Telangana High Court
Bajranglal Agarwal vs Smt.Susheela Agarwal on 20 August, 2024
IN THE HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD
***
CCCA.No.62 of 2024
Between:
Bajranglal Agarwal
Petitioner/Appellant
VERSUS
Smt.Susheela Agarwal and others
Respondents
ORDER PRONOUNCED ON: 20.08.2024
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE M.G.PRIYADARSINI
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether Her Ladyship wishes to
see the fair copy of the Judgment? : No
_________________________________
MOUSHUMI BHATTACHARYA, J
2
MB,J & MGP,J
CCCA.No.62 of 2024
* THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE M.G.PRIYADARSINI
+ CCCA.No.62 of 2024
ORDER:
% Dated 20.08.2024
# Between:
Between:
Bajranglal Agarwal
Petitioner/Appellant
VERSUS
Smt.Susheela Agarwal and others
Respondents
! Counsel for appellants : Mr.Vedula Srinivas, learned
Senior Counsel.
^ Counsel for respondent No.1 : Mr.Vedula Venkatramana, learned
Senior Counsel.
Counsel for respondent No.2 : Ms.Manjhari S. Ganu.
Counsel for respondent No.3 : Mr.Dishit Bhattacharjee, learned
Senior Counsel.
< GIST :
> HEAD NOTE :
? Cases referred :
1 (2004) 9 SCC 512
2 (2004) 3 SCC 137
3 (1999) 3 SCC 267
4 (2005) 10 SCC 51
5 (1997) 4 SCC 467
6 (1998) 2 SCC 70
7 (2020) 7 SCC 366
8 202 SCC OnLine 521
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THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE M.G.PRIYADARSINI
JUDGMENT: (Per Hon'ble Justice Moushumi Bhattacharya)
The Appeal arises out of an order dated 31.01.2024 passed by the
XI Additional Chief Judge, City Civil Court, at Hyderabad in an
application made by the respondents/defendants under Order VII Rule
11 of The Code of Civil Procedure, 1908 ('CPC') for rejection of the plaint
filed in the appellant's Suit.
2. The appellant/plaintiff filed a Suit before the Trial Court for
partition of the suit schedule property by allotting 1/3rd share to the
appellant and for declaration of the Gift Settlement Deed executed by the
respondent No.1/defendant No.1 in favour of the respondent
No.2/defendant No.2 on 09.12.2022 as null and void. By the impugned
order, the defendants' (respondents herein) application under Order VII
Rule 11 of CPC was allowed and the appellant's plaint was rejected.
3. A brief explanation of the relevant facts is required to be stated:
4. The appellant/plaintiff is the youngest son, respondent No.2 is the
eldest son and respondent No.3 is the 2nd son of the respondent No.1.
5. The appellant filed the Suit - O.S.No.124 of 2023 - against the
respondents i.e., the mother and the 2 remaining brothers, for partition
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of the suit schedule property and allotment of 1/3rd share to the
appellant. The appellant also sought for cancellation of a Gift Settlement
Deed executed by respondent No.1/mother in favour of respondent
No.2/eldest son.
6. From section IV of the plaint - "Cause of Action" - the following
facts would appear:
6.1. The respondent No.1/mother executed a Will Deed on 16.08.2022
and cancelled the said Will Deed on 09.12.2022. The respondent No.1
executed a registered Gift Settlement Deed on the same date i.e., on
09.12.2022 in favour of the respondent No.2. In December 2022, the
appellant requested the respondents to partition the suit schedule
property which was refused by the respondents in December 2022. The
appellant filed the Suit on 10.03.2023 for the relief as stated above.
7. The respondents filed I.A.No.1881 of 2023 under Order VII Rule 11
of the CPC for rejection of plaint. The Trial Court allowed the
respondents' application for rejection of plaint, inter alia, on the ground
of the appellant having failed to present the relevant facts with regard to
the suit schedule property and that the appellant also admitted the right
of the respondent No.1/mother as the owner of the suit schedule
property. The Trial Court also found that the plaint lacked a valid cause
of action and is barred by law.
