Brigadier (Retd.) Shyam Prasad vs Smt. Dayavati & Ors.
2010 Latest Caselaw 171 Del

*            HIGH COURT OF DELHI : NEW DELHI

+          I.A.No. 9522/2008 in CS(OS) No. 1113/2008

BRIGADIER (RETD.) SHYAM PRASAD                   ...Plaintiff
                       Through : Mr. Manish Vashist & Mr.
                                 Sameer Vashist, Advocates.
                Versus

SMT. DAYAVATI & OTHERS                                     ...Defendants
                      Through :              Mr. Arvind Nigam, Sr.
                                             Adv. with Mr. Saurabh
                                             Mishra, Adv. for D-1 & 2.
                                             Mr. Rikky Gupta, Adv. for
                                             D-3, 4 & 6.

Judgment reserved on: November 12, 2009
Judgment decided on : January 14, 2010

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?                    Yes

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

MANMOHAN SINGH, J.

1. By this order, I shall dispose of the application filed by

defendant no. 1 being I.A. No. 9522 /2008 under Order VII Rule 11 of

the Code of Civil Procedure, 1908 (for short „CPC‟) for rejection of the

plaint.

2. The brief factual matrix of the case is that the plaintiff filed

the suit, inter alia, for partition, declaration, rendition of account and

permanent injunction against the defendants.

3. Late Sh. Savitri Parsad was the owner of the suit property

bearing Plot No. 12, Anand Lok, New Delhi measuring 793.3 square

yards. However, on 27th March, 1971, the suit property was sub leased

and a sub lease was jointly executed in the name of Late Sh. Savitri

Parsad and his wife Smt. Dayawati, defendant no. 1 herein. Therefore,

both late Sh. Savitri Parsad and the defendant no. 1 became the co-

owners in respect of 50% share in the suit property. Sh. Savitri Parsad

expired on 9th February, 1973 intestate leaving behind plaintiff and

defendants as his legal heirs. Plaintiff is the son of defendant no. 1 and

defendants no. 2 to 6 are the brothers and sisters.

4. As per the plaintiff, after the demise of his father, the legal

heirs of his father became the co-owners in respect of the share of the

father in the suit property measuring 396.65 square yards by virtue of

Section 8 of the Hindu Succession Act, 1996 having 1/7 th share each.

The remaining portion of the property measuring 396.65 square yards

became the absolute property of defendant no. 1, the mother of the

plaintiff. The def. No.1 has, therefore, became the co-owner of the plot

to extent of 453.31 square yards after the demise of father and the

plaintiff and the rest of defendants no. 2 to 6 inherited 56.66 square

yards each in the suit property.

5. The plaintiff submits that at the time of demise of late Sh.

Savitri Prasad, all his sons and daughters were stationed out of Delhi. It

was, therefore, decided amongst them that a fresh perpetual sub lease

may be executed in the name of defendant no. 1 alone. The plaintiff and

other sons and daughters of late Sh. Savitri Prasad also gave a No

Objection/disclaimer towards the relinquishment of their respective

shares in favour of the defendant no.1 mother to facilitate the execution

of the perpetual sub-lease in her name. A fresh sub-lease was, therefore,

executed on 27th February, 1973 in favour of defendant no. 1, Smt.

Dayawati the mother of the plaintiff. In the plaint, it is mentioned that at

present, the defendant no. 1 and the defendant no. 2 with his wife are

residing in the suit property.

6. The plaintiff avers that in the month of April, 2008, the

defendant no. 1 & 2 told him that they were planning to enter into an

Agreement for development of the suit property with some builder. The

plaintiff alleged that the defendant no. 1 has no legal right to enter into

any transaction in respect of 1/7 th share of the plaintiff and the

remaining defendants in the suit property.

