Dr. Kiran Datar vs Sh. H.B. Datar
2009 Latest Caselaw 2957 Del

*          HIGH COURT OF DELHI : NEW DELHI

+             IA No.5348/1999 in CS (OS) No.1969/1996

                       Judgment reserved on:      9th February, 2009

%                      Judgment decided on :          31st July, 2009

Dr. Kiran Datar                                      ......Plaintiff
                       Through : Mr. Jasmeet Singh, Adv.

                       Versus

Sh. H.B. Datar                                     .....Defendant
                       Through: Mr. M.L. Mahajan, Adv. with Mr.
                                Gaurav Mahajan, Adv. for Defendant
                                No.6
Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                     No

2. To be referred to Reporter or not?                                  No

3. Whether the judgment should be reported                             No
   in the Digest?

MANMOHAN SINGH, J.

1. Defendant No.6 has filed this application under Order VII

Rule 11 of the Code of Civil Procedure, 1908 for rejection of the plaint

with regard to the maintainability of the suit.

2. As disclosed in the plaint, the plaintiffs and the defendants

are the descendants of Lt. Mr. B.N. Datar. The plaintiffs are the legal

heirs and representatives of the deceased Mr. R.B. Datar (Son of Late

Shri B.N. Datar). Mr. B.N. Datar during his life time from his self

earned income acquired certain moveable and immovable properties.

He died intestate on 13th February, 1963 leaving behind four sons and

four daughters besides his wife Smt. Subadhra. Mr. H.B. Datar, the

eldest son (defendant herein) in the family took charge of all the assets

moveable and immovable.

3. It is stated in the plaint that Mr. H.B. Datar took over the

assets as trustee for and on behalf of the legal representatives/legal heirs

of the deceased Mr. B.N. Datar. The property bearing H. No.C-462,

Defence Colony, New Delhi (hereinafter referred to as 'disputed

property') was purchased by disposing of the estate of the deceased Mr.

B.N. Datar in the name of Mr. H.B. Datar as a trustee for the family

and for the benefit of all. It is further stated that all the family members

except the two sisters who were discharged from the estate of the

deceased, were in actual possession and enjoyment of the property since

its acquisition. The property in question has never been shown by Mr.

H.B. Datar either in his wealth tax or income tax returns. He held it for

the benefit of the remaining family, who all had equal right, title and

interest therein. In 1971, Mr. R.B. Datar on getting married moved out

of the disputed property but continued his legal practice from the

office/chamber in the said premises.

4. The wife of the deceased Smt. Subadhra expired in 1973

when Sh. R.B. Datar alongwith the plaintiffs shifted back to the

disputed property. It is submitted that it was only Sh. R.B. Datar who

was managing the said property. Mr. R.B. Datar then acquired an

accommodation at B-86, Niti Bagh, New Delhi. The disputed property

was let out to M/s. Vikas Publishing House on 25 th November, 1988 and

the rent was being paid by accounts payee cheques in the names of

defendants No.3, 4 and 5 (other sons and daughter of Mr. B.N. Datar) in

terms of the family arrangements. Even after the demise of Sh. R.B.

Datar in March, 1991 when the defendants No.3 to 5 shifted from New

Delhi to Bangalore, they continued to received rental proceeds from the

disputed property. It was alleged that on the pretext of partitioning the

property, defendant No.1 Sh. H.B. Datar took all the documents

pertaining to the disputed property in order to comply with the legal

formalities.

5. It is averred in the plaint that on 29th July, 1996 defendant

No.1 in collusion with defendant Nos. 2 to 5 entered into an agreement

to sell and to alienate the property in favour of defendant No.6 and in

this regard defendants No.2 to 5 had executed a deed of declaration

dated 15th May, 1996 entitling defendant No.1 to sell the disputed

property. However, the said deed of declaration was revoked by a letter

of revocation dated 19th July, 1996.

6. It is contended that since defendant No.1 was never the

owner of disputed property, he has no title or interest in law or

otherwise to sell the same to any one. A mere agreement to sell does not

and cannot confer any right or title on defendant No.6. Even in a

declaration under the Income Tax Act, 1961 filed on 10th April, 1996

the defendant No.1 had declared source of fund for the purchase of the

disputed property as devolution of ancestral property.

