* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Reserve: 24th August, 2022
Date of Decision: 10th October, 2022
+ CS(OS) 277/2021
SNEHA SRIVASTAVA
Wife of Late Ritesh Kumar Sinha
R/o R 404, Hyde Park,
Sector 78, Noida-201301. ..... Plaintiff
Through: Mr. Sourabh gupta and Mr. Puneet
Yadav, Advocates.
versus
1. AMITA SINHA
Wife of Late Binay Kumar Sinha
Mother of Late Ritesh Kumar Sinha
Resident of C-1/401 Plot No.3, Capital
Apartment, Vasundra Enclave,
New Delhi-11 0096.
2. THE BANK MANAGER
IDFC First Bank
Daryaganj Branch
Ground Floor, P.No.2
Netaji Subhash Marg,
Daryaganj, New Delhi.
3. THE MANAGER
Max Life Insurance Company Limited
Ground Floor, A-1 /172, Janakpuri,
Near Metro Pillar No.614
New Delhi-11 0058.
4. RASHMI VERMA
Wife of Swatantra Verma
D-403, Celestial Apartment
Signature Not Verified CS(OS) 277/2021 Page 1 of 18
Digitally Signed
By:PRIYANKA ANEJA
Signing Date:10.10.2022
11:47:06
Behind Reliance Digital
Sarjapur Road
Kaikondanahalli
Bangalore-560035
5. RAJNI VERMA
Wife of Ravi Verma
Plot No. G-42, Subhash Nagar,
Shopping Centre
Behind Royal Hotel
Royal Palazzo
Landmark- Allahabad Bank,
Shashtri Nagar (Doodh Mandi)
Jaipur, Rajasthan-302016.
..... Defendants
Through: Mr. Bharat Garg, Mr. Anukalp Jain
and Mr. Jagat Upadhyay, Advocates
for defendant No.1, 4 and 5.
Mr. Rajnish Ranjan, Advocate for
defendant No.5.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGEMENT
I.A.14079/2021 (Seeking Return of Plaint)
1. An application under Order VII Rule 10 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the 'CPC') has been filed on behalf of defendant No.1 seeking return of plaint.
2. It is submitted that the plaintiff has filed a suit for Partition, Declaration, Cancellation, Permanent and Mandatory Injunction in respect to the property of the deceased husband Late Shri Ritesh Kumar Sinha and the matter is at the stage of completion of pleadings. The suit is in respect of
Signature Not Verified CS(OS) 277/2021 Page 2 of 18 Digitally Signed By:PRIYANKA ANEJA Signing Date:10.10.2022 11:47:06 various immovable properties and also in respect of movable properties. It is asserted that in terms of Section 16 of the CPC, a suit for partition can be filed only where the immovable property is situated. However, the properties in respect of which the partition is sought are located in Greater Noida. Since, no part of the immovable properties are situated in Delhi, this Court has no territorial jurisdiction to entertain the present suit in regard to the immovable properties.
3. In respect of movable properties, it is submitted that none of the defendant resides within the territorial jurisdiction of this Court. Defendant No.1 is a permanent resident of Jaipur, Rajasthan, where he is staying with his daughter. Defendant No.4 is permanently residing at Kaikondanahalli, Bangalore. Defendant No.5 is a resident of Jaipur, Rajasthan. It is claimed that plaintiff has deliberately misrepresented that defendant No.1 is residing within the jurisdiction of this Court, when in fact he is a permanent resident of Jaipur. This Court, therefore, has no territorial jurisdiction and the plaint is liable to be returned.
4. Learned counsel for the defendant has submitted that since all the immovable properties are located outside Delhi and all the defendants are also not resident of Delhi, the present suit for partition in respect of movable and immovable properties is not maintainable. Learned counsel for the defendant has relied upon Rajiv Seth vs. Daya Kishan Mehra (2005) 84 DRJ 75 and Ranjan Kumar Singh vs. Angoori Singh 2010 (116) DRJ 278 in support of his contentions.
