Surinder Kaur v. G.S. Bawa & Ors.

2. It is stated in the plaint that, in terms of a compromise decree dated CS(OS) No. 1226 of 2009 page I of t[9] r; sfq l{".#tr 4 2013:DHC:6680 6b 21" November 1974 passed in cs (os) No. 165 of 1974, the entire property at A- 1, vishal Enclave was owned by Iw. Jwala Singh and his son Mr. Harminder singh (the husband of the plaintiff) in equal shares. The case of the Plaintiff is that the said property is a two and a half storey building on a plot of land measuring about 460 sq yds. Mr. Jwala Singh died on 14th June lgSlprior to which he left a will dated 15th November 1983 in favour of his grandson Mr. Navinder Singh, the son of the Plaintiff. consequently, it is claimed that lzlr. Navinder Singh and iW. "being of position to look{after, control, superv and manage his his share in the property. It was bei managed and Mr. Gurvinf,br Singh who used to y from time to time and the ne or the other either as a states that she is permanently stationed in,I€ffiom ('UK') and used to visit India rarely. She fuither states that whenever she visited India, she remained under the impression that the ground floor of the suit property was occupied by tenants. According to her, Defendant No. 1 was only a tenant in the ground floor of the suit property. However, it is stated in para 4 of the plaint that "recently the ptaintiff came to know that the Defendant No. t has been representing as owner of ground floor of the said property which was a complete shock to the ffi CS(OS) No. 1226 of 2009 A+ Plaintiff who made extensive inquiries and it transpired that the Defendant No. t had made and coerced the husband of the Plaintiff to sell the ground floor of the property to the Defendant No. 1 and also misrepresented several facts before husband of the plaintiff and accordingly, the Defendant No. 1 got a sale deed dated 17ft May 2oe[2] executed in his favour which has been shown as registered on 7,h June 2002 and this was again a shock to the plaintiff since there was no legal necessity and requirement to sell the ground floor of the said propeffy to any one.Fi r other family members are quite well uring the relevant period." the U.K. she ion and of the suit property ( ). He claimed Singh to him that the suit for a sum of Rfr the Plaintiff has contended that "the sai ii'n }day 2002 and shown as registered on 7th June 2002 is absolutely illegal, no-nest, void ab initio and not binding on the Plaintiff and is liable to be delivered up, cancelled and set aside" on the grounds set out in the plaint.

5. one of the grounds on which the sale deed dated rTth May 2002 is sought to be set aside is that Mr. Harminder Singh, who is shown as the seller, was not a person of sound mind and health since long and il{..61 fof her visits fro of the sale -d'ffi;Srit'iii$*lfavour in the"gfEft dHo:dAor,rA,J;lffV;i5h.diqEncla CS(OS) No. 1226 of 2009 Page[3] of19 bQ bD "being insane was not in a position to understand and appreciate as to what is good and what is bad so far as his interest in the property are concerned and further being insane person was not competent to sell any part of the property to the Defendant No. 1 or to anyone and further said Mr. Harminder Singh was not competent to contract as per provisions of law." Another ground is that IW. Harminder Singh was not the sole owner of the suit property and there was no partition of the suit property by metes and bounds. Since there was no consenr and permission of tLe-otli&6.;g-vy-;A1tidoutd not be sold. It is stated thatDere'a"p_Sg#s$ffi "'ffi *hrq,asnottobesord,#f 4. any portion dfthb$io --.-. F ^{#" Hindu s"gf..sH e.t uffirnp a.tHah. n.gi.tration Act. It t.-frr"ffi stated w f the suit propert*. as reflected $ in the sa].e deed, was. Defendant Nd. 2 had been inducted ipy the Defe the ground flof and was in negotiatioris*to suit. In the crrcumstance twasfi

