Delhi High Court

Smt. Renu Jain & Anr. vs Ms. Gunjan on 23 April, 2012

Author: Reva Khetrapal

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+            IA No. 14035/2010 in CS(OS) No. 1525/2010



SMT. RENU JAIN & ANR.                              ..... Plaintiffs
                   Through:            Mr.P.K. Seth, Advocate

             versus


MS. GUNJAN                                         ..... Defendant
                           Through:    Mr. S.K. Rungta, Sr. Advocate
                                       with Mr. Prashant Singh, Adv.


%                          Date of Decision : April 23, 2012

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

                           JUDGMENT

: REVA KHETRAPAL, J.

1. The aforesaid application under Order VII Rule XI (a), (b) and

(d) of the Code of Civil Procedure has been filed by the defendant

praying for rejection of the plaint.

2. The facts relevant for the decision of the present application are

that the plaintiffs have filed the aforesaid suit for declaration,

cancellation, partition and permanent injunction against the defendant

on the allegation that their maternal grand-father, late Lala Sher Singh

had died intestate and upon his death his estate devolved upon his five

daughters in the ratio of 1/5th share each in his property bearing

No.22, Barakhamba Road, New Delhi and all his other assets. The

mother of the plaintiffs No.1 and 2 who is also the mother of the

defendant, namely, late Smt. Memo Devi had purchased/acquired

Cottage No. 3, Oberoi Apartments, Civil Lines, Delhi from the sale

consideration received by her as her share in the estate of her father

and as such, according to the plaintiffs, who are the married daughters

of late Smt. Memo Devi, the defendant, who is the unmarried

daughter, could not claim the same to be her absolute property.

3. It is alleged that after the demise of Smt. Memo Devi on

20.02.09, the plaintiffs were shocked to receive a copy of the Will

dated 17.06.2008 purported to have been executed by Smt. Memo

Devi, in or about the first week of January, 2010, through courier,

from the defendant. In the said will, there was mention of a Gift

Deed dated 28.03.2005 alleged to have been executed by late Smt.

Memo Devi in favour of the defendant in respect of the immovable

property bearing Cottage No. 3, Block B-1, Oberoi Apartment, 2,

Sham Nath Marg, Delhi-110034.

4. The plaintiffs allege that the aforesaid Gift Deed dated

28.03.2005 and Will dated 17.06.2008 have been obtained under

duress, coercion and undue influence exercised by the defendant on

late Smt. Memo Devi, who had not executed them voluntarily and as

such the said documents are liable to be cancelled being illegal and

fraudulent documents. The plaintiffs accordingly seek a decree

declaring the aforesaid Will and Gift Deed alleged to have been

executed by Smt. Memo Devi as illegal, null and void and pray for

the said documents to be delivered up and cancelled in accordance

with law. The plaintiffs also seek a permanent injunction restraining

the defendant from alienating, transferring or creating any third party

interest in the aforementioned property at Civil Lines and dealing

with the 1/20th undivided interest in immovable property situated at

Jhandewalan, Delhi alleged to have devolved upon their mother upon

the demise of their maternal grand-father, late Lala Sher Singh. A

decree for partition of the Civil Lines property bearing Cottage No. 3

by metes and bounds in three equal shares and partition of 1/20th

undivided share in the Jhandewalan property in three equal shares is

also sought. Similarly a partition is sought in respect of the movable

properties of the deceased mother in three equal shares in accordance

with law.

5. As stated above, the defendant has prayed for rejection of the

aforesaid plaint for the reasons stated in the application filed by the

defendant under Order VII Rule XI of the Code of Civil Procedure,

which shall presently be adverted to. Notice of the application was

issued to the plaintiffs, who have filed reply thereto, to which a

rejoinder has been filed by the defendant.

