Rashmi Skadegaard vs Vikram Chandhok & Anr
2015 Latest Caselaw 2286 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI


                                       Reserved on: 22.01.2015
                                       Pronounced on :18.03.2015

+     CS(OS) 1386/2012

      RASHMI SKADEGAARD                                  ..... Plaintiff
                  Through              Mr.Arun Kumar Varma, Mr.Arun
                                       Malik, Ms.Sahiti Kachroo,
                                       Mr.A.B.Pandey and Mr.Mayank
                                       Sapra, Advs.

                   versus

    VIKRAM CHANDHOK & ANR                   ..... Defendant
                  Through Mr.Y.P.Narula, Sr. Adv. with
                          Mr.Abhay Narula and Mr.Aniruddha
                          Choudhary, Advs.for D-1
                          Ms.Madhu Smita and Mr.Saurabh
                          Bindal, Advs.for D-2
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

% JAYANT NATH, J.

IA No.8573/2013 in CS(OS) No.1386/2012

1. This is an application under Order VII Rule 11 CPC filed on behalf of the defendant no.1 seeking rejection of the plaint.

2. The plaintiff is the sister of defendant nos. 1 and 2, the two brothers. The plaintiff has filed the present suit for a decree of declaration declaring the plaintiff and defendant nos.1 and 2 as the exclusive and absolute

owners of property bearing No.204, Jor Bagh, New Delhi. Relief of partition and other connected reliefs are also sought for.

3. As per averments in the plaint the parties are the legal heirs of late Sh. Jaidev Chandhok. The father of the parties died on 04.09.2003 while the mother had passed away in 1989. It is urged that during his lifetime Sh.Jaidev had acquired several immovable and moveable properties which are described in Schedule A & B to the plaint.

4. In a very confusing plaint, the relevant portion appears to read that late Shri Jai Dev was the Karta of an HUF which owned 204, Jor Bagh, New Delhi. The property comprised of ground floor, first floor and barsati floor.

5. It is stated that during the lifetime of the father certain disputes arose and in order to maintain peace and harmony, the family members entered into an oral partial family settlement dated 31.12.1989 by which the ground floor of the said property at 204, Jor Bagh, New Delhi fell to the share of Sh. Jaidev and the first floor and Barsati floor fell to the share of defendant no.1. The family settlement was said to have been reduced in writing on 12.01.1990. Reference is also made to various other family settlement executed which may not be relevant for the purposes of the present property.

6. The plaint also contains large number of irrelevant material which seem to have no connection with the relief sought. Reference is made to some partnership that Shri Jai Dev Chandhok had with L.Bhagat Ram. Reference is also made to another property 203, Jor Bagh, New Delhi with which some dispute is pending with defendant No.2. Annexed with the

plaint is Schedule A and Schedule B. Schedule A has only one immoveable property, namely, 204, Jor Bagh, New Delhi. Schedule B has 10 different immoveable properties located in Kashmir. The plaint is however silent as to the purpose why this list Schedule B is attached to the plaint. The prayer clause also makes no reference to the properties listed in Schedule B to the plaint. The prayer clause refers only to 204, Jor Bagh, New Delhi.

7. In his written statement defendant no.1 has taken a plea that the said defendant has been the registered owner of the property and in possession for the last 48 years. It is also alleged that the relief of ownership of suit property is barred by limitation as the father of the parties died on 04.09.2003. Reference is made to the lease agreement dated 30.11.1954 which was executed between defendant No.1 and the President of India and to also the perpetual sub-lease dated 23.02.1972 which was signed by the President of India in favour of defendant No.1. It is further averred that on 17.05.2000 the property was converted to freehold and a conveyance deed was executed by President of India in favour of defendant No.1. Hence, it is urged that the plaintiff has no right, title or interest in the suit property at 204, Jorbagh, New Delhi. Various other defences are alleged.

8. Learned senior counsel appearing for defendant No.1 submits that since there is a registered conveyance deed in favour of the defendant No.1/applicant, no relief is sought for cancellation of the said document and hence, it is urged that in the absence of seeking a declaration regarding cancellation of the conveyance deed the present suit is barred. It is next submitted that even otherwise relief of declaration is barred as the father died on 04.09.2003 and the present suit has been filed nine years after the

death of the father and 48 years after the purchase of the property in the name of defendant No.1.

9. Learned counsel appearing for the plaintiff has relied upon a document attached to the reply to IA No.8573/2013 which is a copy of a memorandum of family agreement dated 12.01.1990 executed by the father late Shri Jai Dev, the defendant Nos.1 and 2 respectively and the plaintiff. It is pointed out that as per this memorandum of family settlement which records contents of an oral family settlement dated 31.12.1989, the ground floor of property 204, Jorbagh, New Delhi has devolved upon Sh.Jai Dev, the father of the parties whereas the first floor with Barsati floor has gone to defendant No.1. This averment has also been taken in the plaint. Reliance is also placed on the judgment of the Supreme Court in Surjit Kaur Gill vs. Adarsh Kaur, AIR, 2014 SC 1476.

10. In Rejoinder, learned senior counsel for defendant No.1 has submitted that the document dated 12.01.1990 now filed by the plaintiff is a photocopy. It is neither registered nor admissible in evidence and does not confer any title. It is urged that a family settlement can only be among owners of a property and not with any person who does not have antecedent title to the property. Reliance is also placed on the Benami Transactions (Prohibition) Act, 1988

11. 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 Mayur (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:-

"11.. 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. ..."

12. Similar are the observations of the Hon‟ble Supreme Court in the case of Vigneswara Coop.Housing Society Ltd. vs. K.Balachandramouli

& Ors., (2005) 13 SCC 506.

