Master Anant Narayan Rai & Anr. vs Mr. Siddharth Rai & Anr.
2010 Latest Caselaw 1654 Del

.*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+             IA No.10842/2007, IA No.7820/2008 & IA No.14008/2008
              in C.S. (OS) No.1737/2007


Master Anant Narayan Rai & Anr.                          ..... Plaintiffs
                       Through:         Ms. Pinky Anand, Sr. Adv. with
                                        Ms. Aakanksha Munjal, Adv.

                                  Versus

Mr. Siddharth Rai & Anr.                                 .....Defendants
                        Through:        Mr. B.S. Mann with Mr. H. Singh and
                                        Ms. Khushboo Bhardwaj, Advs.

Date of Decision: March 25, 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. This order shall dispose of applications filed by the plaintiff being IA

No.10842/2007 under Order XXXIX Rules 1 and 2 Code of Civil Procedure,

1908 ('CPC' for brevity) and IA No.7820/2008 under Sections 18, 20 and 23

of Protection of Women from Domestic Violence Act, 2005 and IA

No.14008/2008 filed by the defendants under Order VII Rule 11 CPC for

rejection of the plaint.

2. The plaintiff filed the suit inter alia, seeking partition and rendition of

accounts in respect of properties and assets allegedly belonging to the HUF

of Late Sh. Kalp Nath Rai. The plaintiff No.2 is the wife of defendant No. 1

and they were married according to Hindu rites and ceremonies on 17th

January, 2000. Plaintiff No.1 is the son of plaintiff No.2 and defendant

No.1, born on 23rd February, 2001.

3. Allegedly, defendant No.1 has treated the plaintiffs with extreme

cruelty, both physical and mental. He has assaulted, abused and tortured the

plaintiffs. Plaintiff No.1 is aged about eight years and is in the care and

custody of his mother, plaintiff No.2 herein. The plaintiffs have averred that

they have the legal right to enjoy their share in all the HUF properties under

the control and possession of defendant No.1.

4. During the pendency of the suit, IA No.7820/2008 was filed by the

plaintiffs under Sections 18, 20 and 23 of the Protection of Women from

Domestic Violence Act, 2005 read with Section 151 CPC seeking to direct

the defendant No.1 to pay interim maintenance of Rs.1.5 lac per month to

the plaintiffs and directing him to pay 2/3rd of the rental income received by

him to the plaintiffs.

5. The plaintiffs aver that defendant No.1 is a man of means and is

earning more than Rs.1 lac per month and leading a luxurious life. The

defendant No.1 failed to fulfil his matrimonial obligations. Mr. Kalpnath

Rai, father of defendant No.1 had an HUF consisting of himself and

defendant No.1. He acquired certain immovable properties from the joint

family funds during his lifetime. Mr. Kalpnath Rai expired intestate on 6th

August, 1999, thus defendant No.1 became the karta of the said HUF and all

the properties constituting the HUF devolved on defendant No.1, the said

properties being ancestral joint Hindu properties etc. The plaintiffs claim to

be entitled to 1/3rd share each in the joint family properties and the income

derived therefrom as per the provisions of Hindu Succession Act, 1956 as

the properties are in the nature of ancestral joint Hindu properties.

6. Defendant No.2 is the tenant in the property situated at D-4, Upasana

Building, Hailey Road, Connaught Place, New Delhi and the defendant No.1

is admittedly getting Rs.63,000/- p.m. as rental income from the said flat. In

addition, it is alleged that there are Fixed Deposits of about Rs.6 lac in the

name of defendant No.1 in his savings account with the State Bank of India.

It is stated in the application that defendant No.1 has received various

amounts against agreement of sale of joint HUF properties and has received

Rs. 22 lac from one Mr. Vinod Gupta against an agreement to sell dated 23rd

May, 2007 for the property at Village Dera Mandi Tehsil, New Delhi. Mr.

