Snehlata (Through Legal Heirs) ... vs Priti Tandon & Anr
2018 Latest Caselaw 2233 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 11th April, 2018
+                          Counter Claim No.12/2014
    SNEHLATA (THROUGH LEGAL HEIRS)
    SAI CHANAKYA MAVERICK                 .... Counter-claimant
                  Through: Mr. Siddharth Yadav and Mr. Wasim
                            Ashraf, Advs.
                           Versus
    PRITI TANDON & ANR.                         ......Defendants
                  Through: Mr. Arvind K. Nigam, Sr. Adv. with
                            Mr. Abhimanyu Walia, Mr. Nikhil
                            Sharda and Mr. Mehtaab Singh
                            Sandhu, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.

Application of the defendants, being IA No.12861/2016 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), for rejection of the Counter Claim is for adjudication.

2. This Counter Claim, inter alia for partition of property no.B-9, West End Colony, New Delhi - 110 021, was filed in CS(OS) No.1352/2012 filed for partition of property no.C-31, West End Colony, New Delhi - 110 021.

3. Vide order dated 5th December, 2013 on application under Order XII Rule 6 of the CPC of the defendants herein (who were plaintiffs in the suit), a preliminary decree for partition was passed in the suit declaring the two defendants herein and the counter-claimant to be having 1/3rd undivided share each in the property no.C-31, West End Colony, New Delhi and this Counter Claim ordered to be tried separately. Since then, the suit has been disposed of vide order dated 4th December, 2017, by passing a final decree for partition of property no.C-31, West End Colony, New Delhi, by sale

thereof and distribution of sale proceeds in terms of the shares declared in the preliminary decree dated 5th December, 2013 of partition.

4. The Counter Claim, as per amended Counter Claim dated 5 th August, 2016, pleads (i) that late Col. R.K. Tandon, maternal grandfather of the counter-claimant and father of the two defendants Priti Tandon and Premlata Mehrotra had purchased two plots of land ad measuring 2000 sq. yds. and 1200 sq. yds. in village Basant, New Delhi; the land ad measuring 2000 sq. yds. was purchased by Col. R.K. Tandon in his own name and the land ad measuring 1200 sq. yds. was purchased as benami by late Col. R.K. Tandon in the name of his elder daughter defendant no.2 herein Premlata Mehrotra;

(ii) that the defendant no.2 Premlata Mehrotra was then only 20 years of age and had no source of income and the plots aforesaid were purchased solely out of the own exclusive funds of late Col. R.K. Tandon; the plot of land purchased in the name of defendant no.2 Premlata Mehrotra was held by defendant no.2 Premlata Mehrotra as a trustee in a fiduciary capacity; (iii) Col. R.K. Tandon died on 8th December, 1986, leaving besides the counter- claimant Snehlata and the two defendants as his daughters, a son and a widow; the son of Col. R.K. Tandon died unmarried and intestate and the widow of Col. R.K. Tandon also died intestate leaving the counter-claimant and the two defendants as her daughters; (iv) that though the estate of Col. R.K. Tandon comprised of two properties i.e. property no.C-31 and B-9, West End Colony, New Delhi but the defendants had filed the suit for partition only in respect of C-31, West End Colony, New Delhi; (v) both the aforesaid plots of land were purchased by Col. R.K. Tandon; (vi) that the West End Colony was developed by the Diplomatic Enclave Extension Co- operative House Building Society; (vii) Col. R.K. Tandon being desirous of

becoming a member of the said Society, wrote letters to the Society surrendering both plots of land aforesaid at village Basant, for re- development; both letters were in identical language save that on one of the letters the name of the defendant no.2 Premlata Mehrotra was written and her signatures obtained; (viii) at that time, of the three daughters of Col. R.K. Tandon, only the defendant no.2 Premlata Mehrotra was married and thus not counted in the dependents of Col. R.K. Tandon as the rules of the Society required none of the dependents of a member to be owning any land or residential house in Delhi; thus Col. R.K. Tandon used the name of defendant no.2 Premlata Mehrotra to be able to secure two plots in the West End Colony; (ix) development charges of both the plots were also paid by Col. R.K. Tandon; (x) that originally plot no.C-31 West End Colony, New Delhi ad measuring 500 sq. yds. was allotted in the name of defendant no.2 Premlata Mehrotra and plot no.B-9, West End Colony, New Delhi ad measuring 800 sq. yds. was allotted in the name of Col. R.K. Tandon; however subsequently an exchange was effected and vide which Col. R.K. Tandon handed over the larger plot ad measuring 800 sq. yds. bearing no. B-9, West End Colony, New Delhi to the defendant no.2 Premlata Mehrotra in exchange for smaller plot ad measuring 500 sq. yds. bearing no.C-31, West End Colony, New Delhi and which also shows that both the plots were for the benefit of the entire family; (xi) the two plots of land, though in the name of Col. R.K. Tandon and defendant no.2 Premlata Mehrotra, but were owned by Col. R.K. Tandon only; (xii) the construction on both plots of land also was raised by Col. R.K. Tandon with his own funds and the defendant no.2 Premlata Mehrotra and her husband were not even possessed of enough monies to contribute for construction; (xiii) property no.B-9, West End

