Full Text
HIGH COURT OF DELHI
CS(OS) 182/2017 with CRL. M.A. 7383/2018, I.A.
Nos.8839/2018, 10357/2018, 5927/2019, 6198/2019, 8565/2021
& 13217/2021, 19322/2022 SH. PARMOD KUMAR JAIN ..... Plaintiff
Through: Mr. Tanmaya Mehta and Mr. Vinayak Thakur, Advocates
[M: 9999255931, e-mail : tanmayamehta@gmail.com]
Through: Mr. Sanjeev Sindhwani, Senior Advocate with Mr. Hemant Chaudhri and Mr. Shaurya Pushpam, Advocates for
D- 1 [M: 9810035336 Email: hcclaw@gmail.com]
Mr. Jayant Mehta, Sr. Advocate with Mr. Sukant Vikram and
Mr. Raghav Bhatia, Advocates for D- 3 to 6 [M: 9717062602, email:officeofsukantvikram@g mail.com
13012/2019 MRS. POONAM JAIN & ORS. ..... Plaintiffs
Through: Mr. Jayant Mehta, Sr. Advocate with Mr. Sukant Vikram and
Mr. Raghav Bhatia, Advocates [M: 9717062602, email:officeofsukantvikram@g mail.com]
Through: Mr. Rahul Shukla, Advocate for D- 1.
Mr. Om Prakash Shekhawat, Advocate for D-1A and 1B, (Ph.9810019306, e-mail: ops_shekhawat@yahoo.co.in)
Mr. Sanjeev Sindhwani, Sr.
Chaudhri and Mr. Shaurya Pushpam, Advocates for D-2.
Mr. Tanmaya Mehta and Mr. Vinayak Thakur, Advocates for D-3.
MR. SATISH JAIN ..... Decree Holder
Through: Mr. Sanjeev Sindhwani, Sr.
Chaudhri, Mr. Arjun Sanjay and Mr. Shaurya Pushpam, Advocates [M: 9810035336 email: hcclaw@gmail.com].
Through: Ms. Sayantani, Advocate for JD-1 (M. 8240300654 , e-mail: sayantani.legal@gmail.com).
Mr. Rajesh Banati, Advocate with Mr. Ashish Sareen and
Mr. Harsh Gupta, Advocates for JD-2 and 3 [M: 9810294894]
JUDGMENT
1. The present is an application on behalf of defendant No. 1 under Section 340 Code of Criminal Procedure, 1973 („Cr.P.C.‟) against plaintiff on the ground that the present suit filed on behalf of plaintiff is a gross abuse of the process of law and has been filed by plaintiff with dishonest and malafide intention. The present application has been filed on the premise that plaintiff has verified the suit and has sworn the accompanying affidavit, fully knowing that the contents of the same are false even to his knowledge. Hence, by making false statements „On Oath‟ before this Court, plaintiff has made himself liable to be proceeded under Section 340 of Cr.P.C.
2. Though the present application has been filed under Section 340 Cr.P.C., however, at the outset, at the commencement of the arguments, learned Senior Counsel for defendant No. 1 submitted that the submissions made qua this application would be made treating the present application as an application under Order 7 Rule 11 of Code of Civil Procedure, 1908 („CPC‟), for rejection of plaint. Thus, submissions have been advanced by all the parties on the issue of rejection of plaint. In view thereof, the present application is being decided treating the same as an application under Order 7 Rule 11 CPC, for rejection of plaint, on the basis of submissions made by the parties in this regard.
3. In the present case, plaintiff claims to be co-owner of 25% i.e. 1/4th share in the suit property bearing no. 14, Alipur Road, Civil Lines, Delhi. Plaintiff submits that the suit property was purchased and stamped in the name of Mrs. Kailashwati Jain (the mother) vide registered sale deed dated 07.01.1970. It is, however, the case of plaintiff that the sale consideration was paid by M/s Jain Brothers, a partnership firm of which Dr. R.N. Jain (the father) was one of the partners and the purchase amount was debited equally in partners accounts in the books of the firm. Hence, according to plaintiff, the property belonged to the father and devolved after his death in 1997, upon his sons including plaintiff.
4. Thus, the captioned suit has been filed by plaintiff seeking the relief of declaration to the effect that the subject property does not belong to the named owner in the Sale Deed i.e. the mother, but that it belonged to the father late Dr. R.N. Jain. Plaintiff has also sought relief of cancellation of the Gift Deed executed by the mother in favour of defendant No. 1, on the basis firstly, that she was not the owner of the suit property and therefore, could not have gifted the same. Further, secondly, on the basis that gift deed in favour of defendant no. 1 was the consequence of undue influence and pressure by defendant no. 1 upon the mother. Relief is also sought for permanent injunction for restraining defendants from disturbing the possession of plaintiff.