Vinod Gupta filed a case against the defendant No.1 being Suit

No.2006/2007 on the apprehension that he may enter into an

agreement/arrangement with some third party. Vide order dated 8 th October,

2007 an injunction was passed against the defendant no. 1 in the suit.

7. It is further stated that the defendant No.1 is also receiving an amount

of Rs. 3 lac p.a. from the ancestral agricultural land at Semari Jamilpur. The

defendant No.1 is enjoying all the amenities and luxuries of life and drives a

Maruti Gypsi and Bolero and also recently purchased a Ford Endeavour car.

8. The plaintiffs have allegedly been threatened by the defendant No.1 to

the effect that he would sell all the joint family properties and appropriate

the entire funds thereof to himself. A public notice was also published on

19th September, 2007 in Times of India, New Delhi to the effect that Mr.

Rajiv Agnihotri's client is desirous of purchasing farm land standing in the

name of ABS Enterprises. The plaintiffs thus filed IA No.10842/2007 under

Order XXXIX Rules 1 and 2 CPC for restraining the defendant no. 1, his

relatives, servants, agents and/or anyone else acting on his behalf from

selling, transferring, alienating, mortgaging and/or creating third party rights

and/or parting with possession of the properties detailed in Schedule 'A'

annexed with the plaint.

9. It is submitted that the monthly expenditure of the plaintiff No.1 is

approximately Rs.1.25 lac including school expenses and extra-curricular

activities, medical expenses and other day to day requirements. The

plaintiffs have submitted that they have the right to be maintained in a

similar standard of living as enjoyed by defendant No.1.

10. In reply to this application, the defendant No.1 submits that the

proceedings of divorce are pending disposal between him and plaintiff No.2

at the court at Mau, U.P., therefore, the plaintiffs should press the relief for

maintenance before that Court only. This court is not the proper and

appropriate forum to grant interim maintenance to the plaintiffs. It is alleged

that under the provisions of the Delhi Land Reforms Act, 1954 ('DLR Act'

for brevity), U.P. Zamindari Abolition and Land Reforms Act, 1950 ('UP

Zamindari Abolition Act' for brevity) and Hindu Minority and Guardianship

Act, 1956, the suit is not maintainable. The defendant No.1 submits that he

is ready to take the custody of plaintiff No.1 and to bear all the expenses

towards his education, welfare and up bringing.

11. The defendant No.1 in the written statement contended that the

properties situated at village Dera and at Mau, Uttar Pradesh are agricultural

land and are exclusively under the jurisdiction of the revenue court under

DLR Act and U.P. Zamindari Abolition Act respectively. It is submitted

that the land at Village Dera is owned and possessed by ABS enterprises, the

sole proprietorship concern of the defendant No.1. ABS Enterprises is the

recorded bhumidar of the said land which is its separate and exclusive

property and which can only claim its share or partition. The plaintiffs

cannot claim any share in these lands. It is further contended that the land

governed under the provisions of the DLR Act can only be partitioned by

the revenue court between the recorded co-bhumidar and the provisions of

Hindu Law are not applicable upon such lands.

12. Learned Counsel for the defendant no. 1 further submits that the

plaintiff No.2 is neither a coparcener nor a member of HUF of defendant

No.1 thus, she has no right either to claim partition of HUF or to claim a

share in the HUF properties. The defendant submits that only the property at

Mau, U.P. is HUF property. The other properties mentioned in the suit are

separate and exclusive properties of defendant No.1.

13. The defendant No.1 states that the HUF of Late Sh. Kalpnath Rai

consists of the defendant No.1, plaintiff No.1, his four real sisters and one

step sister who have not been impleaded in the present suit for partition of

HUF properties, hence the suit filed by the plaintiffs is liable to be

dismissed.

