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IA No.617-23 OS 14-23

IN THE COURT OF THE I-ADDITIONAL DISTRICT JUDGE,

RANGA REDDY DISTRICT AT L.B. NAGAR

Present: Dr.K.Pattabhi Rama Rao,

I-Additional District Judge,
Ranga Reddy District.

Thursday, this the 21st day of June, 2024

I.A.No.617 of 2023
IN
O.S.No.14 of 2023

Between:-
Y.Praneeth s/o Y.Ravindra
represented by his GPA holder N.Sambasiva Rao
...Petitioner/Defendant

AND
1. Smt.Usha Harishingani @ Ushaben
2. Harsha Khatri
...Respondents/Plaintiffs

This petition is coming up for hearing in the presence of Sri K.Srinivas

Rao, Counsel for Petitioner/Defendant and Sri K.S.Phani Bhaskar, Counsel for
the the Respondent/Plaintiff and upon perusal of the material papers on
record and having been heard and stood over for consideration till this day,
this Court made the following:-

ORDER
1. This is an application filed by the defendant under Order-VII Rule-11 of
the Code of Civil Procedure, 1908, (the CPC) for rejection of the plaint. For
the sake of convenience, the parties in this order are referred to as they are
arrayed in the suit.
Case of the Plaintiffs
2.(a) In order to appreciate the contentions of the petitioner/defendant it is
necessary to refer to the contents of the plaint. The suit is filed by the
plaintiff Nos.1 and 2, represented by their Special Power of Attorney by name
Madas Shivanand son of Madas Dayaram resident of Hyderabad. Both the
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IA No.617-23 OS 14-23

plaintiffs are residents of Vadodara and their Special Power of Attorney is

resident of Hyderabad. It is contended that Santdas Lekhraj was a displaced
person from West Pakistan and the Union of India represented by Regional
Settlement Commissioner (Bombay) had allotted Ac.14.29 guntas of land i.e.,
the suit schedule mentioned property to the said Santdas Lekhraj under the
provisions of the Displaced Persons Compensation and Rehabilitation Act,
1954, under an allotment letter PC.No.41367 dated 13/14.09.1967. It is
claimed that Sanadh was issued in the name of Santdas Lekhraj bearing
No.Hyd-52/12843-46 dated 21.11.1967 and thus the said Santdas son of
Lekhraj become the owner and possessor of Ac.14.29 guntas, which is the suit
schedule mentioned property.

(b) It is contended that Santdas is also known as Santdas Lekhraj

Choithramani and he died on 29.12.1994 and his wife predeceased him.
Mother of the first plaintiff by name Padma, wife of Kishan Chand Harsingani
is the real sister of Santdas wife. It is contended that after the death of his
wife, the said Santdas resided with the parents of the first plaintiff (Padma
and Kishanchand Harisingani) till his death and out of love and affection,
Santdas executed a registered Will Deed 12.10.1992 bearing document
No.714/1992 bequeathing of his immovable and movable properties to the
mother of first plaintiff (Padma) and the plaintiff No.1 in equal shares.

(c) It is contended that father of the first plaintiff (Kishan Chand) was a
popular test cricketer. The said Kishan Chand died on 16.04.2017 and Padma,
mother of the plaintiff died on 11.08.2008. The plaintiff No.1 contends that
she is the sole surviving legal heir and successor in interest of her mother’s
half share. The first plaintiff claims that she became absolute owner of
agricultural land of Ac.14.29 guntas of the suit schedule mentioned property
and plaintiff No.2 is the only child of plaintiff No.1 and hence she is also joined
as plaintiff No.2 in this case.
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IA No.617-23 OS 14-23

(d) It is also contended in the plaint that in the first week of August 2022,
the plaintiff came to know that defendant has forged and fabricated
registered sale deed in his favour and after verifying the revenue records she
came to know that based on a collusive and fraudulent unregistered General
Power of Attorney, a sale deed was created in favour of the defendant
bearing document No.8526/2003 dated 31.12.2002 executed by one Gulabrai
Ramachand Balani, and the said Gulabrai R. Balani executed a sub-GPA dated
24.03.1990 in favour of Kishan Ramchand Balani based on the alleged GPA
dated 15.12.1966 executed by Santdas Lekhraj. It is stated that Santdas
Lekhraj is a fictitious person and he is totally stranger to the suit land. The
defendant, in collusion with Kishan Balane and Gulab Ramchand Balani,
created a GPA and special GPA in collusion with each other and got registered
the sale deed in favour of the defendant.

(e) It is contended that GPA dated 15.12.1966 is a fraudulent and

fabricated one and it was stated to be attested in Bombay by the Registrar
and Presidency Magistrate, Esplanade Court, Bombay and on enquiry by the
plaintiffs, it is learnt that the Registrar and Presidency Magistrate, Esplande
Court did not attest any such document. The plaintiffs contend the said GPA is
fraudulent, collusive and concocted. The plaintiffs have further contended
that the sale deed executed by the General Power of Attorney in favour of the
defendant is dubious. According to the plaintiffs, General Power of Attorney,
allegedly executed by Santdas Lekhrah dated 15.12.1966 is a fabricated one
and all the subsequent documents, therefore, are invalid. The plaintiffs point
out that the consideration paid by the defendant for the suit property is low
and no prudent person would be selling the property at such a low price.

(f) It is contended that no person would sell the valuable property worth
crores of rupees for peanuts. It is stated that sale deed bearing No.8536/
2003 dated 05.07.2003 is liable to be set aside and to be declared as null and
void. It is stated that defendant has taken advantage of COVID-19 and raised a
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IA No.617-23 OS 14-23

compound wall and therefore, the plaintiffs have filed the suit for relief of the
declaration that the plaintiffs are the absolute owners of the suit property
and annulment of registered sale deed bearing document no.8536/ 2003
dated 05.07.2003.

(g) According to the plaintiffs they came to know about the creation of the
sale deed dated 05.07.2003 by the defendant in August, 2022, and as such the
suit is filed within the time from the date of knowledge. It is contended that
cause of action for filing the suit arose on 21.11.1967 and also in August,
2022, when plaintiffs came to Hyderabad and noticed construction of
compound wall. It is also contended that cause of action arose on 31.12.2002
when the sale deed was executed and on 05.07.2003 when the document was
registered and in the first week of August, 2022, and on 15.12.2022 when the
plaintiffs came to know about the construction of the compound wall and
made an attempt to enter into the suit schedule mentioned property.

Case of the petitioner

3.(a) In the affidavit filed in support of petition, the General Power of
Attorney of the petitioner/defendant has stated that the relief claimed by the
plaintiffs in the suit is manifestly vexatious and meritless, as the plaint does
not disclose a clear right to sue for declaration of title and to declare the sale
deed dated 31.12.2002 as null and void. It is contended that the plaintiffs
have created an illusory cause of action by setting up a stranger i.e., the
alleged predecessor-in-title whose name is Santdas, which is similar to that of
Sanad holder Santdas Lekhraj.

