AS/482/2024 of Smt. Usha Harishingani @ Ushaben Vs Y. Praneeth on 9 September 2026

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT: HYDERABAD

HON’BLE SRI JUSTICE K. LAKSHMAN AND HON’BLE SMT. JUSTICE K. SUJANA

APPEAL SUIT No.482 OF 2024 (CNR No. HBHC010481592024)

Reserved on: 13.08.2026

Pronounced on:09-09-2026

Uploaded on :10-09-2026

Between:

Mrs. Usha Harishingani @ Ushaben & another .. Appellants

Vs.

Mr. Y. Praneeth

.. Respondent

The Court delivered the following:

JUDGMENT: (Per Hon’ble Sri Justice K. Lakshman)

Heard Mr. A. Venkatesh, learned Senior Counsel representing Mr. Pramod Malgi, learned counsel for the appellants and Mr. Shiva Santosh Yelamanchili, learned counsel representing Mr. S. Samba Siva Rao, learned counsel for the respondent.

2. This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 (for short ‘CPC’), assailing the order dated 21.06.2024 in I.A. No.617 of 2023 in O.S. No.14 of 2023 passed by learned I Additional District Judge, Rangareddy District at L.B. Nagar, wherein learned trial Court allowed an application filed by the defendant under Order VII Rule 11 of the CPC and rejected the plaint.

3. The appellants herein are the plaintiffs in O.S. No.14 of 2023, while the respondent is the defendant therein. They filed the said suit against the respondent herein seeking declaration of title, recovery of possession, and to declare sale deed bearing document No.8536 of 2003, dated 31.12.2002 as null and void and also not binding on them in respect of the agricultural land admeasuring Acs.14.29 guntas in Survey No.308, situated at Poppalguda Village, Rajendranagar Mandal (Old) and Gandipet Mandal (New), Rangareddy District, which is hereinafter referred to as ‘suit schedule land’.

4. For the sake of convenience, the parties are hereinafter referred to as they were arrayed in O.S. No.14 of 2023.

5. In the said suit, the respondent herein - defendant filed an Interlocutory Application vide I.A. No.617 of 2023 under Order VII Rule 11 (a) & (d) of the CPC, to reject the plaint contending as follows:

i. As per Section 3 read with Articles - 56, 58, 59 and 65 of the Limitation Act, 1963, the suit was not filed within the time from the date of knowledge of the plaintiff as is evident from the plaint document Nos.1, 2, 3 and 10, which are of the year 2003 and 2006 respectively. Thus, suit is barred by limitation.

ii. The alleged Will filed as document No.4 along with the plaint was executed in Bombay, Maharashtra. Therefore, probation of Will is mandatory. It was not probated in terms of Section 57

(a) read with 213 (1)(i) of the Indian Succession Act, 1925 (for short ‘Act, 1925’). No right as executor or legatee can be established in any Court of Justice, unless a Court of Competent jurisdiction in India (in this case, the High Court at Bombay) grants a probate of the said Will. Thus, a probate had to necessarily be obtained before the High Court at Bombay in respect of the said Will before filing the suit.

iii. There is no cause of action and the plaintiffs have no right of whatsoever over the suit schedule property. The plaintiffs have resorted to clever drafting of the plaint by creating an illusion of cause of action by setting up a stranger i.e., the plaintiffs alleged predecessor-in-title whose name Santdas is similar to that of the

Sanad Holder, but the said Sanad Holder is Santdas Lekhraj as per document Nos.1 and 2 appended to the plaint and not Santdas Lekhraj Choithramani as alleged in the plaint and in the Will filed along with plaint as document No.4. Moreover, there is no whisper or description of the suit schedule property in the Will dated 12.10.1992 filed along with plaint as document No.4. The said Santdas Lekhraj Choithramani mentioned about his flat in Bandra specifically with details and explained how and when it is to be enjoyed and there is no reason to not mention about land admeasuring Acs.14.29 guntas at Poppalguda Village. The said Will does not refer about any property in Poppalguda Village or in Hyderabad or Andhra Pradesh State to even allow the plaintiffs to plead that the Santdas Lekhraj Choithramani owned the suit schedule property. Therefore, the plaintiffs have no cause of action to file the suit to claim any rights over the suit schedule property.

6. The plaintiffs filed counter opposing the aforesaid application contending as follows:

i. With regard to limitation, the plaintiffs have specifically mentioned in the plaint that for the first time in first week of August, 2022, they came to know that the defendant had obtained a sale deed dated 05.07.2003 in respect of the suit schedule property, and on learning the same, they obtained copy of sale deed and mutation proceedings. The sale deed dated 31.12.2002 and registered on 05.07.2003 reveals that the same was executed by fictitious persons in a fraudulent manner and fraud vitiates everything. Therefore, the suit is filed within time from the date of knowledge.

ii. With regard to cause of action, the plaintiffs have specifically mentioned that firstly when Santdas Lekhraj was granted Sanad on 21.11.1967 and the plaintiffs for the first time in first week of August, 2022 came to Hyderabad and on their visit, they were surprised to notice that the defendant erected the compound wall taking advantage of COVID-19 pandemic situation and earlier to that, it was all along open and vacant land and thereby encroached the suit schedule land. The cause of action also arose when the plaintiffs obtained the sale deed dated 31.12.2002, which fact was learnt for the first time by them only in the first week of August, 2022. Further, on 15.12.2022, when they tried to enter the suit schedule property, the defendant’s security personnel on the basis of a fraudulent sale deed, did not allow them to visit the suit schedule property. Hence, the said pleadings constitute a valid cause of action for filing the suit.

iii. Further, the suit schedule property is situated within the State of Telangana. Therefore, the proceedings of probate are not applicable to the State of Telangana as the property is situated within the limits of this Court, and not within the limits of Bombay.

iv. Santdas is the son of Lekhraj Chaitramani and Chaitramani is their surname. All these facts can be considered only during the course of trial. v. Cause of action is purely bundle of facts and, therefore, the same can be looked into only during the course of trial.

7. After hearing both sides, vide order dated 21.06.2024, learned trial Court allowed the said I.A. No.617 of 2023, rejecting the plaint holding that:

i. Without getting the subject Will probated, plaintiff No.1 would not be in a position to establish her right under the Will. Plaintiff No.1, now, is barred from obtaining Probate as the period of limitation has elapsed. Therefore, the plaintiffs may not be able to file the suit based on the Will dated 12.10.1992. It is doubtful as to whether the probate would be granted at all in respect of the suit schedule property as the same is not mentioned in the said Will. ii. Though the suit for cancellation of registered sale deed executed in favour of the defendant is not barred by law of limitation, obtaining of Probate of the Will, which is mandatory for filing the suit, is not possible as the same is barred by law of limitation.

iii. The cause of action for the suit, based on Will exists only when the Probate is obtained for the said Will and in the absence of such Probate, it cannot be said that cause of action exists for the plaintiffs to file the suit. The simple test is whether the plaintiffs can claim any right without obtaining the Probate. If they cannot, the Court shall hold that there exists no cause of action for the suit.