7. It is stated that the defendant No.1 has committed a breach of

trust and is entitled only to 1/6th share in the disputed property and

cannot dispose of or sell the disputed property. The plaintiffs claim to

be in deemed possession of the disputed property.

8. The plaintiff affixed a court fee of Rs.20/- on the basis of

deemed possession on the relief of declaration and partition.

9. The Defendant No.6 raised contentions to the effect that (a)

the suit does not disclose a cause of action against defendants including

Defendant No.6 and is barred by law and (b) that the plaintiff has not

paid proper court fee on the relief of declaration which is required to be

ad valorum court fee on the market value of the property at the time of

institution of the suit. Hence the suit is not maintainable.

10. As far as the first contention of Defendant No.6/Applicant in

the present application is concerned, learned counsel for Defendant

No.6 has argued that defendants 2 to 5 by Deed of Declaration dated

15th May 1996 handed over to the Defendant No.1 declared that the

defendant No.1 has acquired and purchased the said property by virtue

of sale deed registered in the office of the Sub Registrar on 6 th July 1963

and mutation was effected in the records of L & DO.

11. It is further argued that the possession of the property has

already been handed over to defendant No.6 and the third party rights

have already been created in the suit property. Infact the whole structure

of the suit property had been demolished and a new building has been

constructed by defendant No.6, therefore, no suit for declaration and

injunction lies.

12. It is settled law that while considering the rejection of plaint

under Order 7 Rule 11 CPC, the duty of the Court is to see whether the

plaint contains the necessary allegations against the defendants. It is

only when the entire plaint does not disclose any cause of action, the

plaint is liable to be rejected. The pleas taken by the defendant in the

written statement would be wholly irrelevant at this stage.

13. The power of rejecting the plaint has to be exercised by

courts sparingly and cautiously. Benefit of doubt must go to plaintiff.

For rejecting a plaint, the court has to confine itself only to the

averments made in the plaint and is not supposed to look into the

defence taken up by a defendant. Examination of a plaint under Order 7

Rule 11 does not permit the court to examine or declare under the

correctness of the contents, or otherwise, of the plaint.

14. I have considered the various paras of the plaint as well as

the written statement and the contents of the present application.

Without going into the merit of the case, since there are serious

allegations made by the plaintiff in Paras 15 to 20 of the plaint and

unless these averments and allegations are examined in the trial, it is

difficult at this stage to come to the conclusion that the plaint is liable to

be rejected on the grounds stated in the application. Therefore, this

court is of the opinion that the allegations made by the plaintiff in the

plaint are yet to examined at the time of trial of the suit.

15. As regards the second submission of the defendant no.6 is

concerned that no proper court fee has been paid, I agree with the

learned counsel for defendant No.6 as admittedly the present suit had

been filed by the plaintiffs for declaration to the effect that the sale deed

executed was illegal and void on the ground of fraud or in other words

for cancellation of the sale deed. It is also not in dispute that the

property has already been handed over by defendant No.1 to defendant

No.6.

16. In the present case, since third party right has already been

created in the suit property and admittedly, after the purchase of the

property by the defendant no.6, it was demolished and new building has

been constructed by the defendant, the question of constructive/deemed

possession raised by the plaintiff does not arise.

17. In a suit for declaration where the execution of sale deed was

alleged to be illegal and void on the grounds of fraud, the plaintiff is

required to pay the ad valorem court fee under the Court Fees Act, 1870.

As such, the present suit is covered under Section 7(iv)(b) and Article

17 (vi) Schedule II of the Court Fees Act, 1870 and the plaintiffs are

required to pay ad valorem court fee to seek declaration of nullity of sale

deed as alleged.

18. However, before passing the orders, an opportunity is

granted to the plaintiff to pay the deficient court fee within 6 weeks

from today and in failure to do so within time fixed as mentioned above,

the plaint shall be treated as rejected under Order 7 Rule 11 CPC. The

application is accordingly disposed of. No costs.

CS (OS) No.1969/1996

List for direction on 22nd September, 2009.

MANMOHAN SINGH, J JULY 31, 2009 sa