5. As noted above, although defendant No. 1 has not filed any application under Order 7 Rule 11 CPC, oral submissions have been advanced by defendant no.1 that the plaint ought to be rejected principally on two submissions. Firstly, that plaintiff is taking contradictory stands in as much as before the Debt Recovery Tribunal (DRT), plaintiff had taken a stand that the property belonged to the named owner i.e. the mother, while in the present suit, plaintiff is claiming that the property belonged not to the mother, but to her husband, Dr. R.N. Jain (the father). It is further alleged by defendant no. 1 that the plea of plaintiff is barred under the Benami Transactions Prohibitions Act, 1988 („Benami Act‟).
6. It is the case of defendant no. 1 that plaintiff‟s entire case is predicated on the premise that mother was not the owner of the suit property, but the same belonged to the father. This fundamental assumption on which the suit is essentially based is wholly fraud and mis-conceived. This is evident from the stand taken and repeated by plaintiff on oath, which strikes at the very root of the plaint.
7. Learned senior counsel appearing for defendant no. 1 submits that a completely contrary position as compared to the stand taken in the present plaint, was taken by plaintiff herein in the affidavits/applications filed on behalf of plaintiff earlier.
8. It is submitted that the father was a guarantor for a loan in respect of which recovery proceedings were pending before the learned DRT, in RC No. 247/2002. In the said proceedings, Recovery Officer vide order dated 18.05.2005 had restrained the LRs of Dr. R.N. Jain (the father) from selling the suit property and had directed to disclose factum of ownership and claim of title of suit property, and further to submit its title deed. In compliance thereof, and seeking to vacate restraint order, plaintiff and other LRs filed an application dated 11.07.2005, supported by an affidavit, asserting in para 4 that the suit property was purchased by Mrs. Kailash Wati Jain (the mother), Mrs. Ramkali Jain, Mrs. Sushila Devi Jain and Mrs. Rattan Mala Jain in the year 1970. It was submitted in the said application that the suit property was not personal property of any of the guarantors, which included the father. Attention of this Court has been drawn to paras 4, 5, 6 and 7 of the said application, which are reproduced as below:-
9. Learned senior counsel for defendant no. 1 relied upon an affidavit dated 01.10.2004 which was filed in the aforesaid proceedings before the learned DRT, wherein plaintiff categorically stated that only two properties situated in Greater Kailash, New Delhi belonged to the father. Plaintiff also confirmed that he had not inherited any property from the father. The suit property was not mentioned in the affidavit by plaintiff, as property owned by the father.
10. Plaintiff filed additional affidavits dated 11.04.2005 and 02.07.2008 before the learned DRT, wherein plaintiff enumerated various properties as owned by his father, but there was no mention of the suit property.
11. Learned senior counsel for defendant no. 1 has also relied upon affidavit dated 04.12.2012 before DRT-I, Delhi in RC No. 116/2012; affidavit dated 04.12.2012 in RC No. 28/2012 before Recovery Officer, DRT-II; affidavit dated 02.09.2014 in RC No. 353/2012 before DRT-I, Delhi and affidavit dated 22.10.2016 in RC NO. 353/2012 before DRT-II. By relying upon the aforesaid affidavits, it is contended that plaintiff has re-confirmed that he had not inherited any property from the father and that the suit property was conspicuously missing from the detailed list of father‟s properties, as furnished by the plaintiff.
12. Thus, it is contended by defendant no. 1 that the very basis of the plaint in the present suit stands totally negated by plaintiff himself. Plaintiff has confirmed and re-confirmed that suit property belonged to the mother and not to the father. His own assertions on affidavit cannot be disputed by plaintiff. The said statements repeatedly made by plaintiff constitute a clear, unambiguous and unequivocal admission to the effect that suit property was not owned by the father, rendering the present suit wholly unsustainable.
13. It is submitted that plaintiff has asserted in paras 13, 16 and 20 of the plaint that he acquired knowledge in September, 2016 of suit for partition filed by defendant no. 1 i.e. CS (OS) 462/2016 on the basis of gift deed dated 07.06.2006 in September, 2016. Plaintiff filed the aforesaid affidavit dated 22.10.2016 before learned DRT after knowledge of the suit and the gift deed. Hence, it is evident that plaintiff has always admitted and accepted the mother‟s ownership and the present suit is a mere after-thought.
14. It is further submitted that all the aforesaid affidavits, applications etc were filed by plaintiff after demise of the father, when as per him, he was co-owner of the property. If the plaintiff was coowner of the suit property, he would not have filed such affidavits, disputing his own title. It is, thus, submitted that a person whose case is based on falsehood, has no right to approach the Court.
15. It is further submitted that plaintiff is guilty of suppression and concealment of material facts. Plaintiff has deliberately suppressed and concealed the above facts of having filed applications and affidavits before DRT, containing said statements and thus, based his plaint on a case completely at loggerheads. Plaintiff‟s attempt to explain his suppressions by taking recourse to replication is equally mis-conceived.