6. Summons in the suit itrtliE application were directed to be issued to the Defendants on 10ft July 2009. on zT"d August 2009, Defendant No. 1 filed I.A. No. 10783 of 2009 under order VII Rule 11 CPC. Two grounds were urged in this application seeking rejection of the plaint. one was that the suit was not properly valued for the pu{poses of court fees and jurisdiction. on 9th November 2010, the issue of valuation of the suit for the pulposes of Court fees and jurisdiction was taken up for consideration by the Courl. It was ion22 of the CS(OS) No. 1226 of 2009 Ptge 4 of 19 Ag concluded that the value of the suit property should not be less than Rs. 3 crores. The Plaintiff was granted four weeks' time to pay the deficit court fees. An appeal against the said order dated 9'h November 2010, being FAO (OS) No. 709 of 2010, was filed by the Plaintiff. Mr. Harminder Singh was shown as 'represented through Appellant No. 1 as his next friend'. The said appeal was dismissed as being without merit by the Division Bench on 21't December 2010. The differential court fees has since been deposited by the Plaintiff. rejection of the "PlaintiffNo. 1 is neither 6 tt'. *.sffiru, on behalf of t nor Plaintiff No. "Thea parties i{ the suit which Kaur. Plalhtiff No. 1 and opening Mrs. Su bn is based on e memo of Plaintiffs, i.e.,. Surinder Singh as Plai$ff No. 2.The,r,ffiot.-rro,",$., shows only sole Plai out in para 10 o o. I that "nowhere tn the entire plaint it has laintiff No. 1 was filing the suit as next friend of Plaintiff No. 2" It is further stated that no document has been described in the application which would show the alleged insanity or incapacity of Plaintiff No. 2 to file the suit. There is no averment that the Plaintiff has no interest adverse to that of Plaintiff No.2.It is stated that the Plaintiff No. I could not have even otherwise filed the suit in her personal capacity as admittedly she has no right, title or interest in the suit property. rightly pointed CS(OS) No. 1226 of 2009 Page 5 of19

8. Thirdly, it is submitted that the suit was fired on 30th May 2009, over seven years after the execution of the sale deed dated 17ft May 2002, and therefore, was barred by limitation. In para 14 of the application it is stated that a copy of the plaint as served on the Defendants showed only one Plaintiff in the plaint and it was only subsequently when the matter was taken back under objections that "Plaintiff No. 2 was added and a changed memo of parties was filed.,, It is fuilher averred that "a bare perusal of the changed plaint also reveals that no a- are two Plaintiffs or that Plaintiff No#i #'ml " A perusal of the behalf of one

9. In reply to this app nd in particular reply to the a para I0, it i laintiff that "i title of the mentioned suit and in that the Pl No. 1 as his next friend and P erse to that of the,,n€l Plaintiff No. 2." While rd'efli no document as regards the alleged insanity and unsoundness of mind of plaintiff No. 2 has been described in the plaint, it is contended that "the plaintiffs havle ample proof in that regard.

10. In reply to para 14 it is not denied that the plaint as served on the Defendants did not show that there were two Plaintiffs. However, it is denied that the Plaintiff subsequently added aparV.It is stated that k\\ OIIIV+ OI % CS(OS) No. 1226 of 2009 Poge 6 of 19 "sending of advance copy of plaint was not a requirement, but was sent as an intimation to the Defendants and thereafter the suit was filed after vacation after making necessary changes and the objection so raised is untenable and misconceived."