7. The plaintiff was again informed by defendants No.1 & 2

about the issue of entering into an agreement with a builder in respect of

the suit property on 8th May, 2008. It also came to the knowledge of the

plaintiff that the defendant no. 1 & 2 got a conveyance deed executed on

27th March, 2000 in favour of defendant no. 2 without any intimation to

the plaintiff on the same date and he was nominated as the sole nominee

on behalf of defendant no. 1 in the records of the society pertaining to

the suit property. The plaintiff applied for a certified copy of

conveyance deed with the Sub-Registrar, Vikas Sadan, New Delhi and

obtained a certified copy on 22.05.2008.

8. The plaintiff submits that he is co-owner to the extent of 1/7th

undivided share in the suit property and has a right to seek partition of

his 1/7th share in the same being the son of Late Sh. Savitri Parsad. The

defendant no. 1 and defendant no. 2 has no right to deny the title and the

interest of the plaintiff to the extent of 1/7 th share in the area measuring

396.65 square yards left by the father of the plaintiff.

9. In para 32 of the plaint, the plaintiff submits that the cause of

action to file the present suit accrued for the first time on 8 th May, 2008

when the defendants no. 1 & 2 disputed the right of the plaintiff in the

suit property.

10. In the application filed by the defendant no. 1 under Order

VII Rule 11 (d) of the Code of Civil Procedure, 1908 for rejection of

plaint, it is contented that the present suit is barred under Article 58,

Article 59 and Article 106 of the Limitation Act, 1963. It is submitted

that after the death of the owner of the suit property the plaintiff and

defendant no. 2 to 6 gave their No Objection in favour of defendant no.

1 as a result of which a fresh sub-lease was executed with defendant no.

1 as the sole lessee and the same was registered on 27 th February, 1973.

By a conveyance deed executed on 27th March, 2000 the suit property

was converted from lease hold to free hold.

11. It is contended that the plaintiff is seeking partition and a

separate possession of his 1/7 th share out of the share of his deceased

father which is clearly barred under Article 106 of the Limitation Act,

1963. The period of limitation prescribed under this Article is 12 years

and the time from which the period begins to run is when the legacy or

share becomes payable or deliverable. In the present case, if at all such

share was deliverable, it was on the date of demise of plaintiff‟s father

on 9th February, 1973. The present suit has been filed on 27th May, 2008

i.e. more than 35 years after the cause of action occurred.

12. Mr. Arvind Nigam, the learned senior counsel for the

defendants also relied upon Article 58 of the Limitation Act, 1963

(hereinafter referred to as „the Act‟) which prescribes three years of

limitation in instituting suits relating to declaration and the time from

which the period of limitation begins to run in such cases is three years

when the right to sue first accrued. It is argued that the right to sue in the

present case, if any, accrued on the registration of the perpetual sub-

lease in favour of defendant no. 1 as sub-lessee on 27th February, 1973.

13. The relief of rectification of the Conveyance Deed dated 27 th

March, 2000 is also barred by Article 59 of the Act as it prescribes a

period of three years for institution of such suits from the time when the

facts entitling the plaintiff to have the instrument cancelled or set aside

first becomes known to him. The plaintiff has been aware all throughout

of the Conveyance deed based on the sub-lease deed of 1973, and thus it

has been eight years since the registration of the Conveyance Deed and

thirty five years since the registration of the sub-lease deed.

14. The relief of permanent injunction is contended to be barred

by Article 106 of the Act and the relief of rendition of accounts is

contended to be barred by Article 69 of the same which prescribes a

period of three years from the date when the property is wrongfully

taken and there was an oral family settlement, and in view thereof the

No Objection/ Disclaimer by the plaintiff and the other relatives were

given in favour of defendant no. 1.

15. The plaintiff in the reply states that the No

Objection/disclaimer has been given by the plaintiff and other

defendants only to facilitate the execution of perpetual sub-lease in

favour of defendant No.1 as all the brother and sister are living outside

Delhi at the time of demise of father of the plaintiff. The plaintiff further

states that the transfer of rights in immoveable property can only be by

way of registered instrument. Admittedly, no registered instrument was

ever executed by either the plaintiff and/or defendant No. 3 - 6

relinquishing their share in favour of the mother.