16. Learned senior counsel for defendant no. 1 submits that plaintiff has admitted before learned DRT through his various affidavits, filed over a span of 12 years stating that suit property is absolutely owned and purchased by the mother. There is clear averment by plaintiff that the father had no right, title or interest therein and that the same is not part of estate of the father. Thus, it is submitted that the present plaint is liable to be dismissed on the principle of estoppel/admission in previous pleadings. Plaintiff cannot wriggle out of his categorical stand taken before the learned DRT by urging that DRT is not a Civil Court and cannot decide the issue of title.
17. It is further the case of defendant no. 1 that the present suit is barred by limitation. Plaintiff has filed the present suit on 20.04.2017, whereas, the sale deed in favour of the mother is dated 07.01.1970. Further, the registered gift deed of which plaintiff is seeking cancellation is dated 07.06.2006. Thus, the suit having been filed more than 3 years after execution of the said registered documents, is beyond the prescribed period of limitation. The father during his lifetime never challenged the sale deed dated 07.01.1970, nor did plaintiff choose to do the same within three years from the demise of the father in the year 1997.
18. It is further contended on behalf of defendant no. 1 that mere payment does not make the person owner of a property. It is submitted that even though admittedly the sale consideration was paid by the partnership and not by the father, mere payment by a person of sale consideration will not make him the owner.
19. It is further submitted that the suit filed by plaintiff is hit by Benami Transaction (Prohibition) Act, 1988 (Benami Act). Plaintiff‟s case is that the sale consideration for purchase of suit property was made by the partnership firm and partner‟s account was debited, for which there was no document filed. The case propounded in the plaint that though the registered sale deed was in mother‟s name, but father was the real owner as consideration was paid by the firm, is a classical plea of benami, which is clearly barred under Section 4 of the Benami Act.
20. It is further submitted on behalf of defendant No.1 that admittedly the sale consideration came from the partnership firm and not from the father. Hence, plaintiff‟s case does not fall in any of the exceptions under Section 2(9) of the amended Benami Act as claimed by plaintiff. Even otherwise, there is no averment in the plaint so as to bring the case within any of the exceptions under the Benami Act.
21. It is the case on behalf of defendant No.1 that the present suit is not maintainable, as cancellation of the sale deed dated 07.01.1970 has not been sought. The plaintiff, despite claiming that the mother/defendant No.2 is not the absolute owner of the property though she is the recorded owner in the sale deed dated 07.01.1970, he has not prayed for cancellation of the said sale deed dated 07.01.1970.
22. It is further the case of defendant No.1 that sale deed dated 07.01.1970 is a composite sale deed of the suit property in favour of four purchasers, including the mother. The declaration being sought by plaintiff would necessarily affect the rights/status of other purchasers as well. The suit is not maintainable in their absence and no declaration can be granted.
23. It is, thus, the case on behalf of defendant No.1 that suit of plaintiff is liable to be dismissed. The plaint is liable to be rejected under the provisions of Order VII Rule 11 CPC. Further, an application under Section 340 Cr.P.C. can be decided even prior to final adjudication of the suit.
24. Ld. Senior Counsel for defendant No.1 contends that a person whose case is based on falsehood, has no right to approach the court. The plaintiff is under a solemn duty and obligation to disclose all relevant and material facts before the court and file all the documents. However, plaintiff in the present case, with mala fide and dishonest intention of playing fraud upon the court, has deliberately suppressed and concealed the material facts from this Court of having filed applications and affidavits before DRT, which are contrary to the pleadings made in the present proceedings.
25. It is further contented on behalf of defendant No.1 that plaintiff‟s attempt to explain the suppressions by taking recourse to replication, is misconceived. Replication is not a substitute to a fair and honest plaint.
26. It is further contended by ld. Sr. Counsel for defendant No.1 that plaintiff‟s excuse that he took the stand before the DRT for saving the suit property from clutches of the bank, is completely vexatious and perverse. Permitting a person to alter his position in this manner in different proceedings, would lead to legal anarchy. It is further submitted that the plaint would be without any cause of action if the averments made in the earlier suit have not been explained in the present suit.