(b) It is stated that as per the plaint document Nos. 1 and 2 name of the
Sanad holder is Santdas, but not Santdas Lekhraj Choithramani, as alleged in
the plaint, and in the Will filed as plaint document No.4. It is stated that there
is no whisper or description of the suit schedule property in the Will dated
12.09.2002 filed as plaint document No.4.
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IA No.617-23 OS 14-23

(c) According to the petitioner, the plaint shall be rejected under Order VII,
Rule 11 (d) of the CPC, as even according to the averments in the plaint, the
suit is barred by the law of limitation. It is contended that plaint document
Nos. 1 to 3 and 10 are of the year 2003 and 2006 and the plaintiffs have
knowledge of these documents by the years 2003 and 2006 and the suit is not
filed within three years from then. It is further stated that the plaint is filed
on the basis of the Will, plaint Doc. No.4 which was executed in Bombay,
Maharashtra State and as per section 57(a) r/w section 213 (1)(i) of the Indian
Succession Act, 1925, no right as executor or legatee can be established in
any Court of Justice, unless a Court of competent Jurisdiction in India i.e., the
Hon’ble High Court of Bombay in this case, grants a Probate of the said Will
made by a Hindu. According to the defendant/petitioner, Probate has to
necessarily obtained from the Hon’ble High Court at Bombay, of the Will
dated 12.10.1992, before filing the present suit. The contention is that the
suit, without filing Probate of the Will, is not maintainable and hence the
plaint needs to be rejected.

(d) It is contended that the clever drafting of the plaint has created the
illusion of cause of action and irresponsible law suits and that bogus litigation
shall be shot down at the earliest stage. It is contended that when the suit
appears from the statement in the plaint to be barred by any law and even if
a single sentence in a plaint shows that suit is barred by any law, the plaint is
to be rejected, under Order VII Rule 11(d) of the CPC.

(e) The petitioner/defendant has further contended that there is no

whisper in the plaint that any claim was made by Santdas Lekhraj Choithramni
under whom the plaintiffs are claiming title or any date prior to his death or
prior to filing of this suit. According to the petitioner/defendant, the plaint
pleadings and plaintiffs’ documents do not show that said Santdas Lekhraj
Choithramani under whom the plaintiffs are claiming title is the same person
to whom the land was allotted and Sanad was given under plaint documents 1
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IA No.617-23 OS 14-23

and 2 respectively. It is contended that similarity of the name of the Sanad

holder, was taken as advantage by the plaintiffs and the plaintiffs are trying
to make up the case over the property belonging to the defendant by
resorting to clever drafting of the plaint in creating an illusion of cause of
action by setting up a stranger i.e., Santdas Lekhraj Choithramani.

(f) The defendant contends that the Will dated 12.10.1992 has no mention
of the suit property, and it shows that the Testator of the Will did not possess
any rights over the suit property. It is stated that it can be seen from the Will
that Sanadas Lekhraj Choithramani mentioned about his flat in Bandra and
there is no reason for him not to mention about Ac.14-29 gts in Puppalguda
village, if he was the owner of the suit property by the time, the Will was
executed.

(g) It is stated that there is no whisper about any property in Puppalguda

village or in Hyderabad or in the State of Andhra Pradesh or Telangana in the
Will, based on which the plaintiffs can plead that Santdas Lekhraj
Choithramani owned the suit schedule property and it is contended by the
petitioners that there is no cause of action for the plaintiffs to file the suit and
to claim any rights over the suit property. It is stated that the plaintiffs, in
collusion with the power of attorney holder, engaged in the vexatious
litigation with an intention to grab the property and there is no cause of
action for the plaintiffs to file this suit.

(h) It is contended that the plaintiffs did not make any effort, till filling of
the suit, to challenge the registered sale deed bearing document number
8536/2003 dated 31-12-2002, and he did not challenge the mutation effected
in the name of the defendant in the revenue records in the year 2006 vide
proceedings No. 8291/ 2005 of the Dy. Collector and MRO, Rajendra Nagar. It
is stated that the plaintiffs have knowledge of alienation of the suit property
in the year 2003 or 2006 and thus, the suit is not filed within the period of
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IA No.617-23 OS 14-23

limitation. The defendant/petitioner has reproduced Sections 57 and 213 of

Indian Succession Act, 1925, and contends that suit is barred by law as
Legatee of the Will did not obtain the Probate and sought for rejection of the
plaint.
Counter of the respondents

4.(a) The respondents/plaintiffs filed counter affidavit of the constituted

power of attorney holder of the respondents. In the counter affidavit, the
respondents have denied the averments and the allegations stated in the
affidavit filed in the support of the petition. It is contended that the
petitioner/defendant did not read all the contents of the plaint and based on
certain judgments of the Hon’ble Supreme Court, which are not applicable to
the facts of the case, this petition is filed.

(b) The plaintiffs have reproduced para 6 and 7 of the plaint in the counter,
which are regarding the aspects of limitation and cause of action. It is
contended that the limitation starts from the date of knowledge and
limitation is mixed question of law and fact and therefore, it shall be
considered only as a triable issue. It is further contended that under articles
64 and 65 of the Limitation Act 1963, the suit for declaration and recovery of
possession can be filed within a period of 12 years from the date of
knowledge and therefore, suit is not barred by the law of limitation.

(c) It is contended that the plaintiffs have stated the cause of action in the
para 7 of the plaint and according to the plaintiffs they have obtained the
certified copy of the sale deed dated 31.12.2002, which was registered on
05.07.2003 and the knowledge of the plaintiffs regarding the suit cause was
only in first week of the August, 2022 and cause of action arose on 15.12.2022
also when the plaintiffs tried to enter into the suit schedule mentioned
property. The respondents/plaintiffs denied the allegation that cause of
action amounts to moonshine by way of clever drafting.
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IA No.617-23 OS 14-23

(d) It is further contended that suit schedule mentioned property is

situated in the State of Telangana and therefore, it is not necessary to obtain
Probate and it is also contended that the contention based on section 57 and
213 of Indian Succession Act, 1925, shall be taken during the trial. The
respondents/plaintiffs have registered the objection taken by the petitioner
that name of the predecessor in title is Santdas which is similar to Santdas
Lekhraj and it is contended that such plea cannot be a ground to reject the
plaint. It is stated by the plaintiffs that Santdas is son of Lekhraj Choitramani
as Choitramani is their surname and all these facts can be considered only
during the trial and they cannot be considered in a petition filed by the
defendant under Order VII Rule 11 (d) of the CPC.

(e) It is further contended that the cause of action is a bundle of facts and
it can be looked into only during the course of trial. It is also contended that
whether Santdas claimed his rights during his life time or not is a question
that can be decided during the trial and the plaintiffs contended that the
petition is filed only to drag on the suit proceedings.

