Chimma Jain @ Asha Jain And Another vs Preeti Jain And Another
2013 Latest Caselaw 5318 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                           Reserved on : 27.08.2013
                           Decided on :  20.11.2013

+      I.A. Nos. 2411-2412/2011 in CS(OS) 1937/2010

       CHIMMA JAIN @ ASHA JAIN AND ANOTHER..... Plaintiffs
               Through: Ms. Savita Rustogi, Advocate.

                          versus

       PREETI JAIN AND ANOTHER                   ..... Defendants
                 Through: Mr. Manoj Goel, Mr. Shuvodeep Roy and
                          Mr. Abhishek Mishra, Advs.

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

I.A. Nos. 2411-2412/2011(Both u/O 7 R. 11 CPC)

1. These are two separate applications filed under Order 7 Rule 11 CPC for rejection of the plaint. The plaintiff has filed the present suit seeking declaration, partition, rendition of accounts and for permanent injunction. The plaintiff No.1 is the mother whereas plaintiff No.2 and defendant No.1 are the daughters of plaintiff No.1. Defendant No.2 is the biological son of defendant No.1. It is claimed in the plaint that the husband of plaintiff No.1 and father of plaintiff No.2 and defendant No.1 late Sh. Lakhpat Rai Jain shifted to Delhi in the year 1972. He sold his ancestral property at Heli Mandi, Pataudi and purchased property at H-117, Shivaji Park, Delhi. It is further stated that subsequently, the said property was sold and the suit property namely, 103, Deepali, Pitampura, Delhi-110034 was bought. It is stated that this property is bought from the sale proceeds of the ancestral

property and hence continues to be ancestral property. It is further averred that under the pressure from defendant No.1, plaintiff No.1 and her husband took in adoption defendant No.2 and an adoption deed was executed on 17.10.1996. It is stated that though the adoption deed was executed but no adoption took place inasmuch as defendant No.2 always lived with his natural family and that this action of executing a fraudulent adoption deed was got done by defendant No.1 to try and usurp the property of the parents.

2. It is further stated that on 1st February, 2010 plaintiff No.1 operated the joint locker and found a registered Will dated 28.03.2002 of her late husband which had not yet seen the light of the day. As per the said Will, he bequeathed the entire ancestral property to the adopted son to the exclusion of others. Plaintiff No.1 has been given a life estate in the property at Pitampura. It is the contention of the plaintiff that defendant No.1, has manipulated her father to execute the Will. The Will wrongly states that movable and immovable properties are self-acquired properties. Hence the present suit is filed seeking the following reliefs:

a) A decree for declaration, declaring that adoption deed dated 17.10.1996 executed by Defendant No. 1 and her husband in favour of Plaintiff No. 1 and her husband is null and void and is not enforceable in the Court of Law and is not binding on the Plaintiffs.

b) A decree for declaration, declaring that Will dated 28.03.2002 executed by Sh. Lakhpat Rai Jain is null and void and is not enforceable in the Court of Law and is not binding on the Plaintiffs.

c) A decree for partition and separation of 1/3rd share of property bearing No. 103, Deepali, Pitam Pura, Delhi-110 034 as well as

FDRs/deposits/investments in Schedule I for each of the Plaintiffs and separate possession thereof be passed in favour of the Plaintiffs and against the defendants.

d) A decree in favour of the plaintiff and against the defendants directing the defendant No. 1 to render the true account of the money realized by her and Defendant No. 2 from FDRs/deposits/investments detailed in Schedule I.

e) A decree for permanent injunction, restraining the defendants, their family members, agents, employees, servants and representatives from interfering or disturbing into the peaceful possession of the Plaintiff No. 1 qua property bearing No. 103, Deepali, Pitam Pura, Delhi-110034.

3. Defendant No.1 and 2 have filed I.A. No. 2411/2011 under Order 7 Rule 11 CPC stating that the adoption in question was done on 01.05.1996 and the period of limitation for a decree for declaration is three years. Hence, it is stated that the present suit is barred by limitation. It is further stated that the suit is barred by the Principles of Estoppel since the adoption dated 01.05.1996 was acted upon by all concerned.