27. In support of his submissions, ld. Senior Counsel for defendant No.1 has relied upon the following judgments: i. S.P. Chengalvaraya Naidu Vs. Jagannath, AIR 1994 SC ii. H.S. Bedi Vs. National Highway Authority of India, MANU/DE/0154/2016 iii. Seemax Construction (P) Ltd. Vs. State Bank of India & Ors., AIR 1992 DELHI 197 iv. Kishore Samrite Vs. State of Uttar Pradesh & Ors., v. Bhaskar Laxman Jadhav & Ors. Vs. Karamveer Kakasaheb Wagh Education Society & Ors., (2013) 11 SCC 531 vi. Babita Pal & Ors. Vs. Jagdish Bansal, MANU/DE/5895/2012 vii. Nawal Singh Vs. Chaman Lal & Ors., CS (OS) No.92/2010 viii. Mumbai International Airport Private Ltd. Vs. Golden Chariot Airport and Another, MANU/SC/0746/2010 ix. Asha Sharma & Ors. Vs. Sanimiya Vanijiya P. Ltd. and Ors., MANU/DE/2029/2012 x. Mayar (H.K.) Ltd. & Ors. Vs. Owners & Parties, Vessel M.V. Fortune Express & Ors., (2006) 3 SCC 100 xi. Nawal Singh Vs. Chaman Lal & Ors., CS (OS) No.92/2010 xii. Deepak Bajaj Vs. State of Maharashtra, MANU/SC/8246/2008 xiii. Sanjay Roy Vs. Sandeep Soni & Ors., MANU/DE/1824/2022 xiv. Sukhbir Devi & Ors. Vs. Union of India & Ors., MANU/SC/1260/2022 xv. Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by LRs, MANU/SC/0367/2019 xvi. Ajit Kumar Mittal & Ors. Vs. Rekha Garg & Ors., MANU/DE/0789/2020 xvii. Jai Singh Kanwar & Ors. Vs. Anil Goel, MANU/DE/3279/2018 xviii. Mukhinder Singh & Ors. Vs. Gurbux Singh & Ors., MANU/DE/0550/2012 xix. Vinay Khanna & Ors. Vs. Krishna Kumari Khanna & Ors., MANU/DE/0150/2020 xx. Anil Gulati Vs. Promila Gulati, MANU/DE/2076/2015 xxi. Suraj Munjal Vs. Chandan Munjal & Ors., MANU/DE/2083/2020 xxii. Deepika Prashar & Ors. Vs. Suman Singh Virk & Ors., MANU/DE/2228/2016 xxiii. Oswal Fats and Oils Limited Vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and Ors.; (2010) 4 SCC 728 xxiv. K.D. Sharma Vs. Steel Authority of India Ltd. and Ors.; xxv. Citadel Fine Pharmaceuticals and Ors. Vs. Ramaniyam Real Estates P. Ltd. and Ors.; AIR 2011 SC 3351 xxvi. Ravindra Kishore Sinha Vs. Manjula Bhushan, 2010 (166) DLT 121 xxvii. Satnam Chand Kohli Vs. Ashwinder Kumar and Ors., CS (O.S.) No. 705 of 2006 decided on 23.05.2006 xxviii. Jai Narain Parasrampuria (Dead) and Ors. Vs. Pushpa Devi Saraf and Ors., (2006) 7 SCC 756 xxix. Umrao Singh Vs. Man Singh and Ors., AIR 1972 Delhi xxx. Vinod Popli Vs. Ragini Popli and Ors., 219 (2015) DLT
28. Per contra, ld. Senior Counsel appearing for defendant Nos. 3 to 6 submits that none of the contentions raised on behalf of defendant No.1 are sustainable in law and are completely misconceived. It is submitted that the suit filed by plaintiff is maintainable in law and defendant No.1 cannot be permitted to avoid trial on merits of the several issues that have been raised by plaintiff and supported by defendant Nos. 3 to 6.
29. Ld. Senior Counsel appearing for defendant No.3 to 6 contends that defendant No.1 has not filed any formal application under the provisions of Order VII Rule 11 CPC, and has yet proceeded to advance oral arguments relying on the said provisions. Without a formal application being filed by defendant No.1 invoking the provisions of Order VII Rule 11 CPC, the objections of defendant No.1 cannot be examined and adjudicated in law.
30. It is further contended that there is no material suppression by plaintiff in the suit which would warrant dismissal of the suit without trial. It is submitted that the so called assertions made by plaintiff before the ld. DRT are not „relevant facts‟ for the purposes of establishing the cause of action in the present plaint. Therefore, these were not material facts which were required to be treated in the present plaint.
31. It is further submitted that at the stage of considering averments under Order VII Rule 11 CPC, only averments in the plaint are required to be seen and defence advanced by the defendant is immaterial at this stage.
32. It is further contended that it is impermissible to challenge the maintainability of the suit under Order VII Rule 11 CPC only with respect to one prayer, i.e., prayer for declaration, while ignoring the other prayer seeking cancellation of the gift deed in favour of defendant No.1.
33. It is further submitted that the contention of defendant No.1 that the earlier „admission‟ made by plaintiff disentitles him to aver to the contradictory, is completely misconceived. Even assuming that any admission was made by plaintiff, the same cannot be a bar to filing of the present suit, as admission can always be subsequently explained by the parties.
34. Ld. Sr. Counsel for defendant Nos. 3 to 6 further submits that there is no requirement for plaintiff to seek cancellation of the sale deed in the mother‟s favour. The present suit is filed within the limitation period in terms of Articles 58 and 59 of the Limitation Act, 1963 („The Limitation Act‟) as the limitation period only starts running from the date when plaintiff is for the first time threatened of infringement of his rights in the suit property by defendant No.1 and when the plaintiff learnt of the existence of the gift deed in 2016, by which the plaintiff was excluded from the suit property. It is, thus, prayed that the suit ought to be proceeded for trial and does not merit dismissal at the threshold, as contended by defendant No.1.
