Amiteshwar Singh vs Kamal Nain & Anr
2022 Latest Caselaw 2552 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment Reserved on : 22nd September, 2022
                              Judgment Delivered on: 13th October, 2022

+                             CS(OS) 1439/2015

        AMITESHWAR SINGH                               ..... Plaintiff
                    Through:            Mr.   Akshay   Makhija,        Senior
                                        Advocate with Mr. Saurabh Seth,
                                        Advocate.
                           versus

        KAMAL NAIN & ANR                                  ..... Defendants
                     Through:           Ms. Deepika V. Marwaha, Senior
                                        Advocate with Ms. Worthing Kasar,
                                        Mr. Alok Pandey and Ms. Raunika
                                        Johar, Advocates for defendant No.1.
                                        Mr. Anuj Malhotra, Advocate for
                                        defendant No.2.

CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL

                           JUDGMENT

AMIT BANSAL, J.

I.A. 5693/2017 (O-VII R-11 of CPC)

1. By way of this judgment, I shall decide the application filed on behalf of the defendant no.1 under Order VII Rule 11 of the Civil Procedure Code, 1908 (CPC) seeking rejection of plaint.

2. The present suit was filed on behalf of the plaintiff seeking partition and permanent injunction in respect of property bearing no.64 B, Sainik Farms, New Delhi (hereinafter referred to as „suit property‟).

3. Summons in the suit were issued on 19th May, 2015 and the parties were directed the maintain status quo in respect of the suit property vide the Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41

same order. On 5th September, 2016 issues in the suit were framed and the interim order was confirmed.

4. Subsequently, the present application under Order VII Rule 11 of the CPC, was filed on behalf of the defendant no.1. Notice in the application was issued on 11th May, 2017 and reply has been filed by the plaintiff.

5. The pleadings in the plaint insofar as are relevant for deciding of the present application are set out below:

i. Plaintiff is the son of late Shri Surinder Singh Chowdhary and late Smt. Punit Kaur. The Defendants are the elder sisters of the plaintiff. ii. Shri Surinder Singh Chowdhary expired on 3rd November, 2013 and subsequently, Smt. Punit Kaur expired on 5th February, 2014 leaving behind plaintiff and the defendants as the sole surviving legal heirs. iii. Late Shri Surinder Singh Chowdhary was the Karta of Surinder Singh Chowdhary HUF (hereinafter „HUF‟), which owned shares in one M/s Anjala Exhibitors Private Limited. The said shares were sold in the year 1988 and the proceeds thereof were invested in HUDCO Tax Saving Bonds.

iv. The aforesaid bonds were subsequently redeemed on 21 st June, 1991 and amounts thereof were received in the account of the HUF. v. The plaintiff along with the plaint has filed letter dated 20th June, 1988 issued by the Assistance Finance Officer, HUDCO confirming the redemption and Income Tax Assessment orders in respect of the aforesaid bonds.

vi. In early 1992, late Shri Surinder Singh Chowdhary, as Karta of the HUF purchased the suit property from the funds of the HUF received upon the redemption of the aforesaid bonds. The sale deed dated 18th August 1992 was executed in the name of late Shri Surinder Singh Chowdhary as the Karta of the HUF for the benefit of other Signature Not Verified coparceners. Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41

vii. The suit property was let out by late Shri Surinder Singh Chowdhary to various tenants and the rents received therefrom were deposited in the HUF accounts. Reliance is placed on the TDS certificates filed by the tenants to show that TDS was being deposited in the name of the HUF.

viii. Late Shri Surinder Singh Chowdhary executed a Will dated 15th May, 2007 bequeathing the entire suit property to the defendants in equal proportion. The plaintiff contends that the aforesaid Will has been made under a misconception as the suit property was always an HUF property and late Shri Surinder Singh Chowdhary could not have bequeathed the entire suit property in favour of the defendants. The Will itself provided that share of Shri Surinder Singh Chowdhary in HUF would be divided equally between his wife, the plaintiff and the defendants. Probate proceedings initiated by the defendant no.1 in respect of the aforesaid Will are pending before the District Court. ix. At the time of death of late Shri Surinder Singh Chowdhary, the HUF comprised of his wife, the plaintiff and the defendants and therefore, each of them had 25% share in the suit property. Subsequently, in terms of the Will of his mother, the plaintiff acquired her share in the suit property and therefore, the share of the plaintiff became 50% in the suit property. Consequently, the share of the defendant no.1 is limited to 25% share in the suit property.

