* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No.279-80/2011 & CM No.10404/2011
Babli Brar ...Appellant through
Dr. A.M. Singhvi, Sr. Adv.
with Mr. Amit Sibal,
Ms. Jyoti Mendiratta,
Ms. Gurkirat Kaur &
Ms. Deeksha Kakkar, Advs.
versus
Adesh Kanwarjit Singh Brar ......Respondent through
None
% Date of Hearing: May 25, 2011
Date of Decision: June 03, 2011
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
VIKRAMAJIT SEN, J.
1. The present Appeal assails the Order of the learned Single Judge dated 8.4.2011 dismissing the Application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC for short) for rejection of the Plaint.
2. The Suit is one for Declaration, Partition and Permanent Injunction in respect of property situated at Plot No.6 in Block No.172, Jorbagh, New Delhi. The case set-out in the Plaint is that on 29.5.1952, the said Plot was acquired through a FAO(OS) 279-80/2011 Page 1 of 7 Perpetual Lease by Shri Harcharan Singh Brar, father of the Plaintiff. Construction on the said Plot was carried on the double storey residential building in 1955. The contribution of funds for the purchase and construction of this building is said to have come from the father, Late Shri Harcharan Singh Brar, the mother Mrs. Gurbinder Singh Brar and the Plaintiff himself in the proportion of ¼, ¼ and ½ respectively, though admittedly the Plaintiff was 3-5 years of age at that point in time. It has further been averred that in the Perpetual Lease whereby Late Shri Harcharan Singh Brar had acquired the said property, he had only lent in his name for the purpose of completing the formalities of executing the Lease Deed. It is stated in the Plaint that Late Shri Harcharan Singh Brar was the Karta of the Brar HUF and by an Order of Sikh Gurdwara Tribunal, Brar HUF was declared to be the owner of agricultural property which was ancestral in nature. Late Shri Harcharan Singh Brar got the said property partitioned in the year 1951 in three equal parts - one each to himself, Gurvinder Kaur, his wife and the Plaintiff, Shri Kanwarjit Singh. It is alleged in the Plaint that the Jorbagh property was purchased from these funds. The said property is said to have been let-out on lease from time to time and the rental income was shared by Late Shri Harcharan Singh Brar, Gurvinder Kaur and the Plaintiff in the ratio of ¼, ¼ FAO(OS) 279-80/2011 Page 2 of 7 and ½ and the said position regarding the shared ownership of the Jorbagh property is said to be duly reflected by Late Shri Harcharan Singh Brar by his conduct as well as admissions before Income Tax Authorities, Wealth Tax Authorities and Revenue Authorities. It is also averred by the Defendant, Mrs. Babli Brar, sister of the Plaintiff, that Shri Harcharan Singh Brar had gifted the entire property to her predicated on a registered Gift Deed dated 28.1.1999. The Plaintiff has filed the present Suit claiming half together with his proportional share in the ¼ interest/title of his father.
3. The Appellant before us sought the rejection of this Suit by means of an application under Order VII Rule 11 of the CPC on the ground that the claim of the Plaintiff was essentially that the said property was benami property in the name of the deceased father. It is contended that the Benami Transaction Prohibition Act, 1988 specifically barred any suit, claim and action to enforce any right in respect of any property held benami by a person who claims to be the real owner of the property. Learned Senior Counsel for the Appellant, Dr. A.M. Singhvi, has laid great store on Section 4 of the Benami Transaction Act to contend that the Parliament had consciously put a specific bar not only on benami transactions but had even against claiming any right with respect to a property purported FAO(OS) 279-80/2011 Page 3 of 7 to be held benami; and has proscribed a defence of this nature against the person in whose name the property is held. Dr. Singhvi contends that on a bare perusal of the Plaint, it is clear that since the Plaintiff admits that the property was held in the name of his father, the Suit was not maintainable after the coming into effect of Benami Transaction Act. It is argued that the father's Title even as a benamidar is impervious to any challenge. It is further contended that the learned Single Judge erred in returning the finding that the Plaintiff's case may fall in the exception of Section 4 on the dialectic that the father stood in a fiduciary capacity as the Plaintiff was 3-5 years old when the property was purchased; alternatively, that he acted as a Trustee for the purposes of Section 88 of Indian Trusts Act, 1882. Dr. Singhvi has argued that these factors have not been pleaded and to overcome this lacuna, has applied for leave to amend the Plaint and introduce the ground of fiduciary relationship. Dr. Singhvi has relied on R. Rajgopal Reddy -vs- Padmini Chandrashekharan, AIR 1996 SC 238 which holds that Section 4(1) and Section 4(2) of the Benami Transactions Act prohibits any suit or action or claim being filed after the commencement of the Act; and that the date of the benami transaction would be inconsequential for the purposes of said statutory bar as the operation of the Act is retrospective. FAO(OS) 279-80/2011 Page 4 of 7 Dr. Singhvi also relies on various Single Judge decisions wherein similar suit has been rejected under Order VII Rule 11 of the CPC on the ground of bar of Section 3 and Section 4 of Benami Transactions Act.