5. No formal reply has been filed on behalf of the plaintiff. However, reliance has been placed upon the case of Bhagwan Motiram Saraoji vs. Onkarmal Ishwardas & Ors. AIR 1952, Bombay 365 and Sardar Avtar
Signature Not Verified CS(OS) 277/2021 Page 3 of 18 Digitally Signed By:PRIYANKA ANEJA Signing Date:10.10.2022 11:47:06 Singh & Anr. vs. Baljeet Singh 1995 SCC OnLine Allah. 184 to assert that this Court has territorial jurisdiction to entertain the present partition suit.
6. Submissions heard.
7. The plaintiff Sneha Srivastava has filed a suit for partition, declaration, cancellation, permanent and mandatory injunction. The plaintiff got married to Shri Ritesh Kumar Sinha in the year 2016. He died on 14 th May, 2021 due to COVID-19. The defendant No.1 Smt. Amita Sinha is the mother while defendant No.4 and 5 are the sisters of deceased Shri Ritesh Kumar Sinha. Defendant No.2 is IDFC First Bank while Defendant No.3 is Max Life Insurance Company from which deceased Shri Ritesh Kumar Sinha has purchased Term Insurance Policy.
8. It is submitted that Shri Binay Kumar Sinha father of Late Shri Ritesh Kumar Sinha died on 18th October, 2017 due to chronic liver disease and complications. Shri Ritesh Kumar Sinha was a highly qualified person. He was a Director and shareholder in the Company SR Ecommerce Factory Private Limited which was running an e-commerce company in the name and style of "Bookswagon" located at Ansari Road, Daryaganj, New Delhi. Shri Ritesh Kumar Sinha was 50% shareholder in the said Company and was handling the business along with the other Director Shubham Jain who was having the remaining 50% share holding in the Company.
9. During the life time Shri Ritesh Kumar Sinha had purchased two flats, the details of which are as under:
a. Flat No.1902, 19th Floor, Block T-11 in Ace Divino, Noida Extension, Greater Noida, Uttar Pradesh. b. Flat No.3152, 15th Floor, Tower 3, ATS Destinaire, Noida Extension, Greater Noida, Uttar Pradesh.
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10. Shri Binay Kumar Sinha, father of Sh. Ritesh Kumar Sinha had six siblings who had executed a Deed of Partition of the ancestral property owned by the grandfather of the family. The husband of the plaintiff got the share of Shri Binay Kumar Sinha in the said ancestral property. The plaintiff is now entitled to the extent of 1/4th share in the ancestral property to which her husband was entitled. However, she does not have any knowledge about the partition or about the other ancestral properties.
11. Aside from this, Shri Ritesh Kumar Sinha had purchased a Max Life Smart Term Policy from Defendant No.3 for an amount of Rs.3.8 crores. Shri Ritesh Kumar Sinha was maintaining Savings Bank account with IDFC First Bank having a balance of Rs.1.12 Crores.
12. It is submitted that after the demise of Shri Ritesh Kumar Sinha, defendant No.1 Smt. Amita Sinha in collusion with other family members, changed the nominee in the Saving Bank Account in IDFC First Bank, Daryaganj, of which the plaintiff had been nominated as 100% nominee.
13. It is submitted that the petitioner and defendant No.1 being the wife and mother of late Shri Ritesh Kumar Sinha respectively, are the only two Class-I legal heirs. The petitioner had thus sought partition in respect of movable and immovable properties of the deceased.
14. The basic objection taken on behalf of the defendants in respect of the partition of immovable properties, is that the two flats are located in Greater Noida and details of the ancestral property had neither been furnished nor are stated to be in the knowledge of the plaintiff.
15. The basic question in respect of partition of the immovable properties is whether the suit in respect of the subject properties located in Greater Noida can be maintained in Delhi.
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16. In Sardar Avtar Singh (supra), it was explained that the general rule in regard to territorial jurisdiction is contained in Section 16. Section 16(b) provides that a suit for partition of immovable property shall be instituted in the Court within the local limits of whose jurisdiction the property is situated.