5. A careful perusal of the petition shows that the defendant/petitioner

has been seeking for rejection of the plaint on the following grounds.
1. The plaint does not disclose any cause of action .
2. The suit is barred by the law of limitation.
3. The will dated 12.10.1992 based on which the suit is filed cannot be
established unless Letters of Administration or Probate is granted by
the competent Court i.e., the Hon’ble High Court of Bombay.
6. The defendant in this petition has raised the above issues seeking for
rejection of the plaint. The plaintiffs have filed the following documents
along with the plaint.
1. Photostat copy of Allotment Order dated 14.09.1967.
2. Photostat copy of Sanad.
3. Photostat copy of Proceedings of Dy.Collector & MRO, Rajendranagar,
RR District, vide Proceedings No.8291/2005, dated 12.10.1992.
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4. Certified copy of Will executed by Santhdas Lekhraj Choithramani in

favour of G.Kishanchand Harisinghani dated 12.10.1992.

5. Original death certificate of Padma, dated 20.08.2008.

6. Original death certificate of Santhdas, dated 30.12.1994
7. Original death certificate of Kishanchand dated 22.04.1997
8. Photostat copy of IGPA, dated 15.12.1996
9. Photostat copy of GPA, dated 24.03.1990.
10. Certified copy of sale deed vide doc.No.8536/2003, dt.31.12.2002
11. Original Special Power of Attorney executed by plaintiff No.1,
dt.10.12.2022.
12. Original Special Power of Attorney executed by plaintiff No.1,
dt.10.12.2022.

13. Certified copy of Encumbrance Certificate

14. Online copy of market value certificate, dated 19.12.2022.

7.(a) In order to appreciate the contentions of both the parties, I deem it

appropriate to chronologize the events relating to the suit schedule
mentioned property. Santdas Lekhraj, who appears to be a displaced person
in West Pakistan at the time of partition of India in to two separate sovereign
nations-India and Pakistan. The said Santdas, like many other displaced
persons, left Pakistan and came to India, leaving all his movable and
immovable properties in West Pakistan and there were negotiations between
the countries regarding exchange of some extent of land in lump and six years
after such negotiations, which proved unfruitful, the Government of India has
decided to rehabilitate the displaced persons from West Pakistan.
Resultantly, Indian Parliament has passed Act No.44 of 1954, The Displaced
Persons (Compensation And Rehabilitation) Act, 1954. The enactment is
intended to allot evacuee properties available in India to such displaced
persons and grant right, title and interest in such evacuee property, in favour
of the displaced persons from West Pakistan, who have left their movable and
immovable properties there and came to India.
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(b) Santdas Lekhraj, who was one of the displaced persons, made an
application for compensation (by way of rehabilitation, which was registered
by the Registrar Settlement Commissioner, Bombay (authority under Act
No.44 of 1954), as CAF No.B/B/B/11171/3171/PC 41367. The exact date of
registration of the above application is not known, but it happened before
15.12.1966. Santdas Lekhraj felt that it was not possible for him personally to
move the authorities and to places, and on 15.12.1966, he executed an
Irrevocable General Power of Attorney before the Registrar and Presidency
Magistrate, Esplanade Court, Bombay (this is not as registered document and
the plaintiffs dispute the execution of this document by Santdas Lekhrah),
appointing one Bhagwandas M.Kundanani and Gulabrai Ramchand Balani of
Bombay, to act as his General Power of Attorneys, jointly and severally, in
respect of his application made to the Regional Settlement Commissioner,
Bombay. By then, there was no allotment of land and the Power of Attorney
was granted to the said two individuals to get the land allotted and also to
manage or sell the allotted property. The above said Power of Attorney
granted absolute rights to the above said persons to deal with the allotment
and post allotment.

(c) On 14.09.1967, the office of the Custodian of Evacuee Property, by an

order passed by the Regional Settlement Commissioner, Bombay, allotted the
suit schedule mentioned property to Santdas Lekhraj under an allotment
Order No.HYD/52 and consequent to it on 21.09.1967 a Sanad was issued in
respect of the said land. Out of the two attorneys, it is not known as to what
had happened to Bhagwandas M.Kundanani, but the another Power of
Attorney namely Gulabrai Ramchand Balani, who left to the United States of
America, executed a General Power of Attorney appointing his own brother,
Kishin Ramchand Balani, who was residing in Bombay at the relevant time and
this General Power of Attorney was executed on 24.03.1990 at West Minister,
California in presence of Notary Public, California, with his seal and signature.
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(d) On 29.12.1994, Santdas breathed his last. But, since the General Power
of Attorney dated 15.12.1996, being irrevocable General Power of Attorney
with the right to obtain possession and it authroized the General Power of
Attorneys with absolute rights and to appoint other General Power of
Attorneys, the General Power of Attorney so appointed by Gulabrai
Ramchand Balani, has sold away the property to the defendant under the
registered sale deed dated 31.12.2002, which was registered on 05.07.2003.
Thereafter, defendant got the mutations carried out.

(e) It is pertinent to mention that by the date of execution of the

registered sale deed by the General Power of Attorney in favour of the
defendant, Santdas Lekhraj was no more and though his name is mentioned in
it the sale deed was executed by Kishin Ramchand Balani and for all practical
for the the transactions under the sale deed, he was considered as vendor and
the General Power of Attorney of his Principal Gulabarai Ramchand Balani.

(f) While this is so, Santdas Lekhraj Choithramani executed a registered

will dated 12.10.1992 in favour of the mother of the plaintiff No.1 and the
plaintiff No.1, bequeathing his flat in Bandra deposits in bank etc., and in the
residue will he bequeathed all his residue property where ever and what ever
to the mother of the plaintiff No.1 and Plaintiff No.1. Conspicuously, there is
no mention of the suit schedule mentioned property in the said will. Mother
of the plaintiff No.1 died on 11.08.2008. Now the plaintiff No.1 who is the sole
surviving legatee under the registered will is claiming rights over the suit
property banking on the words “residue” property mentioned in the will. The
plaintiffs are denying execution of the Irrevocable power of Attorney by
Santdas Lekhraj. Based on the Will claiming as Legatees, the plaintiffs filed the
suit and the defendant filed the application to reject the plaint on the
grounds mentioned above.
Points for consideration
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8. Based on the contentions raised in the affidavit and counter-affidavit

as well as arguments advanced by the counsel, appearing for the plaintiffs and
the defendant, the following points arise for consideration:-

(1) Whether filing of the suit is barred by Section 213 of the Indian Succession
Act, 1925, as the Will dated 12.10.1992, based on which the suit filed,
was executed in Bombay (Mumbai)?

(2) Whether the suit is barred by the law of limitation?

(3) Whether there exists cause of action for the plaintiffs to file the suit?

(4) Whether the plaint needs to be rejected under Order-VII Rule-11 of the Code
of Civil Procedure, 1908?