6. The principal contention of Mr. S.K. Rungta, the learned senior

counsel for the defendant, in support of his prayer for rejection of the

plaint, is that the plaint is without any cause of action. It is submitted

that the plaintiffs have in paragraph 1 of the plaint clearly stated that

late Shri Sher Singh has died and after his death his estate devolved

upon his five daughters. Thus, it is the admitted case of the plaintiffs

that the properties belonged to the maternal grand-father of the parties

to the suit and devolved upon the deceased mother of the parties to

the suit alongwith her four sisters. As such, no cause of action

accrued to the plaintiffs for filing the present suit seeking partition of

the property bearing Cottage No. 3, Block B-1, Oberoi Apartment, 2,

Sham Nath Marg, Delhi-110034, acquired by the mother of the

parties to the suit from the sale proceeds of the sale of one of the

properties inherited by her from her father and later gifted to the

defendant through a registered Gift Deed. Similarly, no cause of

action accrued to the plaintiffs entitling the plaintiffs to challenge the

Will dated 17.06.2008 executed by the deceased mother of the parties

to the suit.

7. Mr. Rungta contended that the suit is also liable to be dismissed

under Order VII Rule XI (b) as the same is undervalued. The

submission is that the plaintiffs cannot be treated in deemed

possession of the suit properties and, therefore, the fixed court fees

affixed on the plaint for the relief of the partition is not sufficient and

the plaintiffs are liable to pay ad valorem court fees on the relief of

partition against the market value of the properties in the suit, at least

to the extent of the alleged claimed share of the plaintiffs in the suit

properties. The plaintiffs are also liable to pay ad valorem court fees

on the market value of the suit properties as the relief of declaration is

with respect to the rights of the plaintiffs qua the suit properties.

8. Mr. Rungta further contended that the suit is also liable to be

rejected under the provisions of Order VII Rule XI (d) of the Code of

Civil Procedure being hit by Sections 113 and 114 of the Indian

Succession Act, 1925. It is the contention of the learned counsel that

it is not open to the plaintiffs by virtue of the provisions of Section

113 of the Indian Succession Act, 1925 to claim the existence of an

oral Will left by the grand-father of the parties. Referring to

Paragraph 6 of the plaint, Mr.Rungta submitted that the entire suit is

based on the alleged oral desire and Will of the maternal grandfather

of the parties allegedly to the effect that: "his heirs i.e., five daughters

would have his (sic.) share in his aforementioned property 22,

Barakhamba Road, New Delhi and in his all other assets in equal

shares for their benefit as well as for the benefit of their children"

which was violative of the provisions of the Indian Succession Act.

It is submitted that admittedly the plaintiffs were not born on the date

of death of late Lala Sher Singh and as per provisions of Section 113,

if a bequest is made to a person not in existence at the time of the

testator's death subject to prior bequest contained in the Will, the later

bequest is void unless it comprises the whole of the remaining interest

of the testator in the thing bequeathed.

9. Mr. Rungta further submitted that the suit is also liable to be

dismissed on the ground that the plaintiffs, who are admittedly not in

possession of the suit properties have failed to seek the relief of

possession and in terms of Section 34 of the Specific Relief Act, the

mere declaration of their right cannot be granted without the plaintiffs

seeking the relief of possession.

10. It is further submitted by Mr. Rungta that the suit is hopelessly

barred by limitation as the properties in suit, including the property

acquired out of the sale proceeds of another property belonging to the

maternal grand-father of the parties, had devolved upon the deceased

mother of the parties way back in the year 1953. Similarly, the

property at Barakhamba Road, Delhi, which the deceased mother of

the parties had inherited from her father alongwith her four sisters

was sold way back in the year 1977 and by utilizing a portion of the

sale proceeds thereof, she had purchased the property in Civil Lines.

Further, the deceased mother had gifted the said property at Civil

Lines to the defendant by a duly registered Gift Deed dated

28.03.2005. Thus, the present suit filed in the year 2010 is hit by the

statute of limitation.

