Heena Nikhil Dharia v. Kokilaben Kirti kumar Nayak

[SCC Online On 9.12.2016]

FACTS

In this case the dispute is related to the estate of Kirtik kumar Nayak. The person died in the year 2005. Kirtik kumar’s daughter filed a suit claiming that she is entitled to a share in her father’s estate. She further pleaded for administration and partition of the property.  Meanwhile in the year 2006 a Testamentary Petition was filed by the widow of Kirtik kumar Nayak. The petition contended that Kirti kumar was survived only by his wife and three sons. This petition was produced by the defendant in this particular case once a claim for the property has been asked by Kirtik kumar’s daughter.

ISSUES BEFORE THE COURT

  • Whether kirtik kumar’s daughter is liable to get a part in the estate.
  • The defendant 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.
  • 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. (Code of honour obligates advocates to place accurate law before the Court; SCC Online, Dec 20,2016)

HELD

The Court held that it is the duty of the Court to check whether a judgment cited, has been confirmed or set aside in appeal. The Court contended that two major decisions cited by the counsel of the defendant has been set aside by consent in appeal yet the counsel maintained that they are binding precedent.  The Court however did not comment on the limitation issue. According to the Court the issue of limitation of substantially similar issue was pending before a Full Bench of Bombay High Court.

 LEARNING OUTCOME

The Advocates being the torchbearer of law and the spokesperson of the court to common people it is mandatory that they diligently solve cases and look into past records and provide proofs which are legal and true. The Court makes it clear that t is the duty of the advocates to cross check status of judgment and place accurate law before the Court. (Code of honor obligates advocates to place accurate law before the Court; SCC Online, Dec 20, 2016)

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