9. Point No.1:-
One of the contentions raised by the defendant is that the suit cannot
be entertained by this court in view of bar under Section 213 of the Indian
Succession Act, 1925. Section 213 of the Indian Succession Act, 1925, reads as
follows:-
“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], and shall only apply —
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jain 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 immovable property situate within
those limits.
10. The above provision, on plain reading, shows that any person claiming
rights based on the Will, shall obtain Probate of the Will from a Court of
competent jurisdiction in India, but this provision is not applicable to all the
Wills and limited in its application to the will mentioned in Sub Clause-2.
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11. Clause-2 (I) of Section 213 of the Indian Succession Act, 1925, stated
above, says that obtaining Probate of the Will is required only for such Wills,
which are mentioned in Clause (a) and (b) of Section 57 of the said Act and
therefore, it is necessary to find out the purport of Section 57 of the Indian
Succession Act, 1925. The said Section reads as follows:-

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 Jain,
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 immovable property situate within those
territories or limits, 4[and (c) to all wills and codicils made by any
Hindu, Buddhist, Sikh or Jain 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.

12. The above provision shows that if any Will or Codicil is made by a Hindu
within the territories which 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 the Wills, which were
made outside the territories or limits but which related to the immovable
properties situated within the above said territories or limits, need a Probate
of the Will for establishing the rights of the legatee in any court of justice. A
plain reading of the above said two provisions, in the context of the lis on
hand, make it clear that Probate of the Will granted by a Court of competent
jurisdiction is required for (i) all the Wills and Codicils made by a Hindu,
Budhist, Sikh or Jain or by a person residing in the local limits of ordinary
original civil jurisdiction of the High Court of Bombay or (ii) when the said Will
and Codicil is made in respect of the immovable property situated within the
original civil jurisdiction of the High Court at Bombay.
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IA No.617-23 OS 14-23

13. In order to adjudicate this application, above two aspects need

consideration. The plaintiffs in this case have filed certified copies of the Will
based on which they have filed the suit. Certified copy was granted by the
Joint Deputy Director, (Record) C12, Bombay Sub Urban Division. The said
Will dated 12.10.1992, executed before the Notary at Greater Bombay, was
subsequently registered before the Joint Sub Registrar, Bandra and the
certified copy of the same was issued by the Joint Deputy Registrar, Cl2,
Mumbai, Sub Division. The Will was executed by Santdas Lekhraj
Choithramani, Hindu, residing in Bandra, Bombay, and the recitals of the Will
show that Santdas Lekhraj Choithramani owned a flat in Bandra and he
bequeathed the property in favour of mother of the plaintiff No.1 and
plaintiff No.1 herein.

14. According to the contents of the plaint, the said Santdas Lekhraj
Choithramani and his wife died intestate and the plaintiff No.1 herein became
sole Legatee under the said Will. Conspicuously, the testator Santdas Lekhraj
Choithramani did not mention about the suit schedule property in the said
Will and he has mentioned about flat in Bandra, Bombay. But, he also stated in
the said Will that he bequeathed rest and residue of his property of
whatsoever kind and wherever situated in favour of the mother of the
plaintiff No.1 and the plaintiff No.1 herein. The mother of the plaintiff No.1 is
also no more and therefore the plaintiff No.1 is the only legatee.

15. The plaintiffs base their case on the recitals in the Will that “I bequeath
rest and residue of all my properties of whatsoever kind and wherever
situated” and it is contended that the plaintiff No.1 is entitled for the suit
schedule property under the said Will. It is stated that the plaintiffs got filed
the suit through their General Power of Attorney and as stated earlier, legally
it is only the plaintiff No.1, who is entitled to claim as Legatee under the said
Will, but the plaintiff No.2 is also added as a party to the suit. It is claimed
that the plaintiff No.2 being only child of the plaintiff No.1, she is also added
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IA No.617-23 OS 14-23

as the plaintiff to the suit. Lest, the plaintiff No.2 has no existing rights in the
suit property.

16. The counsel for the defendant contends that in view of Sections 213
and 57 of the Indian Succession Act, 1925, the plaintiffs cannot establish the
title or any right under the Will without obtaining Probate of Will by Hon’ble
High Court of Bombay. This is purely a legal question and the learned counsel
for the defendant/petitioner relies upon the following judgments in :-
(1). Ravinder Nath Agarwal v. Yogender Nath Agarwal & Ors. 2021 (15) SCC
282 and (2). Kanta Yadav v. Om Prakash Yadav 2020 (14) SCC 104

17. On the other hand, the learned counsel for the plaintiffs relies upon
Shakthi Bhog Food Industries v. Central Bank of India and another 2020
(17) SCC 260 and Clarence Pais and others v. Union of India (2001 (4) SCC
324.

18. The Court now has to consider whether the plaintiffs can file the suit
based on the Will executed at Bombay without Probate of Will. The above
stated legal provisions show that if the Will is executed by a Hindu residing
within the original jurisdiction of the Hon’ble High Court of judicature at
Bombay, the right under the said Will can be established only after obtaining
the Probate of the Will granted by competent Court of jurisdiction. The Will,
based on which the suit is filed, was executed at Bandra, Bombay, and there is
no dispute regarding this fact. The recitals of the Will show that the Will was
executed in respect of the immovable property situated in Bandra, Bombay,
which is within the jurisdiction of the original jurisdiction of the Hon’ble High
Court of Bombay. It is required to be mentioned that Bandra falls within the
original Jurisdiction of the High Court of Bombay, by virtue of the Greater
Bombay Laws and the Bombay High Court (Declaration of Limits) Act 1945.
When the Will was executed within the original jurisdiction of the Hon’ble
High Court of Bombay or when the Will was executed in respect of immovable
property situated within the said jurisdiction, Probate of Will is required to
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IA No.617-23 OS 14-23

establish the rights. The will based on which the suit is filed was executed in
Bombay. In this case on hand, admittedly, the plaintiffs did not obtain the
Probate of Will from the competent Court of jurisdiction.

19. Further the suit property is not shown in the Will, since a recital
regarding the residual os the property is mentioned, the plaintiffs claimed
that the suit property belonged to Santdas Lekhraj Choithramani was
inherited by them. It is pertinent to mention that both the plaintiffs are now
residing in Vadodara, Gujarath and they have executed Special Power of
Attorney to facilitate General Power of Attorney to file the suit on their
behalf. It is not known whether they have given instructions to their General
Power of Attorney regarding filing of the Probate of Will. However, it is
contended by the counsel for the plaintiffs that such Probate of Will need not
be filed since the property is situated within the jurisdiction of this Court and
not within the jurisdiction of Hon’ble High Court of Bombay.

20. In Ravinder Nath Agarwal v. Yogender Nath Agarwal & Ors., stated
above, the Hon’ble Supreme Court has considered the purport of Section 57
and 213 and Section 264 of the Indian Succession Act, 1925 and observed as
follows:-
“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.
…………………………………………………………………………………
………………………………………………………………………………...
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
 17 of 33

IA No.617-23 OS 14-23

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.”