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8. Learned Senior Counsel appearing for the appellant submits that
the appellant's father purchased the suit schedule property in the name
of respondent No.1 (plaintiff's mother) and she executed a registered Will
Deed bequeathing the suit schedule property in the name of all the sons
including the appellant. Counsel submits that the respondent
No.2/elder son prevailed upon the respondent No.1 for obtaining the
entire suit schedule property which led to cancellation of the Will Deed
on 09.12.2022 and execution of the Gift Settlement Deed on the same
day by the respondent No.1 in favour of the respondent No.2. Counsel
also urges that the Suit required a full-fledged trial particularly since the
respondent No.1/mother is only an ostensible owner and not the real
owner of the suit schedule property.
9. Learned Senior Counsel appearing for the respondent No.1/mother
submits that respondent No.1 purchased the suit schedule property
under a registered Sale Deed dated 05.11.1988 and that she is the
absolute owner of the said property, namely a house which forms the
sole property in the plaint schedule. Counsel submits that none of the
sons have any legal right to seek partition or allotment of the house
property or 1/3rd share thereof since the respondent No.1 is absolute
owner of the suit schedule property.
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10. Learned Senior Counsel appearing for the respondent No.2/elder
son relies on the settled legal position that only the statements made in
the plaint need to be looked at for ascertaining a valid cause of action.
Counsel reiterates that the respondent No.1/mother had consistently
asserted her absolute and exclusive ownership since 05.11.1988 by
virtue of a Sale Deed executed on that date. Counsel further submits
that the appellant cannot now turn around to question the same in
December, 2022 having accepted the Will Deed dated 16.08.2022 which
specifically refers to the absolute ownership of the respondent No.1.
11. Learned Senior Counsel appearing for the respondent No.3 (second
son of the respondent No.1) reiterates the stand taken on behalf of the
respondent No.1/mother and the respondent No.2/elder brother and
relies on decisions to submit that the appellant failed to show any basis
for the suit schedule property being a HUF property or any justification
for the reliefs claimed in the Suit.
The statements made in the Plaint
12. This is necessary for the purpose of an action under Order VII Rule
11 of the CPC for rejection of plaint. We only refer to the statements
made in the plaint which are relevant to the issue of cause of action.
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(i) Section III of the plaint contains a statement on the brief facts of
the case. Paragraph No.1 refers to the plaintiff (appellant herein)
and the respondent Nos.2 and 3, being the sons of the Late
Purushottam Das Agarwal and respondent No.1. The plaintiff
further states that Late Purushottam Das Agarwal purchased the
house property in the name of his wife/respondent No.1 by way
of a registered Sale Deed dated 05.11.1988 (the suit schedule
property).
(ii) Paragraph No.2 states that Late Purushottam Das Agarwal died
on 19.09.1992 and the respondent No.1 managed the Joint
Family Properties from that date onwards. The plaintiff and the
defendants are in joint possession of the suit schedule property.
(iii) Paragraph No.4 states that the defendant/respondent No.1
managed the family properties in her name and intended that the
suit schedule property should devolve among her sons. The
respondent No.1 bequeathed the entire suit schedule property by
way of Will among her 3 sons in equal measures and all the 3
sons got 1/3rd share each in the said property.
(iv) Paragraph No.6 states that none of the defendants had raised
any objection with regard to the division of the shares in the suit
schedule property but that the defendant No.2 (the respondent
No.2 herein - elder son) changed the attitude of the respondent
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No.1/mother by making false claims. The respondent No.2 and
his family is "economically backward" compared to the other sons
and hatched a plan to get the entire suit schedule property in his
name. The respondent No.2 succeeded in cancellation of the
registered Will Deed dated 16.08.2022 with the help of other
family members, without the consent of the plaintiff.
(v) Paragraph No.7 states that the respondent No.2 also succeeded
in getting the registered Gift Settlement Deed on the same day
i.e., 09.12.2022.
(vi) Paragraph No.8 states that in December 2022, the plaintiff
requested the defendants to partition the suit schedule property
but the defendants did not accept the said proposal and refused
to give the plaintiff a share in the Joint Family Property.
(vii) Paragraph No.9 states that the suit schedule property is a Joint
Family Property and that the plaintiff is one of the coparcener in
the Joint Family.
(viii) Paragraph No.11 reiterates the statements made in paragraph
No.9.
(ix) Paragraph No.12 states that the defendant No.1 did not have any
right to alienate the suit schedule property and that the
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defendant No.1 did not have any exclusive rights over the suit
schedule property.
(x) Paragraph No.15 states that the defendant No.2 has filed a Suit
in the City Civil Court, Hyderabad against the plaintiff/appellant
and obtained an order of status quo from the Court. The
defendant No.2 is also trying to change the nature of the suit
schedule property by making constructions thereon.