11. Mr. P.K. Seth, the learned counsel for the plaintiffs, at the

outset submitted that for the purpose of deciding an application under

Order VII Rule XI of the Code of Civil Procedure, only the

allegations in the plaint can be looked into. If on a meaningful, not

formal reading of the plaint, the plaint does not disclose a clear right

to sue, the Court should exercise its power under Order VII Rule XI

to reject the plaint, but the rule does not justify the rejection of any

particular portion of a plaint. The plaint has to be read as a whole to

examine whether the plaint discloses cause of action which requires

determination by the Court. It cannot be rejected on the basis of

allegations made by the defendant in his written statement nor on

account of the mere fact that in the opinion of the Court, the plaintiffs

may not succeed (See Mayar (H.K.) Ltd. & Ors. Vs. Owners &

Parties, Vessel M.V. Fortune Express & Ors. AIR 2006 SC 1823

and Sopan Sukhdeo Sable & Ors. Vs. Assistant Charity

Commissioner & Ors. AIR 2004 SC 1801).

12. The learned counsel for the plaintiffs submitted that reading the

plaint as a whole and in its entirety, it cannot be said in the instant

case that the plaint is liable to be rejected. A cumulative reading of

the averments made in the plaint demonstrates that late Smt. Memo

Devi, the mother of the parties did not hold the property as a full

owner but it was a restricted estate as has been submitted in the plaint.

In any event, the alleged Gift Deed dated 28.03.2005 and the Will

dated 17.06.2008 are otherwise also illegal, inasmuch as they have

been procured by the defendant fraudulently, under duress, coercion

and undue influence exercised by the defendant on late Smt. Memo

Devi. He contended that the defendant cannot be allowed to pick and

choose sentences from the plaint de hors the context.

13. Rebutting the contention of the learned counsel for the

defendant that the suit had not been properly valued and requisite

court fees had not been paid, Mr. Seth submitted that the possession

of one co-owner is deemed to be the possession of all co-owners and

accordingly, there is no merit in the contention of the counsel for the

defendant that the suit is liable to be rejected under the provisions of

Order VII Rule 11 (b) of the Code of Civil Procedure. He further

submitted that the provisions of Sections 113 and 114 of the Indian

Succession Act, 1925, which are sought to be pressed into service are

wholly inapplicable and the submissions made in this behalf are

misconceived and unsustainable.

14. Further, rebutting the contentions of the counsel for the

defendant that the suit is barred by Section 34 of the Specific Relief

Act, Mr. Seth contended that the plaintiffs having sought the partition

of the property by metes and bounds, it was incumbent upon the

defendant to refer to the plaint as an intrinsic whole, rather than

piecemeal.

15. Mr. Seth next referred to the contention of the learned counsel

for the defendant that the suit was hopelessly barred by limitation and

contended that in paragraphs 13 and 14 of the plaint, it had been very

clearly stated that the plaintiffs came to know about the execution of

the alleged Will and Gift Deed in the first week of January, 2010

when they received the copy of the said Will dated 17.06.2008 from

the defendant by courier. Prior to this, they had no knowledge of

either the alleged Will or the Gift Deed and thus the suit could not be

said to be barred by limitation.

16. Finally, Mr. Seth submitted that the suit involved mixed

questions of fact and law and as such the present application seeking

rejection of the plaint under Order VII Rule 11 was wholly

misconceived and nothing but an abuse of the process of the law.

17. Before dealing with the rival contentions of the parties, it is

deemed apposite to note at the outset that the cardinal canon of

interpretation of a pleading is that the pleading has to be read as a

whole without any dissection, and it is not permissible to cull out a

sentence here or a passage there and to read it in isolation. It would

also be apposite to bear in mind that all the reliefs claimed by a party

may or may not be allowed to a party, the grant of relief being

dependent upon the pleadings and the evidence adduced. A certain

plea may be unsustainable but for this reason alone the plaint cannot

be rejected in its entirety. Indubitably, if clever drafting has created

the illusion of a cause of action where there is none, the plaint most

certainly must be rejected at the first hearing itself. At the same time,

only a part of the plaint cannot be rejected and the intention of the

parties concerned has to be gathered from the whole tone and tenor of

the plaint.