8. Challenging the said order dated 21.06.2024, the plaintiffs preferred the present appeal.

9. Both learned counsel for the appellants - plaintiffs and the respondent - defendant made their submissions extensively.

10. Learned Senior Counsel appearing for the plaintiffs placed reliance on the principle laid down by the Hon’ble Supreme Court in Binapani Kar Chowdhury v. Sri Satyabrata Basu1 and Sanjay Sharma alias Sanjay Bhardwaj v. Krishnadhan Khaware.2

11. Like-wise, learned counsel appearing for the defendants placed reliance on the principle laid down in Ravinder Nath Agarwal v. Yogender Nath Agarwal3; Clarence Pais v. Union of India4; Mrs. Chandra (died) v. Komala5; Dhiraj Dutta v. Anirban Sen6; Kunvarjeet Singh Khandpur v. Kirandeep Kaur7; T. Kaliamurthi v. Five Gori Thaikkal Wakf8; Thirumalai Chemical Ltd. v. Union of India9; Km. Kr. Kr.Ramanathan Chettiar v. N. M. Kandappa

1. (2006) 10 SCC 442

2. 2026 SCC OnLine SC 1337

3. (2021) 15 SCC 282

4. (2001) 4 SCC 325

5. A.S. No.132 of 2013 (Mad-DB)

6. 2026 SCC OnLine SC 996

7. (2008) 8 SCC 463

8. (2008) 9 SCC 306

9. (2011) 6 SCC 739

Goundan (D)10; Rajendra Bajoria v. Hemant Kumar Jalan11; Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman v. Ponnaimman Educational Trust represented by its Chairperson/Managing Trustee12; Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle13; Ramisetty Venkatamma v. Nasyam Jamal Saheb14 and T. Arivandandam v. T.V. Satyapal15.

12. In view of the aforesaid rival submissions, as discussed above, it is apt to note that the defendants filed the aforesaid I.A. to reject the plaint on the ground that the suit is barred by limitation; there is no cause of action; and that the alleged Will based on which the plaintiffs have laid their claim is not probated, which is mandatory in terms of Section 57 (a) read with 213 (1) of the Act, 1925, since it was executed and registered in Bandra, Bombay, Maharashtra.

13. In view of the aforesaid rival submissions, the point that arises for determination in this appeal is:

10. 1950 SCC OnLine Mad. 166

11. (2022) 12 SCC 641

12. (2012) 8 SCC 706

13. (2024) 15 SCC 675

14. (2024) 18 SCC 426

15. (1977) 4 SCC 467

Whether the order passed by learned trial Court is correct and does not warrant any interference by this Court?

14. In the light of the said submissions, it is apt to note that the plaintiffs herein have filed the aforesaid suit in O.S. No.14 of 2023 against the defendant seeking declaration of title, recovery of possession and declaration of sale deed bearing document No.8536 of 2003 dated 31.12.2002 as null and void and also not binding on them in respect of the suit schedule property. The Plaintiffs contended that originally Santdas Lekhraj S/o Lekhraj was a displaced person from Pakistan having verified claim for compensation under the Provisions of Displaced Persons Compensation and Rehabilitation Act, 1954. The Union of India, represented by the Regional Settlement Commissioner (Bombay) had allotted the suit schedule property to the said Santdas S/o Lekhraj vide Allotment Order No.HYD-52 vide Claim Index No.S/DD-1/1295, CAF No.B3/11171/3171, PC No.41367, dated 13.09.1967/14.09.1967. Consequently, the Regional Settlement Officer granted SANAD (Title Deed) to the said Santdas vide SANAD, dated 21.11.1967. Thus, by virtue of the said allotment and consequential grant of Sanad, he has become the absolute owner and possessor of the suit schedule property.

i) It is further contended that Santdas was also known as Santdas Lekhraj Choithramani, as the Choithramani is the surname of Santdas and father’s name is Lekhraj. The said Santdas died on 29.12.1994; his wife is predeceased him and both of them died issueless. The mother of plaintiff No.1, namely Smt. Padma, wife of of G. Kishinchand Harsinghani is the real sister of the said Santdas’s wife and plaintiff No.2 is the daughter of plaintiff No.1. Upon the death of Santdas’s wife, he resided with the parents of plaintiff No.1 till his death. The plaintiffs being the close relatives used to look after his well-being. Out of love and affection, the said Santdas had executed a registered Will dated 12.10.1992 bearing document No.714 of 1992 registered at the office of the Joint Sub-Registrar, Bandra, bequeathing all his movable and immovable properties in favour of plaintiff No.1 and her mother, Smt. Padma in equal shares.

ii) It is also contended that the father of plaintiff No.1, namely G. Kishinchand Harsinghani was a popular Ex-Test Cricketer. Smt. Padma died on 11.08.2008 and Kishinchand Harsinghani died on

16.04.1997. Plaintiff No.1 being the sole surviving legal heir and successor-in-interest of her mother’s half share. Thus, plaintiff No.1 has become the absolute owner of the suit schedule property and other properties left by late Santdas. Plaintiff No.2 being the only child of plaintiff No.1 joined as co-plaintiff.

iii) It is also pleaded in the plaint that in the first week of August, 2022, the plaintiffs learnt through their known persons that the defendant has created a forged and fabricated registered sale deed in his favour. Soon after, on verification of revenue records and encumbrance certificate, it is learnt that on the basis of a collusive and fraudulent unregistered General Power of Attorney, a sale deed was executed in favour of the defendant bearing document No.8536 of 2003, dated 31.12.2002 by one Mr. Gulabrai Ramchand Balani. The said sale deed discloses that one Gulabrai Ramchand Balani executed a sub-GPA dated 24.03.1990 in favour of Kishin Ramchand Balani based on the alleged GPA dated 15.12.1966. The said Santdas Lekhraj is a fictitious person and is totally a stranger to the Santdas Lekhraj and to the suit schedule property. The defendant in collusion with Kishin Ramchand Balani and Gulabrai Ramchand Balani created a GPA and sub-GPA in collusion with each other and thereby got registered the aforesaid sale deed in favour of the defendant. The said alleged GPA dated 15.12.1996 was stated to be attested at Bombay by the Registrar and Presidency Magistrate, Esplanade Court, Bombay. The plaintiffs being native of Gujarat State enquired the same, and on enquiry, it was revealed that the said Registrar and Presidency Magistrate, Esplanade Court, Bombay did not attest the said document and there is no endorsement to that effect in their records. Thus, it is clear that the said documents are fraudulent documents.

iv) On the basis of the aforesaid fabricated documents including sale deed, the defendant obtained mutation proceedings No.D/8291/2005, dated 27.02.2006 from the office of the Deputy Collector and Mandal Revenue Officer, Rajendranagar Mandal. The said Santdas Lekhraj died on 29.12.1994, whereas the sale deed was registered on 05.07.2003. The defendant taking advantage of COVID- 19 pandemic situation raised the compound wall. The plaintiffs came to know about the fabricated sale deed dated 05.07.2003 only in the first week of August, 2022, they obtained the certified copies of the same and filed the suit, which is within limitation from the date of knowledge.

