Shri Suresh Kumar Aggarwal vs Shri Kishan Kumar Aggarwal And ...
2005 Latest Caselaw 297 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Defendants 1 and 2 have filed I.A. 5307/04 under Order 7 Rule 11 of the Code of Civil Procedure praying that the plaint be rejected in so far it claims partition of property bearing No. SU-218, Pitampura, Delhi-34, alleging that claim is barred under the Benami Transactions (Prohibition) Act, 1988. Alternatively, it is prayed that the plaintiff be directed to pay ad valorem court fee within a stipulated time and on failure to do so, plaint be rejected.

2. Learned counsel for the plaintiff did not dispute the proposition of law that where a claim is barred under a law, plaint could be rejected under Order 7 Rule 11 as also the proposition of law that where proper court fee is not paid due to claim being undervalued, being required to correct the valuation and pay up deficiency in court fee within the time granted by the Court, if not complied with, plaint is liable to be rejected.

3. Counsel for the applicant did not dispute the proposition of law that while considering the applicability of Order 7 Rule 11 of the C.P.C, averments in a plaint have to be treated as correct and thereupon decision taken whether the plaint merits rejection.

4. Let me therefore see what the plaint if about and what relief is sought on the basis of the averments made in the plaint.

5. Kanshi Ram Aggarwal, since deceased, had three sons, being Phool Chand, Mahabir Pershad and Prahlad Rai. Details of the properties owned by Kashi Rami Aggarwal have been set out in para 2 of the plaint. In a nut-shell, properties stated to be owned by Kashi Ram were two residential houses in the State of Haryana in village Barwa and certain agricultural land in said village.

6. As per averments made in para 3 of the plaint, the two residential houses and the agricultural land owned by Kashi Ram, being impregnated with inheritance, were joint family properties even in the hands of Kashi Ram.

7. It is stated in para 4 of the plaint that during his lifetime, Kashi Ram effected partition of the two residential houses. Share assigned to the three sons has been detailed in para 4 of the plaint.

8. Further averments made in para 5 of the plaint are that during consolidation of holdings in village Barwa, Kashi Ram got recorded different portions/parcels of agricultural land in the names of his three sons, separately but equally, and retained his name in the revenue records only in respect of 22 Kanal, 19 marla land comprised in Khila/khasra No. 208/19, 20, 21 and 22.

9. It is averred in para 6 of the plaint that after partition of the residential houses was effected, and entries made in the agricultural lands as stated in para 4 and 5 of the plaint, Sh. Mahabir Pershad constituted a Hindu Undivided Family of himself and his sons, namely, the plaintiff, defendant No. 1, defendant No. 4 and defendant No. 5. Accordingly, it is averred that the properties which came to Mahabir Pershad on partition being effected by Kashi Ram became joint family properties.

10. At this stage it may be recorded that Mahabir Pershad is defendant No. 3. Plaintiff, defendant No. 1, defendant No. 4 and defendant No. 5 are his sons. Defendant No. 2 is the wife of defendant No. 1.

11. In para 7 of the plaint it is averred that Kashi Ram died in the year 1977. The 22 canal and 19 marla of land recorded in his name as owner was inherited by his 3 sons, 4 daughters and his wife. It is stated that the said agricultural land continues to be jointly owned by all legal heirs of Kashi Ram Aggarwal. It is specifically averred in para 7 of the plaint that '' the partition can only be effected by the revenue courts.'' Partition of this land is not claimed in the present proceedings.

12. In para 8 of the plaint, it is stated that Mahabir Pershad and his brother Prahlad Rai, from out of the joint funds purchased a 166 sq.yd plot in Anaj Mandi, Hissar. Thereafter, they jointly constructed a shop over the plot.