(xi) Paragraph No.17 states that the defendant No.2 is trying to
alienate the suit schedule property in favour of the 3rd parties.
13. Section IV of the plaint describes the cause of action for filing of
the Suit. The plaintiff states that the cause of action arose on
16.08.2022 when the registered Will Deed was executed by defendant
No.1 and on 09.12.2022 when the defendant No.1 cancelled the Will
Deed and again on the same date i.e., 09.12.2022 when the defendant
No.1 executed the Gift Settlement Deed in favour of defendant No.2. The
cause of action further arose in the month of December 2022, when the
plaintiff requested the defendants to partition the suit schedule property
and again in December 2022 when the defendants refused the plaintiff's
proposal for partition.
14. Section IX of the plaint contains the prayers. The
plaintiff/appellant has prayed for partition of the suit schedule property
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and for allotment of 1/3rd share to the plaintiff along with separate
possession. The plaintiff has also prayed for declaration that the Gift
Settlement Deed dated 09.12.2022 is null and void and not binding on
the plaintiff.
15. We have heard learned Senior Counsel appearing for the parties
and have also carefully perused the plaint with particular emphasis on
section IV which embodies the cause of action for instituting the Suit.
16. The plaint discloses the following admitted facts:
(i) The respondent No.1/mother purchased the suit schedule
property under a registered Sale Deed dated 05.11.1988.
(ii) The respondent No.1/mother executed a registered Will Deed on
16.08.2022 which contains a specific assertion to the effect that
the respondent No.1 owns self-acquired assets and has
unfettered and absolute right to dispose of the assets as per her
wish. The only property mentioned in the Will Deed is the house
property situated at Road No.55, Jubilee Hills, Hyderabad,
purchased under the Sale Deed dated 05.11.1988 duly registered
in the office of the Sub-Registrar, Hyderabad. The concerned
paragraph also states that the respondent No.1 is residing in the
said house along with her 3 sons and their respective families.
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(iii) The appellant has relied on the Will Deed at paragraphs 4, 5 and
6 of the plaint without questioning the absolute ownership of
respondent No.1 or describing her as an ostensible owner of the
property as opposed to the real owner under the provisions of The
Prohibition of Benami Property Transactions Act, 1988 ('the 1988
Act').
(iv) The appellant in fact unequivocally states in paragraph 6 that
none of the respondents had any objection to the division of the
shares of the suit schedule property.
(v) The appellant complains of the cancellation of the Will Deed vide
the Deed of Cancellation of Will Deed dated 09.12.2022 in
paragraph 7 and claims that the respondent No.1/mother could
not have executed the said Gift Deed in favour of respondent No.2
on the same date i.e., 09.12.2022.
The Plaint discloses conflicting Causes and Claims
(vi) The appellant has not sought for a declaration of the suit
schedule property as a Joint Family Property which is amenable
to partition despite being aware of the registered Will Deed dated
16.08.2022, the cancellation thereof on 09.12.2022 and the
registered Gift Settlement Deed dated 09.12.2022.
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(vii) The appellant has filed a Suit for partition simpliciter, that too for
division of the property in 3 shares instead of 4 i.e., leaving 1 of
the 3 respondents out of the partition.
(viii) The appellant has only sought for cancellation of the Gift
Settlement Deed dated 09.12.2022 without seeking cancellation
of the Deed cancelling the Will Deed. This in effect would restore
the Deed of Cancellation of the Will Deed which was executed on
the same day i.e., on 09.12.2022.
17. Therefore, from the above it is clear that the appellant, as the
plaintiff, has acknowledged the absolute right of the respondent
No.1/mother over the suit schedule property. The list of documents
annexed to the plaint, including the Will Deed dated 16.08.2022,
contains the declaration of the respondent No.1 that the suit schedule
property is self-acquired and she has unfettered and absolute right to
dispose of the same according to her wish. The Will Deed also declares
that the respondent No.1 is the owner of the suit schedule property
which she had purchased under a registered Sale Deed dated
05.11.1988.
18. Hence, the appellant's complaint of cancellation of the Will Deed on
09.12.2022 or with regard to the Gift Settlement Deed executed by the
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respondent No.1 in favour of the respondent No.2 on the same day is
without any basis.