15. Thus, the defendant filed the aforesaid application under Order VII Rule 11 (a) & (d) of the CPC, seeking rejection of the plaint. The same is relevant and it is extracted as under: “11. Rejection of plaint.— The plaint shall be rejected in the following cases:—

(a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9:

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

16. Rejection of plaint and factors to be considered for rejection of plaint is no more res integra. In Kum. Geetha v. Nanjundaswamy16, the Apex Court held that true and correct application of the principle underlying the ‘rejection of plaints’ under Order VII Rule 11 of the CPC, to the facts of the case.

17. In Azhar Hussain v. Rajiv Gandhi17, the Apex Court held that the whole purpose of conferment of powers under Order VII Rule 11 of the CPC is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to waste judicial time of the Court.

18. Placing reliance on the principle laid down in Azhar Hussain17, the Apex Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra), dead through legal representatives18 considered the scope and ambit of Order VII Rule 11 of the CPC and held as under:

16. (2024) 14 SCC 390

17. (2001) 8 SCC 233

18. (2020) 7 SCC 366

“23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.

23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.”

19. In T. Arivandandam15, the Apex Court held that if on a meaningful not formal-reading of the plaint, it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order - VII, Rule - 11 of the CPC taking care so as to see that the ground mentioned therein is

fulfilled. And, if clever drafting has created the illusion of a cause of action, it should be nipped in the bud.

20. Referring to the principle laid down in T. Arivandandam15 and other judgments in Indian Evangelical Lutheran Church Trust Association v. Sri Bala & Co.19, the Apex Court held that the Court while dealing with an application filed under Order - VII, Rule - 11 of the CPC has to consider the whole plaint. It has to be read as a whole and not only any particular plea is to be considered. The averments in the plaint as a whole have to be seen to find out whether Clause - (d) of Rule - 11, Order - VII of the CPC is applicable. The relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint which are germane. The pleas taken by the defendant either in the affidavit filed in support of an application filed under Order - VII, Rule -11 of the CPC or in the written statement would be wholly irrelevant at that stage. Under Order - VII, Rule -11 of the CPC, the Court has to take a decision looking at the pleadings of the plaintiff only and not on the rebuttal made by the defendant or any other material produced by the defendant.

19. 2025 INSC 42

21. In Rajendra Bajoria11, the Apex Court held that only on the basis of the averments made in the plaint, it could be ascertained as to whether a cause of action is made out or not. It is equally true that for finding out the same, the entire pleadings in the plaint will have to be read and that too, at their face value. At this stage, the defence taken by the defendants cannot be looked into.

22. In Saleem Bhai v. State of Maharashtra20, the Apex Court also held that if on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the Court would be justified in exercising the power under Order - VII, Rule - 11 of the CPC. The power under Order - VII, Rule - 11 of the CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial.

23. In ITC Ltd. v. Debts Recovery Appellate Tribunal21, the Apex Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.

20. (2003) 1 SCC 557

21. (1998) 2 SCC 70

24. In Madanuri Sri Rama Chandra Murthy v. Syed Jalal22, the Apex Court further held that if, however, by clever drafting of the plaint, it has created the illusion of a cause of action, it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of Court.

25. In Church of Christ Charitable Trust and Educational Charitable Society12, the Apex Court held that omission to mention the date of material fact is fatal and on the said ground plaint has to be rejected.

26. Thus, the sum and substance of the principle laid down in the aforesaid judgments is that the trial Court while dealing with an application under Order - VII, Rule - 11 of the CPC has to consider the pleadings of the plaint and the documents filed along with the plaint. While deciding an application under Order - VII, Rule - 11 of the CPC, the pleas taken by the defendant in written statement and

22. (2017) 13 SCC 174

application for rejection of plaint cannot be adverted to or taken into consideration.

SECTION 8 OF THE HINDU SUCCESSION ACT, 1956:

27. In the light of the aforesaid principles, coming to the case on hand, it is apt to note that Mr. A. Venkatesh, learned Senior Counsel appearing on behalf of the plaintiffs, vehemently contended that though the plaintiffs laid the claim on the basis of Will, dated 12.10.1992, they being Class-II heirs, cognates of Santdas Lekhraj Choithramani in terms of Section - 8 of the Hindu Succession Act, 1956 (for short ‘Act, 1956’) are absolute owners of the suit schedule property. Except the plaintiffs, there are no other legal heirs to Santdas Lekhraj Choithramani, therefore, they are the absolute owners and possessors of the suit schedule property.

28. Mr. A. Venkatesh, learned Senior Counsel, fairly submits that the plaintiffs did not specifically plead with regard to their right as Class-II legal heirs of Santdas Lekhraj Choithramani in terms of Section - 8 of the Act, 1956 in the plaint. He would further contend that in paragraph No.2 of the plaint, the plaintiffs have pleaded that

Santdas died on 29.12.1994, his wife pre-deceased him and both of them died issueless. The mother of plaintiff No.1, namely Smt. Padma, wife of G.Kishinchand Harsinghani is the real sister of Santdas’s wife and plaintiff No.2 is the daughter of plaintiff No.1. Upon the death of Santdas’s wife, he resided with the parents of plaintiff No.1 till his death. The plaintiffs being the close relatives used to look after his well-being. Out of love and affection, the said Santdas executed a registered Will dated 12.10.1992 bearing document No.714 of 1992 registered at the office of the Joint Sub- Registrar, Bandra bequeathing all his movable and immovable properties in favour of plaintiff No.1 and her mother, Smt. Padma in equal shares. Mr. G. Kishinchand Harsinghani, father of plaintiff No.1, died on 11.08.2008. Plaintiff No.1 being the sole surviving legal heir and successor-in-interest of her mother’s half share. Thus, plaintiff No.1 has become absolute owner of the suit schedule property and other properties left by Santdas Lekhraj Choithramani. Plaintiff No.2 being the only child of plaintiff No.1 joined as co- plaintiff. Therefore, there is a pleading in the plaint. As such, the plaintiffs are the absolute owners and possessors of the suit schedule property.