21. In the said judgment, the Court has categorically observed that for all
the Wills that were executed in the towns of Calcutta, Madras and Bombay,
i.e., within the local limits of the ordinary original jurisdiction of the said High
Courts, obtaining of Probate of Will is a mandatory requirement. The Court
observed, thus:-
“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.”

22. The counsel for the defendant also referred to the judgment in Kant
Yadav and the said judgment is under Order-VII Rule-11 of the Code of the
Civil Procedure Code, 1908. The above said judgment is an appeal from the
orders by the Hon’ble High Court of Delhi and the property involved in the
said case is within the National Capital Regional of Delhi. The Single Bench of
Hon’ble High Court of Delhi, in the said case, affirmed the order of rejection of
plaint passed by the learned District Judge and on appeal to the Division
Bench of the Hon’ble High Court of Delhi, the said order of rejection of plaint
was found to be erroneous, since the Will was executed in Delhi and the
property is also situated in the national capital region of Delhi.

23. Challenging the order of the Division Bench, appeal was preferred
before the Hon’ble Apex Court and noting that the property is within the
National Capital Region of Delhi and that the Will was executed at Delhi, the
Hon’ble Supreme Court has held that the rejection of plaint is not proper and
dismissed the appeal confirming the order passed by the Division Bench of
the Hon’ble High Court.
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IA No.617-23 OS 14-23

24. The judgment in Kanta Yadav is relied upon by the defendant to show
that if the Will was executed outside Bombay, Madras and Calcutta and if the
property is outside the above said cities, the Probate of Will is not required,
but when the Will was executed within the original jurisdiction of the Hon’ble
High Court of Bombay, Calcutta and Madras obtaining of Probate is
mandatory. The Hon’ble Supreme Court in Kanta Yadav, after considering
various aspects, has observed as follows:-
“The statutory provisions are clear that the Act is applicable to
Wills and codicils made by any Hindu, Buddhist, Sikh or Jain, who
were subject to the jurisdiction of the Lieutenant-Governor of Bengal
or within the local limits of the ordinary original civil jurisdiction of
the High Courts of Madras or Bombay - {clause (a) of Section 57 of
the Act}. Secondly, it is applicable to all Wills and codicils made
outside those territories and limits so far as relates to immovable
property within the territories aforementioned - Clause (b) of Section
57. The clause (c) of Section 57 of the Act relates to the Wills and
codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first
day of January, 1927, to which provisions are not applied by clauses
(a) and (b)”.

25. The above judgments show that the Probate of the Will is required for
filing the suit under a Will registered in Bombay and in respect of the property
situated in Bombay. In this case on hand, though the suit property is situated
outside the original jurisdiction of the Hon’ble High Court of judicature at
Bombay, the will was executed at Bombay and in respect of the property
situated in Bandra, Bombay and there is no mention of the suit property in the
Will. Therefore, in my opinion, it is mandatory to obtain the Probate of the
Will to file a suit.

26. The counsel for the plaintiff, however, relied upon the judgment of the
Hon’ble Supreme Court in Clarence Pais and others v. Union of India and it is
of no help to the plaintiffs. In the above judgment, the Hon’ble Supreme
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IA No.617-23 OS 14-23

Court has upheld the constitutional validity of Section 213 of the Indian
Succession Act, 1925. It is worthwhile to note that the judgment in Clarence,
relied upon by the learned counsel for the plaintiffs was cited by the Hon’ble
Supreme Court in Kanta Yadav, stated above, to come to a conclusion that the
Will executed in Bombay can be established only when it is accompanied by
Probate of the Will granted by the competent court having jurisdiction. Thus,
the contention of the learned counsel for the plaintiffs, based on the
judgment in Clarence is of no avail for them. In Clarence Pais, the main
question considered by the Honourable Supreme Court is the constitutional
validity of the above provisions. The learned counsel for the plaintiffs refers
to the observation of the Honourable Supreme Court in paragraph No.6 of
Clarence Pais, which reads as follows :-
“a probate will not required to be obtained by a Hindu in
respect of a Will made out vide those territories or regarding the
immovable properties situate out side those territories”.

27. The counsel for the plaintiffs contends that the above judgment makes
it clear that for the properties situated out side Bombay, probate is not
required. I am not able to agree with the contention. The judgment as a
precedent is to be understood by reading of the entire judgment and the
judgment can not be interpreted as a statue. In this case on hand, petitioner
who was relying up on Will executed in Kochi (by State amendment to Indian
Succession Act, 1925, probate needs to be obtained for the Wills executed by
Indian Christians in Kerala) in respect of the property in Delhi and the
petitioner contended that probate is not required for the property situated in
a place to which the rule of obtaining probate is not applicable. The
Honourable Supreme Court did not accept the contention and dismissed the
Writ Petition. The word “or” used by the Honourable Supreme Court makes it
clear that if the Will was executed by a person in Kochi or Bombay in respect
of property situated out of the said places to which the rule is not applicable,
still Probate is required. Though the argument of the counsel for the plaintiffs
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IA No.617-23 OS 14-23

based on the above sentence was appealing one initially, a careful readings of
the entire judgment particularly with reference to the result of the Writ
Petition, makes the contention fragile.

28. In Mrs. Chandra (died) Vs Komala, AS.No.132/2013 a judgment dated

20.07.2023, the Honourable High Court of Madras considered similar facts. In
the said case, the Will was executed in Madras and the property is situated
outside Madras. Paragraph No.6 of Clarence Pais was argued to contend that
Probate is not required. The Division Bench of the Honourable High Court of
Madras observed that :
“If a Will is made/executed within the original jurisdiction at
Madras, in which of the clear language of Section 57 (a) (of the
Indian Succession Act, 1925) the same Will have to be probated de
hors the fact that the property are situate outside the jurisdiction.
We are unable to read the judgment of the Honourable Supreme
Court in the way the counsel suggests or wants us to read.”

29. Similar view was taken by the Honourable High Court of Madras in
S.Ganesam Vs. S. Kuppuswamy (MANU/TN/3990/2009) AIR 2009 (NOC) 1375
(MAD), holding that when the Will was executed in Madras in respect of
property situate outside Madras in Kancheepuram, the same shall be
probated before filing the suit based on the said Will.

30. The learned counsel for the plaintiffs relied upon the judgment of the
Hon’ble High Court in Naram Bhoomi Reddy (Died) Per L.R. Naram vs Naram
Venkat Reddy and another, 2014 SCC OnLine HYD 543. In the written
arguments filed by the learned counsel for the plaintiffs, it is stated that as
per the said judgment, Section 213 (2) and 57 of Indian Succession Act, 1925,
are not applicable in respect of the Wills by Hindus within the State of Andhra
Pradesh in respect of immovable properties situated within the territorial
limits of the State of Andhra Pradesh.
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IA No.617-23 OS 14-23

31. I have carefully gone through the above judgment. The Hon’ble High
Court of Andhra Pradesh has made it clear that if the Will was executed within
the territorial jurisdiction of Andhra Pradesh in respect of the properties
situated within the state of Andhra Pradesh, Probate of the Will is not
required at all. The Hon’ble High Court has clarified that the above provisions
(Sections 213 and 57 of the Indian Succession Act, 1925), are applicable only
to the territories of Bengal, Madras and Bombay. The above said judgment is
not applicable to the case on hand, as the Will Deed filed in this case was
executed in Bombay and it was executed in respect of immovable property
situated in Bandra, Bombay, and allegedly in respect of unmentioned residual
property of the Testator i.e., according to the plaintiffs, the suit property.