14. The defendant no. 1 submits that he purchased a petrol pump in 2001

in favour of plaintiff No.2 running at Mughal Sarai, G.T. Road and plaintiff

No.2 is getting a monthly income of Rs.1 lac approximately out of it which

is retained by her. The defendant urged that he was getting only a sum of

Rs.63,000/- per month as rent at the time of filing the application and now is

getting about Rs. 88,000/- (as admitted by the counsel for defendant no. 1

during the course of hearing of the application) from the property situated at

D-4, Upasana Building, Connaught Place which is his exclusive and

separate property, thus the plaintiffs have no right or claim on it. The land

at Mau, U.P. is only generating an income of around Rs.30,000/- yearly.

15. The plaintiff relied upon the income tax return of Sh. Kalpnath Rai

(HUF) for the year 1996-97 wherein the properties and assets as mentioned

in the plaint are shown as HUF of Sh. Kalpnath Rai.

16. The plaintiffs submit that a petrol pump at Mughal Sarai was allotted

to the plaintiff No.2 and not purchased in her name in the year 2004 and is

running in losses. The plaintiffs submit that the annual return from the said

petrol pump is only Rs.5,000/- p.a. and a loan of Rs.28 lac was taken from

the father of plaintiff No.2 for running it which is still outstanding and has

to be paid back to him.

17. The plaintiffs also stated that since the sisters of defendant No.1 are

married and have already been given their share of property from the HUF

therefore, they are not necessary parties to the present suit.

18. The defendant no. 1 filed IA No.14008/2008 under Order VII Rule 11

CPC for rejection of the plaint contending that the suit filed by the plaintiffs

seeking the relief of partition in respect of various properties as mentioned

in the plaint are separate and exclusive properties of the defendant and the

plaintiffs have no right, title or interest of any nature in the same. The

applicant is the recorded bhumidar of the land situated at Mau, UP and

Village Dera Mandi. Therefore, the principles of Hindu Law are not

applicable on the said lands and the suit is barred under the provisions of the

UP Zamindari Abolition Act, Hindu Minority and Guardianship Act, 1956

and the DLR Act. It is submitted that only recorded bhumidars have a right

to seek partition of the land holding covered under the DLR Act and UP

Abolition Act. Even the partition proceedings can be initiated only before

the revenue courts constituted under the provisions of the above said Acts

which exclusively have the jurisdiction to adjudicate upon and decide the

issue of partition in respect of such land. The jurisdiction of civil courts is

clearly barred under the above said Acts.

19. It has been contended that the suit is also hit by the provisions of

Order 1 Rule 9 CPC and is not maintainable for non impleadment of

necessary parties. The defendant submits that the plaintiffs have not

impleaded the sisters of defendant No.1 as necessary parties in the suit

which is for partition of the alleged joint properties.

20. Ms. Pinky Anand, learned Senior counsel for the plaintiffs argued that

the issue of jurisdiction is to be decided on merits along with other issues

while deciding the suit at the stage of final disposal. She relied upon

Rajendra Singh Vs. Vijay Pal, (2008) 4 SCC 36 contending that the issue

whether the Civil Court has jurisdiction or not should be decided with the

other issues on merit.

21. The learned Senior counsel further argued that the present case is not

covered by Section 185 of the DLR Act which bars jurisdiction of the Civil

Court only as per Schedule I Column 11. The said Column deals with

Section 55 of the DLR Act which relates to the rights of a Bhumidar filing

a suit for partition. In the present case the plaintiffs are not bhumidars and,

therefore, the present matter is not covered by DLR Act as alleged by

defendant. The present suit of the plaintiffs for declaration of title and

permanent injunction is not covered under specific matters enumerated in

Schedule I of the DLR Act. The plaintiffs are not claiming bhumidari rights

and therefore jurisdiction of the Civil Court under Section 185 is not barred

when the plaintiffs are claiming permanent injunction on the basis of

succession of bhumidari rights by virtue of a Will. The relief of interim

injunction can be granted by the court. She submits that even otherwise, it

was observed in Ram Awalamb Vs. Jata Shankar (FB), AIR 1969

Allahabad 526 that when the principal relief in the suit relates to Hindu Law

of Succession and not Delhi Land Reforms Act, the suit could be taken

cognizance of by the Civil Court and the ancillary reliefs which could be

granted by the Revenue Court may also be granted by the Civil Court. The

present suit is for declaration that the properties are HUF properties and

plaintiff No.1 being the minor son of the defendant No.1 has a valid share in

the said properties.

