Estate Of Meera Malhotra vs Vijay Dixit & Ors.
2009 Latest Caselaw 4410 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                        Reserved On:08.09.2009
                                                      Pronounced on: 30.10.2009

+                          CS (OS) 1033/2003

ESTATE OF MEERA MALHOTRA                                   .......... Plaintiff

              Through : Mr. S.C.Anand, Advocate for the plaintiff.

                                         Vs.
Vijay Dixit & Ors.                                       ........defendants

              Through : Mr. Rajat Aneja, Advocate for defendant No.5.
                        Mr. Amitabh Marwah, Advocate for defendant
                        No.12.
                        Mr. Ravi Sikri, Advocate for defendant No.16.

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.

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

2.     To be referred to Reporter or not?                    Yes

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


HON'BLE MR. JUSTICE S.RAVINDRA BHAT
%

1. The plaintiff in the suit claims to be the "Estate of Ms. Meera

Malhotra" who died on 11.11.1999. It is contended that probate proceedings in

respect of her estate are pending on the file of the District Judge, Delhi and that in

those proceedings, an application for appointment of a Curator was filed, for

litigation on behalf of her Estate, in the subject property which was disposed of

CS (OS) 1033/2003 Page 1 by order dated 25-9-2002, allowing Ms. Indu Bala Malhotra, Smt. Rita Anand,

S/Shri Deepak and Anil Malhotra, to file the present suit. The said four

individuals are the children of late Inderjit Lal Malhotra.

2. The suit claims partition and possession of 1/4th share of the estate

of late Ms. Malhotra, in respect of the freehold rights of F-5, East of Kailash, New

Delhi ("the suit property"). That property was owned by late Charanjit Lal

Malhotra, (hereafter "Charanjit Lal") father of Ms. Meera Malhotra, and of

Bikramjit Lal Malhotra, Ranjit Lal Malhotra, and late Inderjit Lal Malhotra. The

plaintiffs (suing on behalf of estate of Ms. Malhotra) are the children of another

son of the said Charanjit Lal. The suit averments are that the first defendant had

entered into an agreement, after the death of Charanjit Lal Malhotra, for purchase

of the suit property, with some of the heirs of the said Charanjit Lal. Accoding to

the plaintiff, Charanjit Lal used to own some landed property in Kilokri Village,

near Friends colony, which was acquired by the government. A rehabilitation

scheme had been framed, enabling landowners (whose properties were

acquired) to alternative plots. The said Charanjit Lal, was thus, allotted the suit

property, with leasehold rights, through a registered lease deed, dated 28-12-

1972. The plaint describes an alleged will, which says the plaintiff, entitled the

late Ms. Meera Malhotra, to equal share (1/4th) in respect of the said suit

property.

3. The suit alleges that after death of Charanjit Lal, the Delhi

Development Authority mutated the suit property in favour of his three sons, and

CS (OS) 1033/2003 Page 2 daughter, Ms. Meera Malhotra, who were prevailed upon, on 1-12-1995 in

respect of the suit property, to agreeing to sell it. Later, alleges the plaint, the said

legal heirs, including Ms. Meera Malhotra, signed an agreement dated 28-6-1996,

but without realizing its true import. It is alleged that the said agreement was

procured by the first defendant, fraudulently, and by practising deceit on the

sellers, who were not in truth agreeable to its terms, as it was for inadequate

consideration, and also entered into with in violation of several provisions of law.

4. The suit thereafter describes various legal proceedings, including the

probate petition, and three other suits, on the file of the Additional District and

Civil Judges. It is alleged that the Delhi Development Authority ("DDA") illegally

and without any justification cancelled the leasehold rights in respect of the suit

property, on 13-2-2002. The plaintiff says that the said cancellation is null and

void.

5. On the strength of these allegations, which have been described in

minute detail, in 194 paragraphs, 78 "grounds" with 17 reliefs sought in the

prayer clause, in a plaint running into 70 pages, the suit seeks eviction of

Defendant Nos. 11, 12, 15 and 16; cancellation of the DDA order dated 13-3-

2002, cancellation of the agreements to sell entered by legal heirs of Charanjit

Lal, in favour of the first defendant, and partition of 1/4th share of Ms. Meera

Malhotra.

6. The fifth defendant, by his application IA No. 3686/2009, points out

that the suit suffers from multifariousness, since Ms. Indu Bala and other heirs of

CS (OS) 1033/2003 Page 3 Inderjit Lal Malhotra, on the basis of their being beneficiaries of a will (of Ms.

Malhotra) have filed several other proceedings. It is alleged that in any event,

once the legal heirs of late Charanjit Lal parted with their rights, in respect of the

suit property, to the first defendant, through agreements, entered into in 1995

and 1996, the plaintiffs, as heirs of one of them, cannot claim any interest, as the

original beneficiaries ceased to be interested in the property. The said heirs,

including Inderjit lal Malhotra, and Ms. Malhotra, were divested of their rights;

the plaintiffs cannot now say that the property can be partitioned.