4. I.A.2412/2011 is also filed under Order 7 Rule 11 CPC by the defendants stating that the Will of late Sh. Lakhpat Rai Jain was executed on 25.03.2002 and that the present suit seeking declaration that the Will is void, is barred by limitation. It is stated that right from 2002 the factum of execution of the Will was within the knowledge of the plaintiffs. It is further stated that the copies of the Will was delivered by Sh. Lakhpat Rai Jain to the two witnesses who after this death have produced the Wills and handed over the same to the plaintiffs and defendants in the presence of the family

members. Hence on 09.07.2007 after the death of Late Sh. Lakhpat Rai Jain on 07.07.2007, the plaintiff got a copy of the Will. It is further stated that the Will in question has been implemented by the plaintiff, as they have taken the benefit under it. Hence, it is stated that the contention of the plaintiff that the plaintiff came to know about the Will when she operated the locker on 01.02.2010 is a patent lie. Therefore, the suit filed for declaration of the Will being null and void, is barred by limitation and deserves to be dismissed.

5. Learned counsel for the defendant has vehemently argued that the present suit is liable to be dismissed being barred by limitation. He also relies upon the judgment of the Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable and Ors v. Assistant Charity Commissioner and Ors. (2004) 3 SCC 137 pointing out that a duty is cast on the Court to reject a plaint which is hit by any of the infirmities as provided in Order 7 Rule 11 CPC.

6. On the other hand, learned counsel for the plaintiff has submitted that the property in question which is the subject matter of the suit and Will, is the ancestral property of the late husband of plaintiff No.1 and hence the late husband could not Will the entire property. Reliance is placed on the sale deed relating, to property at Heli Mandi, Tehsil Patuadi, District Gurgaon, Haryana to show that the said property was inherited by Sh. Lakhpat Rai Jain from his ancestors. It is from the sale proceeds of the said property that property at Shivaji Park was purchased and thereafter the present property was purchased. It is stated that late Sh. Lakhpat Rai Jain had only 1/5 th share in the said property and hence could not bequeath the entire property.

7. The settled legal position is that under Order VII Rule 11 CPC, the Court has jurisdiction to reject the plaint where it does not disclose any cause of action, where the relief claimed is under-valued and the valuation is not corrected within a time fixed by the Court and that the suit appears from the statement in the plaint to be barred by any law. For the purpose of rejection of the plaint, the Court has to read the entire plaint as a whole to find out whether it discloses a cause of action. So long as the plaint discloses some cause of action, which requires determination, the mere fact that the plaintiff has a weak case and may not succeed would not be a ground for rejection of the plaint. In the above context, reference may be had to the judgment of the Hon'ble Supreme Court in the case of Mayar (H.K.) Ltd & Ors v. Owners & Parties, Vessel M.V. Fortune Express & Ors, AIR 2006 SC 1828. In para 11 the Hon'ble Supreme Court has held as follows:

"It is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII, Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires

determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint."

8. Similar are the observations of the Hon'ble Supreme Court in the case of Vigneswara Coop. Housing Society Ltd. V. K. Balachandramouli & Ors, (2005) 13 SCC 506.

9. A perusal of the plaint shows that the essential dispute pertains to the suit property at Pitampura, Delhi. As per the plaint, Sh. Lakhpat Rai Jain expired on 07.07.2007. The suit is now filed on 15.09.2010 seeking reliefs including the relief of partition of the suit property. The plaint admits the existence of the Will dated 28.03.2002, but states that apart from other submissions that the Will has been procured under influence and undue pressure from defendant No.1 by emotionally blackmailing him. It is further claimed that the Will was discovered only on 02.02.2010. It is further claimed that the Estate which is the subject matter of the Will is an ancestral property and hence late Sh. Lakhpat Rai Jain could not bequeath the said property. Reading of the plaint would show that if the averments in the plaint are accepted, the plaintiff would be entitled to some relief. Paragraphs 12 to 14 of the plaint read as follows:-