16. The plaintiff has denied any oral family settlement as alleged

by the defendant no. 1 and it has also not been pleaded in the plaint. The

said plea of the defendant no. 1, therefore, has to be proved by

defendant no. 1 at the appropriate stage of the matter as argued by the

plaintiff. It is argued by the counsel for the plaintiff that the nomination

in the record of the society does not transfer the ownership of the suit

property. He has referred page nos. 1 and 14 of the documents filed by

the plaintiff along with list of documents which demonstrates that

defendant no. 1 was a nominee.

17. The plaintiff avers that the defendant No.1 and 2 denied the

right of the plaintiff only on 8 th May 2008 therefore, the cause of action

accrued for the first time on 8th May 2008. Even otherwise, the plaintiff

contends that it is settled position of law that no period of limitation is

prescribed for filing a suit for possession on the basis of inheritance.

The plaintiff submits that the present suit is filed on the basis of

inheritance and not on the plea of testamentary succession, hence it is

not time barred as the plaintiff came to know about the conveyance deed

dated 21.3.2000 only on 19.5.2008. Therefore, the suit is maintainable.

18. The plaintiff also submits that the possession of one co-

owner is deemed to be the possession of all the co-owners unless there

has been a clear ouster of the share of the any co-owner by the other co-

owners and denial of his title. The plaintiff‟s title has been denied only

in the month of April 2008 and defendant No. 1 and 2 who are the co-

owners in the suit property are in the possession. Therefore, the time to

file the suit will commence from April 2008.

19. The plaintiff contends that Article 106 of the Act does not

apply to a suit for partition and the same applies only where the suit has

been brought against an Executor or an Administrator or some person

legally charged with the duty of distributing the estate.

20. Defendant Nos. 3, 4 and 6 supported the contentions of the

plaintiff and stated that the parties to the suit are equally entitled to 1/7 th

share each in share of the father in the suit property i.e. 50% of the plot.

Further, it is a settled position of law that any transfer of rights in

immoveable property can be carried out only by way of a registered

document. In the present case, it is not the case of any party that any

registered document was ever executed relinquishing the share of the

plaintiff or defendant nos. 3 to 6 in favour of their mother. In this regard

the plaintiff filed an application being I.A. No. 5242/2009 under Order

XI Rule 12 CPC seeking a direction from the Court against defendant

nos. 1 and 2 directing them to produce the documents including the No-

Objection certificates allegedly containing the recital of relinquishment

of the respective shares of the parties. No reply has been filed to this

application despite the grant of numerous opportunities to do so. Thus

an adverse inference ought to be drawn against defendant nos. 1 and 2

who have claimed the existence of the relinquishment recitals and

subsequently, the suit cannot be barred by limitation. Lastly, it has been

submitted that the assertion by defendant nos. 1 and 2 as regards the oral

family settlement cannot be proved without leading of evidence on the

same.

21. Admittedly, no registered relinquishment was ever executed

by the plaintiff or any other legal heir of late Sh. Savitri Prasad releasing

their 1/7th share in favour of the defendant No.1 at any point of time. It

is a settled law that the transfer of immovable property must be made

through a registered instrument.

22. The law relating to partition on the basis of inheritance is

settled that no period of limitation is prescribed for filing the suit for

possession and possession of the co-owner deemed to be possession of

all the co-owners. It is well settled law also that Article 59 of the Act

does not apply in the suit for partition and possession. According to the

plaintiff, he got the knowledge about the execution of conveyance deed

dated 27th March, 2000 only on 19th May, 2008 as averred in paras 25

and 26 of the plaint. In case the said statement made by the plaintiff in

these paras is correct then the suit is also maintainable under Article 59

of the Act. It has been pleaded in para 12 and 27 of the plaint that the

mother has 453.31 sq. yds. share in the property. Therefore, the

allegation of the defendant that the plaintiff and defendant nos. 3, 4 and

6 want to dislodge the mother/defendant no. 1 is not sustainable at this

stage unless it is proved otherwise.