19. Moreover, the appellant's complaint against the Deed of
Cancellation and the registered Gift Settlement Deed is clearly contrary
to the appellant's acceptance of the Will Deed dated 16.08.2022 where
the respondent No.1 unequivocally declared her absolute ownership of
the suit schedule property.
The contradictions demolish the Cause of Action
20. The contradictory statements made in the plaint cannot be seen as
inconsequential but one that collapses the substratum of the appellant's
case, as the plaintiff. In other words, it is not merely a case of
approbation and reprobation but of the plaintiff setting up mutually-
destructive causes of action. To reiterate, once the appellant/plaintiff
acknowledges that the suit schedule property is the self-acquired
property of the respondent No.1 and the respondent No.1 had absolute
ownership of the property, the plaintiff cannot subsequently plead that
the very same property is transformed to a Joint Family Property which
is amenable to partition.
21. Moreover, the statements in the plaint indicate that the appellant
was aware of the registered Will Deed dated 16.08.2022, the cancellation
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of the Will Deed on 09.12.2022 and the registered Gift Settlement Deed
executed by the respondent No.1 on 09.12.2022 wherein the respondent
No.1 reiterated that the suit schedule property is self-acquired out of her
own personal funds without any family or external support and that her
3 sons, (including the appellant) were aware of the cancellation of the
Will Deed on 09.12.2022.
22. The plaint however does not contain any prayer for declaration
that the suit schedule property is a Joint Family Property which is
available for partition. The plaint only contains a prayer for partition.
Moreover, the partition is curiously for 3 shares, as opposed to 4, i.e.,
between the respondent No.1/mother, the appellant, the respondent
No.2 and respondent No.3.
23. Even more curious is the fact that the appellant has only prayed
for cancellation of the Gift Settlement Deed dated 09.12.2022 and not
sought for cancellation of the Will Deed, which in effect would mean that
the plaintiff seeks restoration of the position immediately prior to
cancellation of the Gift Settlement Deed. How this would save the
appellant/plaintiff's interest/objective in filing the Suit appears to be a
vexed question.
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The Cause of Action is self-destructive
24. To summarize, the plaint fails to disclose a cause of action for the
following reasons.
(i) The appellant has accepted and acknowledged the repeated
assertions of the ownership of the respondent No.1 over the suit
schedule property in the Will Deed and the Gift Settlement Deed.
The declaration that the ownership arises out of the self-acquired
property of respondent No.1 is also in terms of section 14(1) of
The Hindu Succession Act, 1956 ('the 1956 Act').
(ii) The statement in the plaint that the property is a Joint Family
Property available for partition is hence clearly dubious.
(iii) The plaint does not contain a single pleading on the respondent
No.1 holding the property as the ostensible owner as opposed to
the real owner under the 1988 Act. This was orally argued on
behalf of the appellant during the course of submissions.
(iv) The plaint also states that the appellant did not have any
complaint when the Will Deed was executed which specifically
records the fact of the ownership of respondent No.1 of the suit
schedule property.
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(v) From the cause of action paragraphs in the plaint, it is clear that
the appellant first complained against the cancellation of the Will
Deed. However, the plaint does not contain any relief with regard
to the said cancellation. The appellant has only prayed for
cancellation of the Gift Settlement Deed.
(vi) The plaint contains a prayer for partition of the suit schedule
property but does not contain any prayer for declaration that the
said property is a Joint Family Property which is amenable to
partition. This is directly contradictory to the property being self-
acquired by the respondent No.1 as stated in the Will Deed.
"Cause of Action"
25. The expression "Cause of Action" has been described to mean every
fact which would be necessary for the plaintiff to prove, if traversed, in
order to support the plaintiff's right to judgment. In other words, cause
of action consists of a bundle of material facts which are necessary for
the plaintiff to prove in order to entitle the plaintiff to the relief claimed.
For ascertaining cause of action, the averments made in the plaint must
be read in its entirety - and not in isolation - and must be held to be
correct. Simply put, the plaintiff must prove its case on the averments
made in the plaint and further the relief claimed must have a real nexus
with the cause of action pleaded.