32. It is pertinent to mention that the Hon’ble High Court, in Naram

Bhoomi Reddy, has relied upon the earlier judgments in Masimukkula
Narayana v. Masimukkula Suryakantham 1999 (2) ALD 132 and also the
judgment in A.S.Murthy v. D.V.SS Murthy, 1979 (2) ALT 347. The judgments
only show that if the Will was executed within the State of Andhra Pradesh
and in respect of the property in Andhra Pradesh, Probate of the Will is not
required. However, in this case, Will was executed in Bombay and in respect
of the property in Bombay. Therefore, in my opinion, no right can be
established in any court of justice, by the plaintiff No.1, unless a court of
competent jurisdiction in India has granted Probate of the Will, based on
which the suit is filed. The will allegedly executed by Santdas Lekhraj
Choithramani, dated 12.10.1992, falls within the ambit of Clause (a) as well as
(b) of Section 57 of the Indian Succession Act, 1925, and therefore, rigour of
Section 213 of Indian Succession Act, 1925, applies.
Point No.1 is answered in favour of the petitioner/defendant and
against the respondents/plaintiffs.

33. Point No.2:-

The learned counsel for the defendant vehemently contends that the
suit is barred by the law of limitation. The suit is filed for the relief of
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IA No.617-23 OS 14-23

declaration of title and also to annul the registered sale deed based on which
the defendant is claiming the title. In the petition as well as in the written
arguments filed by the defendant, it is contended that the registered sale
deed, under challenge, is dated 31.12.2002, and the plaintiffs did not
challenge the above said document within the time prescribed by law and it is
stated that the plaintiff did not challenge the mutation got effected by the
defendant in respect of the suit property in the revenue records. According
to the defendant, the plaint document Nos.1, 2, 3 and 10 show the date of
knowledge of the plaintiffs and that during the lifetime Santdas Lekhraj
Choithramani did not make any claim in the suit property and 30 years after
alienating the property by Santdas, the plaintiffs came to the Court. It is
stated that at no stretch of imagination, the suit can be filed in the year 2023.
It is specifically pleaded that the suit is not within the limitation, as per Article
56, 58, 59 and 65 of the Limitation Act, 1963. There are two aspects on
limitation that need to be considered in this case. The first one is regarding
filing of the present suit and second one is regarding limitation for filing the
application seeking for Probate of the Will from the competent court.

34. As far as the first objection is concerned, the learned counsel for the
defendant has brought to the notice that the plaintiffs have filed the suit in
OS No.952 of 2018 for similar relief through one Madasu Shivanand as the
GPA holder. The said suit was filed by Ramlekhraj Wadwani and others and it
is not filed by the plaintiffs in this case and therefore, there is no substance in
the contention that the suit in OS No.952 of 2018 is filed at the instance of
the plaintiffs herein. In the said suit, in OS No.952 of 2018, Ramlekhraj
Wadwani and three others have claimed that they are the successors of
Santdas Lokraj @ Lekhraj Dayanand. In the above said backdrop, the Court
cannot look into the copy of the plaint in OS No.952 of 2018 as the said suit is
not filed by the plaintiffs herein and there is no reason for the court to believe
that the said suit was also filed at the instance of the plaintiffs herein.
Moreover, the court, while considering the the application under Order-VII
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IA No.617-23 OS 14-23

Rule-11 of the CPC, cannot consider any other material other than the
averments of the plaint and the documents filed by the plaintiffs in support of
their case. Therefore, there is justification in the contention of the learned
counsel of the plaintiffs that the question of limitation in this case is a mixed
question of fact and law.

35. The learned counsel for the plaintiffs has relied upon the judgment of
the Hon’ble Supreme Court in Shakti Bhog Food Industries v. Central Bank
of India and another 2020 (17) SCC 260 in which the Hon’ble Supreme Court
has opined that in certain cases, the question of limitation is a mixed question
of fact and law. In this case, only based on the averments of the plaint, the
Court cannot decide whether the suit for cancellation of registered
documents is filed beyond the period of limitation.
36. However, there is another aspect intrinsically connected to the aspect
of limitation. The plaintiffs so far did not obtain the Probate of the Will
executed by Santdas Lekhraj Choithramani and the contents of the Will clearly
envisage appointment of an administrator. Father of the plaintiff No.1 was
appointed as the administrator. According to the contents of the Will, the
funeral expenses, including the expenses for annual ceremony of the testator,
shall be spent out of estate and the father of the plaintiff No.1 shall do the
same as an administrator. This aspects of the Will supposes that the Will shall
be immediately put into action after the death of Santdas Lekhraj
Choithramani. According to the contents of the plaint, the said Santdas
Lekhraj Choithramani died on 29.12.1994. In view of the recitals of the Will,
immediately after the death of the Testator, the Will shall be put into action,
as the funeral expenses, including the expenses for obsequies of the Testator
shall be conducted with the amount as mentioned in the Will. Therefore, this
is a case where the Probate of the Will shall be obtained at the earliest.
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IA No.617-23 OS 14-23

37. In Kunvarjeet Khandupur v. Kirandeep Kaur and others 2008 SCC 463,
the Hon’ble Supreme Court has categorically held that the application for
grant of Probate is governed by law of limitation and the limitation shall be
reckoned as per Article 137 of the Schedule to the Limitation Act, 1963.
Therefore, the Legatees or Administrator under the Will executed by Santdas
Lekhraj Choithramani is bound to get the Probate from the competent Court
of jurisdiction after the death of the testator Santdas Lekhraj Choithramani.
Even 30 years, after the death of the testator, the Probate of the Will is not
obtained by the plaintiff No.1 or her mother. During the lifetime of the
mother of the plaintiff Padma, the Probate is not obtained. Her husband did
not obtain Letter of Administration from the competent court of jurisdiction.
Even the plaintiff No.2 also did not obtain the Probate till this date. In view of
the judgment in Kunvarjeet Khandupur, stated above, obtaining of Probate
is barred by the law of limitation. The legal position in Kunvarjeet
Khandupur was affirmed in Sameer Kapur v. The State through Sub
Divisional Magistrate, South, New Delhi, AIR 2019 SC 3318.