35. In support of his submissions, ld. Senior Counsel appearing for defendant Nos. 3 to 6 has relied upon the following judgments: i. S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar, ii. Sriharidas Hanumandas Vs. Hemant Vithal (2021) 9 SCC 99 iii. Biswanath Banik Vs. Sulanga Bose (2022) 7 SCC 731 iv. Ram Prakash Gupta Vs. Rajiv Kumar Gupta (2007) 10 SCC 59 v. Pawan Kumar Vs. Babulal, (2019) 4 SCC 367
36. Likewise, Ld. Counsel for plaintiff, has vehemently opposed the submissions made on behalf of defendant No.1. It is submitted that defendant No.1 has not filed any application under Order VII Rule 11 CPC and only oral submissions have been advanced by defendant No.1 for rejection of the present plaint.
37. It is submitted that the relative strength or weakness of plaintiff‟s case cannot be considered while considering submissions under Order VII Rule 11 CPC. Contents of written statement are completely irrelevant and only the plaint has to be seen as to whether it discloses any cause of action or is not otherwise barred under any law.
38. It is further submitted that a plaint cannot be rejected in part. The plaintiff‟s averments not only disclose a cause of action, but are also not barred under any law. The plaintiff is entitled in law to take the pleas as taken in the plaint.
39. It is further submitted that while a person is not entitled to withdraw an admission, he can always explain an admission previously made. Admissions are not conclusive.
40. It is submitted that the argument of defendant no.1 that no disclosure was made in the plaint of the previous DRT proceedings, is not relevant for a decision under Order VII Rule 11 CPC and cannot lead to rejection of a plaint. It is submitted that even if DRT proceedings had been disclosed, that would not have rendered the plaint without cause of action, since plaintiff is entitled to explain the previous admission in DRT vis-a-vis the stand taken in the present suit. Since plaintiff is entitled to explain an admission, his prayer for declaration which would result in a substantive right of ownership in the subject property to plaintiff, cannot be declined by rejecting the plaint without trial.
41. It is further submitted that the Benami Act expressly permits a person to purchase a property in the name of his wife, and this is considered as an exception to a benami transaction. It is further pleaded that the mother held the property in fiduciary capacity and for the benefit of her husband and the family as a whole, and not only for her own sole benefit.
42. It is further submitted on behalf of plaintiff that an application under Section 340 Cr.P.C. is not maintainable at an interlocutory stage. Such application is maintainable only after conclusion of the trial in the matter and that too if ingredients of the same are made out in law.
43. It is further submitted that defendant No.1 cannot be permitted to use an application under Section 340 Cr.P.C. to have parallel adjudication proceedings in respect of issues, which are covered in the main suit. It is submitted that it is well settled that admissions cannot confer any title in immovable property. Thus, it is contended that plaintiff cannot be shut out from the opportunity of proving his case on trial. It is prayed that the present application be dismissed.
44. Ld. Counsel appearing for plaintiff has relied upon the following judgments in support of his submissions: i. Daya Singh Vs. Gurdev Singh, MANU/SC/0012/2010 ii. Controller of Estate Duty, Lucknow Vs. Aloke Mitra, MANU/SC/0352/1980 iii. Samittri Devi Vs. Sampuran Singh, MANU/SC/0064/2011 iv. Manoj Beharilal Mathur Vs. Shanti Mathur, MANU/SC/0531/1997 v. G. Mahalingappa Vs. G.M. Savitha, MANU/SC/0474/2005 vi. R. Rajagopal Reddy (Dead) by LRs and Ors. Vs. Padmini Chandrasekharan (Dead) by LRs, MANU/SC/0061/1996 vii. Mayar (H.K) Ltd. Vs. Vessel M.V. Fortune Express, viii. Anita Kumari Gupta Vs. Ved Bhushan, 2014 SCC OnLine Del 2895 ix. Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria, x. Baldev Singh Vs. Manohar Singh, (2006) 6 SCC 498 xi. Udham Singh Vs. Ram Singh, (2007) 15 SCC 529 xii. Yogita Dasgupta Vs. Kaustav Dasgupta, MANU/DE/1778/2018 xiii. Manoj Arora Vs. Mamta Arora, MANU/DE/2790/2018 xiv. Thakur Bhim Singh (Dead) by LRs & Anr. Vs. Thakur Kan Singh, (1980) 3 SCC 72 xv. Binapani Paul Vs. Pratima Ghosh, (2007) 6 SCC 100 xvi. Punjab Tractors Limited Vs. International Tractors Ltd., (2010) 167 DLT 490 xvii. Abdul Rehman Vs. K.M. Anees ul Haq. (2011) 10 SCC xviii. Ambika Prasad Thakur Vs. Kamal Singh, AIR 1966 SC xix. Jai Narayan Mathur Vs. Jai Prakash Mathur, (2016) 228 DLT 515 xx. Mani Vs. Madhavi, MANU/KE/0633.2017, Kerela High Court xxi. Sejal Glass Ltd. Vs. Navilan Merchants Pvt. Ltd., MANU/SC/1098/2017 xxii. Syed Asadullah Kazmi Vs. Additional Magistrate, D.D.C. and Ors., MANU/UP/0671/1987 xxiii. YU Televentures Private Limited Vs. Telefonaktiebolaget LM Ericsson (PUBL) And ORS., Rahul Sharma And Ors. Vs. Telefonaktiebolaget LM Ericsson (PUBL) And Ors., 2016 LAWPACK(Del) xxiv. Yashvir Singh Tyagi Vs. State And Rajeev Choudhary @Rajeev Kumar Vs. State, 2109 LAWPACK(Del) 69137 xxv. H.S. Deekshit & Anr. Vs. M/s. Metropoli Overseas Limited & Ors.