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The Plaint must disclose a clear Right to Sue - not an Illusion or Mirage
of a Cause of Action
26. The test for an application for rejection of plaint under Order VII
Rule 11 of the CPC - where the plaint does not disclose a cause of action
- is whether the statements made in the plaint, taken to be correct in
their entirety, would entitle the plaintiff to a decree : Liverpool & London
S.P. & I Assn. Ltd. Vs. M.v. Sea Success I 1 . The plea taken by the
defendant in the written statement or in an application for rejection of
plaint would be irrelevant for a decision on an application for rejection of
plaint : Sopan Sukhdeo Sable Vs. Charity Commr., 2 . In plain(t) terms,
since a Court is not called upon to embark upon an enquiry of the truth
or correctness of these averments, the statements must prima facie
reflect a cause of action: D.Ramachandran Vs. R.V. Janakiraman 3.
27. Shorn of further elaboration, a cause of action must include some
act done by the defendant which leads the plaintiff to file a Suit and
includes all the material facts on which the cause of action is found :
Swamy Atmananda Vs. Sri Ramakrishan Tapovanam 4. The plaint must
disclose a clear right to sue i.e., an undiluted entitlement to relief as
reflected from the statements in the plaint. Order VII Rule 11 of the CPC
1 (2004) 9 SCC 512
2 (2004) 3 SCC 137
3 (1999) 3 SCC 267
4 (2005) 10 SCC 51
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may be pressed into service where a plaint is manifestly vexatious and
meritless in not disclosing a clear right to sue : T.Arivandandam Vs. T.V.
Satyapal 5 . The Supreme Court has frowned upon clever drafting for
creating an illusory cause of action : ITC Ltd. Vs. Debts Recovery
Appellate Tribunal 6. Recent judgments of the Supreme Court have also
dealt with the necessity of the plaint disclosing a valid Cause of Action -
Dahiben Vs. Arvindbhai Kalyanji Bhanushali (Gajra) 7 and Ramisetty
Venkatanna Vs. Nasyam Jamal Saheb 8.
28. Order VII Rule 11 of the CPC lists 6 cases in which a plaint should
be rejected. The word "shall" in Order VII Rule 11 makes rejection
mandatory where any of the 6 conditions exist including where the plaint
does not disclose a cause of action, as in the present case. Order VII
Rule 11 presumes dismissal of a Suit on rejection of the plaint without
the rigour of trial. The only requirement is that the Court must conclude
that the plaintiff has filed a meritless Suit by way of a plaint which fails
to disclose a cause of action. The appellant's argument that the cause of
action pleaded in the plaint should have been tested in the trial is
therefore contrary to the CPC as well as the case law.
5 (1977) 4 SCC 467
6 (1998) 2 SCC 70
7 (2020) 7 SCC 366
8 202 SCC OnLine 521
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29. In the present case, the plaintiff has filed a vexatious Suit where
the causes of action are mutually-destructive and are extinguished by
the time the plaint reaches the reliefs. This is an instance of a try-one's-
luck plaint where the plaintiff has blown hot and cold and reversed his
stand; from accepting the suit schedule property being a self-acquired
property to questioning the right of the respondent No.1 to transfer the
said property in favour of respondent No.2 by way of the Gift Settlement
Deed. The plaint, in any event, lacks clarity, including in the articulation
of what the plaintiff intends to say. The statements are vague to the
extent of referring to the defendants as a group as opposed to the
defendant No.1 (as the aggrieved party) who executed the Will Deed, the
Cancellation of the Will Deed and the Gift Settlement Deed.
30. The Trial Court allowed the respondents' application under Order
VII Rule 11 (a) and (d) of the CPC by reason of the appellant failing to
include all the moveable and immovable properties in the name of the
respondent No.1 as part of the suit schedule property. The Trial Court
concludes that all the Joint Family Properties must be included in a Suit
for partition. Although the aforesaid reason is irrelevant for deciding an
application for rejection of plaint, we agree with the Trial Court's view
that the appellant cannot change his stand after having acknowledged
the respondent No.1 as the owner of the suit schedule property.
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31. We accordingly hold that the plaint in O.S.No.124 of 2023 does not
disclose a cause of action and is also barred by law under section 14(1)
of the Hindu Succession Act, 1956 which preserves the right of a female
Hindu to own self-acquired property. Hence, the Trial Court correctly
rejected the appellant's plaint by allowing the respondents' application
under Order VII Rule 11(a) and (d) of the CPC. We do not find any
reason to interfere with the impugned order or have it set aside.
32. CCCA.No.62 of 2024, along with all connected applications, is
dismissed.
There shall be no order as to costs.
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MOUSHUMI BHATTACHARYA, J
_______________________________
M.G.PRIYADARSINI, J
August 20, 2024
BMS