38. The legal position stated in Sameer Kapur and Kunvarjeet Khandupur,
stated above, can be found in the judgment of the Hon’ble Supreme Court in
Krishna Kumar Sharma v. Rajesh Kumar Sharma, AIR 2009 SUPREME COURT
3247. The cumulative reading of the above three judgments makes it clear
that the limitation period for obtaining the Probate is governed under Article
137 of the Schedule annexed to the Limitation Act, 1963. In this case on hand,
the plaintiffs have not obtained the Probate till this date. The plaintiffs are
now precluded from obtaining the Probate, for the Will. The plaintiffs have
been claiming the property only through the Will as Legatees and not on any
other ground. There is no possibility for them to obtain the Probate as the
same is barred by the limitation and the suit property is not mentioned in the
will.
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IA No.617-23 OS 14-23

39. In view of my discussion, under point No.1, without filing the Probate,
the plaintiff No.1 will not be in a position to establish her right under the Will.
The plaintiff No.1, now is barred from obtaining Probate as the period of
limitation has elapsed. In that view of the matter, the plaintiffs may not be
able to file the suit based on the Will dated 12.10.1992. Moreover, it is
doubtful as to whether the Probate will be granted at all, in respect of the suit
property as the same is not mentioned in the Will, based on which the suit is
filed.

40. In the above circumstances, I am of the opinion that though the suit for
the cancellation of the registered sale deed executed in favour of the
defendant is not barred by the law of limitation, obtaining of the Probate of
the Will, which is mandatory for filing the suit, is not possible as the same is
barred by the law of limitation.
Thus, point No.2 is answered, accordingly.

41. Point No.3:-

Another important contention raised by the learned counsel for the
defendant/petitioner is that no cause of action exists in favour of the
plaintiffs to file the suit. Here also, the court has to see only the averments
in the plaint and according to the contents of the plaint, all the GPAs, based
on which the property was sold to the defendant, are fabricated and they
came to know about the alleged execution of the sale deed very recently. It is
true that the plaintiffs ought not to have kept quiet for all along.

42. It is also true that the plaintiffs ought to have obtained Probate of the
Will and could have visited the suit property immediately after the death of
Santdas Lekhraj. The counsel for the defendant vehemently contended that
the son of the General Power of Attorney in this case filed the suit as an agent
of the grand-children of Santdas Lekhraj in OS No.952 of 2018 whereas the
present suit is filed by father of the General Power of Attorney on behalf of
the plaintiffs, who claim to be Legatees. The contention of the counsel for
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IA No.617-23 OS 14-23

the defendant that the General Power of Attorneys who filed this suit and OS
No.952 of 2018 are taking recourse to a chronic litigation appears to be true.
It is true that several decades after the execution of the General Power of
Attorney by Santdas Lekhraj, the plaintiffs in both the suits came before the
court claiming rights based on two different versions. The averments in this
plaint and in OS No.952 of 2018 contradict each other. But, only on the
ground that the General Power of Attorneys are taking recourse to chronic
litigation or that there are rival claims for the suit property, the Court could
not come to a conclusion that there exists no cause of action. The material for
the above facts can be found only in the documents filed by the defendant,
which cannot be considered by this Court.

43. The learned counsel for the petitioner/defendant has contended that
the Will does not have mention of the suit property and it is also contended
that since the sale deed was executed in the year 2002, the adverse
possession can also be claimed by the defendant. As far as the question of
adverse possession is concerned, it is a matter of fact, which needs to be
tested by the trial and evidence. The question now is whether not obtaining
the Probate within the period of limitation extinguishes rights if any of the
plaintiffs to file the the suit. To be precise, whether this aspect extinguishes
the cause of action for the plaintiffs to file the suit based on the Will.

44. It is often argued that the cause of action is a bundle of facts and as
held in Bloom Dekor Limited vs Subhash Himatlal Desai (1994) 6 SCC 322, cause
of action means, “every fact, which, if traversed, it would be necessary for the
plaintiff to prove in order to support his right to a judgment of the Court.”

45. In Om Prakash Srivastava vs Union Of India And Another (2006) 6

SCC 207, the Hon’ble Apex Court, held that, it is a bundle of facts, which taken
with the law applicable to them, gives the plaintiff a right to claim relief
against the defendant.
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IA No.617-23 OS 14-23

46. In Rajasthan High Court Advocates Association vs. Union Of India &
Others (2001) 2 SCC 294, the Hon’ble Apex Court has held that “every fact
which it would be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of the Court.”

47. There are several judgments on the above said lines, and multiplication
of them here, does not serve any purpose. In this case on hand, the plaintiffs
require to prove the Will for which Probate is required. The language of
Section 213 of the Indian Succession Act, 1925, mandates that “no right as no
right as executor or legatee can be established……” without obtaining the
Probate the plaintiffs cannot initiate any action in respect of the immovable
properties (assuming that the suit property is specifically mentioned in the
Will). The plaintiffs are under an obligation to prove that they have obtained
the Probate which they did not.

48. The cause of action for the suit, based on Will (for which Probate is
required) 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 and when it is not possible, the Court
shall hold that there exists no cause of action for the suit. When law is clear
that without the probate, the plaintiffs fail to prove and cannot establish their
rights, it means that the plaintiffs have no cause of action .

49. The contention that there are several facets of cause of action, as it is a
bundle of facts, is also considered. But, in this case on hand, without the
Probate, the cause of action does not arise at all and in view of my discussion
under Point No.2 (on limitation), the plaintiffs claim for obtaining the Probate
is barred by the law of limitation and thus the cause of action for filing the suit
for the relief in respect of the suit property is extinguished even before its
commencement.
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IA No.617-23 OS 14-23

50. For all the above reasons, I hold that the plaintiffs have no surviving
cause of action to file this suit. Point No.3 is answered in favour of the
defendant, and against the plaintiffs.

51. Point No.4:-

Based on the conclusions under point Nos.1 to 3, this Court needs to
adjudicate whether the plaint in this case is liable to be rejected. This court is
conscious that exercising the discretion under Order VII Rule-11 of the CPC,
shuts the doors of the Court to the plaintiffs at the threshold and hence all
the contentions of the plaintiffs are cautiously scrutinized. Order VII Rule-11
of the CPC reads as follows:-
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:
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 form 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. The above provisions are intended to prevent
suits which are improper nature.
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IA No.617-23 OS 14-23

52. In Azhar Hussain vs Rajiv Gandhi AIR 1986 SC 1253, the Hon’ble
Supreme Court observed that the discretion under Order-VII Rule-11 of the
CPC is;
“meant to be exercised to serve the purpose for which the
same have been conferred on the competent Court so that the
litigation comes to an end at the earliest and the concerned litigants
are relieved of the psychological burden of the litigation so as to be
free to follow their ordinary pursuits and discharge their duties. And
so that they can adjust their affairs on the footing that the litigation
will not make demands on their time or resources, will not impede
their future work, and they are free to undertake and fulfill other
commitments.”