Colony, New Delhi, after construction, was put on rent and Col. R.K. Tandon only was dealing therewith; the defendant no.2 Premlata Mehrotra never occupied the said property and has been holding the same for the use and benefit of all coparceners who are joint owners thereof; (xiv) that the defendant no.2 Premlata Mehrotra has been in joint possession of property no.B-9, West End Colony, New Delhi along with the defendant no.1 Priti Tandon and the mother of the parties, the property being a joint family property and being part of the estate of Col. R.K. Tandon; and, (xv) however, the defendant no.2 Premlata Mehrotra has been exclusively receiving rent of property no.B-9, West End Colony, New Delhi and is liable to render accounts thereof.

5. Besides the relief of partition of property no.B-9, West End Colony, New Delhi, the reliefs of (a) declaration that the said property is held benami by the defendant no.2 Premlata Mehrotra and that the perpetual sub lease of the land underneath the same in the name of defendant no.2 Premlata Mehrotra is sham, bogus, null and void; and, (b) rendition of accounts of rent earned by the defendant no.2 Premlata Mehrotra from the said property, have also been claimed in the Counter Claim.

6. The defendant no.2 Premlata Mehrotra, instead of filing written statement to the Counter Claim, has filed IA No.12861/2016 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) for rejection of the Counter Claim, pleading (i) that the Counter Claim is barred by Section 4(1) of the Benami Transactions (Prohibition) Act, 1988; (ii) that the Counter Claim, insofar as it seeks relief of declaration in relation to property no.B-9, West End Colony, New Delhi, is barred by limitation as per Article 58 of the Schedule to the Limitation Act, 1963; (iii) that the counter-claimant has

throughout been aware of the ownership of property no.B-9, West End Colony, New Delhi and all documents of title of the said property are in public domain; and, (iv) that admittedly the counter-claimant is neither in actual nor in constructive possession of property no.B-9, West End Colony, New Delhi and has never been in possession thereof; notwithstanding the same though the Counter Claim for the relief of partition, for the purposes of jurisdiction is valued at Rs.60 crores but court fees of Rs.200/- only has been affixed thereon; the Counter Claim is grossly undervalued and appropriate court fees has not been paid.

7. The senior counsel for the applicant/defendant no.2 Premlata Mehrotra argued (i) that neither the defendant no.1 Priti Tandon nor the mother of the parties ever questioned the ownership of the applicant/defendant no.2 Premlata Mehrotra of property no.B-9, West End Colony, New Delhi; (ii) that it has been held in Shyama Vs. Prithvi Singh 2015 SCC OnLine Raj 4606 that under Article 58 of the Limitation Act, the period has to be reckoned from the date right to sue first accrues; (iii) that the applicant/defendant no.2 Premlata Mehrotra has been letting out property no.B-9, West End Colony, New Delhi for more than 40 years and rent earned therefrom has been accounted by her in her statutory returns of tax and other filings; (iv) that the relief of partition of the property sought is conditional upon declarations sought being granted; (v) that for the relief of declarations sought, the counter-claimant is required to value the Counter Claim and pay court fees appropriately; (vi) in Rangamani Dasi Vs. Jogendra Nath Manna MANU/WB/0052/1908 it has been held that if the plaintiff is not in possession of any part of the property, she is not entitled to sue for partition without at the same time suing for possession of her share, a course entailing

payment of ad valorem court fees; (vii) in Bidhata Rai Vs. Ram Chariter Rai MANU/WB/0182/1907, it has been held that in a suit for partition if it is established that the plaintiff is not in possession and there has been complete ouster, the plaintiff must sue for recovery of possession and partition and must pay ad valorem court fees; and, (viii) that the leasehold rights in the land underneath the property have been got converted into freehold by the applicant/defendant no.2 Premlata Mehrotra in her own name and a Conveyance Deed dated 4th September, 2001 thereof was executed in favour of the applicant/defendant no.2 Premlata Mehrotra.

