Full Text
HIGH COURT OF DELHI
Date of Decision: 24.04.2025
SHWETA DUTTA .....Plaintiff
Through: Mr. Vanshul Pali, Advocate
Through: Mr. Anand Mishra and Mr. Roshan, Advocates for D-1 to 3
JUDGMENT
1. The present application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) has been filed by the defendant nos. 1 to 3 seeking rejection of the plaint on the ground that there is no cause of action for filing the present plaint.
2. The present suit has been filed by the plaintiff seeking partition of the estate of her deceased father, late Mr. Rajendra Kumar Dutta, who admittedly died intestate on 03.09.1995.
3. The plaintiff seeks partition of the property situated at B-23, Subhash Park, Uttam Nagar, New Delhi-110059 (‘suit property’) as per intestate succession against defendant no. 1 [mother of the plaintiff], defendant no. 2 [sister of the plaintiff], defendant no. 3 [brother of the plaintiff] and defendant no 4 [tenant in the suit property]. Arguments on behalf of the defendants
4. Mr. Anand Mishra, learned counsel for the defendants’ states that the applicant/defendants have placed on record a registered sale deed dated 23.03.2006 along with electricity bills qua the suit property, to demonstrate that as on 23.03.2006, the suit property stood exclusively in the name of defendant no. 1 and since then, defendant no. 1 has been in the exclusive possession of the suit property.
4.1. He states that initially the suit property was under the ownership and possession of late Mr. Rajendra Kumar Dutta, husband of defendant no. 1. He refers to a GPA[1] dated 06.12.1994. He states that the monetary consideration for the suit property was paid by late Mr. Rajendra Kumar Dutta, entirely.
4.2. He states that late Mr. Rajendra Kumar Dutta passed away on 03.09.1995 leaving behind his three (3) children [the plaintiff, defendant NO. 2 and defendant no. 3] and his wife, defendant no. 1.
4.3. He states that thereafter, the plaintiff and defendant no. 3 along with defendant no. 2 executed a registered GPA dated 07.03.1998, appointing defendant no. 1 as their GPA holder for the suit property. He states that subsequently, defendant no. 1 also executed a registered GPA dated 29.05.1998, thereby appointing defendant no. 2 as the GPA holder for the suit property. He states that in this manner, defendant no. 2 became the GPA holder of all co-owners of the suit property.
4.4. He states that defendant no. 2 acting as the attorney of the plaintiff, defendant no. 3 and herself thereafter executed a sale deed 23.03.2006 in favour of defendant no. 1. He states that in this manner defendant no. 1 became the sole owner of the suit property as on 23.03.2006. He states that defendant no. 1 has since been in exclusive possession of the suit property.
4.5. He states that in absence of any challenge to the sale deed dated 23.03.2006 in the plaint, the relief of partition sought in the present plaint cannot be granted.
4.6. He states that since the present suit has been filed after lapse of 12 years from the execution of the sale deed dated 23.03.2006, the same is time barred.
4.7. He states that in view of the aforesaid submissions, the plaint in the present matter is devoid of cause of action and time barred. He therefore seeks rejection of the plaint under Order VII Rule 11 (a) and (d) of CPC.
4.8. He states that the plaintiff in the plaint admits that the suit property has been let out by defendant no. 1 to defendant no. 4 and therefore the constructive possession of the suit property vests in defendant no. 1 and not the plaintiff herein. He states that plaintiff is neither in actual nor in constructive possession and therefore is liable to pay ad-valorem Court fees on the 1/4th share claimed in the suit as per the valuation pleaded in the plaint.
4.9. He states that therefore, this Court be pleased to reject the plaint under Order VII Rule 11(c) CPC for non-payment of ad-valorem Court fees. Arguments on behalf of the plaintiff
5. Mr. Vanshul Pali, learned counsel for the plaintiff states that it is an admitted case of the defendants that the suit property was a self-acquired property of late Mr. Rajendra Kumar Dutta i.e., plaintiff’s father. General Power of Attorney
5.1. He states that the plaintiff’s father purchased the suit property in the year 1994 with his own funds and the plaintiff’s father died intestate in the year 1995 leaving behind the plaintiff, defendant no. 1, defendant no. 2 and defendant no. 3 as his only Class-I legal heirs.