23. In Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V.

Fortune Express,(2006) 3 SCC 100, the Supreme Court, with regard to

the scope of an application under Order VII Rule 11 observed as under :

"12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants."

24. In C. Natrajan Vs. Ashim Bai and Anr., AIR 2008 SC 363, a

Division Bench of the Supreme Court while holding that the application

under Order VII Rule 11(d) for rejection of the plaint was not

maintainable and that an issue in that behalf was required to be framed,

referred to Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust

and Ors., (2006) 5 SCC 658 wherein para 11 the law has been stated as

under :

"11. .....

After hearing counsel for the parties, going through the plaint, application under Order VII Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order VII Rule 11(d) of the Code of Civil Procedure."

25. The judgment referred by the learned counsel for the

defendant no. 1 i.e. Raj Narain Sarin (Dead) through Lrs. and Ors. Vs.

Laxmi Devi and Ors., 2002 (10) SCC 501 does not help the case of the

defendant no. 1 as in that case it was found nu the Court that the

plaintiff had the knowledge about the execution of the sale deed in the

year 1941 and no action was taken by the plaintiff to set aside the same

but in the present case, the averments in the plaint state otherwise.

Therefore, at the stage of considering an application under Order VII

Rule 11, the Court has to confine itself to examining only the averments

in the plaint. Other pleas advanced by the defendant no. 1 in the written

statement, which may be valid, cannot be commented upon by the Court.

The Supreme Court in Liverpool and London S.P. and I Asson. Ltd. Vs.

M.V. Sea Success I and Anr., 2004 (9) SCC 512 while dealing with the

law relating to rejection of plaint under Order VII Rule 11 of the Code

of Civil Procedure observed as follows :

"155. In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown. In Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR1962SC941 this Court held:

"By the express terms of Rule 5 Clause (d), the court is concerned the ascertain whether the allegations made in the petition show a cause of action. The court has not to see whether the claim made by the petitioner is likely to succeed: it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him."

26. Another judgment referred by defendant no. 1 being Maha

Singh Vs. Anand Singh Mann, 116 (2005) DLT 378 affirmed by a

Division Bench of this Court and reported as 156 (2009) DLT 674 (DB)

is also not applicable to the facts of the present case, as in that case the

property was purchased in an auction conducted by the DDA on

12.10.1969 by the defendant from his own resources and in his own

name. In the case the plaintiff had argued that the property was

purchased by the funds of the Joint Hindu Family and the said argument

was not accepted as it was found that the property was purchased vide

auction in the year 1969 and so the suit filed on 8.5.1986 was barred by

limitation. Para 16 of the order of the Division Bench has specifically

observed the admission of the plaintiff-appellant to the following effect

:

"16. In the present case, it is not disputed that the appellant in his application under Order 39 Rules 1 and 2, CPC being IA No. 8966/1987 made the statement in paragraphs 2, 3 sand 4 that the premises in dispute was let out to the Bank of Baroda in September, 1973 on the exclusion of the appellant from his share in the rental of the portion of the suit property. It is further stated that the defendant since inception of the said tenancy has been realizing the rent and is appropriating to himself to the exclusion of the plaintiff. .... "

27. In the present case, the nature of the pleadings in the plaint

being what it is, this Court does not agree with the contentions of

defendant no. 1 that the action is time barred as the question of

limitation is a mixed question of law and fact which can be decided only

after the evidence of the parties. Moreover under Order VII Rule 11,

only the allegations in the plaint are to be looked into and plea of

limitation cannot be accepted at this stage. Therefore, I am of the view

that all the pleas raised by the defendant No.1 in her application and the

averments made by her in the written statement cannot be decided at the

pre-trial stage without recording the evidence in view of the facts and

circumstances of the present case.

28. Thus, the application of the defendant under Order VII Rule

11 CPC for rejecting the plaint is without any merit and is hereby

rejected.

CS(OS) No.1113/2008

29. List the matter on 18th March, 2010 for admission/denial

before Joint Registrar.

MANMOHAN SINGH, J.

JANUARY 14, 2010 jk