SUBMISSIONS OF THE DEFENDANT NO.1

6. Senior counsel appearing on behalf of the defendant no.1 has made the following submissions in support of the present application: i. The suit property was not purchased in the name of HUF but in the individual name of late Shri Surinder Singh Chowdhary and that is why the plaintiff did not file a copy of the sale deed dated 18th Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41

August, 1992 along with the plaint. Copy of the sale deed dated 18th August, 1992 was filed by the defendant no.1 along with the present application.

ii. No challenge has been made on behalf of the plaintiff to the sale deed dated 18th August, 1992. Nothing can be pleaded which is contrary to the contents of the registered sale deed.

iii. The lease deeds dated 1st May, 2001 and 15th November, 2004 in respect of the suit property filed along with the plaint also do not show that the owner of the property was the HUF. As is evident from the aforesaid lease deeds, the suit property was a self-acquired property of late Shri Surinder Singh Chowdhary and was let out by him in his individual capacity to various tenants. iv. No documents have been filed along with the plaint to establish that the suit property is an HUF property. The Will of the late father of the parties clearly states that the aforesaid property was a self-acquired property and therefore, the same has been validly bequeathed to the defendants no.1 and 2 equally. No reliance can be placed on the TDS certificates filed by the plaintiff to contend that the suit property was an HUF property.

v. There are no averments in the plaint to bring the plaint within the exceptions provided in Section 4 (3) (a) of the Benami Transaction (Prohibition) Act, 1988 as it existed prior to its amendment on 1st November, 2016.

vi. Reliance has been placed on the following judgments:

a. Raghwendra Sharan Singh v. Ram Prasanna Singh (2020) 16 SCC

601. b. Sunny (Minor) & Anr. v. Raj Singh & Ors. 225 (2015) DLT 211. c. Sagar Gambhir v. Sukhdev Singh Gambhir & Anr. 2016 (159) DRJ Signature Not Verified

718. Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41

d. Sagar Gambhir v. Sukhdev Singh Gambhir Thr. Legal Heirs & Anr.

241 (2017) DLT 98 (DB) SUBMISSIONS OF THE PLAINTIFF

7. Senior counsel appearing on behalf of the plaintiff has made the following submissions:

i. Clear pleadings have been made in the plaint with regard to existence of the HUF and the defendants have not disputed the existence of the HUF or the corpus of the HUF. Various documents such as PAN card, Income Tax Assessments and copies of Bonds in the name of HUF have been filed in support of the existence of the HUF. ii. The suit property has been purchased from the funds belonging to the HUF.

iii. The sale deed in respect of the suit property is in the name of late Shri Surinder Singh Chowdhary. However, he was the Karta of the HUF at that point of time and therefore, held the same in his capacity as the Karta of the HUF for the benefit of all coparceners. iv. TDS certificates have been issued by the tenant, M/s Harak Chandra Flour Mills Ltd. in the name of the HUF.

v. The case is covered under the exception provided in Section 4 (3) (a) of the Benami Transactions (Prohibition) Act, 1988. vi. The present application has been filed at a belated stage when the suit was at the stage of recording of evidence. Specific issues have already been framed by this Court in respect of the grounds taken in the present application.

vii. The grounds taken in the present application cannot be decided at the stage of dealing with an application under Order VII Rule 11 of CPC and can only be decided after trial. At the stage of deciding an

Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41

application under Order VII Rule 11 of CPC, all averments made in the plaint have to be taken to be true.

