Bombay High Court: While hearing an application for ad interim reliefs in relation to a property dispute, the Single Bench of G.S. Patel, J. observed that it is the duty of an advocate to cross-check status of a judgment and place the accurate law before the court. In the instant case, the parties disputed about the estate of one Kirtikumar Nayak, who had died in 2005. In 2016, Kirtikumar’s daughter filed a suit seeking a declaration that she was entitled to a share in her father’s estate and pleading for administration and partition of his properties. Defendants, however, produced a Testamentary Petition filed in 2006 by Kirkitkumar’s widow, which was eventually granted, and contained an averment that Kirtikumar was survived only by his wife and three sons. Defendants also contended that since Article 113 of the Schedule to Limitation Act, 1963 provides for a period of three years from date when “the right to sue accrues”, the suit was barred by limitation. But, the plaintiff claimed that the suit was covered by Article 65 (for possession of immovable property based on title) or Section 110 (a suit by a person excluded from joint family property), both of which stipulate a twelve-year period limitation.

The Court observed that two major decisions cited by the counsel for defendants had been set aside by consent in appeal. But, the counsel maintained that they were binding precedents. The Court disappointedly remarked that with the advent of online databases, there can be no excuse for failing to check whether a judgement cited, has been confirmed or set aside in appeal. The Court, however, refused to express any view on the issue of limitation because a substantially similar issue was pending final disposal before a Full Bench of Bombay High Court. [Heena Nikhil Dharia v. Kokilaben Kirtikumar Nayak, 2016 SCC OnLine Bom 9859, decided on December 09, 2016]


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