29. In the light of the aforesaid submissions, it is apt to note that Section - 8 of the Act, 1956 deals with “General rules of succession in the case of males”. It is relevant and the same is extracted as under: “8. General rules of succession in the case of males.— The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.”

Thus, as per Section - 8 (d) of the Act, 1956, the property of a male Hindu dying intestate shall devolve upon cognate of the deceased if there is no agnate. Even according to the plaintiffs, plaintiff No.1 is Santdas Lekhraj Choithramani wife sister’s daughter. Plaintiff No.2 is the daughter of plaintiff No.1. Admittedly, they are not Class-II legal heirs of Santdas Lekhraj Choithramani in terms of Section - 8 of the Act, 1956.

30. As discussed above, Mr. A. Venkatesh, learned Senior Counsel, fairly submits that there is no pleading in the plaint with regard to the same. It is a legal ground and can be pleaded at any stage. In the light of the said submission, it is apt to note that the plaintiffs had filed the aforesaid suit in O.S. No.14 of 2023 against the defendant for declaration of title etc. Therefore, they have to necessarily plead and prove their claim by producing cogent evidence.

31. It is also apt to note that Order - VI of the CPC deals with “Pleadings”. The object of Rule of Pleading is two-fold. First is to afford the other side intimation regarding the particular facts of his case so that they may be met by the other side. Second is to enable the Court to determine what is really the issue between the parties. The object of pleadings is to enable the Court to decide true rights of parties. Pleadings of the parties are required to be read as a whole. The defendants are entitled to raise alternative and inconsistent pleas but are not permitted to raise pleas which are mutually destructive of each other.

32. In Sopan Sukhdeo Sable v. Assistant Charity Commissioner23, the Apex Court considered the construal of pleadings, scope and ambit of Order VI Rule 2(1) of the CPC and held that the basic and cardinal rule of pleadings that every pleading shall contain and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. The Apex Court also considered the distinction between “material facts” and “particulars” and held that the words “material facts” show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.

23. (2004) 3 SCC 137

33. It is also apt to note that Order - VI, Rule - 2 of the CPC deals with “Pleadings to state material facts and not evidence, and Order - VI, Rule - 3 of the CPC deals with ‘”Forms of Pleadings”.

34. In Ranganayakamma v. K.S. Prakash (dead) by LRs24, the Apex Court held that parties are bound to base their contentions before Court on their pleadings.

35. A Three-Judge Bench of the Apex Court in Divyagnakumari Harisinh Parmar v. Union of India25 considered the scope and relevancy of pleadings and held that no relief can be granted in a case not founded in the pleadings. The Apex Court cannot entertain an entirely new case at the appellate stage at the behest of either party and is strictly confined to adjudicate the issues arising from the suit as framed by the pleadings of the parties. The Apex Court further held that such rule has been consistently affirmed across time and is rooted in the very purpose of pleadings—namely, to define the scope of the dispute and enable the court to adjudicate upon the rights of the parties. Pleadings, together with the issues framed thereon, serve to crystallize the points of conflict, ensure that each side is apprised of the case it has to meet, and afford both parties a fair

24. (2008) 15 SCC 673

25. 2025 SCC OnLine SC 2064

opportunity to lead evidence and advance submissions. To allow a party to depart from this framework at a belated stage would not only prejudice the opposite side but also undermine the principles of predictability and consistency that the adjudicatory process seeks to avow. It is also apt to note that basing on the pleadings, the trial Court has to frame issues, conduct trial and decide the same.

36. Therefore, the plaintiffs have to specifically plead that they are seeking declaration to declare them as absolute owners of the suit schedule property being the cognates of Santdas Lekhraj Choithramani in terms of Section 8 of the Act, 1956. In the light of the aforesaid discussion, the contention of Mr. A. Venkatesh, learned Senior Counsel appearing for the plaintiffs that the claim of the plaintiffs over the suit schedule property being cognates of Santdas Lekhraj Choithramani is a legal plea/submission, which can be raised in any proceeding at any stage, is unsustainable.

37. As discussed above, at the cost of repetition, it is apt to note that the plaintiffs laid the claim basing on the registered Will dated 12.10.1992 bearing document No.714 of 1992. There is no pleading that they laid the claim to declare them as absolute owners of the suit schedule property being cognates of Santdas Lekhraj Choithramani. There would not be any possibility of framing an issue for the trial Court in the absence of pleadings. Therefore, the said contention of the plaintiffs cannot be considered.

38. As discussed above, Mr. A. Venkatesh, learned Senior Counsel, contended that the plaintiffs are cognates of Santdas Lekhraj Choithramani in terms of Section 8 of the Act, 1956. In the light of the said submission, it is apt to note that Section 3 (a) and 3 (c) of the Act, 1956 deals with ‘agnate’ and ‘cognate’ respectively. The same are relevant and are extracted as under: “3. Definitions and interpretation .—

(1) In this Act, unless the context otherwise requires,—

(a) “agnate”—one person is said to be an “agnate” of another if the two are related by blood or adoption wholly through males; (b) xxxxx

(c) “cognate” — one person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males;”

39. As discussed above, according to the plaintiffs, Santdas Lekhraj Choithramani died on 29.12.1994, his wife - Sushila Santdas

Choithramani died on 03.07.1992. After the death of his wife, he resided with the parents of plaintiff No.1 till his death. The parents of plaintiff No.1 also died. Therefore, according to the plaintiffs, they are cognates of Santdas Lekhraj Choithramani in terms of Section - 8 of the Act, 1956. Even according to the plaintiffs, except them, there are no other legal heirs to Santdas Lekhraj Choithramani including his parents, brother and brother’s children etc. He and his wife died issueless. It is also contended by learned Senior Counsel appearing for the plaintiffs that the suit schedule property is self-acquired property of Santdas Lekhraj Choithramani.

40. In the light of the above, it is apt to note that under Section 8 of the Act, 1956, when a male Hindu died intestate, succession proceeds in the following order:

a) Class I heirs;

b) Class II heirs;

c) Agnates;

d) Cognates.

The widow is a Class - I heir. Therefore, even assuming that though Santdas Lekhraj Choithramani had no parents, brothers, sisters or children, his wife was alive and she succeeded to his property. Thus, the wife of the Santdas Lekhraj Choithramani became the owner of the property. Therefore, the suit schedule property was inherited by wife of Santdas Lekhraj Choithramani from Santdas Lekhraj Choithramani. Section 15(2)(b) of the Act, 1956 creates a specific exception to the general order in Section 15 (1) of the Act, 1956. It provides that property inherited by a female Hindu from her husband or father-in-law, where she dies without children, devolves upon the heirs of the husband.

