Rajiv Seth vs Daya Kishan Mehra And Ors.
2002 Latest Caselaw 197 Del

JUDGMENT

Sharda Aggarwal, J.

IA. No. 1965/99

1. Defendants 1 to 5 have moved this application for amendment of their written statement. By way of amendment, defendants pray to amend para 16 of the written statement and add a preliminary objection denying the territorial jurisdiction of this Court. Defendants contend that inadvertently they did not object in their written statement to the invocation of this Court's territorial jurisdiction and in para No. 16 of the written statement, the last line "the jurisdiction of this Hon'ble Court is, however, not denied" be deleted and instead "jurisdiction of this Court is denied" be inserted. Defendants further seek to add following preliminary objection :

"4. That this Hon'ble Court does not have the territorial jurisdiction to entertain the instant suit because none of the immovable properties left behind by late Seth Munni Lal Mehra is situated in Delhi.

It is submitted that the defense Colony and the Nai Sarak properties, mentioned in para 2 of the plaint, were not the self acquired properties of late Seth Muni Lal Mehra inasmuch as while the defense Colony property is a lease hold property owned by the company named as M/s Kishan Prasad Brothers Pvt. Ltd., the Nai Sarak property is in the tenancy of M/s Kishan Prasad Brothers, a partnership firm, in which late Seth Munni Lal Mehra was not the partner at the time of his death.

The plaint is liable to be rejected and returned on this ground for want of jurisdiction in this Hon'ble Court."

2. The plaintiff has filed reply to this application and contests the same.

3. A brief narration of facts of this case is necessary. The plaintiff, who is the grand son (son of pre-deceased daughter of late Seth Munni Lal (Mehra) has filed this suit for partition against the defendants, who are primarily the sons and daughters and heirs of the pre-deceased son and daughter of late Seth Munni Lal Mehra. The suit relates to the partition of various immovable properties left by deceased Seth Munni Lal Mehra. As per the plaint allegations, some of the properties are situated in Delhi, some in Bombay and some in Agra. The plaintiff, has invoked the jurisdiction of this court by alleging that the deceased owned and possessed numerous self-acquired properties as narrated in para 2 of the plaint including properties No. D-372, defense Colony, New Delhi and 785, Nai Sarak, Delhi. Para No. 16 of the plaint, which relates to the territorial jurisdiction of this Court, is reproduced as under :-

"16. That this Hon'ble Court has jurisdiction to entertain the suit as some of the properties left behind by Seth Munni Lal Mehra such as Fixed Deposits in Punjab National Bank, South Extension, New Delhi, shares in M/s Krishan Prasad Brothers (P) Ltd. having its registered office in D-372, defense Colony, New Delhi, property No. 785, Nai Sarak, Delhi are located in Delhi, late Seth Munni Lal Mehra died at Delhi, defendants 2 to 16, 10, 11 and 14 to 16 are actually and voluntarily residing in Delhi and are carrying on their business in Delhi.

Therefore, this Hon'ble Court has jurisdiction to try this suit."

4. The defendants in their written statement replied this para as under :

"In reply to this para, with regard to the Fixed Deposits in the Punjab National Bank, South Extension, New Delhi, it is reiterated that late Seth Munni Lal Mehra had appointed nominees thereof. It is denied that late Seth Munni Lal Mehra had any shares in the company M/s Krishan Prasad Brothers (P) Ltd. It is also denied that late Seth Munni Lal Mehra owned the property, namely, 785, Nai Sarak, Delhi. The jurisdiction of this Hon'ble Court is, however, not denied ."

5. Mr. Arun Khosla, learned counsel for the defendants contended that in the written statement, invadertently the plea of lack of territorial jurisdiction was not taken though it has been pleaded that defense Colony and Nai Sarak properties did not belong to late Seth Munni Lal Mehra. It is also contended that this plea was raised by defendants in their application filed under Order 39 Rule 4 CPC for vacation of ex-parte injunction. They have also moved an application under Order 7 Rule 10 CPC for return of the plaint for being presented to the Court of appropriate jurisdiction. It is contended that it is a legal plea and the suit is at the initial stage and the parties have yet to go to trial and if the proposed amendment is allowed, no prejudice would be caused to the plaintiff.