18. Applying the aforesaid principles of interpretation, in my

opinion, it cannot be said that the plaint does not disclose a cause of

action merely on the ground that the plaint refers to an oral Will made

by the maternal grand-father, which is not sustainable in law. It

cannot be lost sight of that even otherwise, the plaintiffs seek in the

first instance cancellation of the Gift Deed and Will allegedly

executed by the mother of the parties in favour of the defendant, and

then equitable partition of the movable and immovable properties of

their mother - late Smt Memo Devi who, according to the plaintiffs,

died intestate. The very foundation of the suit is that the aforesaid

documents were executed by the deceased mother of the parties under

duress, coercion and undue influence, fraudulently and illegally and

are, therefore, liable to be cancelled in accordance with law.

19. As regards the defendant's contention that the suit is under-

valued, I find no substance in the said contention. It is settled law

that the question of court fees must be considered in the light of the

allegations made in the plaint and its decision cannot be influenced

either by the pleas in the written statement or by the final decision of

the suit on merits. Furthermore, in the case of co-owners, it is trite

that the possession of one is in law possession of all, unless ouster or

exclusion is proved. Reference in this regard may be made to the

decision of the Supreme Court in the case of Neelavathi and Ors. Vs.

N. Natarajan and Ors. AIR 1980 SC 691. The relevant extract of the

judgment is reproduced hereunder:-

"The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiff had been excluded from possession."

20. On a reading of the plaint in the present case, I do not find any

specific averment in the plaint to the effect that the plaintiffs have

been excluded from the possession of the property in question. On the

contrary in paragraph 20 of the plaint, it is specifically pleaded that

the plaintiffs and the defendant are the co-owners of the suit

properties. It is further stated that "the defendant is in possession of

these properties as a trustee for plaintiffs and the possession of one

co-owner shall be deemed to be the possession of all the co-owners.

The plaintiffs shall, thus, be deemed to be also in possession thereof".

As such, the contention of the defendant's counsel that the suit is

liable to be dismissed as the same is under-valued cannot be

sustained.

21. As regards the plea of limitation, it is necessary to bear in mind

that the said plea is the mixed plea of law and fact. In paragraphs 13

and 14 of the plaint, it is specifically stated by the plaintiffs that the

alleged Will dated 17.06.2008 and Gift Deed dated 28.03.2005 came

to their knowledge on receipt of a copy of the Will through courier

in or about the first week of January, 2010. In the said Will, there

was a mention of the Gift Deed in favour of the defendant. Earlier,

the plaintiffs had no knowledge from any source whatsoever of either

the alleged Gift Deed or the Will allegedly executed by Smt. Memo

Devi. This being so, the contention of the counsel for the defendant

that the suit is hit by the provisions of Section 59 of the Limitation

Act is without merit.

22. For the sake of ready reference, Article 59 of the Limitation

Act is reproduced herein below:-

Description of suit     Period of Limitation Time from which
                                             period begins to run

59. To cancel or set Three Years                When        the    facts
aside an instrument or                          entitling the plaintiff
decree or for the                               to        have       the
rescission     of    a                          instrument or decree
contract.                                       cancelled or set aside
                                                or      the     contract
                                                rescinded          first
                                                become known to
                                                him.

23. Adverting next to the contention of the defendant's counsel that

the suit is barred by the provisions of Sections 113 and 114 of the

Indian Succession Act, 1925, it is deemed expedient to reproduce the

provisions of the said Sections for the sake of ready reference as

under:-

"113. Bequest to person not in existence at testator's death subject to prior bequest. -

Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the Will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.

114. Rule against perpetuity. -

No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life- time of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong."

24. A bare reading of the aforesaid sections would suffice to show

that the same have no bearing upon the present case. The suit in the

present case as stated hereinabove is not based on the alleged oral

Will alone and the relief claimed for, in effect, is for the cancellation

of the alleged Gift Deed and the Will executed by the deceased

mother of the parties. Even assuming that the plea of oral Will is

eventually rejected by the Court, the allegations of the plaintiffs that

the Will and the Gift Deed have been executed fraudulently and

illegally would still remain to be scrutinized by the Court as also the

question whether the plaintiffs are entitled to a decree of cancellation

of the aforesaid documents and to a decree of partition of the suit

properties.