45. I have heard ld. Counsels for the parties and have perused the record.
46. As per the submissions made on behalf of ld. Sr. Counsel for defendant No.1, the present application, though having been filed under Section 340 of the Cr.P.C., is being treated as an application under Order VII Rule 11 CPC. All the parties have made their submissions with reference to provisions of Order VII Rule 11 CPC dealing with rejection of plaint.
47. While considering submissions under Order VII Rule 11 CPC, the court only has to see the contents of the plaint in order to gauge whether or not the plaint discloses any cause of action and is not otherwise barred by any law. Defence as may be raised in the written statement or in the arguments for rejection of plaint, are not relevant for adjudication under Order VII Rule 11 CPC. Thus, in the case of Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others[1], Supreme Court has held as follows:
48. In the plaint, the following facts have been pleaded: I Present suit pertains to property bearing No.14, Alipur Road, Civil Lines, Delhi. The said property measures 6170 Sq. yards. Plaintiff and defendants are the legal heirs of late Dr. R.N. Jain (the father). II The suit property was originally owned by Ms. Sushila Devi, wife of late Sh. Shyam Nath. Late Dr. R.N. Jain along with his three brothers, namely, Mr. J.R. Jain, Mr. S.R. Jain and Mr. N.L. Jain were partners of M/s Jain Brothers. The partnership firm was constituted in the year
1955. III All the four partners of M/s Jain Brothers decided to purchase the suit property in the name of their wives, who were all housewives. Thus, the suit property was purchased by partners of M/s Jain Brothers in the name of their wives vide Sale Deed dated 07.01.1970. The sale consideration of Rs.[3] Lakhs was paid by M/s Jain Brothers to the sellers vide Bank Draft No. DBU489701/1/70 dated 13.01.1970 from their bank account number – 12269/4, Punjab National Bank, Chawari Bazar Branch, Delhi. The said amount of Rs.[3] Lakhs was debited equally to all the above mentioned partners in the books of account of M/s Jain Brothers towards their share in the firm. IV The suit property was purchased by Dr. R.N. Jain (the father) in the name of defendant No.2 (the mother), i.e., his wife, out of his own funds, for his own use and for the use of his family and not for the sole benefit of defendant no.2 (the mother). Even the possession of the suit property is with all the parties and that the mother was having no independent right in the suit property. V The entire sale consideration for purchase of 1/4th undivided share in the suit property was paid by late Dr. R.N. Jain. The present suit pertains to the said 1/4th undivided share of late Dr. R.N. Jain (the father), which he purchased in the name of his wife, i.e., defendant No.2 (the mother). VI Plaintiff is in joint possession of the suit property since 1970, along with others. Dr. R.N. Jain (the father) executed his last and final Will dated 05.09.1992, as per which he bequeathed all his properties equally in favour of his three sons and also gave life interest in favour of his wife, i.e., defendant No.2 (the mother). VII Ms. Rattan Mala Jain, one of the co-owners of the suit property, approached plaintiff in the month of September 2016 and informed plaintiff that defendant No.1 has filed a suit bearing CS (OS) No. 462/2016 before this Court for partition of the suit property on the basis of alleged gift deed dated 07.06.2006 executed by defendant No.2 (the mother) in favour of defendant No.1. VIII Defendant No.2 (the mother) had no right, title or interest to execute any document in respect of the suit property, as the same was purchased and constructed by late Dr. R.N. Jain (the father) out of his own funds. No amount was contributed by defendant No.2 (the mother), as she was a housewife and was having no income of her own. Since the suit property belonged to Dr. R.N. Jain (the father), after his demise, the said property now belongs to all his sons with life interest to his wife (the mother), as per his last and final Will dated 05.09.1992. IX Alleged Gift deed dated 07.06.2006 was executed in the year 2006 by defendant No.2 (the mother) in favour of defendant No.1, but as per information of plaintiff, none of the legal heirs of late Dr. R.N. Jain (the father) as well as other co-owners of the suit property were aware about the execution of the alleged gift deed. X Defendant no. 1 influenced the mother and took advantage of her old age, illiteracy and medical condition; and got the alleged gift deed executed in his favour.