4. After a holistic reading to the Plaint and cogitating upon the contentions of the Appellant, we are not convinced that the subject matter suit is liable to be dismissed under Order VII Rule 11 of the CPC at the incipient stage. It is an established principle that the pleadings are to contain facts and facts alone. A party is not required to state the law or substantial legal pleas in their respective pleadings. Order VI of the CPC only requires the parties to state the material facts and not the evidence. In the circumstances of this case, since the father is the nominal owner, and it stands clearly pleaded that he used his sons (Plaintiffs) finances for the purchase, Order VII Rule 12 of the CPC would not be attracted, at least at the stage of determination of a plea under Order VII Rule 11. It cannot be disputed that the Plaintiff was a minor nay an infant at the time of the acquisition of the property. Section 6 of Hindu Minority and Guardianship Act, 1956 enjoins that in respect of a minor person and property, the natural guardian in case of a minor boy or an unmarried girl is the father. It has been stated in the Plaint that the Plaintiff at the time of the conveyance was 3-5 FAO(OS) 279-80/2011 Page 5 of 7 years old, that the property was purchased from the funds that came from an ancestral property belonging to the Brar HUF for the purposes of Income Tax and Wealth Tax. The father had been showing the Plaintiff to be ½ owner of the suit property, the rental income was also shared in that proportion by the Plaintiff, his father and the mother. All these averments conjointly prima facie raise a presumption of a fiduciary relationship existing between the father and the Plaintiff with respect to the owner of the property. These pleadings have to be traversed by the Defendant in a Trial and cannot be adjudicated at Order VII Rule 11 stage. In a case of clever drafting where an illusion of a cause of action is sought to be created, the Court has to nip in the bud such a frivolous suit. Similarly, in the case of shoddy or deficient drafting, the Court should not abort a valid claim that requires Trial. It is the duty of the Court to make a holistic and meaningful reading of the Plaint and only when it is manifestly and uncontrovertedly evident that the requirements of Order VII Rule 11 are met, and that it is plain that the Plaint does not deserve to go to Trial, should it order a rejection of the Plaint. There is no comparison between the relationship of a father/parent and his infant child on the one hand, and of siblings on the other.
FAO(OS) 279-80/2011 Page 6 of 7
5. In these circumstances, we are of the opinion that the Appeal is entirely devoid of merit and is dismissed. CM No.10404/2011 is also dismissed. Order VII Rule 11 of the CPC has assumed exponential proportion. Courts are already bursting at the seams from an exponential explosion of dockets and this burden is being exacerbated by filing of appeals from orders rejecting such applications. None of the cases cited before us are of a parent investing money allegedly belonging to a child of tender years. The principle of Wander Ltd. -vs- Antox India P. Ltd., (1990) Supp SCC 727 rightly comes to mind and if a Judge is of the view that a case needs to go to Trial, it would be almost impossible for the Appellate Court to arrive at a contrary conclusion. In Abdul Gafur -vs- State of Uttarakhand, (2008) 10 SCC 97, their Lordships have enunciated the law to the effect that the party has right to a patient hearing by a civil court, regardless of the preponderance of merit or demerit. However, we desist from imposing costs.
( VIKRAMAJIT SEN )
JUDGE
( SIDDHARTH MRIDUL )
June 03, 2011 JUDGE
FAO(OS) 279-80/2011 Page 7 of 7