17. In Gidhari Lal Surana vs. Mirzamal Aggarwala AIR 1962 Assam 95, the Division Bench of Assam High Court while dealing with the question of jurisdiction of immovable property, explained that the general rule is that the Court within the limits of whose jurisdiction the part of the cause of action arises can entertain a suit, is not applicable to the suit covered by Section 16 CPC, unless it can be shown that the particular case is covered by its proviso. The Section forbids even claims for rent of immovable property by a Court which has no jurisdiction over the immovable property in question.
18. In Rajiv Seth (supra), this Court had observed that suit for partition in respect of estate of deceased including the challenge to the Will would not be maintainable in Delhi if no immovable property is located in Delhi.
19. In Sardar Avtar Singh (supra), it was held that the suit for partition of immovable property has to be filed in the Court within the local limits of whose jurisdiction the property is situated as is provided under Section 16(b) of the CPC. This provision is not subject to Section 18 to 20. In the suits for partition of immovable property, the Courts where the property is not located cannot be conferred with any jurisdiction merely on the ground that the cause of action arose whole or in part within the jurisdiction of such Court.
20. In Sardar Avtar Singh (supra), it was further explained that where the suit also includes movable properties, it would not be governed by Section
Signature Not Verified CS(OS) 277/2021 Page 6 of 18 Digitally Signed By:PRIYANKA ANEJA Signing Date:10.10.2022 11:47:06 16(b) of the Code. If the suit relates only to movable property, it would lie in the Court within the local limits of whose jurisdiction the cause of action has arisen and Section 20(c) would cover such cases.
21. It was further explained that if both movable and immovable properties are situated within the local jurisdiction of one court, then the suit for partition for all the properties would lie in such jurisdiction. However, where the immovable property is situated within the local limits of jurisdiction of another Court, the suit cannot be held to be maintainable in the Court within whose local limits of jurisdiction the immovable property alone is situated.
22. The Division Bench of Bombay High Court in Bhagwan Motiram Saraoji (supra), considered this aspect in detail and defined that the Court within the jurisdiction of which the immovable property is located alone would have jurisdiction to entertain the suit for partition to the extent of the immovable properties. The location of the movables would constitute a part of cause of action and such Court having the jurisdiction over the moveables would have jurisdiction to entertain the suit for partition with respect to the moveables. It was thus, held that if a suit for partition includes both immovable and movable properties and the immovable properties are located outside the jurisdiction of the Court, then the suit for partition in respect of immovable properties has to be returned while the suit for partition in respect of movable properties may be continued in the said Court. The logic for holding so was explained by observing that the jurisdiction in respect of immovable property is not exercised in personam but in relation to the subject matter of the suit. In so far as the movables are
Signature Not Verified CS(OS) 277/2021 Page 7 of 18 Digitally Signed By:PRIYANKA ANEJA Signing Date:10.10.2022 11:47:06 concerned, the jurisdiction is in personam which has three different aspects, which are:
(i) the residence of the defendant;
(ii) the place of business of the defendant; and
(iii) where the defendant personally works for gain.
23. All these aspects emphasize the jurisdiction of the Court is in personam.
24. In view of the above discussion, it may be concluded that where a suit for partition has been filed in respect of movable as well as immovable properties, the suit for partition for immoveable properties, cannot be continued in this Court as the two flats are located in Greater Noida. However, the movable properties which are the bank account and the life insurance policy and the share holding in the Company are all located in Delhi and thus, the partition suit in respect of movable properties is maintainable. The suit in respect of partition in respect of immovable properties is thus, directed to be returned with the liberty to file the same before the Court of appropriate jurisdiction.
I.A.14080/2021 (Seeking Rejection of Plaint)
1. An application under Order VII Rule 11 read with Section 151 CPC has been filed on behalf of defendant No.1 seeking rejection of the plaint.
2. It is submitted in the application that the plaintiff has deliberately suppressed the material facts and has made a gross misrepresentation of the facts and it is a fit case for the Court to exercise its inherent equitable jurisdiction under Section 151 CPC to dismiss the suit of the plaintiff.