5.2. He states that therefore, as per the Hindu Succession Act, 1956, the rights in the suit property would equally devolve upon the plaintiff and defendant nos. 1 to 3 herein.
5.3. He states that the present suit is not barred by limitation, as the knowledge of the sale deed dated 23.03.2006, was acquired by the plaintiff in the year 2021.
5.4. He states that it is the case of the defendants that on basis of the alleged GPAs dated 07.03.1998 and 29.05.1998, defendant no. 2 had executed the registered sale deed dated 23.03.2006 in favour of defendant no. 1; however, defendants have not placed on record the alleged GPA dated 07.03.1998. He states that defendants alleged that GPA dated 07.03.1998 was purportedly executed by the plaintiff herein, which fact is disputed by the plaintiff.
5.5. He states that the defendants have admitted that they do not have in their possession the alleged GPA dated 07.03.1998 said to have been executed by the plaintiff. In this regard, he refers to the order dated 06.02.2023 passed in these proceedings.
5.6. He states thus there is no document on record which shows that the plaintiff herein has relinquished her share in the suit property and therefore, in no manner defendant no. 2 could have executed the sale deed dated 23.03.2006 in favour of defendant no. 1 qua the suit property.
5.7. He states that the plaintiff is in constructive possession of the suit property since there are valuable tangible furniture kept by the plaintiff in the suit property.
5.8. He states that with regard to the issue of Court fees, the plaintiff has already undertaken before this Court that the plaintiff is ready to pay the Court fees upon a grant of decree of partition and the same finds mention in the order dated 18.04.2022 passed in these proceedings.
5.9. He states therefore, there are no grounds made by the defendants for rejection of the plaint in the present matter under Order VII Rule 11 CPC and prays that the captioned application be dismissed by this Court. Findings and Analysis
6. This Court has heard the learned counsel for the parties and perused the record. Order VII Rule 11 (a) CPC
7. It is an admitted case of the parties that the suit property was a selfacquired property of late Mr. Rajendra Kumar Dutta. It is also the admitted case of the parties that late Mr. late Mr. Rajendra Kumar Dutta died intestate on 03.09.1995, leaving behind the plaintiff, defendant nos. 1 to 3 as his only Class-I legal heirs.
8. In view of the aforesaid admitted facts and as per the provisions of Hindu Succession Act, 1956, this Court is of the opinion that on 03.09.1995, i.e., the day of the death of Mr. Rajendra Kumar Dutta, all the rights and interest in the suit property devolved upon the plaintiff, defendant no. 1, defendant no. 2 and defendant no. 3 in equal shares. Thus, it is now undisputed that on 03.09.1995, the plaintiff was entitled to undivided 1/4th share in the suit property.
9. The submission of the defendants that vide registered sale deed 23.03.2006 the suit property stood vested in the name of defendant no. 1 and therefore, there is no cause of action to file the present suit is devoid of merit. The defendants have not placed on record the alleged GPA dated 07.03.1998 purported to have been executed by the plaintiff in favour of defendant no. 1. The defendants have only placed on record the GPA dated 29.05.1998 by which defendant no. 2 allegedly became entitled to transfer the suit property in favour of defendant no. 1; however, the said GPA is not admitted by the plaintiff. In the absence of GPA dated 07.03.1998 being placed on record and proved in accordance with law, the defendants at this stage are precluded from contending that the plaintiff participated in the transfer of the title of the suit property in favour of defendant no. 1.
10. There is admittedly no other document on record to show that plaintiff relinquished her 1/4th share in the suit property in favour of defendant no. 1.
11. In the absence of the GPA dated 07.03.1998 being available on record, this Court is prima facie unable to accept the contention of the defendants as regards transfer and/or relinquishment of plaintiff’s share in the suit property in favour of defendant no. 1.