41. Section - 15 of the Act, 1956 deals with ‘General Rules of Succession in the case of female Hindu. The same is relevant and it is extracted as under: “15. General rules of succession in the case of female Hindus.— (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub- section (1),—

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre- deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub- section (1) in the order specified therein, but upon the heirs of the husband.”

42. In Dandapani Chettiar v. Balasubramanian Chettiar (Dead) by LRs.26, the Apex Court held in paragraph No.10 as under: “10. Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a predeceased son or daughter.

In such a case, the rule prescribed is to find out the source from which she has inherited the property.

If it is inherited from her father or mother, it would devolve as prescribed under Section 15(2)(a).

If it is inherited by her from her husband or father-in-law, it would devolve

26. (2003) 6 SCC 633

upon the heirs of her husband under Section 15(2)(b).

The clause enacts that in a case where the property is inherited by a female from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. This would mean that if there is no son or daughter including the children of any predeceased son or daughter, then the property would devolve upon the heirs of her father. Result would be -- if the property is inherited by a female from her father or her mother, neither her husband nor his heirs would get such property, but it would revert back to the heirs of her father.”

The said principle was reiterated in Durga Prasad v. Narayan Ramchandaani27.

43. In the light of the aforesaid principle, the mother of plaintiff No.1 is the sister of wife of Santdas Lekhraj Choithramani and she is not an heir to the suit schedule property.

44. A “cognate” means a person related by blood or adoption but not wholly through male links. An “agnate” is also a person related by blood or adoption, with the relationship being wholly

27. (2017) 5 SCC 331

through males in terms of Section - 3 (1) (c) of the Act, 1956. Therefore, both concepts presuppose a blood or adoption relationship with the deceased. A relationship merely through marriage does not make a person an agnate or cognate. There is a marital link between Santdas Lekhraj Choithramani and his wife. Therefore, the plaintiffs are not related to the Santdas Lekhraj Choithramani by blood merely because plaintiff No.1 is the daughter of Santdas Lekhraj Choithramani’s wife’s sister. Therefore, she is not an agnate or cognate of Santdas Lekhraj Choithramani. Thus, the plaintiffs cannot claim that they are cognates of Santdas Lekhraj Choithramani and, therefore, they have inherited the suit schedule property.

45. It is apt to note that in Nana Saheb Vishwasrao Deore v. Parwatibai28, a Division Bench of Bombay High Court held as under: “18. A submission was made that this would lead to enlarging the class of heirs even from wife's side and difficulties would arise in applying Rule 12, for whoever upon this interpretation is related to the wife would also be related to the husband. This submission is fallacious for two reasons. Firstly, we have held that in the case of a female married into the family, relationship by blood arises because of the marriage and secondly, she becomes kin in

28. MANU/MH/0283/1979

the family. Her relations in her original family would not answer any of these tests. Hardly, therefore, there is any scope for any such apprehension……”

46. Placing reliance on the judgment in Nana Saheb Vishwasrao Deore28, learned Single Judge of Bombay High Court in Reshma G. Bhandari v. Yesubai H. Koli29 held as under:

“The words emphasised clearly indicate that the relations of a wife in her original family would not be entitled to inherent the property that she may in turn have inherited from her husband’s side. Thus even assuming that Sonibai was alive, the Petitioner would not have been entitled to any interest in her husband’s estate Sonibai having predeceased her husband her relations in her original family would not be entitled to any interest in the estate of her predeceased husband by virtue of Section 15 of the said Act. There is nothing in the Division Bench judgment which interprets Section 15 of the said Act in a manner contrary to the view taken by me.”

47. In the light of the above, wife’s sister’s daughter and her daughter are not ‘Cognates’ in terms of Section - 8 of the Act, 1956. Therefore, the contention of Mr. A. Venkatesh, learned Senior Counsel appearing for the plaintiffs that the plaintiffs being cognates

29. MANU/MH/0892/2007

of Santdas Lekhraj Choithramani are entitled to succeed the suit schedule property cannot be accepted.

48. As discussed above, there is no pleading in the plaint and the plaintiffs did not lay a claim contending that they are cognates of Santdas Lekhraj Choithramani. Viewed from any angle, the said contention of Mr. A. Venkatesh, learned Senior Counsel appearing for the plaintiffs that the plaintiffs are cognates of Santdas Lekhraj Choithramani cannot be accepted.

PROBATION OF WILL

49. It is the specific contention of learned counsel for the defendant that the aforesaid registered Will dated 12.10.1992 bearing document No.714 of 1992 executed by Santdas Lekhraj Choithramani in Bandra, Mumbai, Maharashtra State. Therefore, in Maharashtra, probation of Will is mandatory. In the present case, the subject Will is not probated in terms of Section 213 of the Act, 1925. Therefore, the plaintiffs cannot lay claim basing on the said Will.

50. In the light of the said submission, it is apt to note that Section 213 of the Act, 1925 deals with ‘Right as executor or legatee when established’. It is relevant and the same is extracted as under:

“213. Right as executor or legatee when established.—

(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.

(2) This section shall not apply in the case of Wills made by Muhammadans or Indian Christians, or and shall only apply—

(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and

(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits.”

51. Section 57 of the Act, 1925 deals with ‘application of certain provisions of Part to a class of Wills made by Hindus, etc,’. The same is relevant and is extracted as under: “57. Application of certain provisions of Part to a class of Wills made by Hindus, etc.—

The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply—

(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such Wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and

(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):

Provided that marriage shall not revoke any such Will or codicil.”

52. Admittedly, in the present case, the subject Will was executed in Mumbai, Probation of the said Will is mandatory. It is apt to note that no right can be established by a legatee before any Civil Court without obtaining probate of the said Will from a competent Court since the said Will was executed within the territorial limits of High Court of Bombay. The mandatory requirements of probate is applicable for a Will executed within such limits, regardless of the situs of any property bequeathed thereunder, such property is required to be within the said territorial limits only in case of the Will is made outside such limits. The said principle was also laid down by the Apex Court in Ravinder Nath Agarwal3, Clarence Pais4; and a Division Bench of Madras High Court in Mrs. Chandra (died)5.