13. In the light of the above legal position, we may look at the factual matrix. The relevant portion of the memorandum of family settlement which is dated 12.01.1990 which is signed by plaintiff and defendants No.1 and 2 read as follows:-

"WHEREAS JAI DEV, HUF owns immovable properties known as 203 and 204, Jor Bagh, New Delhi, each of which comprised of two flats and is built on an area of 375 sq.yds. or thereabout and more particularly described in the Schedule: hereunder written.

AND WHEREAS property known as 203, Jor Bagh, New Delhi is held in the name of VIJAY KUMAR and property No.204, Jor Bagh, New Delhi is held in the name of VIKRAM KUMAR.

AND WHEREAS some differences had arisen between the parties hereto with regard to their respective rights in relation to the aforesaid properties.

AND WHEREAS in order to amicably resolve their disputes the parties hereto had agreed amongst themselves upon a Family Settlement in respect of their rights and interests in the said properties.

AND WHEREAS the parties are desirous of recording the Settlement."

...

"c) Ground floor flat of property No. 204, Jor Bagh (Part C) New Delhi together with servant quarter was allocated to Shri Jai Dev absolutely and forever.

d) First floor flat along with Barsati and the garage of property No. 204, Jor Bagh, New Delhi as described in Schedule „O‟ of the Schedule was allocated to Vikram Kumar absolutely and forever."

Hence, as per the family settlement it purports to record an oral

settlement that has already taken place. It records that the property 203 and 204, Jor Bagh, New Delhi belonged to Jai Dev HUF. It records that ground floor of the property 204, Jor Bagh has gone to Shri Jai Dev. Shri Jai Dev has died intestate on 4.9.2003 leaving behind the plaintiff as one of the class I legal heirs. Hence if the plaintiff succeeds in proving the material facts, she would have some rights in the suit property 204, Jor Bagh, New Delhi. Hence, the plaint does disclose a cause of action. It cannot be rejected on the threshold.

14. I will now deal with three submissions of the learned senior counsel for the applicant/defendant No.1. As far as the argument of limitation is concerned, the father of the parties died on 04.09.2003. The present suit is filed in 2012 i.e. around nine years after the death of the father. The limitation for filing of the suit pertaining to an interest in immovable property as per Article 65 of the schedule to the Limitation Act reads as follows:-

          Description of Suit             Period of     Time from which
                                          limitation    period begins to run
      65. For possession of immovable       Twelve      When the
          property or any interest           years      possession of the
          therein based on title.                       defendant becomes
                                                        adverse to the
                                                        plaintiff.

15. Hence on a reading of the plaint it cannot be said that the suit is barred by limitation on the face of it.

16. Regarding the issue raised by the applicant regarding the absence of the original of the family settlement dated 12.01.1990, it is true that the

plaintiff has placed on record the photocopy of the same. However, it is for the plaintiff to prove the said document. In case the original is lost, the plaintiff would have to prove the same by means of secondary evidence. The suit cannot be dismissed under Order 7 Rule 11, CPC merely because the plaintiff has filed a photocopy of the document and not the original.

17. As far as the contention of the defendant is concerned regarding the absence of a relief sought regarding declaration pertaining to the title documents of defendant No.1, during the course of submissions, this submission has not been elaborated upon or pressed. It is obvious that the family settlement is dated 31.2.1989 i.e. prior to the perpetual sub-lease dated 23.2.1972. The Conveyance Deed also flows from this sub-lease.

18. Reference may be had to the judgment of the Supreme Court in "Surjit Kaur Gill and Anr Vs Adarsh Kaur Gill and Anr" 2014(2)SCALE81 which also pertain to a suit for partition where in para 9 the Supreme Court held as follows:-

"9. With respect to these submission, Mr. Diwan pointed out that in fact there is a clear writing of the Respondent No. 1 herein executed on 12.2.91 which clearly states, amongst others, in paragraph (d) that she will not claim any tenancy right or charge on the above referred property. In paragraph (b) of that writing she agreed to render the accounts with respect to the rental income received from 1.1.80 to 30.11.90. In paragraph (c) of that writing she states that with respect to the two mortgages redeemed in her name, she will not claim any charge as the amounts paid for redeeming the said mortgages were paid from the estate of Smt. Abnash Kaur. Mr. Diwan states that after executing this writing, the disputes between the parties were supposed to get settled, but then unfortunately it did

not happen. The Respondent No. 1 started construction on the particular property in her own right. This having happened in 1992, the original Plaintiff was constrained to file the suit for the partition of the property belonging to Smt. Abnash Kaur. Smt. Abnash Kaur having made a Will about her property, the original Plaintiff had to see to it as the administrator of the will that the property is distributed in accordance therewith. This being the position, in his submission it is Article 58 which is the relevant Article for all these prayers, which provides for a period of 3 years when the right to sue first accrues. In the present case, it will be when the dispute arose because of the conduct of the Respondent No. 1 herein. The issue of limitation is always a mixed question of facts and law, and therefore, it could not be held that no case was made out for proceeding for a trial. Mr. C.A. Sundaram submitted that the Respondent No. 1 disputed the writing dated 12.2.1991, and it had to be forensically tested. This submission all the more justifies that the trial had to proceed. For deciding an application under Order 7 Rule 11, one has to look at the plaint and decide whether it deserved to be rejected for the ground raised. In our view, the view taken by the Division Bench is clearly erroneous. The appeal is therefore allowed and the judgment and order of the Division Bench is set aside. The application made under Order 7 Rule 11 moved by the Respondent No. 1 herein will stand rejected. We may however clarify that all the observations herein are only for the purpose of deciding this appeal."

19. The plaint discloses a cause of action. In the light of the above, the present application has no merits and is dismissed. CS(OS) 1386/2012 List on 27.4.2015 before the Joint Registrar.

JAYANT NATH, J MARCH 18, 2015/mb