viii. Judgments relied upon by the defendants are distinguishable and would not apply to the facts and circumstances of the present case. ix. Reliance has been placed on the following judgments:

a. Sukruti Dugal v. Jahnavi Dugal and Ors. 2020 SCC OnLine

b. Pawan kumar v. Babulal 2019 (4) SCC 367 c. Neeru Dhir and Ors. v. Kamal Kishore Dhir and Ors. 2020 SCC OnLine Del 2506 OBSERVATIONS AND FINDINGS

8. I have heard the counsels for the parties.

9. It is a settled position of law that in order to decide an application under Order VII Rule 11 of the CPC, reference has to be made only to the averments made in the plaint and the documents filed along with the plaint.

10. From the documents filed along with the plaint, including the receipts in respect of HUDCO Tax Saving Bonds, Income Tax Assessment orders as well as the PAN card of the HUF, there cannot be any dispute with regard to existence of the HUF. Existence of the HUF has also been admitted in the Will dated 15th May, 2007 executed by the father of the parties.

11. Senior counsel for the defendant no.1 submits that there is a discrepancy in the name of the HUF occurring in various documents. However, in my view, that would not make any difference to the fact that an HUF by the name of Shri Surinder Singh Chowdhary HUF was in existence.

12. Since, both the parties have placed extensive reliance on Section 4 of the Benami Transaction (Prohibition) Act, 1988 as it existed prior to 1st November, 2016 (hereinafter referred to as „unamended Benami Act‟), the relevant portion is set out below:

Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41

"4. Prohibition of the right to recover property held benami- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on held of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

(3) Nothing in this section shall apply,-

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or"

13. Under Section 4(1) of the unamended Benami Act, a suit cannot be filed on the ground that the property was held benami against a person in whose name the property is held. An exception to Section 4(1) of the unamended Benami Act is provided in Sub-Section (3) of Section 4 which states that provisions of Section 4 would not apply in cases where the property is held in the name of a coparcener in an HUF and the property is held for the benefit of the coparceners in the family.

14. Senior counsel for the plaintiff has placed reliance upon the judgment of the Supreme court in Pawan Kumar (supra) to contend that whether the matter comes within the purview of Section 4(3) of the unamended Benami Act is an aspect which has to be decided after trial and not at the stage of Order VII Rule 11 of the CPC. The relevant observations are set out below:

"13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject-matter of assessment at the stage when application under Order 7 Rule 11 CPC was taken up for consideration. The matter required fuller and finalSignature consideration Not Verified Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41

after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not...."

15. The aforesaid judgment was followed by a Division Bench of this Court in Neeru Dhir (supra) wherein this Court has held that the plaint ought not to be rejected under Order VII Rule 11 of the CPC outrightly on the ground that the plea taken by the plaintiffs is barred under Section 4(3) of the unamended Benami Act.

16. The same Division Bench in Sukruti Dugal (supra) has held that at the stage of deciding an application under Order VII Rule 11 of the CPC, the Court has to assume that all averments made in the plaint are true and the entire plaint must be read as a whole to determine whether it discloses any cause of action. The opinion of the Court that the plaintiff may not ultimately succeed in the suit, cannot be the basis for rejecting the plaint. Relevant observations are set out as under:

"12. As can be seen from the aforesaid discussion, a plaint cannot be rejected on the basis of allegations levelled by the defendant in the written statement or for that matter, in an application moved under Order VII Rule 11 CPC, for seeking rejection of the plaint. In exercise of its powers under Order VII Rule 11 CPC, the court is required to look into the averments made in the plaint, which alone are germane. The entire plaint must be read as a whole to determine as to whether it discloses a cause of action. In undertaking the said exercise, the court is not expected to consider a particular plea and instead, the averments made in the plaint in entirety, have to be taken to be correct. Since a cause of action comprises of a bundle of facts, the same are required to be proved by the plaintiff only at the time of the trial. Only the material facts are required to be stated in the plaint without referring to the evidence except in circumstances where the pleadings relate to misrepresentation, fraud, undue influence, wilful default etc. As long as the court is satisfied that the plaint discloses some cause of action that requires determination, the Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41

plaint ought not to be rejected. At the end of the day, the court must be mindful of the fact that the underlying object of Order VII Rule 11 CPC is to nip in the bud, irresponsible and vexatious suits. At the same time, the opinion of the court that the plaintiff may not ultimately succeed in the suit, ought not to form the basis for rejecting the plaint."