11. I.A. No. 10783 of 2009 was dismissed by the learned Single Judge of the court by an order dated 8th February 20L[2].It was held that the question of limitation was a mixed question of fact and law and could be decided only Aggrieved by tI[2] of 201 allowed. "In?the dourse of to.$otice. The plaint beHalf of sole Plai urinder Kaur wife?of Sh. Mrs. Surinder norfcan she suit in the cause tit nd the word "s" has beeri ilarly, in para 4 the word Plaintiff ' by 'No.I" at the end, while the remaining averments throughout the plaint are made as if they pertain to a sole plaintiff. This is also apparent from certain averments in the plaint which purportedly pertain to Plaintiff no.2 when in fact they are couched in a manner which allude to relationship between Plaintiff No.l and Plaintiff No.2 for example the expression "husband of the Plaintiff' has been used in more than one place. In the cause of action, i.e, para 7 once again the alphabet "s" has been added after the,{" word "Plaintiff'. The similarly, at the end of the plaint, it is signed only by Smt. Surinder Kaur i.e., Plaintiff No.1. Even the verification of the plaint is by a sole plaintiff. The affidavit filed in support of the plaint is sworn only by Mrs. Surinder Kaur which adverts to the fact that the deponent has no interest "adverse to defendant No.2". It is thus apparent that the suit was originally sought to be filed only by Smt. Surinder Kaur. Subsequently, insertions have been made to include her husband as plaintiff No.2, thougb ital in the plaint is to the contrarv. The.{ have ec an adjud ".of'oar,tiesl'hlb:,1F?",il rdfirmr, lnco{porales aintiff No.2. t ought to das it call for point to ve an corfie to:the said -fi,, Lea11leo counsel pondent faced like to the would app int to ing the.% learned counse is alleged to bea pe added as a Plaintiff in There is also another aspect of the matter, that is, the question of limitation, which would also have to be examined on the basis of the averments made in the plaint. The facts set out in the plaint have to be read as a whole and not just the averment vis-a-vis the cause of action. To come to a conclusion that, the plaint is baned by time the issue of limitation would also have to be considered keeping this in mind without taking recourse to the impugned order. We make it clear that if nd rn CS(OS) No. 1226 of 2009 Page I of 19 i t I t. \, the proposed amendment of plaint is at all allowed, and the learned single Judge is still of the view that the determination of the issue of limitation would pequire evidence, it would still be open to the Learned Single Judge to cast a preliminary issue on the question of limitation. Naturally being a preliminary issue it would then have to decide the same in the first instance. This alternative course would be adopted by the learned single Judge if he does not find that ex facie the plaint is liable to be rejected on various. tF-,*t*, "o. rmpugneg oJoer ls costs." *

12. mr. ^ft-]k:} rnls ls an appll€aF( ied) 'er# consideration IA${o. 15151 of XXXII Rules 1,;! and 15 CPC o.2. On 10th intiff no. 1, who #, this Court by the Plaintiff 2012 frl seeking January 201 happens to be the Plaintiff no. 2 for her appointment as next friend of her husband, who is being claimed by her to be a person of unsound mind. The Defendant in his reply has opposed this application inter alia on the ground that Plaintiff No. 2 is not a person of unsound mind as is being claimed by the PlaintiffNo. 1. During the course of hearing of this application learned ?1 counsel for the Plaintiffs submitted that though Plaintiff No..[2] is settled in U.K. but he would appear in Court so that this Courl itself can adjudge whether he is a person of unsound mind or not without holding any formal enquily and if at that stage this Court would consider it ryEcessary to hold an enquiry that can also be done then. Let the Plaintiff no. 2 appear or be produced in Court on 4th April, 2013. I.A. Nos. 8546/2009" 15150/2012 and 15152-53/2012 13. aft er the,diipogdl'bf I.,rOr.nm;tffi All these appl\yfuit:rgl[1] il[3],*"di#6:'{FSKf up for consideration been was directed si i[4] ^t:Jt or unsouno fiuncl intmerif as "rt{;"# 'no.2 uced bv his wi is clairning hat reason his and his iend Counsel ff no.Z could not be brou laintiff no.1 has recently undergone iin in U.K. and she onlv could bring her husband and there is nobody else to bring him to India. Counsel for defendant no.l subrnits that plaintiffs are simply delaying the matter and even though there is no interim injunction operating against the defendants in the matter, but still plaintiff s son is creating all kind of problems in the peaceful enjoyment of the suit property of defendants. w[1] for CS(OS) No. 1226 of 2009 Poge 10 of 19 G[5] Mr. Navindra Singh, son of the plaintiff, is present in Court and he rcfutes the allegations and assures that he shall not be creating any hindrances in the peaceful enjoyrnent of the premises in question by the defendants. Let plaintiff no.2 now appear in Court or be produced either by plaintiff no.l or their son on 22ndApril, 2013. Counsel for the plaintiff has submitted that in case on the next date, plaintiff no.2 is not produced, then this Court may pass any appropriate orders in the present application. sryX,,#&; der Si