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3. It is submitted that some of the prayers seeking relief in respect of securities of benefit and the question as to who is entitled to the said securities must be adjudicated under Section 372 of Indian Succession Act, 1925 (hereinafter referred to as "Succession Act") and, therefore, the jurisdiction of the Civil Court is barred under the Succession Act.
4. It is further submitted that the jurisdiction in respect of shares in the two immovable properties in Greater Noida has been conferred upon Real Estate Regulatory Authority (RERA) and Section 79 of the Real Estate (Regulation & Development Act), 2016.
5. Furthermore, the Allotment Letter contains the Arbitration Clause which provides for settlement of disputes through Arbitration & Conciliation Act. Therefore, this Court has no jurisdiction to obey the subject matter to grant the relief.
6. It is further asserted that the Allotment Letter/ Agreement to Sell dated 18th May, 2019 in respect of Flat No.1902, 19th Floor, Block D-11 in Ace Divino, Greater Noida, Uttar Pradesh is in the sole name of Shri Ritesh Kumar Sinha. As per Clause 12 in case the allottee dies, the legal heirs of the deceased allottee are entitled to continue the booking only upon furnishing No Objection/ Consent, failing which the Company reserves the right to transfer the allotment, leaving the legal heirs to seek refund of the amount only in equal shares where there is no consent.
7. Further, as per Clause 68, 69 and 70, all disputes, differences and disagreements arising out of in connection with or in relation to the Allotment Letter which cannot be amicably settled shall be decided by the Sole Arbitrator appointed with mutual consent in accordance with the provisions of the Act. Similarly, the plaintiff is relying upon an Agreement
Signature Not Verified CS(OS) 277/2021 Page 9 of 18 Digitally Signed By:PRIYANKA ANEJA Signing Date:10.10.2022 11:47:06 to Sell dated 22nd October, 2020 with respect to Flat No.3152, 15th Floor, Tower-3, ATS Destinaire. Upon the death of Shri Ritesh Kumar Sinha, the plaintiff and defendant No.1 have become the joint allottees to the extent of share of Shri Ritesh Kumar Sinha. Further, as per Clause 37 of the Agreement, all the disputes arising out of or touching upon or in relation to the Agreement including its interpretation and validity and the respective rights and application of the parties are to be settled amicably by mutual discussion failing which the same are to be referred for adjudication through the Officer appointed under the Act which is Real Estate (Regulation & Development Act), 2016 and the rules made there under.
8. Under Section 79 of the RERA Act, it is provided that no Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which the Authority or the Adjudicating Officer or the Appellate Tribunal is empowered under the Act. It is thus, claimed that the issue of determining the quantum of refund which the defendant No.1/ plaintiff are entitled to receive out of the deposited amount can only be adjudicated by the Arbitrator or Real Estate Regulatory Authority (RERA). Therefore, the suit is liable to be rejected.
9. The plaintiff has sought the relief of declaration that she is the sole nominee in the Life Insurance Policy and IDFC First Bank Account of Late Shri Ritesh Kumar Sinha. Under Sections 371 and 372 of the Indian Succession Act, it is only the District Judge who has the jurisdiction to grant a Succession Certificate. It is thus claimed that since the jurisdiction lies with the District Courts under Section 371/372 and 373 of the Succession Act, the relief sought by the plaintiff are barred under Section 9 of the CPC.
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10. It is further asserted that the relief claimed in respect of IDFC First Bank Account and Max Life Insurance Policy, the rights of plaintiff and Defendant No.1 are enshrined under Section 8 of the Hindu Succession Act, 1956 which entitles Class-1 legal heirs jointly and severally. Further, Law of Nomination cannot supersede the Law of Succession. Therefore, no rights of the plaintiff have been violated and no cause of action has arisen in respect of the relief seeking 100% amount of Max Life Insurance Policy. Even if it is assumed that the plaintiff is the sole nominee, Section 39(7) of the Insurance Act cannot overwrite Section 8 of Hindu Succession Act.
11. It is further asserted that the plaintiff has suppressed and concealed that defendant No.1 has been residing (and recovering) at the residence of defendant No.5 (who is its married daughter) in Jaipur, Rajasthan. Defendant No.1 is suffering from breast cancer and has undergone surgery and has been advised complete bed rest at Jaipur. Again, these facts have been concealed and falsely claimed that defendant No.1 is resident of Delhi.