"12. That the plaintiff No.1 realized how Defendant No.1 and her husband had manipulated her husband to execute such a Will. It is submitted that Late Sh. Lakhpat Rai Jain had wrongly executed his Will by wrongfully declaring his immoveable property and moveable property as his self acquired property which is absolutely wrong. Furthermore Defendant No.1 and her husband had not only emotionally blackmailed Sh. Lakhpat Rai Jain but had exercised undue

influence on him to execute such a Will. The Will executed by Sh. Lakhpat Rai Jain is non-tenable in the eyes of law because of the following:

a) Because by way of the so called Will dated 28.3.2002, Sh. Lakhpat Rai Jain is bequeathing his ancestral property instead of self acquired property.

b) Because the Will has been executed by Late Sh. Lakhpat Rai under the undue influence exercised by Defendant No.1 and her husband on him.

c) Because as per Hindu Succession Act, as amended, the females do not acquire life estate but acquire absolute rights in the property bequeathed.

Right since the beginning the only motive of both defendant No.1 and her husband was to usurp the so called properties of Sh. Lakhpat Rai Jain and right throughout they blackmailed Sh. Lakhpat Rai Jain on the pretext of making sacrifice in giving their son in adoption. Both defendant No.1 and her husband exercised undue influence on Sh. Lakhpat Rai Jain by emotionally blackmailing him for bequeathing all his properties in favour of Defendant No.2, without even realizing that the properties owned by Sh. Lakhpat Rai Jain were his ancestral properties.

13. That Sh. Lakhpat Rai Jain had executed his Will under the influence of undue pressure from defendant No.1 and even though the defendants were well aware of the contents of the Will of Sh. Lakhpat Rai Jain, the defendants failed to discharge their pious obligation of taking care of Sh. Lakhpat Rai Jain and plaintiff No.1.

14. That deceased Sh. Lakhpat Rai Jain had various accounts in various banks and on the pretext of streamlining his money and on the pretext of getting expenses for defendant No.2, Defendant No.1 prouced signatures of plaintiff No.1 on blank cheques, blank forms and blank papers."

Hence, the plaint discloses a cause of action inasmuch as in case the

averments made in the plaint are accepted, the plaintiff would clearly be entitled to relief pertaining to the suit property at Pitampura. The Will in question of late Sh. Lakhpat Rai Jain has not been probated. Defendants No. 1 and 2 who are relying on the Will will have to prove the validity of the Will. If allegations of the plaintiff regarding the Will having been procured are accepted, the plaintiff would be entitled to inherit the rights in the suit property as claimed in the suit.

10. There is some merit in the submission of learned counsel for the defendants that the relief sought namely decree for declaration that the adoption dated 17.10.1996 is null and void, appears to be prima facie barred by limitation. However, because one of the reliefs sought cannot be granted to the plaintiff would not be a ground to reject the entire plaint. The Hon'ble Supreme Court in the case of Roop Lal Sathi vs. Nachhattar Singh, AIR 1982 SC 1559. has held that a court can reject the plaint as a whole under Order 7 Rule 11 CPC but the rule does not justify the rejection of any particular portion of a plaint.

11. Reliance of learned counsel for the plaintiff on the judgment in the case of Sopan Sukhdeo Sable and Ors v. Assistant Charity Commissioner (supra), is misplaced. That was a case where a suit was filed by the plaintiff for declaration that they are tenants of the property and for injunction to restrain the plaintiffs-respondents not to evict the plaintiff forcibly. The Trial Court rejected the suit under Order 7 Rule 11 CPC, holding that no cause of action is disclosed in the plaint and the plaint is barred under Section 80 of the Bombay Public Trust Act, 1950. The Supreme Court, however, set aside

the said order stating that the nature of suit/dispute has to be resolved by the Civil Court. The court directed that the adjudication in the suit would be restricted to the question of tenancy, terms of tenancy and period of tenancy. Hence the said judgment would have no application to the facts of the present case.

12. In view of the above, the present applications have not merit and the same are dismissed.

CS(OS)1937/2010

13. List before the Joint Registrar for further proceedings on 03.02.2014.

JAYANT NATH, J NOVEMBER 20, 2013/'raj'