14. along was pas the Plaintiff in Court 2013 and the fol.lowing order r "XXXII and Today, by his wife to be a man df;u brought to the, Court. However, ideration of the present application, which has been filed for appointment of guardian of the said Mr. Harminder Singh, it transpired that in fact in the entire plaint there is no reference of iVIr. Harminder Singh as plaintiff No.2. The plaint shows that the only plaintiff was Smt. Surinder Kaur and she alone had signed the plaint also. The plaint was filed in the year 200 9 and there was no averment in the plaint nor any application for appointment of guardian of the said IVk. CS(OS) No. 1226 of 2009 Prye 11 of 19 Harminder Singh had been filed along with the plaint. During the pendency of the suit, the defendant No.1 had filed an application under Order VII Rule 11 CPC, which however claimed to be rejected. Against the rejection order, the defendant No.l filed an appeal before the Division Bench. The Division Bench while disposing of the appeal had also observed that a perusal of the entire plaint showed that it was the plaint of only one plaintiff, though in the memo ofparties Mr. Harminder Singh had been shown as the plaintiff No.2. It was also observed that in Howe.,ppears,&- q" copy;if "1fq} plai the t No.l whieli "lie e*\ fA* r het had:h u%?: the pr"ifrtiftNo.l had ed in para";Nb.41at one pl#e, as admitted sel for defendanfi No.l. ver, in the ori there is no such i No.4. B ivision Bench, $it had submi$edr aintiff an the plaint i with law. ment applicati aintiff but by way of that plaintiff claims impleadment of VIr. Surinder Kaur and Mr. and for deleting the Rajvinder Singh. That of. lff a4p-. therDiviSion Bench &y'2n" \s, Navinder Singh, son of Smt. Harminder Singh as a co-plaintiff name of defendant No.2? Mr. application is yet to be disposed In view of the aforesaid situation, I am of the view that at this stage, there is no need of entering into any soft of inquiry to find out as to whether Mr. Harminder Singh is a person of unsound mind or not, since he is not even a q" plaintiff in this suit nor his wife Smt. Surinder Kaur had filed the present suit on his behalf as his guardian. She had sought a declaration that sale deed in respect of suit propefty, which the defendant No.l was having and purporting to have been executed by I\4r. Harminder Singh, is a nullity because of the fact that Mr. Harminder Singh at the time of the execution of the sale deed was a man of unsound mind. This claim of Smt. Surinder Kaur is refused by defendant No.1 and, at an appropriate stage, final decision shall be taken in that regard. tlrEr # to.fbe &/r and q % I for plai sought time move above er amendment also to cure th deficiencies i As far as that 1S ed, not req for that ved, the same with in as and when it is IA No.10783/2009 This application, which the defendant No.l had filed earlier under Order VII Rule 11 CPC and as nbticed already was dismissed by this Court, is to be heard again since the earlier order of dismissal of the same has been reversed by the Division Bench in appeal, referred to earlier. List this application for hearing on 1 lth July, 2013. is hr Th ist Other pending applications if any shall also be taken up again on that date."

15. Submissions of leamed counsel for the parties have been heard on the following applications:

(i) IA No. 10783 of 2009 (by Defendants under order vII Rule 11

(ii) IA No. 15150 of 2012 [by irdr. Navinder Singh under order I Rule

(iii) IA No. l rrrffiir$F*,m$,g r rfrt "4.:tt*let.

(iv) IA N

CPC for title on th f the plaint as,{'riginally filed shows onl U-gh*f,t the plaint the refened to, i.e., (v), 4 (vi), 4 (vii), 4 (ix), by his name and not 6] ignation 'Plaintiff No. 2'. Para 5 refers to the Plaintiff in the singular. Below the prayer clause the signature is only by the Plaintiff in the singular. The affidavit in support of the plaint is by Mrs. Surinder Kaur and she declares on oath that "the Plaintiff has filed a suit for possession and declaration etc. and that "the deponent has no interest adverse to that of Defendant No.2." (emphasis supplied) The last mentioned words in italics have been added by ink and Mr. Vig, learned counsel for tire Plaintiff was candid to admit that he had added the said words by his own hand. There are no initials of the Plaintiff on the margin of this hand written addition. Therefore, in the entire plaint as available in the record of the Court the reference is only to one Plaintiff. The index page bearing the caveat report of the Registry also shows Mrs. Surinder.Kaur as the sole Plaintiff. It is only in the memo of parti.es page, which does not bear any endorsement of any Court official, that the cause title shows two Plaintiffs. Mrs. Surinder Kaur as Plaintiff No. 1 and X&. No. 2 and described as 'represented having "no