53. Relevant paragraph Nos.36 to 38 in Ravinder Nath Agarwal3 are relevant and the same are extracted as under:

“36. A cumulative reading of Sections 57, 213 and 264 would show : (i) that a person claiming to be an executor or legatee under a will cannot rely upon the will, in any proceeding before a court of justice, unless he has obtained probate (if an executor has been appointed) or letters of administration with the will annexed, if such a will has been executed by certain classes of persons; and (ii) that the jurisdiction to grant probate or letters of administration vests only in courts located within the towns of Calcutta, Madras or Bombay and the courts in any local area notified by the State Government in the Official Gazette.

37. Therefore, what follows is that : (i) unless the testator belongs to any of the classes of persons specified in the Act; and (ii) unless the will is made or some of the properties covered by the will are located, within the local limits of a notified area, there is no necessity for an executor or a legatee under a will to seek probate or letters of administration. In fact, the decision in Balbir Singh Wasu [Balbir Singh Wasu v. Lakhbir Singh, (2005) 12 SCC 503] did not take note of the bar under Section 264(2) when it opined in general terms in para 5 of the judgment that : (SCC pp. 504-05) “5. … We do not read Section 213 as prohibiting the executor from applying for probate as a matter of prudence or convenience to the courts in other parts of the country not covered by Section 213.” (emphasis supplied)

38. By virtue of Section 213(2)(i) read with clauses (a) and (b) of Section 57, the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a will, is applicable only to wills made by a Hindu, Buddhist, Sikh or

Jaina within the local limits of the ordinary original civil jurisdiction of certain High Courts and to wills made outside those territories, to the extent they cover immovable property situate within those territories. Therefore, there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs.”

54. Paragraph Nos.6 and 7 in Clarence Pais4; are relevant and the same are extracted as under: “6. The scope of Section 213(1) of the Act is that it prohibits recognition of rights as an executor or legatee under a will without production of a probate and sets down a rule of evidence and forms really a part of procedural requirement of the law of forum. Section 213(2) of the Act indicates that its applicability is limited to cases of persons mentioned therein. Certain aspects will have to be borne in mind to understand the exact scope of this section. The bar that is imposed by this section is only in respect of the establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity. The section does not prohibit the

will being looked into for purposes other than those mentioned in the section. The bar to the establishment of the right is only for its establishment in a court of justice and not its being referred to in other proceedings before administrative or other tribunals. The section is a bar to everyone claiming under a will, whether as a plaintiff or defendant, if no probate or letters of administration are granted. The effect of Section 213(2) of the Act is that the requirement of probate or other representation mentioned in sub-section

(1) for the purpose of establishing the right as an executor or legatee in a court is made inapplicable in case of a will made by Muhammadans and in the case of wills coming under Section 57(c) of the Act. Section 57(c) of the Act applies to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of January, 1927 which does not relate to immovable property situate within the territory formerly subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or in respect of property within those territories. No probate is necessary in the case of wills by Muhammadans. Now by the Indian Succession (Amendment) Act, 1962, the section has been made applicable to wills made by Parsis dying after the commencement of the 1962 Act. A

combined reading of Sections 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Sections 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. The result is that the contention put forth on behalf of the petitioners that Section 213(1) of the Act is applicable only to Christians and not to any other religion is not correct.

7. We have shown above that it is applicable to Parsis after the amendment of the Act in 1962 and to Hindus who reside within the territories which on 1-9-1870 were subject to the Lt. Governor of Bengal or to areas covered by original jurisdiction of the High Courts of Bombay and Madras and to all wills made outside those territories and limits so far as they relate to immovable property situate within those territories and limits. If that is so, it cannot be said that the section is exclusively applicable only to Christians and, therefore, it is discriminatory. The whole foundation of the case is thus lost. The differences are not based on any religion but for historical reasons that in the British

Empire in India, probate was required to prove the right of a legatee or an executor but not in Part ‘B’ or ‘C’ States. That position has continued even after the Constitution has come into force. Historical reasons may justify differential treatment of separate geographical regions provided it bears a reasonable and just relation to the matter in respect of which differential treatment is accorded. Uniformity in law has to be achieved, but that is a long-drawn process. Undoubtedly, the States and Union should be alive to this problem. Only on the basis that some differences arise in one or the other States in regard to testamentary succession, the law does not become discriminatory so as to be invalid. Such differences are bound to arise in a federal set-up.”

55. Paragraph Nos.15 and 16 in Mrs. Chandra (died)5 of the Division Bench of Madras High Court are relevant and the same are extracted as under: “15. A combined reading of the provisions of Sections 57 (a) and 213 (2) (i) would make it crystal clear that a Will executed within the original jurisdiction of the High Court of Madras in respect of all the properties mentioned therein situate anywhere requires Probate. A Will executed outside those territories would require

Probate in respect of properties, which are situate within those territories. In an attempt to tide over the difficulties faced, the learned counsel appearing for the appellants would invite our attention to the judgment of the Hon'ble Supreme Court in Clarence Pais and others Vs. Union of India reported in (2001) 4 SCC 325. He would invite our attention to the following observations of the Hon'ble Supreme Court made at paragraph 6 of the judgment, which reads as follows:- “6. ................... A combined reading of Sections 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Sections 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. The result is that the contention put forth on behalf of the petitioners that Section 213(1) of the Act is applicable only to Christians and not to any other religion is not correct.”

16. The learned counsel laying emphasis on the words “as a consequence, a probate will not be required to be obtained by a Hindu in respect of a Will made outside those territories or regarding the immovable properties situate outside those territories”, would submit that if a Will made within the territories relates to immovable property situate outside the territories, probate is not required. We are unable to persuade ourselves to agree with the contention of the learned counsel. A proper reading of the pronouncement of the Hon'ble Supreme Court is to the effect that probate is not required for a Will, which is made outside the territories with reference to properties situate outside the original jurisdiction of High Court of judicature at Madras. If a Will is made/executed within the original jurisdiction of High Court of Judicature at Madras, in view of the clear language of Section 57(a), the same will have to be probated de hors the fact that the properties are situate outside the jurisdiction. We are unable to read the judgment of the Hon'ble Supreme Court in the way the counsel suggests or wants us to read. In view of the above, in the absence of a probate, the Will cannot be relied upon. Therefore, point no.2 is answered against them.”

56. In the light of the aforesaid principle, as discussed above, in the present case, the subject Will was executed within the territorial jurisdiction of Bombay High Court, therefore, probation of the said Will is mandatory. In the present case, the plaintiffs failed to get the subject Will probated. Therefore, they cannot lay claim over the suit schedule property basing on the said Will in the absence of probation.

57. Mr. A. Venkatesh, learned Senior Counsel appearing for the plaintiffs, brought to the notice of this Court with regard to the Gazette No.61, published in the Gazette of India on 21.12.2025, to contend that Section - 213 of the Act, 1925 was repealed by the Repealing and Amending Act, 2025 (Act No.37 of 2025). Therefore, according to him, there is no need of probating the said Will.

