Delhi High Court
Babli Brar vs Adesh Kanwarjit Singh Brar on 3 June, 2011
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No.279-80/2011 & CM No.10404/2011
Babli Brar ...Appellant through
Dr. A.M. Singhvi, Sr. Adv.
with Mr. Amit Sibal,
Ms. Jyoti Mendiratta,
Ms. Gurkirat Kaur &
Ms. Deeksha Kakkar, Advs.
versus
Adesh Kanwarjit Singh Brar ......Respondent through
None
% Date of Hearing: May 25, 2011
Date of Decision: June 03, 2011
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
VIKRAMAJIT SEN, J.
1. The present Appeal assails the Order of the learned Single
Judge dated 8.4.2011 dismissing the Application under Order
VII Rule 11 of the Code of Civil Procedure, 1908 (CPC for short)
for rejection of the Plaint.
2. The Suit is one for Declaration, Partition and Permanent
Injunction in respect of property situated at Plot No.6 in Block
No.172, Jorbagh, New Delhi. The case set-out in the Plaint is
that on 29.5.1952, the said Plot was acquired through a
Perpetual Lease by Shri Harcharan Singh Brar, father of the
Plaintiff. Construction on the said Plot was carried on the
double storey residential building in 1955. The contribution of
funds for the purchase and construction of this building is said
to have come from the father, Late Shri Harcharan Singh
Brar, the mother Mrs. Gurbinder Singh Brar and the Plaintiff
himself in the proportion of ¼, ¼ and ½ respectively, though
admittedly the Plaintiff was 3-5 years of age at that point in
time. It has further been averred that in the Perpetual Lease
whereby Late Shri Harcharan Singh Brar had acquired the said
property, he had only lent in his name for the purpose of
completing the formalities of executing the Lease Deed. It is
stated in the Plaint that Late Shri Harcharan Singh Brar was the
Karta of the Brar HUF and by an Order of Sikh Gurdwara
Tribunal, Brar HUF was declared to be the owner of agricultural
property which was ancestral in nature. Late Shri Harcharan
Singh Brar got the said property partitioned in the year 1951 in
three equal parts - one each to himself, Gurvinder Kaur, his wife
and the Plaintiff, Shri Kanwarjit Singh. It is alleged in the Plaint
that the Jorbagh property was purchased from these funds. The
said property is said to have been let-out on lease from time to
time and the rental income was shared by Late Shri Harcharan
Singh Brar, Gurvinder Kaur and the Plaintiff in the ratio of ¼, ¼
and ½ and the said position regarding the shared ownership of
the Jorbagh property is said to be duly reflected by Late Shri
Harcharan Singh Brar by his conduct as well as admissions
before Income Tax Authorities, Wealth Tax Authorities and
Revenue Authorities. It is also averred by the Defendant, Mrs.
Babli Brar, sister of the Plaintiff, that Shri Harcharan Singh
Brar had gifted the entire property to her predicated on a
registered Gift Deed dated 28.1.1999. The Plaintiff has filed the
present Suit claiming half together with his proportional share
in the ¼ interest/title of his father.
3. The Appellant before us sought the rejection of this Suit
by means of an application under Order VII Rule 11 of the CPC
on the ground that the claim of the Plaintiff was essentially that
the said property was benami property in the name of the
deceased father. It is contended that the Benami Transaction
Prohibition Act, 1988 specifically barred any suit, claim and
action to enforce any right in respect of any property held
benami by a person who claims to be the real owner of the
property. Learned Senior Counsel for the Appellant, Dr. A.M.
Singhvi, has laid great store on Section 4 of the Benami
Transaction Act to contend that the Parliament had consciously
put a specific bar not only on benami transactions but had even
against claiming any right with respect to a property purported
to be held benami; and has proscribed a defence of this nature
against the person in whose name the property is held.