12. The plaintiff has further concealed that defendant No.1 has no source of income and no properties of her own to live in while the plaintiff is well qualified and working. The plaintiff has concealed that she is working as Assistant Vice President, Risk & Financial Analyst, Barkleys, Noida and earning handsome salary and also has other sources of income, while defendant No.1 who is a widow, senior citizen and a cancer survivor has suffered irrepairable loss as she has already lost her husband as well as her only son on whom she was heavily dependent emotionally and financially. The plaintiff being the daughter-in-law has never supported Defendant No.1 in any way especially after the demise of Shri Ritesh Kumar Sinha. A prayer is, therefore, made that the suit of the plaintiff is liable to be
Signature Not Verified CS(OS) 277/2021 Page 11 of 18 Digitally Signed By:PRIYANKA ANEJA Signing Date:10.10.2022 11:47:06 dismissed as barred under the Succession Act, RERA Act, and Arbitration & Conciliation Act, 1996.
13. Learned counsel for the defendant has relied upon the case of Seema Arshad Zahir & Ors. Vs. Municipal Corporation of Greater Mumbai & Ors. (2006) 5 SCC 282 to argue that the discretion of the Court is exercised to grant a temporary injunction only when the Triple Test of Prima facie Case, Balance of Convenience and Irreparable Loss & Injury is satisfied. Besides, in addition, temporary injunction being an equitable relief, the discretion to grant such relief can be exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands.
14. Likewise, in Dalip Singh Vs. State of Uttar Pradesh & Ors. (2010) 2 SCC 114, it was observed that where a party approaches the Court by suppressing facts and misleading the Court, then such party is not entitled to be heard on merits and cannot invoke the extraordinary or the discretionary jurisdiction under Article 32, 226 and 136 of Constitution of India.
15. Similarly, in Anil Khanna vs. Geeta & Ors. ILR (2014) 1 Del 1, it was observed that unnecessary scandalous, frivolous and fictitious pleadings which tend to prejudice and embarrass or delay the fair trial are liable to be struck of.
16. Learned Counsel for the defendant has also relied upon D.R. Chawla & Ors. vs. MCD (1993) 3 SCC 162 to argue that where statutory enactments only create rights and liabilities without providing a forum for remedy, a person having a grievance that he has been wronged or his right have been affected can approach the Civil Court on the principle of law that where there is a right there is a remedy - ubi jus ibi remedium. Where a particular Act creates a right or liability and also provides a forum for enforcement of
Signature Not Verified CS(OS) 277/2021 Page 12 of 18 Digitally Signed By:PRIYANKA ANEJA Signing Date:10.10.2022 11:47:06 such right or protection from enforcement of liability, without any Authority or law, the ouster of Court's jurisdiction can be upheld on the finding that the rights or liabilities in question have been created by the Act without touching a pre-existent common law right and the remedy provided therein is adequate and complete. But the situation would be different where a statute purports to curtail a pre existing common law right and purports to oust the jurisdiction of the Court so far as the remedy against the orders passed under such statute is concerned. In such cases, the Court have to be more vigilant while examining the question as to whether an adequate redressal machinery has been provided before which the person aggrieved may agitate his grievance. In spite of the bar placed on the power of the Court, order passed under such statute can be examined on jurisdictional question.
17. Learned counsel for the defendant has also placed reliance on the judgment of Kenche Gawda vs. Sidde Gawda (1994) 4 SCC 294 wherein it was observed that a suit for partial partition on all the joint family properties is not made the subject matter of the suit nor the co-sharers are impleaded, it would not be maintainable.