58. Whereas, Mr. Shiva Santosh Yelamanchili, learned counsel for the defendant, referring to Section 4 of the Repealing and Amending Act, 2025 is prospective and moreover, the plaintiffs have filed the aforesaid suit in the year 2023. Therefore, they cannot claim the benefit under the said Repealing Act.

59. In view of the aforesaid submission, Section - 4 of the Repealing and Amending Act, 2025 deals with ‘Savings’ and the same is relevant and extracted as under:

“4. The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to; and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing; nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed or recognised or derived by, in or from any enactment hereby repealed; nor shall the repeal by this Act of any enactment revive or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force.”

In view of the aforesaid provision, there is force in the contention of learned counsel for the defendant that the plaintiffs cannot claim the benefit under the aforesaid provision.

60. It is the specific contention of learned counsel for the defendant that the right to seek probate which is governed by Article 137 of the Limitation Act, 1963 must be exercised three (03) years from the accrual of the right to apply. According to him, the said right accrued either in 2003 i.e., when the sale deed in favour of the defendant stood registered, or in 2006, upon the consequential mutation, and hence stood barred by limitation. Even if the date of knowledge pleaded by the plaintiff i.e. August 2022 is considered, the right to seek probate stood barred in August 2025. Therefore, he further contended that such a right cannot be taken away by way of a subsequent enactment, unless the same is made expressly retrospective in operation. Evidently, the omission of Section 213 of the Act, 1925 w.e.f. 20.12.2025 by virtue of the Repealing and Amending Act, 2025, does not affect the effect of ‘anything done or suffered’, and does not ‘revive or restore’ any ‘matter or thing not now existing or in force’. Therefore, the bar on the plaintiffs’ right remains absolute. In support of the aforesaid contentions, reliance was placed on the principle laid down by the Apex Court in Dhiraj Dutta6; Kunvarjeet Singh Khandpur7; T. Kaliamurthi8; Thirumalai Chemical Ltd.9 and Km. Kr. Ramanathan Chettiar10.

61. In Dhiraj Dutta6, the Apex Court held that the application for revocation of probate filed beyond three (03) years therefrom, is hopelessly barred by limitation.

62. In Kunvarjeet Singh Khandpur7, the Apex Court considered the scope of right to apply, Article 137 of the Limitation Act and held that application filed for grant of letters of administration within three (03) years from the date of withdrawal of probate petition is not barred by limitation; and however the application filed beyond three (03) years is barred by limitation.

63. T. Kaliamurthi8, the Apex Court held as under: “41. At this juncture, we may again note Section 6 of the General Clauses Act, as reproduced hereinearlier. Section 6 of the General Clauses Act clearly provides that unless a different intention appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect, or affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or affect any right, privilege, obligation or liability acquired, accrued, or incurred under any enactment so repealed.

42. From the above, it is clear that the right of action, which is barred by limitation at the time when the new Act comes into force, cannot be revived by the change in the law subsequently. In Ram Murti v. Puran Singh [AIR 1963 Pun 393] , it has been held that Section 107 renders the Limitation Act, 1963 inapplicable to suits for possession of immovable properties comprised in any wakf or any interest therein but the right of a person to institute such a suit which is already barred at the commencement of this Act cannot revive. It was further held that his title is extinguished and a good title is acquired by the person in possession and that where the title of the true owner is extinguished in favour of the wrongdoer, it is not revived by that person again getting into possession. There is no remitter to the old title.”

64. In Thirumalai Chemical Ltd.9, the Apex Court held as under: “32. Limitation provisions therefore can be procedural in the context of one set of facts but substantive in the context of different set of facts because rights can accrue to both the parties. In such a situation, test is to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations. An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is nevertheless a right, even though it arises under an Act which is procedural and a right which is not to be taken away pleading retrospective operation unless a contrary intention is discernible from the statute. Therefore, unless the language clearly manifests in express terms or by necessary implication, a contrary intention a statute divesting vested rights is to be construed as prospective.”

65. In Km. Kr. Ramanathan Chettiar10, the Division Bench of Madras High Court, referring to the principle laid down by the Apex Court in several judgments, held that in the absence of anything to the contrary, if a claim is within limitation according to the old Act, on the date when the new Act comes into force and a proceeding is commenced, after coming into force of the new Act, it is the new Act which would govern all decisions on the point of limitation. If, however, the right to sue or the right to apply had already been barred by the provisions of the Limitation Act then in force, then unless there was something in the latter Act which could be deemed to apply retrospectively to revive claims which had already become barred, the new Act could not be availed of for the purpose of saving limitation.

66. In the light of the aforesaid principle, contention of Mr. A. Venkatesh, learned Senior Counsel appearing for the plaintiffs that there is no need of getting the subject Will probate in view of repealment of Section 213 of the Act, 1925 by virtue of the Repealing and Amending Act, 2025 w.e.f. 20.12.2025 cannot be accepted.

67. It is apt to note that learned trial Court considered the said principle and also the principle laid down by the Apex Court in a catena of decisions and held that without getting the subject Will probated, the plaintiffs cannot lay claim and file suit for declaration to declare them as absolute owners of the suit schedule property and accordingly rejected the plaint.

68. Moreover, perusal of the Will dated 12.10.1992 would reveal that it was in respect of Flat at 18, Jeevansukh Co-operative Housing Society Limited, 2nd floor Plot No.420/421, T.P.S. III, 14th Road, Bandra, Bombay. It is also mentioned that Santdas Lekhraj Choithramani bequeathed the rest and residue of all his properties of whatsoever kind and wherever situated including his ownership block after disbursement of funeral expenses, donation to Shirdi Trust, and after paying his taxes, dues and other liabilities to 1) Mrs. Padma, wife of Mr. G. Kishinchand, Ex-Test Cricketer, residing at Nazar Baug Palace, Mandvil, Baroda and 2) Mrs. Usha G. Khatri, daughter of G.

Kishinchand Harisinghani, now residing at Nazar Baug Palace, Mandvi, Baroda in equal shares. If Mrs. Padma, wife of Mr. G. Kishinchand Harisinghani, at serial No.1 pre-deceases him, he bequeath rest and residue of all his properties of whatsoever and wherever situated including his ownership block to Mrs. Usha G. Khatri, daughter of Kishinchand Harisinghani after making disbursement as already stated therein. Therefore, there is no reference to the suit schedule property in the said Will also.

