Delhi High Court
Madhu Rathour vs Deepak Tandon & Ors on 30 January, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.482/2010
% 30th January, 2012
MADHU RATHOUR ..... Appellant
Through: Appellant in person.
versus
DEEPAK TANDON & ORS ..... Respondents
Through: Mr. Mohit Gupta, Adv. for R.5-7.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM Nos.1850/2012, 1851/2012 & 1852/2012
These applications are dismissed as not pressed as the main appeal
itself is being taken up for hearing. CMs stand dismissed.
RFA No.482/2010
1. With the consent of the parties the appeal is heard.
2. The challenge by means of this Regular First Appeal filed under
Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment of
the Trial Court dated 1.5.2010 rejecting the plaint under Order 7 Rule 11 CPC.
3. The disputes in the present case are between the appellant/plaintiff,
who is the sister and the defendant no.1-Sh.Deepak Tandon, who is the brother.
The other defendants no.2 to 7 in the suit were transferees of the property from
the defendant no.1/brother.
4. The Trial Court has rejected the plaint under Order 7 Rule 11 CPC
on the ground that the suit was no longer maintainable after a Probate Petition
filed by the appellant/plaintiff with respect to the Will of her father dated
20.11.1993 was dismissed. The subject suit was a suit for declaration,
injunction, cancellation of sale deed and possession with respect to the suit
property.
5. The Trial Court has observed as under for rejecting the plaint under
Order 7 Rule 11 CPC :-
"Under Order VII Rule 11 CPC, it is the duty of the court to
examine a plaint and to ascertain whether any cause of action
has been pleaded and whether any relief has been claimed
against the defendants. In the present case, in fact no cause of
action survives in favour of the plaintiff after the decision
against her in the probate proceedings filed by her and decided
by Smt. Bimla Makin, ADJ on 19.9.2006 as the subject matter
of the probate case and the present suit are property no.36,
Deepali, Pitampura, Delhi 110034. After the decision of the
probate case in favour of the defendant no.1, the plaintiff
cannot seek Declaration, Permanent Injunction and
Cancellation of the sale deed executed in favour of Smt.
Santosh Gupta as she has no locus standi to file the present suit
nor has any right or title in the suit property."
6. The Trial Court has quite clearly fallen into an obvious error in
rejecting the plaint. The admitted facts are that the father was a member of the
co-operative society which allotted the suit plot. The father-Sh. P.M.Tandon
was said to have nominated the son/defendant no.1, i.e. the brother of the
plaintiff, in the records of the society. Pursuant to such nomination, the society
is said to have executed the lease deed of the plot in favour of the defendant
no.1, and who transferred the property further.
7. It is now settled law after the celebrated decision of the Supreme
Court in the case of Sarbati Devi & Anr. vs. Usha Devi, (1984) 1 SCC 424 that
a nomination does not make a person an owner of the property, and ownership
of a property of a deceased person will go either as per the natural law of
succession or in terms of a Will executed by the deceased. Therefore even if the
appellant failed to prove the Will of her father that itself cannot mean that the
suit was liable to be dismissed on that sole ground because the plaintiff/appellant
was a legal heir of her father and his properties.
8. The Trial Court has clearly fallen into an error in rejecting the
plaint under Order 7 Rule 11 CPC, more so at the stage of cross-examination of
the appellant/plaintiff, inasmuch as, even if the Probate Petition filed by the
appellant with respect to the Will of her father, late Sh. P.M.Tandon is
dismissed, yet, in law, ownership of a plot of a co-operative society, devolves as
per the natural law of succession as applicable to the parties or in terms of a Will
of a deceased.
9. Accordingly, there was no reason for the Trial Court to reject the
plaint under Order 7 Rule 11 CPC. It is possible that the appellant may not have
a case and the respondents may have a good case, however, the same cannot
mean that the case can be disposed of before trial and without allowing all the
parties to lead their evidence. This is not a case where on the admitted facts in
the plaint, the suit was barred by any law. The suit has been dismissed only on
the incorrect ground that in fact, I have already noticed above the reasoning
given by the Trial Court, and which reasoning is only that the Probate Petition
filed by the appellant has been dismissed with respect to the Will of her father.
10. In view of the above, the impugned judgment dated 1.5.2010 is set
aside by accepting the appeal. The Trial Court is now directed to hear and
dispose of the suit in accordance with law. It is clarified that nothing containing
in today's judgment is a reflection on merits of the case of either of the parties,
and the Trial Court will hear and dispose of the suit in accordance with law
inasmuch as the appeal only concerned the validity of the impugned judgment
on the parameters of Order 7 Rule 11 CPC.
11. Parties to appear before the District and Sessions Judge, Delhi on
29.2.2012, and on which date, the District and Sessions Judge, Delhi will mark
the suit for disposal to a competent Court in accordance with law.
12. Since this is an old matter, the Trial Court is directed to dispose of
the suit expeditiously and preferably complete the final arguments within a
period of one year from the date it receives the copy of the present order.
13. The appeal is disposed of accordingly.
14. Next date of 31st January, 2012 stands cancelled.
VALMIKI J. MEHTA, J
JANUARY 30, 2012
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