13. In para 9 of the plaint, it is averred that Mahabir Pershad and Sons (HUF) made a bid at an auction conducted by DDA for plot No. SU-218, Pitampura Residential Scheme. Bid was in the name of one of the co-parceners, namely defendant No. 1. It is stated that a sum of Rs.86,000/-, being 25% of the bid amount was paid to DDA out of the funds of Mahabir Pershad and Sons (HUF). In para 12 of the plaint, it is averred that balance 75% of the bid amount in sum of Rs.2,58,016/- was thereafter paid on bid being confirmed from out of the joint family funds. In para 13 of the plaint, it is averred that the stamp duty and other incidental expenses for registration of the plot was borne by Mahabir Pershad and Sons (HUF). It is further averred that there was a policy of DDA to jointly register the name of the individual bidder, if male and married, Along with his wife as the perpetual lessee. In terms of said policy, perpetual lease was executed on 10.9.1987 recording defendant No. 1 and his wife, defendant No. 2 as the joint lessees. It is categorically averred in para 13 that not a single penny was invested by defendants 1 and 2 in acquiring perpetual leasehold rights in respect of plot No. SU-218, Pitampura, Delhi-34.

14. In para 14 of the plaint, it is averred that on 30.3.1988, Mahabir Pershad, as Karta of Mahabir Pershad and Sons intimated the income tax authorities that the plot in question was purchased by the HUF in the name of defendant No. 1 and defendant No. 2.

15. In para 15 of the plaint it is averred that in the year 1989-90, Sh. Mahabir Pershad sold a part of agricultural land in village Barwa as also a commercial shop at Anaj Mandi, Hissar and invested the money generated there from towards construction of the building on the plot in question. It is also averred that the entire expenses incurred towards construction of the building has been shown in the income tax returns of Mahabir Pershad and Sons (HUF).

16. In para 17 of the plaint, it is averred that Sh. Mahabir Pershad had locked the first floor of the building and had permitted defendant Nos. 1 and 2 to reside on the ground floor. It is further averred that since the year 1993, defendant No. 1 is in occupation of the basement.

17. In para 18 of the plaint, it is averred that defendant No. 1 let out the first floor in the month of January 1996 to a tenant at a monthly rent of Rs.10,000/-. At the time of letting, defendant No. 1 assured other co-parceners, namely, the plaintiff and defendants 3 to 5 that he would account for the rent. It is stated in para 18 of the plaint that the plaintiff and defendants 3 to 5 are in constructive possession of the first floor through the tenant.

18. In para 20 of the plaint, it is averred that the plaintiff and defendants 1 and 3 to 5 are in joint possession of the properties at village Barwa.

19. Plaintiff has laid a claim that he as well as defendant No. 1 and defendants 3 to 5 have 1/5th share each in the joint family properties and therefore, claims partition thereof.

20. Partition is sought in respect of the respective portion of the two houses in village Barwa which fell to the share of Mahabir Pershad when his father, Kashi Ram effected partition of the said houses amongst his three sons. Partition is also sought of property No. SU-218, Pitampura. For purposes of jurisdiction and court fee, suit has been valued as under:-

'' That the value of the suit for purpose of court fees for the relief of partition is fixed under Article 17(VI) Schedule II of the Court Fees as the plaintiff is and has been in joint possession of the properties in dispute and is in exclusive possession of one room marked `Y' in the house situated in village Barwa, Tehsil Siwani, District Hissar (Haryana) as shown in the plan Annexure I and for purpose of jurisdiction the value of the suit is Rs.1,04,80,000/- (Rupees One crore Four Lacs Eighty Thousand) being the market value of the suit properties. A fixed court fees of Rs.19.50 is payable for the said relief. The value of the suit for the relief of Rendition of Accounts for the purpose of jurisdiction has been fixed at Rs.20,000/- (Rupees Twenty thousand) and for the purpose of court fees is tentatively fixed at Rs.200/- on which Rs.20/- is payable. The value of the suit for the relief of injunction is Rs.130/- on which Rs.13/- is payable. The total jurisdictional value of the suit is Rs.1,04,00,000/- + Rs.20,000/- + Rs.130/- i.e. Rs.1,05,00,130/- and court fees of Rs.19,50 + Rs.20/- + Rs.13/- i.e. Rs.52.50 ps has been paid.''