49. A bare reading of the plaint manifests that the case of plaintiff is that the subject property to the extent of 25% was held only in the name of the mother, whereas in actuality, the owner of the same was the father, late Dr. R.N. Jain. Thus, the actual and beneficial owner of 25% of the property was the father, while the property was held in the name of the mother only. Therefore, upon the death of the father, in terms of his Will dated 05.09.1992, the mother acquired only a life interest of the property and the three sons of late Dr. R.N. Jain (the father) were to have ownership of the property in terms of his Will. Therefore, the property neither exclusively belonged to the mother, nor did she have any right, title or interest in the same to have been capable to gift the same to defendant no.1 by virtue of a gift deed or dispose of the same in any other way.
50. On the basis of the aforesaid submissions in the plaint, it has been averred on behalf of defendant no.1 that the suit is barred by the Benami Act. Per contra, it is the case on behalf of plaintiff that the fact of the mother being only the recorded owner, falls within the well recognized exceptions under the Benami Act, i.e., husband purchasing property in the name of the wife, to be held by the wife in name only, for the benefit of the husband and/or the entire family.
51. As regards law regarding the benami transactions, the same can be divided in the following three time zones: I Pre-Enactment of the Prohibition of Benami Property Transactions Act, 1988 - In the pre - 1988 period, the Supreme Court has held that benami transactions was a legally recognized mode of transactions in respect of immovable property, which was used commonly and upon proof of necessary facts courts would decree suits brought in this regard (See R. Rajagopal Reddy (Dead) L.Rs and Others Vs. Padmini Chandrasekharan (Dead) by L.Rs, (1995) 2 SCC 630). Further, under the law as prevalent till 1988, whenever a property was purchased in the name of the wife, and the wife had no source of income, the presumption was that the husband was the real owner of the property and that it did not belong to the wife who held it in name only. (See Controller of Estate Duty, Lucknow Vs. Aloke Mitra, (1981) 2 SCC 121) II From 1988 till enactment of the Benami Transactions (Prohibition) Amendment Act, 2016, i.e., from 1988 to 2016 - During this period from 1988 to 2016, though benami transactions were prohibited by law, however, Section 3(2) of the Benami Act, as it stood prior to amendment of 2016, provided an exception inter-alia for purchase of property by the husband in the name of the wife. Further, prior to its omission in the year 2016, exceptions were provided in Section 4(3)(a) and (b) of the Benami Act, i.e., purchase of property by an HUF and purchase of property by a person standing in fiduciary capacity. Thus, if a property was purchased by the husband in the name of the wife, it was presumed that it was for the benefit of the wife. However, the husband could disprove such presumption. III 2016 onwards: In 2016, the Benami Act was further amended extensively by way of the Benami Transactions (Prohibition) Amendment Act, 2016. Section 3(2) of the Benami Act was deleted. However, under the definition of prohibited benami transactions in Section 2(9) of the Benami Act as amended in 2016, various exceptions have been provided under which the transaction is not considered as a benami transaction. Such exceptions as provided in Section 2(9) of the Benami Act are such as purchase of property in the name of spouse or in the name of any child by an individual and the consideration for such property has been provided or paid out of the known sources of such individual; property held by a karta or member of HUF and the property is held for the benefit of other members in the family and consideration for such property has been provided or paid out of the known sources of the HUF; persons standing in fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, etc.
52. The above discussion would show that till 1988, benami transactions were legal and valid in India. Post 1988, a prohibition was introduced on benami transactions, with certain exceptions, interalia where purchase by a husband in the name of the wife was accepted as a recognized and legally permissible valid mode. Thus, as per Section 3(2) of the Benami Act prior to amendment in 2016 and as per exception to Section 2(9) of the Benami Act as amended by the 2016 Act, purchase of property by husband in the name of wife, the consideration for such property having been provided or paid out of the known sources of the husband, has been excluded from the definition of “benami transaction”. It is to be noted that the present transaction is of the year 1970, i.e., before the enactment of the Benami Act in the year 1988.
53. While considering the issue regarding whether or not the present suit is barred by Benami Act, attention of this Court has been brought to the following facts: I The ledger of the firm M/s Jain Brothers for the relevant period, i.e., January 1970 shows that the money of Rs. 3,00,000/- came from the firm M/s Jain Brothers. As per the plaintiff, the original ledger book is with the plaintiff and the same will be brought to the court at the time of evidence or any time when the court so directs. II Copy of letter dated 13.01.1970 to the bank written by M/s Jain Brothers for preparation of a demand draft, pursuant to which a demand draft dated 13.01.1970 was prepared. The details of the demand draft are recorded in the sale deed of the suit property dated 07.01.1970. III The sale deed itself mentions that the purchasers have paid the sale consideration “out of the moneys belonging to them upon a joint account to the said seller by a demand draft”. It is the case on behalf of plaintiff that the four women in whose name the property was purchased, did not have any joint bank account, nor has defendant no.1 been able to produce any such proof of a joint bank account of the four women. As canvassed on behalf of plaintiff, in fact, the mother did not even have a bank account in the year 1970 when the sale deed of the suit property was executed. The only joint account was the account of the partnership firm, M/s Jain Brothers. IV It is categorical case of plaintiff that the four women did not purchase the suit property out of their own funds. Case put up by defendant no.1 that funds for purchase of the suit property were given out of the stridhan of the mother, is ex facie false. Defendant no.1 has not produced any evidence or document supporting the said assertion. Further, the mother had no independent source of income and was a housewife throughout her life. V As per the plaintiff, a sum of Rs. 75,000/- in the year 1970 was a huge sum of money, equal to several crores in today‟s date. To believe that a lady (the mother) who was married about 30 years prior, in the 1940s, would retain such a large amount of cash as a stridhan, almost 30 years after marriage, is totally unbelievable.