6. Mr. M.L.. Lonial, learned counsel for the plaintiff vehemently opposed this application on the ground that there is clear admission on the part of defendants in para 16 of their written statement where they have categorically stated that they do not deny the jurisdiction of this Corut. The argument is that the admission made in the written statement cannot be retracted. In support of his contention, learned counsel has placed reliance on Modi Spinning & Weaving Mills Co. Ltd. and Anr. v. Ladha Ram & Co., SCR 1977 Vol. 1 728, Rattan Lal More v. Gopal Dass Tandon, AIR 1987 Delhi 117, Shaik Masthan Sahib v. Palayani Balarami Reddi, and Vikram Parshad v. Sat Narain Dalmia, 1995 RLR 414. None of the authorities relied upon by the counsel for the plaintiff is applicable to the case on facts. In all the above referred judgments, there was admission of facts. Even admission of facts can be retracted provided the same is adequately explained. No doubt in the present case, there is an admission of the jurisdiction of the court, but it is not an admission of facts. It is a legal plea and there can not be an estoppel against a statute. Section 16 CPC provides that a suit for partition of immovable property shall be instituted in the Court within the local limits of whose jurisdiction the property is situated. An admission on the part of defendants would not confer jurisdiction on the Court.

7. Even otherwise, taking the pleading as a whole, it cannot be contended that the admission of territorial jurisdiction in para 16 of the written statement was unequivocal and cannot be withdrawn.

8. In para 16 the territorial jurisdiction of this Court is admitted, but the defendants have denied that the deceased Seth Munni Lal Mehra owned the defense Colony and Nai Sarak properties. The averment in the written statement is that the defense Colony property is lease hold property owned by a company named M/s Krishan Prasad Bros. Pvt. Ltd. and the deceased Seth Munni Lal Mehra was neither a subscriber nor Director of the said Company. As regards the property at Nai Sarak, it is alleged that the same is in the tenancy of M/s Krishan Prasad Bros., a partnership firm wherein the deceased was not a partner at the time of his death. The admission in the written statement appears to be inadvertent and by oversight. Even otherwise, the suit is at the initial stage and no prejudice would be caused if the amendment is allowed. The delay, if any, can be compensated with costs. The application is accordingly allowed, subject to payment of Rs. 3,000/- as costs to be deposited with Advocates Welfare Fund-Trustee Committee. The amended written statement, which has already been filed, be taken on record.

IA. No. 6449/97

9. Defendants have filed this application under Order 7 Rule 10 CPC for return of plaint on the ground that this Court is not the court of competent jurisdiction as the two immovable properties, namely D-372, defense Colony, New Delhi and 785, Nai Sarak, Delhi, did not belong to deceased Seth Munni Lal Mehra. Since none of the properties owned by the deceased for which partition is sought, is located in Delhi, plaintiff could not invoke the territorial jurisdiction of this Court.

10. The plaintiff, who is the grand son (son of pre-deceased daughter of late Seth Munni Lal Mehra) has filed this suit for partition against the defendants, who are primarily the sons and daughters and heirs of the pre-deceased son and daughter of late Seth Munni Lal Mehra. The suit relates to the partition of various immovable properties left by deceased Seth Munni Lal Mehra. As per the averments in the plaint, some of the properties left by Seth Muni Lal Mehra are situated in Delhi, some in Bombay and some in Agra. The plaintiff has invoked the jurisdiction of this court by alleging that the deceased owned and possessed numerous self-acquired properties as narrated in para 2 of the plaint, including properties No. D-372, defense Colony, New Delhi and 785, Nai Sarak, Delhi. On the basis of these two immovable properties, the territorial jurisdiction of this Court has been invoked. In the initial written statement the territorial jurisdiction of this Court has been admitted, but later on in the amendment written statement the same been denied. An application (IA. No. 1965/99) for amendment of the written statement has been allowed by an order of even date.

