Raman Mahindra & Ors vs Adarsh Bala Sud @ Adarsh Kumari & ...

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS (OS) 1950/2013

       RAMAN MAHINDRA & ORS                ..... Plaintiffs
                   Through: Mr. Amit Sethi, Advocate with
                            Mr. Ishan Khanna, Advocate.

                         versus

       ADARSH BALA SUD
       @ ADARSH KUMARI & ORS                ..... Defendants
                    Through: Mr. Siddharth Bhatnagar, Advocate with
                             Mr. Daleep Kr. Dhayani, Advocate for
                             defendants No.1 and 2.
                             Mr. Lalit Gupta, Advocate with
                             Mr. Payal Gupta, Advocate for
                             defendants No.3 and 4.

                                  Reserved on      : 14th January, 2015
%                                 Date of Decision : 19th February, 2015.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                             JUDGMENT

MANMOHAN, J:

I.A. 15186/2014 in CS (OS) 1950/2013

1. Present application has been filed by the defendants No.1 and 2 under Order VII Rule 11 CPC for rejection of the plaint.

2. Mr. Siddharth Bhatnagar, learned counsel for defendants No.1 and 2- applicants submitted that prayers in the suit for partition and declaration were on the face of it barred by limitation. He stated that as the Will dated CS(OS) 1950/2013 Page 1 of 7 18th September, 2001 was a registered Will, the date of its registration i.e. 18th September, 2001 had to be presumed to be the date of deemed knowledge and consequently the present suit filed on 30 th September, 2013 was well beyond the period of limitation. In support of his submission, he relied upon the judgment of the Supreme Court in Dilboo (Smt) (Dead) By LRs. and Others vs. Dhanraji (Smt) (Dead) and Others, (2000) 7 SCC 702 wherein it has been held as under:-

"20. .......... . It is always for the party who files the suit to show that the suit is within time. Thus in cases where the suit is filed beyond the period of 12 years, the plaintiff would have to aver and then prove that the suit is within 12 years of his/her knowledge. In the absence of any averment or proof, to show that the suit is within time, it is the plaintiff who would fail. Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge."

3. On the other hand, Mr Amit Sethi, learned counsel for plaintiffs-non applicants contended that the plaintiffs' suit was within limitation and in support of his contention, he drew this Court's attention to paras 13, 14 and 15 of the plaint. Since considerable emphasis was laid on paras 13, 14 and 15 of the plaint, the same are reproduced hereinbelow:-

"13. That at the relevant time, since defendant No 1 was already living on Ground floor, she requested the Plaintiffs and other legal heirs of her deceased brother i.e. defendants No 3 & 4, to allow her to continue to live there. Considering her age and the fact that divorced daughter of Defendant No 1 has started living on first floor, the plaintiffs & defendants No 3 & 4 CS(OS) 1950/2013 Page 2 of 7 did not object to same. The Plaintiffs about after about six months after the death of Dr Sudershan Kumari, requested defendant No 1. to sit across and formally divide the suit property. However defendant No 1 owing to her illness and other pre-occupation deferred the issue stating that needful will be done soon. The said attitude of defendant No 1 continued year after year and even the plaintiffs considering the fact that 50% of the portion on Ground Floor of the area forming part of portion shown as Green in the site plan, has to go in favour of defendant No 1 by law of succession, allowed her to live in the built up portion on the Ground floor forming part of the portion shown as Green in the site Plan while remaining open portion, verandahs, lawns, drive way, passages etc continued to be in joint possession, occupation & use of Plaintiffs & even defendants No 1 & 3.

14. That Dr. Akash Sud i.e. defendant No 2 after an year or so i.e. sometimes in Jan-Feb 2007 also started temporarily living with her mother i.e. defendant No 1 with a view to take care of her owing to age factor. The Plaintiffs and defendants No 3 & 4 did not object to same as at all times the defendant No 1 kept on assuring that necessary partition will be done which will be acceptable to all and shall be beneficial for all the legal heirs of deceased Sudershan Kumari. The Plaintiffs owing to such positive attitude of defendant No 1 and her continuous assurance kept quiet and at no point of time doubted her intentions and continued to bonafidely believe throughout the period from Oct 2005 to Sep 2012 that sooner or later Partition in respect of Green portion ie suit property will be done. Similarly Plaintiffs continued to be in use & occupation of part of suit property ie part of Drive way, back lawn on day to day basis without any hindrance or objection from defendants No 1 & 2. In fact the Plaintiffs are still in joint possession, use & occupation of drive way, lawns etc as the plaintiffs have 3 AC units, water meter, Electricity meter placed in said area. The plaintiffs who are Dentist by Profession have been parking their cars in the drive way & even the patients of the Plaintiffs have been parking their cars in the said drive way.