53. Though the Hon’ble Apex Court was dealing in election petition. The
above observations are made with reference to the ordinary civil litigation.
The above observation indicates the broad purpose and object of the
provisions under Order-VII Rule-11 of the CPC. The suit on hand appears to
have been entrusted to a General Power of Attorney by the plaintiffs and the
General Power of Attorney has been mainly attempts to litigate in one or the
other forums in respect of the land, which was almost forgotten by the
original Sanad holder or theplaintiffs decades ago.

54. The Hon’ble High Court of Madras in K.Thakshinamoorthy v. State

Bank of India AIR 2001 Mad 167 rejected the plaint filed by a bank against the
creditor for want of cause of action.

55. In Church Of Christ Charitable Trust & Education vs M/s.

Ponniamman Educational Trust Represented by its Managing Trustee 2012
(8) SCC 706 and World Tanker Carrier Corp v SNP Shipping Services Pvt Ltd
AIR 2000 Bombay 34, also laid down the principles guiding the situations for
rejection of the plaint.

60. In Church of Christ Charitable Trust & Educational Charitable

Society v. Ponniamman Educational Trust the Honourable Apex Court
(2012) 8 SCC 706 has observed that:-
“It is clear from the above that where the plaint does not disclose a
cause of action, the relief claimed is undervalued and not corrected
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IA No.617-23 OS 14-23

within the time allowed by the court, insufficiently stamped and not
rectified within the time fixed by the court, barred by any law, failed
to enclose the required copies and the plaintiff fails to comply with
the provisions of Rule 9, the court has no other option except to
reject the same. A reading of the above provision also makes it clear
that power under Order 7 Rule 11 of the Code can be exercised at
any stage of the suit either before registering the plaint or after the
issuance of summons to the defendants or at any time before the
conclusion of the trial.”

61. The Honourable Supreme Court in Saleem Bhai v. State of

Maharashtra (2003) 1 SCC 557, in which, (2012) 8 SCC 706.
“9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant
facts which need to be looked into for deciding an application
thereunder are the averments in the plaint. The trial court can
exercise the power under Order 7 Rule 11 CPC at any stage of the
suit—before registering the plaint or after issuing summons to the
defendant at any time before the conclusion of the trial. For the
purposes of deciding an application under clauses (a) and (d) of Rule
11 of Order 7 CPC, the averments in the plaint are germane; the
pleas taken by the defendant in the written statement would be
wholly irrelevant at that stage..”

62. In Shakti Bhog Food Industries Ltd. v. Central Bank of India and
Another 2020 SCC OnLine SC 482 relied upon by the counsel for the plaintiffs
also, the Honourable Supreme Court has observed as follows:

“It is clear that in order to consider Order 7 Rule 11, the court has to
look into the averments in the plaint and the same can be exercised
by the trial court at any stage of the suit. It is also clear that the
averments in the written statement are immaterial and it is the duty
of the Court to scrutinize the averments/pleas in the plaint. In other
words, what needs to be looked into in deciding such an application
are the averments in the plaint. At that stage, the pleas taken by the
defendant in the written statement are wholly irrelevant and the
matter is to be decided only on the plaint averment. These principles
have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property,
(1998) 7 SCC 184 and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune
Express, (2006) 3 SCC 100.”

63. Thus, when any of the conditions in order-VII Rule-11 of the CPC is/are
complied with the court has a duty to reject the plaint, and the only limitation
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is that the court shall consider only the averments of the plaint and shall not
look into any other documents other than the averments of the plaint and the
documents filed along with the plaint.

64. In Arivandanam v. T.V.Satyapal and another, (1977) 4 SCC 467, the

Hon’ble Supreme Court cautioned the trial judges and it is observed that
“If on a meaningful-nor 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 his power under Order
VII rule 11, C.P.C. taking care to see that the ground mentioned
therein is fulfilled.”

65. In the above judgment, it was opined that the activist judge shall
exercise the discretion to curtail the bogus litigation. It is that the law is clear
that the allegations are vexatious, meritless and not disclosing a clear right or
materials to sue it is the duty of the trial judge to exercise the discretion
under order VII Rule 7 of the CPC.

66. Madanuri Sri Rama Chandra Murthy vs Syed Jalal, 2017 (13) SCC 174,
the Hon’ble Supreme Court has stated that;
“Even when, the allegations made in the plaint are taken to be
correct, as a whole on their face value, if they show that the suit is
barred by any law, or do not disclose cause of action, the application
for rejection of plaint can be entertained and the power under Order
VII Rule 11 of CPC can be exercised.”

67. Having considered all the averments in the plaint and the documents
filed by the plaintiffs and without referring to any other material, it can be
noticed that the suit claim of the plaintiffs (in particular plaintiff No.1) cannot
be established without filing the Probate of the Will and since the plaintiffs
did not file the same. Even if the case is tried, the plaintiffs would not
succeed. Further the plaintiff No.2 is neither a necessary nor a proper party in
the suit.
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68. The discussion under point Nos.1 to 3 yields to the following

conclusions;
(1) The Plaintiffs claim is rested only on the Will dated 12.10.1992
executed at Bombay in respect of the property situated in Bombay and also
the “residual” property of the testator.

(2) The suit property is not mentioned in the Will and the plaintiffs have
been claiming the rights under the Will contending that all the other
properties of the testator whenever they are situated are also bequeathed in
favour of the plaintiff No.1 and her mother.

(3) The plaintiffs did not obtain Probate of the Will as required under
Section 213 and 57 of the Indian Succession Act, 1925 and any Will executed in
Bombay.
(4) No right in respect of the Will executed in Bombay can be established
without obtaining the Probate as mandated under Section 213 of the Indian
Succession Act, 1925.

(5) Though the plaintiffs cannot file the suit without obtaining the Probate
of the suit Will dated 12.10.1992.

(6) Since the suit property is not mentioned in the Will and the Probate is
not obtained in respect of the Will, cause of action for filing the suit does not
exist as discussed under point No.3

(7) The plaintiffs cannot obtain Probate for the Will as (i) the limitation to
obtain the Probate is explained as discussed under Point No.2 and (ii) the suit
property is not mentioned in the Will dated 12.10.1992, which is the sole basis
for filing the suit. By this reason, cause of action for filing the suit is
extinguished.

(8) Though the counsel for the plaintiffs has vehemently contended on the
weaknesses in the defence of the defendant, at this stage, the Court
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considering the case of the plaintiffs and the strength of the case of the
defendant does not fall for test in this petition.

(9) While discussing under Point Nos.2 and 3, the Court came to a
conclusion that the cause of action for filing the suit does not exist and it is
extinguished. Therefore, the plaint is to be rejected under Order-VII Rule-11
(a) of the CPC.

(10) In view of my discussion under Point No.1, the suit is barred by Sections
213 and 57 of the Indian Succession Act, 1925 and thereby the point is to be
rejected under Order-VII Rule-11 (d) of the CPC.

69. In the result, petition is allowed and the plaint is rejected.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by me in
the open Court, on this the 21st day of June, 2024.

I-Additional District Judge,

Ranga reddy district.