18. The plaintiff in the detailed reply has submitted that the present application has been filed only with the ulterior motive to harass the plaintiff and the present application has no merit. It is asserted that this Court has jurisdiction to adjudicate upon the immovable and movable properties of the deceased Shri Ritesh Kumar Sinha. The defendant No.1 has no right to proceed against the plaintiff/ Star City Real Estate Pvt. Ltd. (Promoter of Ace Divino) before the Appellate Authority under Real Estate Regulatory Act (RERA), 2016. Further, defendant No.1 has claimed that M/s Star City
Signature Not Verified CS(OS) 277/2021 Page 13 of 18 Digitally Signed By:PRIYANKA ANEJA Signing Date:10.10.2022 11:47:06 Real Estate Pvt. Ltd and M/s ATS Grand Realtors Pvt. Ltd. should be made a party which reflects a clear intention to get her money claim adjudicated from this Court. However, since the matter relates to the estate of deceased Shri Ritesh Kumar Sinha, M/s Star City Real Estate Pvt. Ltd. and M/s ATS Grand Realtors Pvt. Ltd. are neither necessary nor a proper party to the present suit.
19. It is further asserted that defendant No.1 vide her letter dated 05 th July, 2021 has conveyed that she is unwilling to continue with the bookings/ Allotment Agreement and has sought refund of her amount which is limited to 50% of the amount paid by Shri Ritesh Kumar Sinha. This Court, therefore, has the jurisdiction to adjudicate the present suit.
20. The plaintiff has further asserted that she has no knowledge about defendant No.1 residing permanently at Jaipur, Rajasthan with defendant No.5. She also has no information that defendant No.4 and 5 have ceased to occupy the Capital Apartment, Vasundhara Enclave, New Delhi, after their marriage. The Defendant No.1 has admitted that in 2013 the family of defendant No.1 was residing in Vasundhara Enclave, New Delhi. The plaintiff was kept under an impression that the lease of Capital Apartment at Vasundhara Enclave has been continued and defendant No.1 continues to stay there while she sometimes also visits her daughter/ defendant No.5 at Jaipur.
21. It is further asserted that the money lying in IDFC Bank and YES Bank, Max Life Insurance Policy, Shares in SR Ecommerce Factory Private Limited are all situated within the jurisdiction of this Court. The District Judge cannot adjudicate in respect of the present proceedings and Section
Signature Not Verified CS(OS) 277/2021 Page 14 of 18 Digitally Signed By:PRIYANKA ANEJA Signing Date:10.10.2022 11:47:06 371/372 of the Indian Succession Act has been wrongly interpreted by defendant No.1.
22. Learned counsel on behalf of the plaintiff has relied upon Ranjan Kumar Singh vs. Angoori Singh (2010) 116 DRJ 728 to argue that in an application under Order VII Rule 11, the Court has to confine itself solely to the averrments made in the plaint and the defences as pleaded in the written statement or in any other pleadings of the defendant should not be considered to examine the correctness of the contents of the plaint. It is submitted that the application is without merit and is liable to be rejected.
23. Submissions heard.
24. The first objection taken in the application for rejection of the plaint is that the immovable properties are located outside Delhi and the suit for partition in respect of immovable properties is not maintainable in Delhi. This aspect has already been considered in the application under Order VII Rule 10 CPC wherein it was observed that the suit for partition in respect of the immovable properties is not maintainable in Delhi since none of the property is located in Delhi and the plaint vis-a-viz the immovable properties has been directed to be returned.
25. The second ground on which the rejection has been sought is that the plaintiff is seeking a declaration that she is the sole nominee in the Life Insurance Policy and IDFC First Bank account of Late Shri Ritesh Kumar Sinha. Under Section 371 and 372 of Indian Successions Act, it is only the District Judge who is competent and has jurisdiction to grant a Succession Certificate in respect of the debts and securities of a deceased person. This suit is, therefore, barred under Section 370 of the Indian Succession Act. The comprehensive reading of the plaint shows that the plaintiff who is the
Signature Not Verified CS(OS) 277/2021 Page 15 of 18 Digitally Signed By:PRIYANKA ANEJA Signing Date:10.10.2022 11:47:06 wife of the deceased Shri Ritesh Kumar Sinha has made specific averments that she and defendant No.1 who is the mother of the deceased are entitled to 50% share in all the movable and immovable assets of the deceased Late Shri Ritesh Kumar Sinha. It is further claimed by her in her plaint that while Shri Ritesh Kumar Sinha was critically ill, her name as nominee in the various policies and bank accounts had been fraudulently changed by defendant No.4 and 5 solely with the intent of depriving her of her right to the amounts. It is quite evident that what she is claiming is a share in the movable properties, bank accounts and policies of the deceased Shri Ritesh Kumar Sinha. She may have claimed a declaration that she be declared as a sole nominee and the relief may not have been worded correctly, but the comprehensive reading of the plaint clearly shows that her claim is to her share in the movable assets of the deceased. That being the case, suit for partition, cancellation, mandatory and permanent injunction in respect of the movable properties of the deceased is maintainable.