7. The fifth defendant applicant also contends that the DDA has initiated

eviction proceedings under the Public Premises (Eviction of Unauthorized

Tenants ) Act and, consequently, the court does not have jurisdiction to decide

the issue of cancellation. The applicant also contends that the plaintiffs filed three

different suits, (Nos. 26, 27 and 330 before the Civil Judge, Tis Hazari, for

direction to DDA to convert the suit property, and restrain the other defendants.

It is submitted that an initial motion for dismissal of those suits, or their rejection

was dismissed by the court. Upon revision, by the applicant, this court, in its

order dated 16-10-2008 (in CRP Nos. 114, 119 and 120 of 2006) set aside the

orders of the trial court, and dismissed the suit. The Applicant urges that this

court should take the same view, particularly since the relief of partition,

(assuming it to be maintainable) can be agitated in another suit, filed by the same

so-called heirs of Ms. Meera Malhotra, i.e Ms. Indu Bala Malhotra, Smt. Rita

Anand, S/Shri Deepak and Anil Malhotra.

CS (OS) 1033/2003 Page 4

8. The plaintiffs do not reply to the application, or deny its averments.

Their counsel did not dispute the order of the court in the civil revisions, filed by

the fifth defendant, in civil revision proceedings. The court had heard counsel, at

length, and also considered the other suit instituted by Ms. Indu Bala Malhotra

and other heirs of Inderjeet Lal Malhotra.

9. It is immediately apparent from the above narrative that the plaintiffs

claim to be legal heirs of Ms. Meera Malhotra, daughter of Charanjit Lal. They are

the children of the said Meera Malhotra's brother. Concededly, the said two heirs

had parted with possession of the suit property, to the first defendant. During

their life time, they did not agitate any grievance in respect of the agreements

entered into by them, with the first defendant, or about the inadequacy of the

consideration received. The suit, and documents filed along with it, also show

that possession of the said property had been handed over to the first defendant.

In these circumstances, the court is of opinion that the present proceeding,

(notwithstanding the leave granted for its institution by the District Court, on an

assumption that the estate of Ms. Meera Malhotra has to be safeguarded) is a

gross abuse of the process of court.

10. The individuals claiming through Ms. Meera Malhotra, i.e Ms. Indu Bala

Malhotra, Smt. Rita Anand, S/Shri Deepak and Anil Malhotra, have also filed

another suit, for identical relief in respect of the suit property, claiming as heirs

of Inderjeet Malhotra. Partition, cancellation of agreements to sell, and

cancellation of the DDA's statutory order, re-entering the property, have been

CS (OS) 1033/2003 Page 5 claimed as reliefs. The averments are identical with the present suit. That suit

(No. 1033/2002) was also instituted prior in point of time, and no application for

leave to file the present suit, by the same plaintiffs, in their capacity as heirs of

Ms. Meera Malhotra, was either sought or granted.

11. It is apparent also, that the plaintiffs are agitating about the

correctness and legality of agreements arrived at by their ostensible predecessor

who, during her lifetime, did not feel that they were tainted, or illegal. She died in

November, 1999, three years after the agreements were entered into, and after

receiving the amounts, for that purpose. The plaintiffs here no doubt are

agitating their rights in respect of the property, as legatees, yet they did not

include this averments in their previous suit. Furthermore, importantly, the right

to seek cancellation, arose immediately after the agreement of 1996 was entered

into; the limitation for filing a cancellation (of instrument) suit is three years;

concededly, that period expired, before the present suit was filed.

12. In T. Arivandandam v. T.V. Satyapal (1977 (4) 467), the Supreme Court

held that:

"The trial court must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Chapter 11) and must be triggered against them."

CS (OS) 1033/2003 Page 6

13. Apart from the question of limitation, the Court is also of the opinion

that the present suit cannot also be maintained, because the plaintiffs had

approached the Court earlier, in Suit No. 1310/2002, in respect of the same

reliefs, claiming similar rights in regard to the suit property. They did not

disclose their interest, as heirs of Ms. Meera Malhotra, for a similar - if not

identical relief. Nor did they seek leave to file a separate suit, to agitate those

rights, at a later stage, as mandated by Order 2, Rule 2, CPC. The present suit

therefore, is clearly barred in law.

14. In view of the above discussion, it is held that the present suit is not

maintainable, for multifariousness, not seeking l10eave of court, before

instituting it, and excluding the present claim in the previous suit, as also on the

ground that it is time barred. It is therefore, liable to be, and is rejected under

Order 7, Rule 11 (d), CPC. The plaint (in the suit) and all pending applications are

accordingly rejected as not maintainable. In the circumstances, the plaintiff shall

bear the costs, quantified at Rs. 50,000/-.

                                                              S. RAVINDRA BHAT
                                                                   (JUDGE)
OCTOBER 30, 2009




CS (OS) 1033/2003                                                             Page 7