17. Senior counsel for the defendant no.1 has sought to distinguish the aforesaid judgment on the ground that in the said case the plaintiff had filed sufficient documents with regard to the existence of HUF as well as throwing of the suit property into the common hotchpotch of the HUF. The present case is not a case where the suit property was subsequently put into the common hotchpotch of the HUF. It is the case of the plaintiff that the suit property was purchased from the funds of the HUF and was held by the father of the parties in his capacity as the karta of the HUF for the benefit of all other coparceners. Therefore, there are factual differences in the case at hand and that before the Division Bench. However, the principles laid down in the said judgment in respect of rejection of a plaint under Order VII Rule 11 of the CPC are fully applicable to the facts of the present case.

18. At this stage, it may be relevant to set out the relevant pleadings in the plaint in respect of the suit property being an HUF property. The relevant portions are set out below:

"5. That Late S. Surinder Singh Chowdhary was the Karta of the Chowdhary Surinder Singh Chowdhary (HUF). The said HUF owned shares in one M/s Anjala Exhibitors Pvt. Ltd. which ran and operated the famous 'Payal Cinema' in Naraina, New Delhi.

6. That the HUF sold its shares in M/s Anjala Exhibitors Pvt. Ltd. in the year 1988 and the proceeds thereof were invested in HUDCO Tax Saving Bonds for the purposes of saving capital gains tax. These Bonds were ultimately redeemed for a sum of Rs. 19.90 lacs on 21.06.1991 and the proceeds of the redemption were taken in the account of the HUF. The receipts dated 16.06.1988 and 21.06.1988 evidencing the above investments in the name of the HUF are Signature Not Verified annexed with the Plaint along with a letter dated 20.06.1991 issued Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41

by the Assistance Finance Officer, HUDCO confirming the redemption of the said funds in the name of the HUF. The Plaintiff has also filed along with the Plaint, and Income Tax Assessment orders which show that the funds of the HUF were utilized towards the purchase of the aforesaid bonds.

7. That in early 1992, late S. Surinder Singh Chowdhary as Karta of the HUF purchased the Suit Property from the funds placed in the accounts of the HUF from the redemption of the bonds as aforesaid. The Sale Deed dated 18.08.1992 for the Suit Property was thus executed in the name of late S. Surinder Singh Chowdhary as the Karta of the HUF. However the Karta was holding the said property on behalf of the HUF for the benefit of all coparceners."

19. In the paragraphs set out above, it has clearly been averred that the HUF received a sum of Rs.19.90 lacs on 21st June, 1991 from the redemption of the HUDCO Tax Saving Bonds held by the HUF. A reference has also been made to various documents with regard to the same and they have been filed along with the plaint. It has clearly been averred that late Shri Surinder Singh Chowdhary, as the karta of the HUF, purchased the suit property from the funds of the HUF. The suit property was purchased for a consideration of Rs.5,40,000/- vide sale deed dated 18th August, 1992, soon after a sum of Rs.19.90 lacs was received by the HUF from the sale of HUDCO Bonds. It has also been specifically pleaded that the late Shri Surinder Singh Chowdhary, being the karta of the HUF was holding the suit property on behalf of HUF for the benefit of all the coparceners. Along with the plaint, the plaintiff has also filed TDS certificates issued by the tenant in the suit property in favour of the HUF.