54. This Court also takes note of the following facts that have emerged during the course of arguments: I It is not only the recorded owner, i.e. the mother alone, but rather the entire family of Dr. R.N. Jain (the father) that stayed in the suit property. Consequently, possession of the mother was neither exclusive nor was there any ouster of any of the other family members, nor has the same been pleaded. II Even today, plaintiff‟s family and the family of defendant nos. 3 to 6 stay at the suit property, apart from defendant no.1‟s family. Thus, defendant no.1 is not the only person in possession of the suit property. III The original title deed of the suit property was not in possession of the mother, but in possession of plaintiff. The same has now been deposited by plaintiff in original before this Court. IV Plaintiff and defendant no.1 all along after the death of Dr. R.N. Jain (the father), used to share the house tax of portion of the property in the ratio of 50:50. The mother was not the person paying the house tax. Plaintiff and defendant no.1 were jointly paying house tax till 2015-16
55. In view of the aforesaid facts that have been canvassed before this Court, the plea raised on behalf of defendant No.1 that the plaint is barred by the Benami Act, is a question which, in the facts and circumstances of the present case, cannot be decided at the time of considering the averments under Order VII Rule 11 CPC. As per the contention raised on behalf of the plaintiff, the suit property was purchased by late Dr. R.N. Jain and his three brothers in the names of their four wives, from the funds of the partnership firm. Plaintiff has raised the plea that the Benami Act expressly permits a person to purchase property in the name of his wife, and this is considered as an exception towards benami transaction. It is further the case on behalf of plaintiff that the mother held the property in fiduciary capacity and for the benefit of Dr. R.N. Jain and the family as a whole, and not only for her own benefit.
56. Whether or not the present case is barred by the provisions of the Benami Act; or whether or not the plaintiff will or will not have benefit of exceptions as provided in the Benami Act, is an aspect which would have to be decided on the basis of the evidence on record. These are matters of fact which require trial. Disputed questions have been raised on behalf of the parties, which cannot be decided at the time of considering an application filed under Order 7 Rule 11CPC. “Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the pliant, without any doubt or dispute shows that the suit is barred by any law in force.” (See: Popat and Kotecha Property Vs State Bank of India Staff Association, (2005) 7 SCC 510). In the facts and circumstances of the present case, this question cannot be decided at the stage of the application under Order VII Rule 11 CPC and suit cannot be rejected at the threshold by applying principles of Order VII Rule 11 CPC. Thus, in the case of Pawan Kumar Vs. Babulal and Others[2], Supreme Court held as follows:
57. Supreme Court in the case of Binapani Paul Vs. Pratima Ghosh and Others[3], has held that the burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. Supreme Court has laid down various tests in order to determine the question whether a particular sale is benami or not. Thus, it has been held as follows:
58. In view of the aforesaid, it is apparent that the question with respect to benami transaction would have to be determined by this Court on the basis of various tests/circumstances as laid down by Supreme Court in the aforesaid judgment. These facts and circumstances on the basis of which the question of benami transaction is to be determined, would be established only on the basis of evidence to be led by the parties. Therefore, it is clear that suit cannot be dismissed at this stage on the basis of the contention raised on behalf of defendant no.1 that suit is barred by the Benami Act.
59. As regards the contention raised on behalf of defendant No.1 that the suit is barred by limitation, it is to be seen that at this stage under Order VII Rule 11 CPC, only in a case where the suit is barred by limitation on the face of it, that the plaint can be rejected. As per the averments made in the plaint, the plaintiff became aware of the alleged gift deed in favour of defendant No.1, which excluded the plaintiff herein, only in the year 2016. Thus, as per the plaint, cause of action accrued in September 2016 when the plaintiff came to know about the execution of the alleged gift deed dated 07.06.2006 executed by defendant No.2 in favour of defendant No.1.
60. Under Article 58 of The Limitation Act, 1963, suit has to be filed within 3 years from when the right to sue first accrues. Under Article 59 of The Limitation Act, 1963, the suit has to be filed within 3 years from when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded, first became known to him. Holding that cause of action for the purposes of Article 58 of the Limitation Act accrues only when the right asserted in the suit is infringed, Supreme Court in the case of Daya Singh and Another Vs. Gurudev Singh (dead) by LRs and Others[4], has held as follows:
15. A similar view was reiterated in C. Mohammad Yunus v. