Final Order 1

Order Details: Notice of Motion
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Suit No. 2337 of 2019
… Order on NM No. 55 of 2020
MHCC010001512020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 55 OF 2020
IN
S. C. SUIT NO. 2337 OF 2019
Shikrishna Mahadeo Bhuskute and others …Plaintiffs
Versus
Dinkar Mahadeo Bhuskute and another. ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI. A. K. KALE
(C.R.No.59)
DATE : 17th September 2025
Ld. Advocate Shri. Sharad Bhosale for the plaintiff.
Ld. Advocate Smt. Prachi Khandge for defendant nos. 1 and 2.
ORDER
1. This is a notice of motion taken out by the defendant Nos.1
and 2 for rejection of plain under Order 7 Rule 11(a) and (d) of the
CPC.
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2. It is submitted that plaintiffs filed suit for declaration that
the suit flat is a joint family property and Gift Deed dtd. 27.04.2016 is
null, void and illegal and non-enforceable. As per plaintiffs, the flat
belongs to their father Mr. Mahadeo Bhuskute, who expired in the year
1977. If the plaintiffs are claiming share in the suit flat it is barred by
law and limitation. The Succession was opened in the year 1977 on the
death of Mahadeo Bhuskute. The suit flat was transferred in the name
of mother by consent of the plaintiffs and defendants as per MHADA
regulations. The suit flat was transferred in the name of wife of
deceased who lateron became absolute owner and redevelopment of
property by MHADA vide Agreement dtd. 19/04/2013 is never
challenged by the plaintiffs during Her life time or even today.
Therefore, Smt. Sudha Bhuskute was the absolute owner of the suit flat.
Therefore, so far as prayer clause (a) is concerned the plaintiffs do not
have any cause of action and it is barred by law of limitation. Smt.
Sudha Bhuskute before her demise executed a Gift Deed in favour of
defendant no.2 and gifted the suit flat to him due to love and affection.
Before execution of Gift Deed the defendant no.2 had informed plaintiff
no.3 that Smt. Sudha Bhuskute has executed document gift deed,
indemnity bond-cum-affidavit-cum- undertaking for transferring the suit
flat in favour of the defendant no.2. The plaintiff No.3 not only had a
copy of the documents but also was very much aware of the execution
of the same. In letter dated 17th May, 2016 the plaintiff No. 1 has
categorically admitted that the plaintiffs were aware of registration of
gift deed in favour of the defendant No. 2 prior to 17th May, 2016.
Therefore, the suit filed by the plaintiffs challenging the gift deed as per
prayer clause (b) of the plaint is beyond the period of three years from
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the date of execution of the gift deed and/or even from the date of the
knowledge of gift deed and therefore, the suit is hopelessly barred by
law of limitation. The plaint deserves to be rejected under Order 7 Rule
17 of C.P.C. since it appears to be barred by law of limitation. Therefore,
it is prayed to reject the plaint under Order 7 Rule 11 of the CPC.
3. The plaintiffs objected the notice of motion by filing reply.
It is submitted that suit is filed for plaintiff’s share in joint family
property independent to that of his deceased mother and his brother i.e.
Defendant no.1, for declaration that the alleged Gift deed alleged to
have been executed by deceased mother at the age of 88 years with
illness is illegal, null and void and for partition of suit flat by metes and
bounds. The Defendant No.1 has raised three fundamental issues in the
captioned Notice of Motion. The plaintiffs did not pray for division of
property after the demise of father Mahadeo Bhuskute in 1977. The
same was not required as for convenience purpose the suit flat was
transferred in the name of mother. The second issue is that the
Plaintiffs did not challenge agreement executed between the mother
and MHADA on 19.04.2013. There was no need to challenge the same
as after 1977 the property continued to stand in Plaintiff No. 1 and
Defendant no 1's name and there was no question of division of
property or prayer for it as it was and is joint family property. The third
issue raised is the alleged Gift Deed was executed in 27.01.2016 by the
mother of Plaintiff No. 1 and Defendant No. 1 and reference to is made
by the Plaintiff's Advocate in letter dtd. 17.05.2016. The Plaintiffs were
able to obtain copy of alleged Gift deed dated 27.01.2016 only on
14.02.2019 and the period of limitation would start only from
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14.02.2019. Time and again and several requests were made to the
defendants to provide copy of alleged Gift deed but the defendants did
not provide copy of the same.
4. It is further submitted that in the light of recent judgments
of Hon'ble Supreme Court and deletion of section 9A from the Code of
Civil Procedure, 1908, the issue of limitation has to be decided
alongwith all other issues and on this ground alone the Notice of
Motion deserves to be dismissed with costs. The Plaintiff is claiming a
share in the property of father of Plaintiff No. 1 and this does not mean
that the period of limitation starts to run on demise of Plaintiff No. 1's
father. For the purpose of convenience the suit flat was transferred in
the name of Plaintiff No. 1's mother. It is denied that because MHADA
entered into an Agreement with mother, she becomes absolute owner of
suit flat. The mother of plaintiff no.1 was always a housewife and did
not have any source of income. It is denied that there is no cause of
action . It is denied that the plaintiffs were having copy of registered
Gift Deed prior to 14-02-2019. The plaintiffs had a strong apprehension
after sending an email in January, 2016 that the Defendant No. 2 would
at attempt to register the Gift Deed. The plaintiffs was not aware of any
details of Gift deed or as to when it was executed. After numerous visits
at Registrar office and taking search of numerous documents, the
plaintiffs were able to locate alleged Gift Deed on 14.02 2019. The
period of limitation for challenging the Gift Deed starts only on
14.02.2019. It is denied that the suit is barred by limitation. The date
of execution of Gift Deed is irrelevant. The knowledge of the execution
is 14.02.2019. It is therefore lastly prayed to dismiss the notice of
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motion.
5. Perused notice of motion, reply, record and heard both the
sides.
6. The suit is filed for declaration that the suit flat be declared
as joint family property. For further declaration that the Gift Deed dtd.
27-01-2016 is null, void, illegal and non-enforceable in law and same to
be canceled and for further direction to the defendants not to execute
any document in respect of suit flat without written consent of the
plaintiff and without making plaintiff as a party. As per plaintiff, the suit
flat was belongs to their father. Thereafter, it was transferred in the
name of their mother and mother executed Gift deed in favour of the
defendant. The plaintiffs are claiming one and half share in the flat as
one of the son of deceased Mahadeo Bhuskute. The defendant has taken
out present notice of motion on the ground that the plaintiff is not
having cause of action and the prayers sought in the suit are beyond the
period of limitation.
7. As per defendant no.1, their father was died in the year
1977 and the suit is filed in the year 2019 therefore, it is not within
limitation and not maintainable. It is further challenged on the ground
that an agreement executed between their mother and MHADA on
19-04-2013, has not been challenged by the plaintiff and therefore, as
per the defendant the suit is not maintainable. Suit is further objected
on the ground that the Gift Deed which challenged was executed on 27-
01-2016 and the plaintiff was having knowledge of the said Gift Deed
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and it is not challenged within period of limitation i.e within 3 years
from the date of execution and therefore also, as per defendants, the
suit is not within limitation. It is the case of the plaintiff that the
plaintiff learnt about the execution of the Gift Deed by the defendant
Nos. 1 and 2’s advocate by letter dtd. 04-02-2019 but no copy was
provided to the plaintiff. Therefore, plaintiff took search in the Sub-
Registrar Office and obtained copy of Gift Deed and therefore, as per
plaintiff the suit is within limitation.
8. In respect of first ground of challenging the limitation of suit
that the father defendant No. 1 died in the year 1977, the suit is for
partition alongwith other reliefs. The plaintiff is claiming share in the
property of father in the suit by partition. It cannot said that the share is
to be claimed at the demise of a Co-partition. The right of plaintiff has
to be decided in the suit not on the basis of death of a Co-partition.
