Gajinder Pal Singh vs Mehtab Singh
1997 Latest Caselaw 727 Del

JUDGMENT

K.S. Gupta, J.

(1) Defendants have filed I.A. 6885/96 under Order Vii Rule 11 Civil Procedure Code for rejection of the plaint which is being contested by the plaintiff by filing reply.

(2) Contention advanced by Sh.U.K. Chaudhary appearing for defendants 1 & 3 was that first page of the Compensation Card in the name of Parman Singh filed by the plaintiff indicates that the same was issued on 7.5.1955 and payment of interim compensation was made to Parman Singh thereafter. Documents at serial Nos. 1A, 2 & 3 filed alongwith the plaint go to show that property No. B-13, Nizamuddin East, New Delhi was purchased by aforesaid Parman Singh on 25.5.1990. According to Sh. Chaudhary, if the compensation in lieu of the alleged ancestral properties left behind in Pakistan was received by Parman Singh after 7.5.1955, how could he purchase said property B-13, Nizamuddin East, with the compensation amount. Plaint, therefore, does not disclose cause of action as regards said property No. B-13 and the same deserves to be rejected under rule 11 of Order Vii CPC.

(3) Amongst others, plaintiff has filed photostat copies of the Compensation Card in the name of Parman Singh and letters dated 12.3.1950, 26.3.1950, 25.5.1950 and 23.10.1953 sent by the Government of India, Ministry of Rehabilitation, which are entered at serial nos. 1, Ia, 2, 3 & 4 in the list of documents dated 4.2.1994. It is these documents reference whereof was made above by Sh. Chaudhary. Date of issue of aforesaid Compensation Card is 7.5.1955. By the said letter dated 12.3.1950 Parman Singh was informed that about 500 houses under construction in the various colonies in Delhi were being developed for displaced persons and those were likely to be completed by the end of June, 1950 and if he was interested in allotment of a house, Rs. 5,000.00 be deposited by him in the Government Treasury/Imperial Bank of India. This letter was issued with reference to the application dated 26.10.1950. Co Contents of another letter dated 26.3.1950 are similar to that of the letter dated 12.3.1950 except that the amount to be deposited was reduced from Rs.5,000.00 to Rs.2,000.00 . By the aforementioned letter dated 25.5.1950 sent by Sh.V.P. Sood, the then Assistant Secretary, Government of India to the House Building Controller, Wavell Canteen, Delhi, it was intimated that it had been decided to allot one doubled room house in Nizamuddin East to Parman Singh for a sum of Rs. 5,000.00 , already deposited by him in the Treasury. By yet another letter dated 23.10.1953, said Parman Singh was asked to further deposit a sum of Rs. 946.00 being the difference between the amount of the actual cost and the amount deposited by him in regard to house No. B-13, Nizamuddin East.

(4) By filing the present suit, the plaintiff has sought preliminary decree for partition and rendition of accounts in respect of two houses Nos. B-13, Nizamuddin East, and B-22, East of Kailash, w Delhi being Huf properties. In regard to House No. B-13, Nizamuddin East, in para 9 of the plaint, it is alleged :- 1."That since late Parman Singh had brought with him moveable properties such as cash and jewelleries from Pakistan, which were all Huf and given to him by his father etc., he paid Rs. 5,000.00 to the Ministry of Rehabilitation in the Treasury and also paid Rs. 946.00 from the same. Hence this property was Huf and continues to be so even today. The character of Huf of the properties remains the same, and cannot change."

(5) In para No. 12 of the plaint it is further stated that right from the beginning Parman Singh had been keeping tenants in House No. B-13, Nizamuddin East and the additional structure on the property was raised using the amount of rent received by him. After the death of Parman Singh in 1975 his widow Smt.Balvant Kaur continued to receive rent and making use of the Huf rent she purchased plot No. B-22, East of Kailash, and got constructed super-structure thereon. It may be noticed that the case as set up in above para 9 of the plaint is that property No. B-13, Nizamuddin East, was purchased by Parman Singh not out of the amount of the compensation received in lieu of the ancestral properties left behind in Pakistan but from the amount of the sale proceeds of the jewellery and the case which were of Huf and were brought by him from Pakistan. In Sanjay Kaushish vs. D.C.Kaushish and others, , it was held by this court, `that for deciding whether the plaint discloses cause of action or not, the court has to only see the averments in the plaint and the accompanying documents relied upon in the plaint and the facts elicited from the plaintiff by examining him under order X of the Code of Civil Procedure. For the purpose of deciding the application under Order 7 Rule 11, the court has also to presume the facts stated in the plaint as correct.' Thus, taking note of what is stated in aforesaid para No. 9 of the plaint and the ratio in the decision in Sanjay Kaushish's case (supra), it cannot be said that the plaint does not disclose any cause of action as regards property No. B-13, Nizamuddin East. Submission referred to above advanced on behalf of defendants, which is based on misreading of the allegations made in the plaint, is thus repelled being without merit.

(6) Next contention advanced by Sh.Chaudhary was that Parman Singh executed a Will dated 8.6.1972 bequeathing the property of Nizamuddin East in favour of his wife, Mrs. Balvant Kaur and that Will became effective 17.9.1975 on which date Parman Singh died. Under Article 110 of the Limitation Act, 1963, suit by a person excluded from joint family property to enforce right to share therein can be filed within a period of 12 years and the present suit filed on 8.2.1993 was thus barred by limitation. While refuting the submission, argument advanced by Ms. Mala Goel appearing for the plaintiff was two folds. First, that the provisions contained in aforesaid Article 1À10 do not apply in this case in as much as the plaintiff is in possession of a part of property No. B-22, East of Kailash, which is one of the two Huf properties whereof partition is sought. In support of this submission, my attention was drawn by her to the Local Commissioner's report dated 12.2.1993 placed on the file. This report shows that the plaintiff was in possession of a portion of the said property No. B-22, East of Kailash. Second, that the alleged will dated June 8, 1992, was never executed by Parman Singh nor was it got probated by Mrs. Balwant Kaur. Further, defendants have not placed on file any documentary evidence to show that the plaintiff was aware about the execution of the aforesaid will nor the plea of limitation was raised in the written statement or the present I.A. by the defendants. For application of the said Article, if any, execution of the aforementioned will and knowledge thereof to the plaintiff is yet to be proved by the defendants. At this stage, it is difficult to say that the suit is barred by limitation as urged on behalf of the defendants.

(7) In the result, I.A. is dismissed.