Jagdish Singh vs Arvinder Pal Singh & Ors
2010 Latest Caselaw 209 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     FAO(OS) 42/2010 & CM No. 744/2010 (u/s 151 151 CPC for stay)


      JAGDISH SINGH                               ..... Appellant
                        Through: Mr. G.L. Rawal, Sr. Adv. with
                        Mr.Rajesh Rawal, Mr. Himanshu Singh, Advs.

                  versus


      ARVINDER PAL SINGH & ORS                   ..... Respondents
                      Through: Mr. S.N. Kalra, Adv.

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                  ORDER

% 15.01.2010

CM No. 745/2010 (u/s 151 CPC for exemption)

Allowed, subject to all just exceptions.

FAO(OS) 42/2010 & CM No. 744/2010 (u/s 151 CPC for stay)

This appeal has been preferred by the defendant in the suit

before the single Judge, against the order dated 4th December, 2009

dismissing his application under Order 7 Rule 11 of the CPC.

Respondents No.1 to 3 - plaintiffs who are the son, daughter-in-law

and grandson of the appellant-defendant have instituted the suit for

declaration that they are the owners in possession of the entire second

floor of property No. B-4/182, Safdarjung Enclave, New Delhi and for

the relief of partition and consequential reliefs with respect to the said

property. It is inter alia the case in the plaint that the perpetual lease

of the land underneath the property is in the name of the appellant-

defendant and his brother; that they have filed a collusive suit to

deprive the respondents-plaintiffs of the second floor and their share in

the remaining property; that the respondent No.1-plaintiff who is the

son of the appellant-defendant had toiled hard while contributing for

the acquisition, construction and maintenance of the property and in

appreciation and acknowledgment thereof, the appellant-defendant

had granted the "absolute right, title and interest in respect of the

second floor" of the said property where the respondents-plaintiffs

were residing, "by executing a registered and irrevocable general

power of attorney dated 8th October, 2004 registered with the office of

the Sub Registrar, Delhi" in favour of the respondent No.1 - plaintiff, to

enable him to hold, enjoy and sell the said property as shown therein.

2. The appellant-defendant filed an application under Order 7 Rule

11 of the CPC for rejection of the plaint contending that the claim in

the suit was barred by the provisions of the Benami Transactions

Prohibition Act, 1988. It was further contended that even in the power

of attorney, on basis of which the plaintiffs claim, the appellant-

defendant is shown as the owner of the property and the power of

attorney had also now been cancelled. However, a reading of the

application shows that the emphasis therein is on rejection of the

plaint for the reason of the claim therein being barred by the Benami

law.

3. The learned single Judge has, in the order impugned in this

appeal, held that the respondents-plaintiffs in the plaint were claiming

right in the property on the basis of the registered power of attorney

and hence the suit could not be dismissed outrightly without trial under

the provisions of the Benami Act as the rights of the plaintiffs are to be

determined and adjudicated on the basis of the documents executed

by the appellant-defendant in favour of the respondent No.1-plaintiff.

It was further held that under Order 7 Rule 11 of the CPC, only the

averments in the plaint were to be seen and only if the respondents-

plaintiffs had claimed a relief of declaration of the entire property

belonging to him and the appellant-defendant being merely a

Benamidar, could the suit have been said to have been barred by the

Benami Act. It was held that the respondents-plaintiffs had claimed

rights over the second floor on the basis of a document, viz., power of

attorney executed by the appellant-defendant, independent of the title

to the property.

4. No error can be found in the order of the learned single Judge

holding that on a reading of the plaint vis-à-vis the second floor, the

title is claimed on the basis of the power of attorney and not on the

basis of the appellant-defendant being merely a Benamidar for the

respondent No.1-plaintiff. Moreover, an order under Order 7 Rule 11 of

the CPC is a discretionary order and no ground for interference with

the discretion found to have been properly exercised by the learned

single Judge is made out.

5. However, the senior counsel for the appellant has contended that

it is also his plea that a bare perusal of the power of attorney, being

the document filed by the respondents-plaintiffs themselves, does not

make out a case of grant of any right, title or interest in the property in

favour of the respondents-plaintiffs or any of them. We find the said

plea to have been neither expressly made out in the application filed

before the learned single Judge nor has it been dealt with in the order

impugned of the learned single Judge. However, to obviate a fresh

round in this regard, we have perused the power of attorney. The

power of attorney though stamped as one between blood relations and

stating the reason of the old and weak health and inability of the

appellant-defendant to look after, maintain, manage, control and

supervise the second floor with roof rights in the property, does

contain absolute rights enabling the respondent-plaintiff No.1 to deal

with the said second floor in all respects including to sell the same and

to receive consideration amount in respect of the said property and

also to execute deeds of all nature with respect to the said second

floor and to appoint any other person as attorney with respect to the

said property. The Division Bench of this Court in Asha M. Jain v. The

Canara Bank, 94 (2001) DLT 841 has held that the Courts have to

take judicial notice of the practice prevalent in Delhi of immovable

properties being transacted by way of power of attorney and rights in

the said manner, and without actual conveyance in the properties,

being created. However, we may notice that normally such

transactions are coupled with execution of other documents as

agreement to sell, Will etc. also and which are at this stage found to be

lacking in the present case. However, we are still unable to hold that a

case for rejection of the plaint is made out. The fact remains that the

power of attorney is executed with respect to the second floor only.

Admittedly, the appellant-defendant is the owner of a larger

share/portion of the property than second floor alone. If at all the

intent in giving the power of attorney was as mentioned therein, the

same would have been executed with respect to the entire

share/portion of the appellant-defendant and not with respect to the

second floor only. In such eventuality, in ordinary circumstances, the

power would not have been given to the respondent No.1-plaintiff to

also sell the property and/or to receive consideration thereof. All these

matters are to be decided in trial and all that can be said at this stage

is that no case for rejection of the plaint is made out.

6. The senior counsel for the appellant has also contended that the

claim of the respondents-plaintiffs for partition of the property is in any

case barred by the Benami Act. The learned single Judge has already

held in exercise of the discretion vested in him that the respondents-

plaintiffs are not claiming declaration of their title as Benamidar and so

far as the relief of partition is concerned, if it is found that they have no

right in the property, they would not be entitled to any share in the

property. No case for interference in the said exercise of discretion

also is made out. There is no merit in this appeal. The same is

dismissed.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J JANUARY 15, 2010 pk