11. Mr. Arun Khosla, counsel for defendants contends that a partition suit is to be filed in a Court where immovable property is situated and since the two properties i.e. of defense Colony and Nai Sarak, Delhi, as mentioned in para 2 of the plaint, did not belong to the deceased, this Court has no jurisdiction to try this suit. As such, the prayer is that the plaint be returned to the plaintiff for being presented to the Court of competent jurisdiction. Vide orders dated 6th February, 1995, plaintiff's application under Order 39 Rules 1 & 2 CPC and defendants' application under Order 39 Rule 4 CPC were disposed of and defendants 1 to 5 were restrained from transferring the possession of the two properties in Delhi. An appeal was preferred against the said order which was partly allowed. Learned counsel has referred to the order dated 31st March, 1997 of Division Bench in FAO (OS) 146/96 and has pointed out that the order relating to the restraint of defendants 1 to 5 from transferring the possession of defense Colony and Nai Sarak properties and from alienating, mortgaging and creating any charge on the Bombay property was set aside in appeal. The Division Bench the Court after considering various documents placed on record by the parties observed that the plaintiff had failed to make out a prima facie case and the order restraining defendants 1 to 5 from dealing with the aforesaid two properties at Delhi and the property at Kalba Devi Road, Bombay was set aside. Needless to say that the Appellate Court had vacated the restraint order against the defendants, but the observations of the Court in the said order cannot be taken as a decision on merits. It was only a prima facie view taken by the Court. Obviously no final decision can be given at the stage of passing an interim order and that can be done only after the parties go to trial and place their evidence before the Court. In the plaint, the plaintiff did aver that the two properties i.e. of defense Colony and Nai Sarak were self-acquired properties of deceased Seth Munni Lal Mehra and as such, Delhi Courts have jurisdiction to entertain the suit. The defendants have denied this averments in their written statement. The contention of learned counsel for defendants is that the defense Colony property was not self-acquired property of Seth Munni Lal Mehra and the same was owned by the Company M/s Krishan Prasad Bros. Pvt. Ltd. and to support that contention, a copy of the lease deed with respect to the defense Colony property has been placed on record. Similarly, a copy of the receipt has been placed on record showing that Nai Sarak property was under the tenancy of M/s Krishan Prasad Bros., a partnership firm. Reliance has also been placed on reply to para No. 3 of the present application, wherein plaintiff has stated that Seth Munni Lal Mehra was a shareholder and Director of M/s Krishan Prasad Bros. Pvt. Ltd. and partner in M/s Krishan Prasad Bros. In this paragraph, plaintiff has, however, denied that late Seth Munni Lal Mehra had no interest in the said company or the partnership firm. Mr. Lonial, also refers to some indentures/documents placed on record by the defendants by which some of the heirs of Seth Munni Lal Mehra had accepted the 'Will' left by him and abandoned their rights in any movable or immovable properties left by the deceased. In these indentures, the properties left by Seth Munni Lal Mehra have not been specified. It has been generally stated that he was absolute owner of various immovable properties situated at Delhi, Agra and Amritsar. It is urged that such an indenture Along with an offer of Rs. 15 lakhs was even given to the plaintiff for accepting the validity of 'Will' left by Seth Munni Lal Mehra and giving up his rights in the movable or immovable properties left by the deceased but plaintiff had refused the offer. It is contended that the question as to whether the two Delhi properties were owned by the deceased, can only be ascertained after trial. I tend to agree.

12. There are specific averments in the plaint that the two properties of defense Colony and Nai Sarak were self-acquired properties of the deceased. Though the defendants have denied the same and placed on record copies of various documents in order to show that these properties did not belong to the deceased, but final decision on the basis of said documents cannot be arrived at without recording evidence. The determination of the ownership of the two Delhi properties would decide the jurisdiction of this Court. Therefore, in my considered opinion, it would not be appropriate to return the plaint at this stage. The application is dismissed.