8. Per contra, the counsel for the counter-claimant argued (i) that for deciding an application under Order VII Rule 11 of the CPC, only the plaint i.e. the Counter Claim is to be looked into and not the reply of the defendant thereto; reliance is placed on Arun Nirula Vs. K.N. Jain 2013 (138) DRJ 520; (ii) that a reading of the Counter Claim shows an actionable claim in favour of the counter-claimant and which can be adjudicated only after trial and not at the threshold; reliance is placed on L.M. Nagpal Vs. Fatehji & Co. 2013 (138) DRJ 464; (iii) that the limitation for the Counter Claim is not covered by Article 58 but falls within the ambit of Article 59 of the Schedule to the Limitation Act because it is the plea in the Counter Claim that both the plots were purchased by Col. R.K. Tandon from his own monies and subsequently the exchange was effected without any consideration: (iv) that the applicant/defendant no.2 Premlata Mehrotra has never asserted her exclusive ownership over property no.B-9, West End Colony, New Delhi; reliance is placed on Vijay Manchanda Vs. Ashok Manchanda 2010 (114) DRJ 467; (v) evidence is required to be led by the counter-claimant to show that the suit falls within the exception of Section 4(3)(a) of the Benami Act;

reliance is placed on Bharat Kumar Vs. Ashok Sahdev 2013 (138) DRJ 99;

(vi) that it is the plea in the Counter Claim that the counter-claimant is in joint and constructive possession of the property and once it is so pleaded, only fixed court fees is required to be paid; reliance is placed on Neelavathi Vs. N. Natarajan 1980 (2) SCC 247; and, (vii) trial is required to be conducted to prove that the perpetual sub lease of both properties are to be read in favour of Col. R.K. Tandon only.

9. The senior counsel for the applicant/defendant no.2 Premlata Mehrotra in rejoinder controverted that Article 59 of the Limitation Act has application.

10. The applicant/defendant no.2 Premlata Mehrotra has placed before this Court photocopies of (a) Perpetual Sub Lease dated 10th June, 1966 of plot no.B-9 ad measuring 802 sq. yds., West End Colony, New Dehli in favour of Col. R.K. Tandon; (b) Perpetual Sub Lease dated 21st January, 1967 of plot of land ad measuring 500 sq. yds. and bearing no.C-31, West End Colony, New Delhi in the name of applicant/defendant no.1 Premlata Mehrotra; (c) letter dated 30th November, 1971 of Delhi Development Authority (DDA) to the Hony. Secretary, The Diplomatic Enclave Extension Co-operative House Building Society conveying the approval of the Lieutenant Governor, Delhi to the exchange of plots between Col. R.K. Tandon allottee of plot no.B-9 measuring 800 sq. yds. and his daughter Mrs. Premlata Mehrotra allottee of plot no.C-31 measuring 500 sq. yds. and no objection to the execution of fresh leases to cover the exchange; (d) Perpetual Sub Lease dated 9th February, 1972 of plot no.C-31 ad measuring 500 sq. yds., West End Colony, New Delhi in favour of Col. R.K. Tandon; (e) Perpetual Sub Lease dated 9th February, 1972 of plot no.B-9 ad measuring 802 sq. yds. in the

name of applicant/defendant no.2 Premlata Mehrotra; and, (f) Conveyance Deed dated 4th September, 2001 of freehold rights in plot no.B-9 ad measuring 802 sq. yds. in West End Colony, New Delhi in the name of applicant/defendant no.2 Premlata Mehrotra.

11. The counter-claimant has not filed any documents.

12. I have considered the grounds urged for rejection of the plaint.

13. Admittedly the property no.B-9, West End Colony, New Delhi, to which the Counter Claim pertains, is in the exclusive name of the applicant/defendant no.2 Premlata Mehrotra. The title documents of the said property do not disclose the counter-claimant to be having any share therein, to be able to seek partition thereof. The counter-claimant also, being conscious of the same, besides the relief of partition has sought the reliefs of declaration that the applicant/defendant no.2 Premlata Mehrotra is holding the property benami and the title document thereof in her favour is null and void. For the counter-claimant to be entitled to the relief of partition, the counter-claimant is required to first succeed in getting the declaration sought and without which declaration the counter-claimant cannot be entitled to the reliefs of partition or rendition of accounts.

14. The Benamii Act was amended w.e.f. 1st November, 2016 and is now known as Prohibition of Benami Property Transactions Act, 1988. I had during the hearing enquired from the counsels, whether the amendments would apply to the adjudication of the application for rejection of the Counter Claim filed prior to the coming into force of the said amendments. No answer was forthcoming.