20. Applying the law laid down in the aforesaid judgments to the facts of the present case, the plaintiff has made the necessary averments in the plaint and filed documents along with the plaint in support of his case that the suit property was purchased from the funds of the HUF. Further, the plaintiff has also pleaded that the suit property was held by the father of the parties in his Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41

capacity as the karta for the benefit of the coparceners. The plaintiff has made the necessary averments in the plaint so as to fall within the exception provided under Section 4 (3) (a) of the unamended Benami Act. Therefore, the plaint cannot be outrightly rejected under the provisions of under Order VII Rule 11 of the CPC. At the stage of Order VII Rule 11 of the CPC, the Court cannot go into the veracity of the pleas taken in the plaint or its truthfulness. The same can only be tested in a trial.

21. Now I shall deal with the judgments relied upon by the defendant no.1.

22. Senior counsel for the defendant no.1 has placed reliance on the judgment of the Supreme Court in Raghwendra Sharan Singh (supra) in support of her contention that if the original sale deed was in the name of late Shri Surinder Singh Chowdhary and the plaintiff believed that the said property was purchased from the funds of the HUF, the plaintiff should have challenged the aforesaid sale deed. In the case before the Supreme Court, there was a gift deed in favour of the defendant, which was not challenged by the plaintiff. The plaintiff therein filed a suit seeking declaration that the gift deed executed in favour of the defendant therein was a sham transaction and therefore, the title never passed to the defendant therein. The Supreme Court allowed the application under Order VII Rule 11 of the CPC filed on behalf of the defendant no.1 on the ground that the plaintiff did not pray for any declaration to set aside the gift deed and the said prayer was not made on account of clever drafting as had such a prayer been made, the same would have been time barred.

23. The aforesaid observations of the Supreme Court were made in the context of a suit filed challenging the gift deed and not in the context of a partition suit pending between the parties thereto, which is evident from a reading of paragraphs 3 and 3.1 of the said judgment. In the present case, Signature Not Verified there was no need for the plaintiff to challenge the sale deed as it is the case Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41

of the plaintiff that the sale deed was in the name of father of the parties, albeit in his capacity as the karta of the HUF and for the benefit of all coparceners. Therefore, the aforesaid judgment would be of no assistance to the defendant no.1.

24. The senior counsel on behalf of the defendant no.1 has also relied upon the judgments of the Coordinate Benches of this Court in Sunny (Minor) (supra) and Sagar Gambhir (supra) in support of her submission that the plaintiff has to give details in the plaint as to how a particular self- acquired property has become an HUF property. In the present case, it is not the case of the plaintiff that the suit property was subsequently put into the common hotchpotch of an HUF by late Shri Surinder Singh Chowdhary. As noted above, the case of the plaintiff is that the suit property in the first instance was acquired as an HUF property. Therefore, the judgments in Sunny (Minor) & Anr. (supra) and Sagar Gambhir (supra) would not have any application in the facts of the present case.

25. It has been vehemently contended on behalf of the defendant no.1 that the plaintiff has failed to file any documents in support of his claim that the suit property belonged to the HUF. In my view, this aspect would be the subject matter of a trial. The scope of an application under Order VII Rule 11 of the CPC is limited only to the extent whether or not in terms of averments made in the plaint and the documents filed along with the plaint, the suit is maintainable. Needless to state that the plaintiff would have to prove in the trial, whether the suit property was actually purchased from the funds of the HUF or whether the suit property was treated as an individual property of the father of the parties or as an HUF property. At this stage, the Court cannot prejudge whether the plaintiff would be in a position to prove the same or not. The issues can only be determined after a proper trial. At this stage, it cannot be said that the present suit is vexatious or the plaint is Signature Not Verified barred by any law. Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41

26. In view of the discussion above, no grounds have been made out for rejection of the plaint under the provisions of Order VII Rule 11 of the CPC. There is no merit in the application and the same is dismissed.

27. Needless to state any observations made herein are only for the purposes of deciding the present application and would have no bearing on the final adjudication of the suit.

CS(OS) 1439/2015

28. List before the Joint Registrar on 15th November, 2022 for fixing the dates of trial.

AMIT BANSAL, J.

OCTOBER 13, 2022 at

Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:13.10.2022 11:44:41