26. Section 371, 372 and 373 of the Indian Succession Act deals with issue of Succession Certificates which is essentially to determine who is entitled to receive the amounts but does not determine the ownership in the said amounts which can be determined only in a Civil Suit. The objection taken in this regard is not tenable.
27. The third objection taken on behalf of the defendant is in regard to the lack of jurisdiction of this Court under Section 39 of the Life Insurance Act, 1938. In Smt. Sarbati Devi & Anr. vs. Uma Devi, AIR 1984 SC 346, it has been held that Section 39 of the Life Insurance Act, 1938 does not operate as a third kind of succession which can be styled as a statutory testament and a nominee cannot be treated as being equivalent to an heir or legatee. The
Signature Not Verified CS(OS) 277/2021 Page 16 of 18 Digitally Signed By:PRIYANKA ANEJA Signing Date:10.10.2022 11:47:06 amount received under the Policy, therefore, can be claimed by the heir of the insured in accordance with Law of Succession governing them. Similarly, in Ram Chander Talwar & Anr. vs. Devender Kumar Talwar (2010) 10 SCC 671, it was observed that by no stretch of imagination the nominee becomes the owner of the money lying in the account. It was observed that it needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concern with the law of Successions. All the moneys receivable by the nominees by virtue of Section 45-ZA (2) would therefore form part of the estate of the deceased depositor and would devolve according to the rules of Succession by which the depositor may be governed.Therefore, this objection taken by the defendant is not tenable.
28. The fourth objection taken in the application is that none of the defendants are residing in Delhi. Section 20 of the Code of Civil Procedure, 1908 defines where the suits other than in respect of the immovable properties may be instituted. It states that the suit may be instituted (a) within the local limits of the Court in whose jurisdiction the defendants or each of the defendant, where there are more than one defendant, at the commencement of the suit actually and voluntarily reside for carrying on business or personally works for gain or (b) where the case of action wholly or in part arises.
29. In the present case, Defendant No.4 and 5 are not residing in Delhi. The defendant has claimed that defendant No.1 is suffering from breast cancer and has undergone surgery and is at complete bed rest at Jaipur, Rajasthan at the residence of defendant No.5, her married daughter. It is claimed that defendant No.1 is not a resident of Delhi.
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30. First and foremost, merely because defendant No.1 has chosen to presently reside in Jaipur with the married daughter/ defendant No.5 would not ipso facto lead to a conclusion that she has abandoned her residence at Delhi or has permanently shifted to Jaipur. Merely because of her medical condition, she may have for the present shifted to Jaipur, but no inference can be drawn that she has ceased to have any residence in Delhi, where she was admittedly residing.
31. Furthermore, the cause of action has arisen in Delhi as the various movable properties pertain to Life Insurance Company and IDFC First Bank which are located in Delhi. Clearly, cause of action in respect of these bank accounts/ insurance policy has taken place in Delhi and, therefore, it cannot be said that this Court has no territorial jurisdiction to entertain the present suit in respect of moveable properties.
26. The objections taken in the application under Order VII Rule 11 CPC are not tenable. The application is hereby dismissed. CS(OS)277/2021
1. List this matter before the learned Joint Registrar for completion of pleadings in the main suit and other pending applications on 05th December, 2022.
2. In the mean while proposed issues be filed by all the parties.
(NEENA BANSAL KRISHNA) JUDGE OCTOBER 10, 2022 va
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