15. Section 2(a) of the Act as originally enacted and in force at the time of institution of the Counter Claim and at the time of filing of application for

rejection thereof defined "benami transaction" as meaning any transaction in which property is transferred to one person for a consideration paid or provided by another person. Section 3 thereof prohibited entering into benami transactions and made the same punishiable with imprisonment. Section 4 (1) thereof prohibited any suit, claim or action to enforce any right in respect of any property held benami against a person in whose name the property was held or against any other person, by or on behalf of a person claiming to be the real owner of the property. However Section 4(3)(a) thereof on which the counsel for the counter-claimant relies made the provisions of Section 4(1) inapplicable where the person in whose name the property was held was a coparcener in a Hindu Undivided Family and the property was held for the benefit of the coparceners in the family. Though the counsel for the counter-claimant neither in the hearing nor in his written submissions invoked Section 4(3)(b) but the same made the provisions of Section 4(1) inapplicable where the person in whose name the property was held was a trustee or other person standing in a fiduciary capacity and the property was held for the benefit of another person for whom he was a trustee or towards whom he stood in such capacity.

16. Applying the Benami Act as it stood prior to its amendment with effect from 1st November, 2016, the relief of declaration claimed by the counter-claimant is in the teeth of Section 4(1) thereof. It is the express plea of the counter-claimant that the property was transferred in the name of applicant/defendant no.2 Premlata Mehrotra for consideration paid or provided by Col. R.K. Tandon and that the applicant/defendant no.2 Premlata Mehrotra is holding the property benami. The counter-claimant by the Counter Claim is seeking to enforce right in the said property as a legal

heir of Col. R.K. Tandon, the real owner of the property, against the applicant/defendant no.2 Premlata Mehrotra in whose name the property is averred to be held benami. Thus the Counter Claim is barred by Section 4(1) supra.

17. The only question for consideration is, whether the Counter Claim falls within the exception provided in Section 4(3)(a) supra. However the invocation thereof by the counsel for the counter-claimant is without any basis in the pleadings which are contrary to such claim. It is the plea of the counter-claimant that the property was purchased by the personal monies of Col. R.K. Tandon. It is not the plea that the property was purchased by the monies of any Hindu Undivided Family (HUF); rather there is no plea also of existence of any HUF. Though the words "coparceners", "joint Hindu undivided family" are loosely sprinkled in the Counter Claim but without even laying any foundation therefor. Rather, in the decree in the suit with respect to property no.C-31,West End Colony, New Delhi in which the Counter Claim was filed, it was not the plea and not found that there was any HUF or that the property no.C-31, West End Colony, New Delhi was of the HUF. Decree for partition of property no.C-31, West End Colony, New Delhi has been passed on the premise of the property no.C-31, West End Colony, New Delhi being the personal property of Col. R.K. Tandon and having been inherited by the counter-claimant and the two defendants in equal share after his death. It is not the plea that while property no.C-31, West End Colony, New Delhi subject matter of suit was personal property of Col. R.K. Tandon, property no.B-9, West End Colony, New Delhi subject matter of Counter Claim is of HUF. The decree in suit has attained finality and constitutes res judicata. Thus, the exception provided for in Section 4(3)(a)

supra is not available to the counter-claimant. Though the counsel for the counter-claimant has not invoked Section 4(3)(b) as aforesaid but I may state that the applicant/defendant no.2 Premlata Mehrotra as the married daughter of Col. R.K. Tandon was not in the position of a trustee or in a fiduciary capacity qua Col. R.K. Tandon and there is no other plea in the Counter Claim from which a case of the applicant/defendant no.2 Premlata Mehrotra holding the property for the benefit of Col. R.K. Tandon can be deciphered. Merely reproducing the language of the statute in the pleadings, without any facts, cannot entitle a litigant to commence trial.

18. Thus, the Counter Claim on the date of institution thereof was barred by the Benami Act.

19. The counsel for the counter-claimant having not argued that the amendment of the Benami Act which came into force on 1st November, 2016 i.e. after the institution of the Counter Claim (even the amended Counter Claim was filed on 6th August, 2016) is applicable or that under the amended Act the Counter Claim is not barred as it was under the Benami Act prior to its amendment, the need to go into the said question is not felt.

20. The Counter Claim is thus liable to be rejected on this ground alone.

21. Part III of the Schedule to the Limitation Act deals with suits relating to declarations and in Article 56 thereunder provides limitation for a suit to declare the forgery of an instrument issued or registered and in Article 57 for a suit to obtain a declaration that an alleged adoption is invalid or never in fact took place. Thereafter, Article 58 provides for limitation for a suit to obtain "any other declaration" and provides limitation therefor of three years commencing from the date when the right to sue first accrued. It is the contention of the senior counsel for the applicant/defendant no.2 Premlata

Mehrotra that the relief of declarations sought in the Counter Claim is covered by Article 58.