Therefore, the said objection for limitation cannot be considered. In
respect of agreement of mother with MHADA. The name of mother of
plaintiffs was inserted after death of father. It is the case of plaintiff that
her name was inserted for the sake of convenience. She was not having
any source of income. Therefore, as per plaintiff though the property
stands in the her name, the parties were having share in the property.
Therefore, the agreement of deceased mother with MHADA need not be
challenged. It is seen that above factual aspects are asserted by the
plaintiff and denied by the defendant. The said facts to be decide in the
trial therefore, cannot be decided at this stage of interim relief, so the
said objection in respect of limitation also cannot be considered at this
stage.
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9. The third objection in respect of knowledge of gift deed to
the plaintiff, as per defendant, plaintiff was aware about the execution
of gift deed and inspite of that the suit was not filed within limitation.
The defendant relied upon the notice issued by the plaintiff which is
filed at page No. 37 of suit where in it is mentioned that in the month of
January 2016, Mr. Amogh Dinakar Bhuskute sent draft of gift deed
between Mrs. Sudha Mahadeo Bhuskute and himself. In respect of said
flat and indemnity bond to be executed by him. The defendant further
relied upon paragraph (6) of that notice wherein it is mentioned that
the plaintiff recently came to know that Mr. Amogh Bhusute approached
to the society and submitted the registered gift deed allegedly executed
by his mother in favor of defendant in respect of suit flat. So from the
above paragraphs of notice, as per defendant, the plaintiff was having
knowledge of execution of gift deed on the day of sending of notice that
is on 17/05/2016. On the other hand, it is case of plaintiff that plaintiff
was not having copy of gift deed prior to 14/02/2019. The plaintiff was
having strong apprehension after sending E-mail in January 2016, that
the defendant No. 2 have registered gift deed. The plaintiff was not
aware of any details of gift deed or as to when it was executed and after
numerous visits and taking search with register, the plaintiff was able to
locate alleged gift deed on 14/02/2019. The plaintiff rely upon further
notices filed at page 46 and 54 and also the reply page 57. It is seen
from the notice which is of January 2019 that the plaintiff seeking
copies of document executed by his mother. By reply page No. 57 the
defendant informed about execution of gift deed dtd. 27 January 2016.
It is seen from the above facts and circumstances that it is a matter of
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mixed question of law and facts whether the plaintiff was having
knowledge of contents of gift deed is the fact which can be decided in
trial of suit and not at this stage. It is not a pure question of law which
can be decided at this stage. Cause of action in the suit is alleged by the
plaintiff in para 33 that the plaintiffs learned about execution of alleged
gift deed by the advocates letter dtd. 04/09/2019 so the cause of action
is there. The said fact is alleged by the plaintiff and denied by the
defendants, therefore it is to be decided through evidence.
10. As per defendant plaintiff cannot bring the suit within
limitation by clever drafting and therefore, it is necessary to be seen
whether in fact the suit is within limitation. In support of his
submissions, the Ld. Counsel for defendants relied upon case law of
Hon’ble Supreme Court in Abdul Rahim and Others Versus Sk. Abdul
Zabar and Others. (2009) 6 Supreme Court Cases 160. It has been held
by the Hon’ble Supreme Court in para 28.
28. A suit for cancellation of transaction whether on the
ground of being void or voidable would be governed by
Article 59 of the Limitation Act. The suit, therefore, should
have been filed within a period of three years from the
date of knowledge of the fact that the transaction which
according to the plaintiff was void or voidable had taken
place. The suit having not been filed within a period of
three years, the suit has rightly been held to be barred by
limitation.
In case in hand, as per the plaintiff, they got knowledge of gift deed in
the month of January 2019.
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11. The learned counsel for defendant further relied upon case
law Raghwendra Sharan Singh Versus Ram Prasanna Singh (Dead) by
legal representatives. (2020) 16 Supreme Court Cases 601 : 2019 SCC
OnLine SC 372.
