M.R. Krishnamurthi vs Chandan Ramamurthi & Others
2008 Latest Caselaw 917 Del

            THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 03.07.2008

+             IA 1370/1995 in CS(OS) 731/1994 (U/O 7 R 11, CPC)
              by the Defendant No.1

M.R. KRISHNAMURTHI                                          ... Plaintiff

                                   - versus -

CHANDAN RAMAMURTHI & OTHERS                                 ... Defendants

Advocates who appeared in this case:
For the Plaintiff  : Dr Shyamla Pappu, Sr Advocate with Mr M.R. Krishnamurthi
For the Defendants : Mr M.N. Rao, Sr Advocate with Ms Pramil Dhananjay,
                     Mr Radha Kant and Mr D.K. Garg alongwith
                     Ms Chandan Ramamurthi (in-person)

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED

      1.

Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in Digest ? Yes

BADAR DURREZ AHMED, J

1. In this application under Order 7 Rule 11 of the Code of

Civil Procedure, 1908 (hereinafter referred to as ‗CPC'), the defendant

No.1 has prayed for the rejection of the plaint on three counts:-

(1) Limitation ;

(2) The plaint does not disclose any cause of action ; and

(3) The suit is vexatious and frivolous.

2. The main prayer in the suit is for declaring the compromise

decree dated 30.01.1987 passed by this court in Suit No.1970/1986

filed by the plaintiff's mother (Ms Shyamla Pappu) against Late Mr

M.K. Ramamurthi (MKR) as being null and void. A declaratory decree

is also sought declaring that defendant No.2 is not the daughter of

MKR and that the defendant No.1 was not the wife of MKR.

Interestingly, a declaration is also sought that the decree dated

18.12.1985 passed by the Additional District Judge, Delhi dissolving

the marriage between the defendant No.1 and defendant No.3 is null

and void. Several other prayers have also been made, but these are the

main prayers.

3. The case of the plaintiff is that the plaintiff is the son born

out of the alleged wedlock of his mother and MKR. As such, being a

co-parcener, he is entitled to his share in the property bearing No.A-16,

Niti Bagh, New Delhi. It is the case of the plaintiff that at the time

when the compromise decree dated 30.01.1987 was passed, the plaintiff

was a minor and as his interest was not placed before the court, the said

decree is liable to be declared as null and void, inter alia, in view of the

provisions of Order 32 Rule 7 CPC.

4. It is contended on behalf of the defendant No.1 / applicant

that the plaintiff is not the legitimate son of MKR inasmuch as there

was no marriage, what to speak of a legal marriage, between the

plaintiff's mother and MKR. It was submitted that the plaintiff's

mother had filed a suit bearing No.472/1986 in the District Court

seeking an injunction against the defendant No.1 and MKR in respect

of the said property. Another suit bearing No.599/1986 was filed by

the plaintiff's mother again before the District Court at Delhi, inter

alia, seeking a declaration that she was the legally wedded wife of

MKR. Later, in the same year, MKR filed Suit No.1970/1986 in this

court seeking an injunction against the plaintiff's mother from

interfering with his rights to enjoy the property bearing No.A-16, Niti

Bagh, New Delhi.

5. It is further contended that a compromise had been arrived at

and the same had been recorded in MKR's suit bearing No.1970/1986.

By virtue of the compromise, MKR was regarded as the absolute owner

of the said property bearing No.A-16, Niti Bagh, New Delhi. The

terms of the settlement as recorded in the compromise decree were,

inter alia, that the plaintiff's mother would be entitled to occupy and

use the ground floor of the said premises during the lifetime of MKR,

but she would have no access to the first floor. After the lifetime of

MKR, the ground floor would be occupied and used by Mr Vivek

Ramamurthi (son of MKR through his earlier marriage with Smt

Susan) and the present plaintiff. The first floor would then fall in the

share of the defendant No.1 and her daughter. It was specifically

indicated in the compromise that the plaintiff's mother gives up all her

contentions raised by her in her two suits, namely, Suit No.472/1986

and Suit No.599/1986. Consequently, the compromise was taken on

record and a decree was passed thereon in Suit No.1970/1986. Suit

Nos.472/1986 and 599/1986 were withdrawn by the High Court from

the District Court and in terms of the compromise arrived at between

the plaintiff's mother and MKR and defendant No.1, the same were

dismissed. The plaintiff, by the present suit, is seeking a declaration

from this court to declare that compromise decree dated 30.01.1987 as

null and void.

