottayam, Represented by Its Proprietor, Tom.P. Joseph & Others High Court of Kerala
08-02-2019 Malabar Granites, Palakkad, Represented by Its Managing Partner, M.K. Joseph Versus The Secretary , Koppam Grama Panchayat, Palakkad & Others High Court of Kerala
31-01-2019 Sami Labs Limited Versus M.V. Joseph High Court of Karnataka
29-01-2019 P. Santhosh Joseph & Another Versus The Principal Secretary to Government, Municipal Administration & Water Supply Dept., Chennai & Others Before the Madurai Bench of Madras High Court
24-01-2019 Malabar Granites, Represented by Its Managing Partner, M.K. Joseph Versus The Secretary, Koppam Grama Panchayat & Others High Court of Kerala
24-01-2019 Thomas Joseph Versus Caculo Automotive Pvt. Ltd. & Another Goa State Consumer Disputes Redressal Commission Panaji
24-01-2019 The Commercial Tax Officer, Changanassery & Others Versus M/s. Hotel Breezeland Ltd., Changanassery, Represented by Its Managing Director Joseph Cherian & Another High Court of Kerala
23-01-2019 M/s. Sanjose Parish Hospital, Represented by its Director, Rev. Fr. Joseph (Noby) Ambookan & Others Versus The Commercial Tax Officer, Chavakkad, Thrissur & Others High Court of Kerala
22-01-2019 Joseph A. Kennedy Versus Bremerton School District (2019) Supreme Court of United States
22-01-2019 Joseph A. Kennedy Versus Bremerton School District(2019) Supreme Court of United States
18-01-2019 M/s. Sanjose Parish Hospital, Thrissur, Represented by Its Director, Rev. Fr. Joseph (Noby) Ambookan & Others Versus The Commercial Tax Officer, Thrissur & Others High Court of Kerala
14-01-2019 Joseph Velivil Versus Nucleus Premium Properties Pvt. Ltd., represented by its Managing Director Nishad N.P, Ventura Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
11-01-2019 Suo Motu, K. Ani Joseph & Others Versus State of Kerala & Another High Court of Kerala
11-01-2019 Joseph George & Another Versus State of Kerala, Represented by The Chief Secretary, State Secretariat, Thiruvananthapuram & Others High Court of Kerala
03-01-2019 The Assistant General Manager & Authorized Officer, Union Bank of India Consortium, Ernakulam Main Branch Versus The Dewa Investors Association, Ernakulam, Represented By Its President Prince Joseph & Others High Court of Kerala
19-12-2018 The Refugee Appeal Board of South Africa & Others Versus Paul Joseph Mutombo Mukungubila Supreme Court of Appeal of South Africa
14-12-2018 Suriyur Vivasayigal Pathukappu Sangam, Rep. by its President, T. Ramaraj, Trichy Versus LA Bottlers Private Ltd., Represented by its Managing Director, Joseph Francis, Thiruchirappalli & Others Before the Madurai Bench of Madras High Court
13-12-2018 Stella Joseph & Another Versus The Regional Passport Officer, Regional Passport Office, Bengaluru & Others High Court of Kerala
13-12-2018 K.A. Joseph, Kannur District & Another Versus South Indian Bank Ltd, Kannur & Another Debts Recovery Tribunal Ernakulam
29-11-2018 Alphonsa Joseph and Others V/S Anand Joseph High Court of Kerala Ernakulam Bench
30-10-2018 Tomy Joseph Versus Smitha Tomy High Court of Kerala
29-10-2018 G. Bhagavat Singh Versus Manoj Joseph & Others High Court of Kerala