Dr. Singhvi contends that on a bare perusal of the Plaint, it is
clear that since the Plaintiff admits that the property was held in
the name of his father, the Suit was not maintainable after the
coming into effect of Benami Transaction Act. It is argued that
the father's Title even as a benamidar is impervious to any
challenge. It is further contended that the learned Single Judge
erred in returning the finding that the Plaintiff's case may fall in
the exception of Section 4 on the dialectic that the father stood
in a fiduciary capacity as the Plaintiff was 3-5 years old when
the property was purchased; alternatively, that he acted as a
Trustee for the purposes of Section 88 of Indian Trusts Act,
1882. Dr. Singhvi has argued that these factors have not been
pleaded and to overcome this lacuna, has applied for leave to
amend the Plaint and introduce the ground of fiduciary
relationship. Dr. Singhvi has relied on R. Rajgopal Reddy -vs-
Padmini Chandrashekharan, AIR 1996 SC 238 which holds that
Section 4(1) and Section 4(2) of the Benami Transactions Act
prohibits any suit or action or claim being filed after the
commencement of the Act; and that the date of the benami
transaction would be inconsequential for the purposes of said
statutory bar as the operation of the Act is retrospective.
Dr. Singhvi also relies on various Single Judge decisions
wherein similar suit has been rejected under Order VII Rule 11
of the CPC on the ground of bar of Section 3 and Section 4 of
Benami Transactions Act.
4. After a holistic reading to the Plaint and cogitating upon
the contentions of the Appellant, we are not convinced that the
subject matter suit is liable to be dismissed under Order VII
Rule 11 of the CPC at the incipient stage. It is an established
principle that the pleadings are to contain facts and facts alone.
A party is not required to state the law or substantial legal pleas
in their respective pleadings. Order VI of the CPC only requires
the parties to state the material facts and not the evidence. In
the circumstances of this case, since the father is the nominal
owner, and it stands clearly pleaded that he used his sons
(Plaintiffs) finances for the purchase, Order VII Rule 12 of the
CPC would not be attracted, at least at the stage of
determination of a plea under Order VII Rule 11. It cannot be
disputed that the Plaintiff was a minor nay an infant at the time
of the acquisition of the property. Section 6 of Hindu Minority
and Guardianship Act, 1956 enjoins that in respect of a minor
person and property, the natural guardian in case of a minor
boy or an unmarried girl is the father. It has been stated in the
Plaint that the Plaintiff at the time of the conveyance was 3-5
years old, that the property was purchased from the funds that
came from an ancestral property belonging to the Brar HUF for
the purposes of Income Tax and Wealth Tax. The father had
been showing the Plaintiff to be ½ owner of the suit property,
the rental income was also shared in that proportion by the
Plaintiff, his father and the mother. All these averments
conjointly prima facie raise a presumption of a fiduciary
relationship existing between the father and the Plaintiff with
respect to the owner of the property. These pleadings have to be
traversed by the Defendant in a Trial and cannot be adjudicated
at Order VII Rule 11 stage. In a case of clever drafting where an
illusion of a cause of action is sought to be created, the Court
has to nip in the bud such a frivolous suit. Similarly, in the case
of shoddy or deficient drafting, the Court should not abort a
valid claim that requires Trial. It is the duty of the Court to
make a holistic and meaningful reading of the Plaint and only
when it is manifestly and uncontrovertedly evident that the
requirements of Order VII Rule 11 are met, and that it is plain
that the Plaint does not deserve to go to Trial, should it order a
rejection of the Plaint. There is no comparison between the
relationship of a father/parent and his infant child on the one
hand, and of siblings on the other.
5. In these circumstances, we are of the opinion that
the Appeal is entirely devoid of merit and is dismissed.
CM No.10404/2011 is also dismissed. Order VII Rule 11 of the
CPC has assumed exponential proportion. Courts are already
bursting at the seams from an exponential explosion of dockets
and this burden is being exacerbated by filing of appeals from
orders rejecting such applications. None of the cases cited
before us are of a parent investing money allegedly belonging to
a child of tender years. The principle of Wander Ltd. -vs- Antox
India P. Ltd., (1990) Supp SCC 727 rightly comes to mind and if
a Judge is of the view that a case needs to go to Trial, it would
be almost impossible for the Appellate Court to arrive at a
contrary conclusion. In Abdul Gafur -vs- State of Uttarakhand,
(2008) 10 SCC 97, their Lordships have enunciated the law to
the effect that the party has right to a patient hearing by a civil
court, regardless of the preponderance of merit or demerit.
However, we desist from imposing costs.
( VIKRAMAJIT SEN )
JUDGE
( SIDDHARTH MRIDUL )
June 03, 2011 JUDGE