6. On the point of limitation, it has been contended on behalf of

the defendant No.1 that the plaintiff, as per the averments made in the

plaint, was born on 27.05.1970. This means that he attained majority

on 27.05.1988. It was submitted in the backdrop of Articles 59 and 60

of the Schedule to the Limitation Act, 1963 that a minor could bring an

action within three years of attaining majority. The three years would

have to be counted from 27.05.1988. The three years would elapse on

27.05.1991. The present suit has been filed in 1994 and, therefore, the

same is barred by time and consequently the plaint is liable to be

rejected in view of the provisions of Order 7 Rule 11 (d), CPC. It was

further contended that, in any event, the decree dated 30.01.1987 had

attained finality. Since MKR died much later, i.e., on 26.04.1993, the

decree has been worked out and accepted by all, including the plaintiff

who did not object to the same during the lifetime of MKR.

7. As regards the plea that the plaint does not disclose a cause

of action, it was contended on behalf of the defendant No.1 that the

plaintiff claims himself to be a co-parcener. The entire suit is based on

this claim. Such a claim can be asserted only if the plaintiff was a

legitimate son of MKR. At the time when the plaintiff's mother claims

to be married to MKR, both she and MKR had living spouses and,

therefore, such a marriage would be a void marriage in view of Section

5 (1) of the Hindu Marriage Act, 1956. It was contended that, in fact,

there was no marriage at all between the plaintiff's mother and MKR.

Therefore, there is no question of the plaintiff claiming to be a co-

parcener. It was also contended that since the claims of the mother

were dismissed inasmuch as the suits bearing Nos.472/1986 and

599/1986 filed by her were dismissed, the plaintiff, being her son,

cannot claim a higher status.

8. With regard to the suit being vexatious and frivolous, it was

contended on behalf of the defendant No.1 that after the compromise

had been entered into by the plaintiff's mother, the plaintiff's mother

could not have instituted any further proceeding directly. However, the

present suit filed by the plaintiff is at her instance in an attempt to

achieve indirectly what she cannot achieve directly. Such an attempt

needs to be snubbed at the first instance and is nothing but a vexatious

and frivolous action and, therefore, placing reliance on the Supreme

Court decision in the case of T. Arivandanam v. T.V. Satyapal and

Another: 1977 (4) SCC 467, it was submitted that the plaint ought to

be rejected.

9. The plaintiff's mother who happens to be a senior advocate

appeared and argued on behalf of the plaintiff. With regard to the

scope of an application under Order 7 Rule 11, CPC, she submitted that

the settled law is that only the plaint and the documents accompanying

the plaint are to be taken into consideration while deciding such an

application. The averments made in the plaint are to be treated as

correct for the purposes of deciding as to whether the plaint is liable to

be rejected or not under Order 7 Rule 11, CPC.

10. With regard to the question of limitation, she submitted that

as revealed in the plaint, the suit has been filed because of the claims

made by the defendant No.1 in a probate case No.26/1993 filed by the

defendant No.1 in respect of an alleged will of MKR of 07.05.1990.

The defendant No.1 has claimed that the decree passed on 30.01.1987

is binding on all parties. This decree comes in the way of the plaintiff

who was not a party to the earlier proceedings and it is for this reason

that the present suit has been filed. She submits that the plaintiff

gained knowledge of the decree in 1993 and, therefore, the three-year

period would start to run from 1993 and not from 1988 as suggested by

the defendant No.1. She submitted that the cause of action also arose

on account of the defendant No.1 claiming on the basis of the

compromise decree, in 1993, therefore, the starting point of limitation

would be in 1993 and since the suit was filed in 1994, it was within

time.

11. With regard to the question of the plaint not disclosing a

cause of action, she submitted that reading the averments in the plaint,

it is apparent that a threat to the right of the plaintiff has been clearly

disclosed. The plaintiff was not a party to the proceedings which

culminated in the compromise decree of 30.01.1987. At that point of

time, he was a minor. The plaintiff now seeks to claim his rights. The

said compromise decree comes in his way and this is the cause of

action for the plaintiff. Consequently, she submitted, the plaint does

disclose a cause of action and cannot be rejected.

12. With regard to the allegation that the suit is vexatious and

frivolous, she submitted that it is not so. The plaintiff was not a party

to the earlier proceedings and this is the first suit filed by the plaintiff

claiming his rights.

13. Considering the arguments advanced on behalf of the parties,

it is correct that an application under Order 7 Rule 11, CPC needs to be

considered only on the basis of the averments made in the plaint and

any documents accompanying the plaint. It is also clear that an

application under Order 7 Rule 11, CPC has to be disposed of on the

basis that what is stated in the plaint is true.