It has been held by the Hon’ble Supreme Court :-
Applying the law laid downby the Supreme Court in
various decisions on exercise of powers under Order 7
Rule 11 CPC to the facts of the case in hand and the
averments in the plaint, it must be held that both the
courts below have materially erred in not rejecting the
plaint in exercise of powers under Order 7 Rule 11 CPC. It
is not in dispute that the gift deed was executed by the
original plaintiff himself along with his brother. The deed
of gift was a registered gift deed. The execution of the gift
deed is not disputed by the plaintiff. It is the case of the
plaintiff that the gift deed was a showy deed of gift and
therefore the same is not binding on him. But for
approximately 22 years from the date of execution of the
gift deed neither the plaintiff nor his brother (who died on
15-12-2002) claimed at any point of time that the gift
deed was showy deed of gift. One of the executants of the
gift deed, brother of the plaintiff, during his lifetime never
claimed that the gift deed was a showy deed of gift. It was
the appellant-defendant who filed the suit in the year
2001 for partition and the said suit was filed against his
brothers to which the plaintiff was joined as Defendant 10.
The summon of the suit filed by the defendant was served
upon Defendant 10-plaintiff in the year 2001 itself.
Despite the same, he instituted the present suit in the year
2003. Even from the averments in the plaint, it appears
that during these 22 years i.e. the period from 1981 till
2001/2003, the suit property was mortgaged by the
appellant and the mortgage deed was executed by the
defendant. Therefore, considering the averments in the
plaint and the bundle of facts stated in the plaint, it is
clear that by clever drafting the plaintiff has tried to bring
the suit within the period of limitation which, otherwise, is
barred by law of limitation. Therefore, as the suit is clearly
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barred by law of limitation, the plaint is required to be
rejected in exercise of powers under Order 7 Rule 11 CPC.
The cited case law, with due respect is not applicable to the facts of case
in hand in cited case. In cited case the Gift deed was executed by
original plaintiff himself alongwith his brother. In the case in hand, as
per plaintiff they got knowledge of gift deed in the month of January
2019. The Ld. Counsel of the plaintiff on the other hand relied upon
case law of Hon’ble Supreme Court in the case of Nusli Neville Wadia
Versus Ivory Properties and Others (2020) 6 Supreme Court Cases 557.
Thus, question of limitation in no case can be said to be a
question of jurisdiction of court in the context of S.9-A-
Issue of limitation, therefore, cannot be decided as a
preliminary issue of jurisdiction under S.9A.
The cited case law, with due respect, is not applicable to the facts of
case in hand. The present notice of motion is filed for rejection of plaint
Under Order 7 Rule 11 of C.P.C. and not for framing issue of Under
Section 9A of CPC. The Ld. Counsel plaintiff further relied upon case of
Hon’ble Bombay High Court in the case of Dattatraya Shankar Karade
Versus Maharashtra Housing and Area Development Authority & Ors.
The right of the plaintiff as an heir of the deceased
occupant in obtaining either his share or the right of the
plaintiff in obtaining the actual accommodation would
then be decided in the suit. Consequently the impugned
order of the learned Judge, City Civil Court dated 14th
June, 2013 is not interfered with.
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12. As discussed above the questions raised in respect of
limitation and cause of action are the mixed question of law and facts.
Therefore cannot be decided at this stage of interim relief. Therefore,
the plaint cannot rejected under Order 7 Rule 11 of C.P.C. As such the
notice of motion deserves to be dismissed. Hence I proceed to pass
following order :-
ORDER
The Notice of Motion No. 55 of 2020 stands dismissed and disposed of
accordingly.
(A.K.Kale)
Ad-Hoc Judge
City Civil Court,
Date : 17/09/2025 Gr. Bombay.
Dictated on : 17/09/2025.
Typed on : 18/09/2025.
Checked & Signed on : 29/09/2025.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
04.10.2025 At 11.30 a.m. Typed by Mrs. K. M. Rana
UPLOAD DATE & TIME Corrected & Uploaded by
Mrs. Shruti M. Raut
NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.) HHJ Shri A.K.Kale
(Court Room No.59).
Date of Pronouncement of Judgment/Order 17-01-2025.
Judgment/Order signed by P.O. on 29-09-2025
Judgment/Order uploaded on 04-10-2025
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