22. Learned Senior counsel further argued that the principals of

customary Hindu Law are applicable to bhumidari rights. UP Zamindari

Abolition and Land reforms Act does not touch or affect the law of joint

family, hence Hindu Law continues to operate in this matter. She relied

upon several case laws to contend that Hindu Succession Act applies to

succession vis-à-vis agricultural land also. It was held in Tukaram Genba

Jadhav & Ors. Vs. Laxman Genba Jadhav & Anr., AIR 1994 Bom 247 that

Hindu Succession Act, 1956 Sections 4 (2) & 8 are applicable to agricultural

lands also.

23. It is also argued that all coparceners have been made parties in the

suit. The Amending Act of 2005 of Hindu Succession Act is not applicable

to the instant case. The defendant No.1's sisters do not have any

coparcenary rights in the HUF of Sh. Kalpnath Rai. The learned counsel

submits that the suit is maintainable on behalf of plaintiff No.1 under Order

32 Rule 1 CPC.

24. Ms. Pinky Anand, learned Senior counsel for the plaintiffs also quoted

several case laws wherein it was held that it is the right of the wife to be

maintained by the husband in accordance with his status depending upon the

income of the husband and the lifestyle that he is leading. She strenuously

relied upon the Income Tax Returns of Shri Kalpnath Rai to establish that

the properties in question were joint Hindu Family properties. She laid

emphasis on well settled law that the wife under Protection of Women from

Domestic Violence Act not only requires to be maintained but also requires

a right to residence.

25. Mr. B.S. Mann, per contra, learned counsel for the defendants

vehemently argued that the jurisdiction of the Civil Court is expressly barred

in the present case under Section 185 read with Schedule I of the DLR Act

and Section 330 and 331 read with Schedule II of the UP Zamindari

Abolition and Land Reforms Act as the properties are situated in Village

Dera Mandi, Delhi and Semri-Jamalpur, MAU, U.P. which are agricultural

lands and the defendant No. 1 is the recorded co-Bhumidar of the above said

lands. No person other than a recorded Bhumidar can maintain a suit for

permanent injunction in a Civil Court. The relief of partition in respect of

the above said land can only be granted by the Revenue Courts under the

DLR Act and UP Abolition Act. He relied upon AIR 1972 ALL 470, AIR

1969 ALL 526(FB) and 2007 (2) SCALE 607 in support of his above

contention.

26. He argued that where the part of the subject matter of suit property is

situated outside the jurisdiction of the court, the plaint should not be rejected

in that event but the court should not grant an injunction in respect of those

properties which are situated beyond its jurisdiction.

27. It is contended that the principals of customary Hindu law/HUF are

not applicable for Bhumidari rights in respect of the agricultural land. The

devolution in respect of the share of a coparcener in the coparcenary

property has to be in accordance with the provisions of Section 6 of Hindu

Succession Act and the share of the coparcener is to devolve upon his legal

heirs by intestate succession and is not to be devolved upon the surviving

coparceners by survivorship. The sisters and step-sisters of the defendant

No. 1 therefore, would also be necessary and property parties as they would

get a share out of the interest of the coparcener Late Shri Kalpnath Rai.

Since the sisters of defendant No. 1 are not made parties, the suit of the

plaintiff is not maintainable.

28. The defendant submits that the plaintiff No. 2 is also running K.N. Rai

College, Raisa Man on National Highway and earning a good income

therefrom.

29. In reply to the application of the plaintiffs under Order XXXIX Rules

1 and 2, it is stated that a suit for permanent injunction by a coparcener

against the father for restraining him is not maintainable as the coparcener

has an efficacious alternative remedy of challenging the sale after its

completion.