22. Article 59, on which the counsel for the counter-claimant relies, is placed in Part IV titled "Suits relating to decrees and instruments" and for a suit to cancel or set aside an instrument or decree or for the rescission of a contract, provides limitation of three years commencing from the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first became known to the plaintiff.

23. The counter-claimant, in the cause of action paragraph no.33 of the Counter Claim, has pleaded that the cause of action arose for the first time when the suit in which the Counter Claim was filed was instituted and when the counter-claimant learnt about the correct legal status and payment details for purchase of property no.B-9, West End Colony, New Delhi.

24. It is not pleaded that the counter-claimant was not aware of the property being held, not in the name of Col. R.K. Tandon but in the name of applicant/defendant no.2 Premlata Mehrotra. Further, what the counter- claimant claims to have learnt on institution of the suit and when perhaps the counter-claimant came in touch with Advocates, is "about the correct legal status" and not the facts entitling the counter-claimant to have the perpetual lease deed and Conveyance Deed of freehold rights in the land in the name of the applicant/defendant no.2 Premlata Mehrotra set aside. As far as the plea of the counter-claimant of the counter-claimant having also learnt of the payment details for purchase is concerned, it is no where pleaded as to how the counter-claimant learnt of the payment details or the same came to the notice of the counter-claimant. It is not open to a plaintiff or counter- claimant to institute litigations disputing settled titles, at his/her whim, by

choosing not to make enquiry for decades and by selecting a date for making enquiries. Once it was in the knowledge of the counter-claimant that property no.B-9, West End Colony, New Delhi is held in the name of the applicant/defendant no.2 Premlata Mehrotra and the applicant/defendant no.2 Premlata Mehrotra was exclusively realising rent thereof and the counter- claimant was not enjoying the property as owner or co-owner thereof and which enjoyment was disturbed by institution of the suit, it was incumbent upon the counter-claimant to immediately, on coming to know of the same, make enquiries with respect thereto.

25. Thus, even if Article 59, as contended by the counsel for the counter- claimant were to apply, the Counter Claim is barred by time thereunder also and the Counter Claim liable to be rejected on this ground as well.

26. I find against the counter-claimant on the third count also. The counter-claimant, in para 30 of the Counter Claim, has unequivocally pleaded that the applicant/defendant no.2 Premlata Mehrotra has been exclusively receiving rent of property no.B-9, West End Colony, New Delhi and is required to furnish complete accounts details of rent received by her of the property since the year 1984 i.e. since prior to the demise of Col. R.K. Tandon. The admission, of realisation of the rent by the applicant/defendant no.2 Premlata Mehrotra of property no.B-9, West End Colony, New Delhi to the exclusion of the counter-claimant, is a clear admission of ouster of the counter-claimant from any right, title, share or interest of the property. Section 34 of the Specific Relief Act, 1963 bars a suit for declaration simplicitor where a plaintiff is entitled to further relief. The counter-claimant thus, even if were to be held to be entitled to the relief of declaration claimed, was also required to seek consequential relief of possession, by

paying ad valorem court fees on the value of the property. Reference, if any required can be made to Union of India Vs. Ibrahim Uddin (2012) 8 SCC 148, Meharchand Das Vs. Lal Babu Siddique (2007) 14 SCC 253 and Vinay Krishna Vs. Keshav Chandra 1993 Supp (3) SCC 129.

27. Thus the Counter Claim is improperly valued for the purposes of court fees and jurisdiction and appropriate court fees has not been paid on the Counter Claim.

28. Though, prior to rejection on such ground, an opportunity to make up the deficiency is required to be given but since I have found against the counter-claimant on two other counts as well, the need therefor is not felt.

29. Before parting, I may record, that L.M. Nagpal supra cited by the counsel for the counter-claimant was overruled in Fatehji and Company Vs. L.M. Nagpal (2015) 8 SCC 390 and Bharat Kumar supra, also cited by the counsel for the counter-claimant is against the counter-claimant and RFA(OS) No.123/2013 prefered thereagainst was dismissed on 15 th May, 2014 and SLP(C) No.24104-24105/2014 preferred thereagainst dismissed on 26th September, 2014.

30. IA No.12861/2016 is thus allowed.

31. The Counter Claim is rejected.

RAJIV SAHAI ENDLAW, J.

APRIL 11, 2018 „pp‟