15. That the Plaintiffs, in late evening of the third week of December 2012 went to meet defendant No 1 to discuss about the modalities for partitioning the suit property i.e. entire portion admeasuring 625 Sq yards which is shown as Green in the site Plan. The Defendant No 1 at that moment also called defendant No 2 i.e. her son for discussion & to work out the modalities. As soon as defendant No 2 came and shouted & said "What partition. I am the exclusive owner of entire Ground Floor flat, the garages & driver's room in the back by virtue of a Will executed by Dr. Sudershan Kumari and the said property has been mutated in my favour even by MCD" The plaintiffs got the shock of their lives when they heard such words from defendant No 2. The Plaintiffs as such immediately requested defendant No 2 to show such Will but he neither showed such will nor revealed any details of the same and kept on saying that question of partition does not arise. The plaintiffs taken aback by such attitude of defendant No 2 requested defendant No 1 to tell her son to behave and not to create hurdles in the process of Partition as the defendant No 1 herself has been continuously assuring the Plaintiffs to effect the partition. The defendant No 1 at that moment again assured the plaintiffs that the needful will be done soon and they need not worry. She further asserted that defendant No 2 has no right in the suit property and she will make him understand."

(emphasis supplied)

4. Mr. Sethi pointed out that the registered documents in the form of Sale Deed and Lease Deed are registered in Book No. I which primarily relates to public documents, while Wills are registered in Book No.III and are not public documents as per Delhi Registration Rules, 1976. Rules 13 and 18 of the Delhi Registration Rules, 1976 relied upon by Mr. Sethi are reproduced hereinbelow:-

"13. Book No.1 or Additional Book No.1.

Book I or Additional Book I and the Indices relating to it shall be opened to public inspection and copies of the documents entered/pasted in them shall be given to all person on payment of the prescribed fees. In Additional Book shall be pasted all documents registered under sections 17 and 18 of the Act which related to immoveable property and are not Wills.

                    xxx          xxx           xxx

       18. Book No.III.

Book III is not open to public inspection, nor are its indices, but copies of wills and authorities to adopt pasted in it shall, on payment of the prescribed fees, be given to the persons executing the documents to which such copies relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies. The necessary search to locate the document shall be made by the Registering Officer in person. When a Will entered in this Book affects immoveable property situated in District or Districts other than that where the entry has been made, no copy will to be sent to the registering officers of those District or Sub-Districts. This register shall contain the same heading as Book I."

5. Consequently, Mr. Sethi submitted that the argument of deemed knowledge pursuant to the Will being registered was erroneous in law.

6. Having heard learned counsel for the parties, this Court is of the view that an application for rejection of the plaint under Order VII Rule 11 CPC can be allowed only if all the allegations in the plaint taken in their entirety at their face value to be correct, appeared to be barred by any law.

7. For deciding the present application as to whether a suit is barred by limitation or not, only the averments made in the plaint are relevant. At this stage, the Court would not be entitled to consider the defence of the defendants. In Balasaria Construction (P) Ltd. vs. Hanuman Seva Trust CS(OS) 1950/2013 Page 5 of 7 and Others, (2006) 5 SCC 658, the Supreme Court held as under:-

"8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure."

8. In the present suit, the plaintiffs in their plaint have categorically averred that defendant No.1 was ready and willing for partition, but was simply deferring it on the ground of her ill health and her old age. In the plaint, it has also been averred that in the third week of December, 2012, when the plaintiffs met the defendant No.1 to discuss about the modalities of the partition, the defendant No.2 for the first time, disclosed about the alleged Will dated 18th September, 2001.

9. According to the plaint, pursuant to becoming aware of the alleged Will, the plaintiff No.2 applied for the MCD record on 27 th December, 2012 which was received on 08th December, 2013.

10. Since at this stage, the averments in the plaint have to be believed to be true and correct, this Court is of the view that the cause of action as well as the limitation for challenging the genuineness of the said Will has to be taken to be third week of December, 2012 if not 08th February, 2013, as suggested by the learned counsel for plaintiffs.

11. This Court is of the view that the judgment of Dilboo (Smt) (Dead) By LRs. and Others vs. Dhanraji (Smt) (Dead) and Others (supra) relied upon by the learned counsel for defendants-applicants is inapplicable to the facts of the present case as the analogy of deemed knowledge drawn by defendants No.1 and 2 in respect of the Sale Deeds is not applicable to registered Wills.

12. Firstly, a Will is not mandatorily registerable. Further, the deemed knowledge which flows from mandatorily registerable documents cannot be attributed to cases of registered Wills.

13. Also, registered Will is not a public document and is not open for public inspection. In fact, from the Delhi Registration Rules referred to by learned counsel for plaintiffs, it is apparent that copies of registered Wills are not furnished to the public at large.

14. Consequently, in cases of challenge to the existence of the Wills, the actual date of knowledge of existence of Will or date of receipt of such Will, would be the starting point of limitation. Also at this stage, the question of limitation has to be read in the context of facts pleaded in the plaint with respect to knowledge of the Will in dispute. Therefore, in the present case, the knowledge of the Will cannot be held to be beyond limitation under the provisions of Order VII Rule 11 CPC at this stage.

15. Accordingly, present application is dismissed, but with no order as to costs.

MANMOHAN, J FEBRUARY 19, 2015 rn/js CS(OS) 1950/2013 Page 7 of 7