30. Regarding the Income Tax Returns filed by Late Shri Kalpnath Rai

for the year 1996-97, the defendant No. 1 submits that the said returns were

filed by his father in ignorance of the true position and alleged that they are

not binding on him and there is no estoppel against him. It is submitted that

the declaration made in the Return by Late Sh. Kalpnath Rai is not

conclusive proof for the purpose of deciding the nature of the property and

the same in no manner affects the true and actual nature of the property (See

AIR 1960 SC 335).

31. Having heard the rival submissions of both the parties and perused the

record, I shall first deal with I.A. No. 14008/2008 filed by the defendant no.

1 under Order VII Rule 11 CPC for rejection of the plaint. The main thrust

of the learned counsel for the defendant in this application is that the suit

with regard to agricultural land situated at Village Dera Mandi, Delhi and at

Mau, U.P. is not maintainable in this court.

32. It is settled law that under Order VII Rule 11 CPC where the suit

appears from the averments made in the plaint to be barred by any law, then

the plaint can be rejected. The legal position is that to decide whether a

plaint is liable to be rejected under Order VII Rule 11, averments in the

plaint have to be read without looking at the defense and thereupon it has to

be seen whether Order VII Rule 11 gets attracted.

33. The question with regard to jurisdiction, in my view due to the facts

and circumstances of the present case, will be decided along with the other

questions while deciding the suit on merit. As held in Rajinder Singh

(supra) the proper course is to commence the trial of the suit and decide the

issue of jurisdiction on merits with other issues. Further, the CPC clearly

provides in Section 20 that a Court will have jurisdiction if the whole or a

part of the cause of action arises within its territorial jurisdiction. Prima

facie this Court is of the view that it has the territorial jurisdiction to

adjudicate upon the instant suit by virtue of one of the properties owned by

defendant no. 1 which is situated at Hailey Road, Connaught Place, Delhi.

The plaintiff in any case has to prove the case on the objection raised by the

defendants about territorial jurisdiction at the time of trial.

34. At the outset, it can be seen that the lands situated at Village Dera

Mandi, Delhi and at Mau, U.P. are agricultural land and defendant No. 1 is

the Bhumidar of the said lands. Prima facie, therefore, the objection about

the maintainability of suit in respect of these properties cannot be finally

decided at this stage.

35. I find no merit in the other contention of the learned counsel for the

defendant no. 1 that the suit is bad for non joinder of parties as the Hindu

Succession (Amending Act) of 2005 is not applicable with retrospective

effect. Plaintiff No. 1 was born in 2001 and the father of defendant No. 1

expired in the year 1999, therefore, whether the sisters of defendant no. 1 are

required to be impleaded or not and are necessary parties or not in the suit

cannot be the ground for rejecting the plaint without framing of the issues.

Thus, there is no force in the application of the defendant under Order VII

Rule 11. It is disposed of accordingly.

36. Regarding the other applications namely IA No. 10842/2007 and I.A.

No. 7820/2008 for maintenance to the plaintiffs and restraining the

defendant No. 1 from creating any third party right in the suit properties, it is

pointed out here that divorce proceedings are pending in Mau, UP and an

application for maintenance has also been allowed in that case. Learned

counsel for defendant no. 1 has also filed a copy of the order passed by the

Senior Civil Judge, Senior Division, Mau in the case Sidharth Vs. Sita Rai

being Suit No. 296/2008 wherein the plaintiff no. 2 has been granted

maintenance for plaintiff no. 1 to the tune of Rs. 20,000/- per month. The

learned counsel for the defendant No. 1 during the arguments has admitted

that the defendant no. 1 is receiving the monthly rental from the property at

Hailey Road, Connaught Place is Rs. 88,000/- p.m.

37. Section 20 of the Domestic Violence Act empowers the Court to pass

an order for grant of monetary relief to the aggrieved party, which may file

civil and criminal cases by combining reliefs, to be paid by the defendant to

meet the expenses, i.e. loss of earning, loss of property, medical expenses

and maintenance under or in addition to any other law for the time being in

force.