14. As regards the point of limitation raised by the learned

counsel for the defendant No.1, I am of the view that he is correct in

submitting that the suit is beyond time. De hors the question of

whether the plaintiff is or is not the legitimate son of MKR and de hors

the question of the plaintiff's mother's marriage with MKR, it is an

admitted position that the plaintiff was born on 27.05.1970. This

would mean that he would be 18 years of age on 27.05.1988. From

that date onwards, he would no longer be regarded as a minor. Article

59 of the Schedule to the Limitation Act, 1963 stipulates that the period

of limitation for cancelling or setting aside an instrument or decree or

for the rescission of a contract would be three years and the time from

which the period would begin to run would be when the facts entitling

the plaintiff to have the instrument or decree cancelled or set aside or

the contract rescinded first become known to him. Plainly speaking, a

person has three years time for seeking the cancellation of a decree

from the date from which he became aware of the facts entitling him to

have the decree set aside or cancelled. Article 60 stipulates a period of

three years for setting aside a transfer of property made by the guardian

of a ward. The suit can be filed by the ward, who has attained majority,

within three years of his attaining majority. Going by Article 60, the

three years would expire on 27.05.1991.

15. Section 6 of the Limitation Act, 1963 and in particular sub-

section (1) thereof provides that where a person entitled to institute the

suit or make an application for the execution of a decree, is at the time

from which the prescribed period is to be reckoned, a minor or insane

or an idiot, he may institute the suit or make the application within the

same period after the disability has ceased, as would otherwise have

been allowed from the date specified, therefor, in the third column of

the schedule. What this provision basically means is that the time

when the period of limitation would begin to run would be on the date

on which the minor attains majority. So, if a cause of action had

accrued to a minor, when he was a minor, if the period of limitation for

such a cause of action was three years, then the same would begin to

run not from the date on which the cause of action accrued to the

minor, but from the date on which he attains majority. Thus,

construing Article 59 alongwith Section 6 (1), if the cause of action

accrued to the plaintiff when he was a minor, the starting point of

limitation would be the date on which he attains majority, i.e., on

27.05.1988. The three-year period prescribed for filing a suit seeking

the setting aside of a decree would come to an end on 27.05.1991.

16. The only question that has, therefore, to be examined in the

present case is --when did the facts entitling the plaintiff to have the

instrument or decree cancelled or set aside first become known to him?

Paragraph 28 of the plaint reads as under:-

―28. Shri MKR pleaded with Shyamlaji not to proceed with the suits as that would ruin his professional career. The suits were compromised after confirming and accepting Shyamlaji's pre- existing right in respect of the ground floor of A-16, Niti Bagh and it was categorically undertaken by Shri MKR that the possession of Shyamlaji would not be disturbed under any circumstances. The plaintiff came to know of the compromise decree when defendant No.1 filed probate case No.26/93 and annexed the terms of the compromise decree as an annexure to the probate petition.‖

17. The last portion of the above paragraph indicates that the

plaintiff came to know of the compromise decree when the defendant

No.1 filed the probate case 26/93. In other words, the suggestion is

that the plaintiff attained knowledge only in 1993. If this were to be so,

the starting point of limitation would be 1993 and the suit would be

within time. However, unfortunately for the plaintiff, this is not so. It

is clearly indicated in the earlier portion of the said paragraph 28 that

Shri MKR pleaded with Shyamlaji not to proceed with the suit as that

would ruin his professional career. This is not what is stated in the

compromise decree. The question that arises is - how did the plaintiff

come to know that MKR pleaded with his mother not to proceed with

the suit as that would ruin his professional career ? This question can

only be ascertained at this stage from what is stated in the plaint itself.

Looking at the verification at the end of the plaint, it is clear that

paragraph 28 has been verified as true to the knowledge of the plaintiff

which means that the plaintiff was aware, de hors the filing of the

probate case, that the suit had been compromised in 1987. He was

aware because he has verified the averments made in paragraph 28 as

being true to his knowledge. From this discussion, it is clear that the

plaintiff had knowledge of the compromise decree even when he was a

minor, i.e., in 1987 itself. Obviously, because he was a minor, he

would get the benefit of Section 6 of the Limitation Act, 1963 and the

starting point of limitation would not be 1987, but would be

27.05.1988 when he attained majority. The end point for the period of

limitation being, 27.05.1991. The suit has been filed in 1994.

Therefore, the same is barred by limitation and, on this ground alone,

the plaint is liable to rejected. Because of the view taken by me on this

question, it shall not be necessary for me to express any view on the

other two points raised by the defendant No.1.

This application is allowed. The plaint is rejected. All the

pending applications also stand disposed of.

                                       BADAR DURREZ AHMED
July 03, 2008                                (JUDGE)
dutt