21. Defendants 3 to 5 have filed written statements supporting the plaintiff. Defendants 1 and 2 are opposing the claim of the plaintiff.

22. I need not note the defense at this stage for the reason that maintainability of the suit or its rejection under Order 7 Rule 11 has to be considered only in light of the averments made in the plaint, treating the same to be true. Only thing to be considered in the context of substantive law would be whether the claim is prohibited under some substantive law.

23. Learned counsel for the applicant has relied upon the Benami Transactions (Prohibition) Act, 1988 and has invoked sub-section 1 of Section 4 thereof to urge that no claim or action to enforce any right in respect of any property would be maintainable against the recorded owner by taking a plea that the recorded owner is actually the benami holder of the property. Sh. Sumit Verma, learned counsel for defendants 1 and 2, placing reliance on a decision of a learned single Judge of the Patna High Court , Rameshwar Mistry and Anr. vs. Bebulal Mistry urged that as held therein, wife of a co-parcener is not a member of the coparcenary and therefore, a suit based on the plea that the wife of a co-parcener is the benami holder of a property and real ownership is that of the HUF would be prohibited by virtue of sub-section 1 of Section 4 of the Benami Prohibition Act. Alternatively, learned counsel urged that, admittedly plaintiff was not in possession of the Pitampura property and as per decision , Smt. Prakashwati vs. Smt. Dayawati and Ors., would be required to pay ad valorem court fee in respect of the share claimed by the plaintiff.

24. In Rameshwar Mistry, learned single Judge of the Patna High Court has held that under Hindu law, a female cannot be a member of the co-parcenary and therefore, a claim to a property standing in the name of the wife of a co-parcener would be prohibited under Section 4 of the Benami Transactions (Prohibition) Act, 1988.

25. The position in the instant case is different. There is a specific averment in the plaint that the Joint Hindu Family made a bid for the Pitampura plot, bid being in the name of defendant No. 1 It is stated that since there was a policy of DDA which required a perpetual lease deed to be executed in the joint names of the husband and the wife, while executing the perpetual lease deed, DDA included the name of defendant No. 2 Along with the name of defendant No. 1 as the co-lessee.

26. There are specific and categoric assertions in the plaint that the entire amount paid for acquiring the perpetual leasehold rights was from the joint family funds. There are categorical assertions in the plaint that the construction of the building was financed by the funds of the joint family.

27. Suit would need a trial as to what was the effect of policy of DDA under which DDA included the name of defendant No. 2 as the co-lessee. Trial would be needed to determine whether at the time of the bid, defendant No. 2 was shown as a joint bidder Along with defendant No. 1. In any case, on the allegations made in the plaint, defendant No. 1 would be a co-parcener of the Hindu Undivided Family.

28. As laid, the suit cannot be thrown out by invoking Order 7 Rule 11 or by invoking the Benami Transactions (Prohibition) Act, 1988. Of course, if defendant No. 2 leads evidence to show that she independently financed towards her share in respect of the plot and the construction, effect thereof would be duly taking note of as per applicability of Hindu law as also the Benami Transactions (Prohibition) Act, 1988. For the reason, in such eventuality, defendant No. 2 would have shown a right, independent of policy of DDA.

29. On the alternative submission, it has to be noted that the suit for partition relates to 3 properties. Plaintiff has categorically averred being in joint possession of at least 2 of the properties. Decision in Prakashwati's case would not apply, for the reason, subject matter of partition in the said suit was a single residential house and plaintiff had admitted in the plaint that she was not in possession of any part of the property.

30. I.A. No. 5307/04 is accordingly dismissed. No costs.