12. In view of the aforesaid observations, this Court is of the opinion that the objection raised by the defendants that the present plaint has been filed without any cause of action is without any merit. Order VII Rule 11 (d) CPC
13. The defendants have averred that the suit is barred by limitation as the sale deed is dated 23.03.2006. He states that there is no challenge to the said sale deed in the plaint.
14. The plaintiff states in her reply to this application that she has learnt about the said sale deed in the year 2021. Unless the sale deed dated 23.03.2006 is validly executed on behalf of the plaintiff, it cannot per-se bind the plaintiff. The said sale deed can only bind defendant nos. 2 and 3 who admits the validity of the said sale deed. This sale deed can bind the plaintiff only if she had executed the alleged GPA dated 07.03.1998 and the said GPA authorized transfer of the plaintiff’s share to a third-party including defendants.
15. The Supreme Court in Suhrid Singh v. Randhir Singh and Others[2] held that a non-executant of a sale deed has to seek a declaration qua the invalidity of a sale deed if it casts a doubt on his title. In the present case, the plaintiff at prayer clause (a) of the plaint has sought a declaration that she is owner of 1/4th share in the suit property. After referring to Suhrid Singh v. Randhir Singh and Others (supra), the Supreme Court in Hussain Ahmed Choudhury and Others v. Habibur Rahman (Dead) Through LRs and Others[3] has held that such a prayer is akin to a prayer seeking declaration vis-à-vis the invalidity of the sale deed.
16. The averment of the defendants that this suit is barred by limitation due to the existence of the sale deed dated 23.03.2006 would have to be examined at trial after parties have led evidence, to appreciate the date when the plaintiff first became aware about the existence of the said sale deed.
17. During arguments, the counsel for the defendants contended that the existence of the sale deed dated 23.03.2006 (was known to the plaintiff) coupled with the defendant no. 1’s long, continuous and uninterrupted exclusive possession of the suit property would show that defendant no. 1’s
2025 INSC 553 [Para 36] possession of the suit property is adverse to the plaintiff. He states that since the plaintiff was aware of the sale deed dated 23.03.2006 and defendant NO. 1 has been in exclusive possession as defendant no. 1 has acquired title by adverse possession.
18. The defendants’ averments that the present suit is time barred, as the defendants have been in adverse possession of the suit property cannot form the basis of rejecting the plaint under Order VII Rule 11(d) CPC. It is settled law that plea of adverse possession is a question of fact and law; and the party setting up the said plea has to prove the adverse possession by leading evidence. In the facts of this case, the plea of defendant no. 1 being in adverse possession of the suit property cannot be decided at this stage. Order VII Rule 11(c) CPC
19. However, the issue of plaintiff not being in actual or constructive possession of the suit property; and the fact that the plaintiff has not paid advalorem Court fees has merit.
20. The plaint acknowledges that the suit property is in actual physical possession of a tenant i.e., defendant no. 4. The tenant has been inducted by defendant no. 1 and is paying rent to defendant no. 1. In these facts, the constructive possession of the suit property vests with defendant no. 1.
21. Since the property is tenanted, the plea of the plaintiff that she is in actual physical possession is therefore ex-facie incorrect. Moreover, in the facts of this case the plea of constructive possession is also a bald plea and is contradicted by the admission of tenancy between defendant no. 1 and defendant no. 4.
22. The Supreme Court in Suhrid Singh v. Randhir Singh and Others (supra) at paragraph nos. 7 and 8 has held that a plaintiff who seeks a declaration of title and is not in possession of the suit property is liable to pay ad-valorem Court fees. The plaintiff submits that the value of the suit property as per circle rates is Rs. 2.[5] Crores approximately, as pleaded in the plaint.
23. Accordingly, the plaintiff is directed to deposit ad-valorem Court fee on her 1/4th share in the suit property within two (2) weeks, failing which, the suit will stand rejected, without any reference to this Court.
24. At this stage, learned counsel for the plaintiff requests that the time for depositing the Court be extended to four (4) weeks. It is ordered accordingly.
25. With the aforesaid directions, the application stands disposed of.
26. List the matter before the Ld. Joint Registrar (J) on 04.07.2025.