LIMITATION:

69. It is the specific contention of learned counsel for the defendant that the suit is barred by limitation and there is no cause of action to file the said suit. In the light of the said submission, it is apt to note that in the plaint filed by the plaintiffs, they have specifically pleaded that they came to know about the registered sale deed bearing document No.8536 of 2003, dated 31.12.2002 executed by one Santdas Lekhraj represented by its Power of Attorney Holders in the month of August 2022 through known persons. It is also his specific contention that in the present suit, the plaintiffs are represented by their Special Power of Attorney Holder, Mr. Madas Dayanand. The said Power of Attorney is dated 10.12.2022. He would further contend Mr. Madas Shivanand, son of Madas Dayanand, as Power of Attorney of the plaintiffs in O.S. No.952 of 2018, filed the said suit with regard to the suit schedule property and sought identical reliefs. In the said suit in O.S. No.952 of 2018, the plaintiffs represented by Mr. Madas Shivanand S/o Madas Dayanand pleaded knowledge of the said registered sale deed of the defendant in June 2018, plaintiffs therein as “lineal descendants” of the Sanad Holder. In the present suit in O.S. No.14 of 2023, the plaintiffs represented by Madas Dayanand claimed knowledge as August, 2022. Madas Shivanand and Madas Dayanand son and father and they are residing in the same house, which is not disputed by either side. Thus, the son of Madas Dayanand claimed knowledge of the aforesaid registered sale deed bearing document No.8536 of 2003, dated 31.12.2002 of the defendant in June 2018 and, therefore, the father, who is also residing in the same house cannot claim the date of knowledge of the said registered sale deed as August 2022. The said suit in O.S. No.952 of 2018 filed by the plaintiffs therein represented by their GPA holder, Mr. Madas Shivanand, was dismissed for default on 22.10.2024 i.e., during pendency of the present suit in O.S. No.14 of 2023.

70. Mr. A. Venkatesh, learned Senior Counsel appearing for the plaintiffs, would contend that this Court has to consider the contents of the plaint and documents filed by the plaintiffs along with the plaint. This Court cannot consider other aspects.

71. Whereas, learned counsel for the defendant would contend that the plaintiffs represented by GPA - Madas Dayanand, intentionally suppressed the said fact in the plaint and did not file copy of the plaint in O.S. No.952 of 2018. Therefore, bona fides of the said Madas Dayanand, power of attorney holder of the plaintiffs, are doubtful.

72. In the light of the aforesaid submission, it is apt to note that there is no reference to the filing of O.S. No.952 of 2018 by the plaintiffs therein represented by their power of attorney holder, Mr. Madas Shivanand son of Madas Dayanad in the plaint in O.S. No.14 of 2023. However, learned Senior Counsel appearing for the plaintiffs did not dispute the contention of learned counsel appearing for defendant that both Mr. Madas Dayanand and Mr. Madas Shivanand are residing in the very same house. There is no denial of plaintiffs represented by Mr. Madas Shivanand filed O.S. No.952 of 2018 against the defendant claiming knowledge of the aforesaid registered sale deed of the defendant as June, 2018. The GPA of Mr. Madas Shivanand is dated 29.07.2018, whereas the GPA of Mr. Madas Dayanand is dated 10.12.2022. Therefore, the father and son, who are residing in the very same house, cannot claim different dates of knowledge of execution of registered sale deed bearing document No.8536 of 2003, dated 31.12.2002 in favour of the defendant herein.

73. In C.S. Ramaswamy v. V.K. Senthil30, the Apex Court considered that a suit was filed by minor boy in the year 2006, in which some of the plaintiffs were also party to the said suit and in the said suit, there was a specific reference to the Sale Deed dated 19.09.2005 and the said suit came to be dismissed in the year 2014. Immediately thereafter, the other suits have been filed. Upon consideration of the said aspects, the Apex Court held that from the averments in the plaint and the bundle of facts stated in the plaint, it was clever drafting, the plaintiffs therein tried to bring their suits within the period of limitation, which otherwise are barred by limitation. Considering the principle laid down by the Apex Court in T. Arivandandam15 and Raghwendra Sharan Singh v. Ram

30. 2022 SCC OnLine SC 1330

Prasanna Singh31, and in Ram Singh v. Gram Panchayat Mehal Kalan32, considered the fact that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. Placing reliance on the said principle and also principle laid down in T. Arivandandam15 and Raghwendra Sharan Singh31, the Apex Court further held that both the plaints in the said suits are liable to be rejected in exercise of powers under Order - VII Rule - 11 of the CPC.

74. Referring to the said principle, it is the specific contention of learned counsel for the defendant that both father and son are staying in the very same residence. Power of attorney holder of the plaintiffs in the present case intentionally suppressed the said fact and claimed knowledge of the aforesaid registered sale deed of the defendant as August, 2022. There is force in the said submission. In the light of the principle laid down by the Apex Court in C.S. Ramaswamy30, the said aspect can be considered.

75. As discussed above, the plaintiffs did not dispute that Madas Shivanand son of Madas Dayanad, GPA Holder of the

31. (2020) 16 SCC 601

32. (1986) 4 SCC 364

plaintiffs are staying in the very same house. There is no denial with regard to filing of suit in O.S. No.952 of 2018 by the plaintiffs therein represented by Mr. Madas Shivanand, son of Madas Dayanad, GPA holder of the plaintiffs herein. Therefore, father cannot claim date of knowledge of the registered sale deed of the defendant as August 2022.

76. As discussed above, the defendant is claiming right over the suit schedule property on the strength of registered sale deed bearing document No.8536 of 2003, dated 31.12.2002. The plaintiffs filed the present suit in the month of December, 2022 i.e., after elapse of 20 years. Thus, the plaintiffs drafted the suit cleverly suppressing the earlier suit in O.S. No.952 of 2018 filed by the plaintiffs therein represented by their power of attorney holder, son of power of attorney holder of the plaintiffs herein. Therefore, the suit is barred by limitation.

77. It is apt to note that the object of Order VII Rule 11 of the CPC is if the Court comes to a conclusion that the suit is barred by law or suit is filed based on vexatious claim, it should be nipped in the bud and reject the plaint in exercise of power under Order VII Rule 11

of the CPC. The trial Court considered the said aspects and rightly rejected the plaint filed by the plaintiffs.

78. On consideration of the aforesaid principle, learned trial Court rejected the plaint vide impugned order. It is a reasoned order and well-founded. There is no error in it. The appellants - plaintiffs failed to make out any case to interfere with the order. Therefore, the present appeal fails and the same is liable to be dismissed.

79. The present appeal is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs.

As a sequel thereto, miscellaneous applications, if any, pending in the present appeal, shall stand closed.

__________________ K. LAKSHMAN, J

__________________ K. SUJANA, J

9th September, 2026 Mgr