38. The submission of defendant no. 1 cannot be accepted that once

maintenance has already been awarded to plaintiff no. 1 by the appropriate

authority, no relief sought by the plaintiff in IA No. 7820/2008 under the

Domestic Violence Act, 2005 can be granted. Having considered the various

provisions of the said Act, this Court is of the view that there is nothing bars

this Court from allowing the nature of prayer made in the present

application. In order to make a prima facie case against the defendant in the

present case, the plaintiffs have made specific allegations against defendant

no. 1 that he has treated the plaintiffs with cruelty, both physical and mental,

and has tortured and abused them. Though the said allegations have to be

proved by the plaintiffs at the time of trial but this Court at this stage is of

the considered view that the interim maintenance granted to the plaintiff by

the Mau Court is not sufficient to allow the plaintiffs to lead a normal life as

per the status of living of the defendant no.1.

39. Keeping in mind the facts in the present case and as per settled law in

the subject that it is the right of the wife to be maintained by her husband in

accordance with his status depending upon his income the lifestyle that he is

leading, I find that interim maintenance in the present case has to be given to

the plaintiffs apart from the maintenance ordered to be given to plaintiff no.

1 in the Suit No. 296/2008 before the Court at Mau.

40. In the case of Neelam Malhotra Vs. Rajinder Malhotra, 1994 AIR

(Del) 234 it was held that there can be no precise or settled formulae to

assess the quantum of interim maintenance. Each case depends upon its own

facts. There is no doubt that where a person is self employed, s/he tends to

disclose incorrect income in the income tax return filed by him/her. There is

no mathematical formula to precisely calculate any accurate amount to be

given during pendency of the interim maintenance proceedings. The

legislature gives wide and flexible power to the Court to decide the

maintenance pendente lite considering the income and other factors like

status of living and day to day expenses of the parties etc.

41. In the present case, the contention of plaintiff no. 2 that she is earning

only Rs. 5,000/- from the petrol pump is hardly believable and the true

picture in this regard will come after recording of the evidence of the

plaintiff no. 2. As already discussed, it cannot be determined with certainty

as to how much the defendant No.1 is earning. As regard the earning of

defendant no. 1, if any, from the properties and assets allegedly belonging to

the HUF of late Sh. Kalpnath Rai, since defendant no. 1 has challenged its

validity as well as raised the point of jurisdiction in the written statement,

therefore, the prayer sought thereof by the plaintiffs cannot be allowed at

this stage unless the same is proved. At the same time, defendant no. 1 has

not disputed the fact that he has been receiving rent of the sum of Rs.

88,000/- from property no. D-4, Upasana Building, Hailey Road, Connaught

Place, New Delhi and in light of this undisputed fact, I find that the relief of

maintenance can be granted to the plaintiffs from the said earnings.

42. Therefore, the defendant No.1 is directed to pay maintenance @ Rs.

30,000/- p.m. from the date of filing the application as the monthly expenses

of plaintiff No.1 who is in the care and custody of plaintiff No.2 and the

maintenance to the plaintiff No.2. It is made clear that the defendant no. 1 is

allowed four weeks time from the date of passing of this order to pay the

arrears of the maintenance.

43. The defendant No.1 is also restrained from alienating/encumbering

the properties mentioned in annexure 'A' of the plaint in any manner to any

third party till the final disposal of the suit, as it appears from the facts and

circumstances of the present case that the plaintiffs have made a prima facie

case in their favour. The balance of convenience also lies in favour of the

plaintiffs and against the defendants. If the interim order already granted is

not confirmed, the plaintiffs will suffer irretrievable loss and injury. Thus, in

order to protect the rights of the plaintiffs the order dated 12.10.2007 is

made absolute.

44. With the above-stated directions, I.A. No.10842/2007 and I.A.

No.7820/2008 are disposed of.

C.S. (OS) No.1737/2007

List the matter on 14th April, 2010 before Roster Bench.

MANMOHAN SINGH, J.

MARCH 25, 2010 sa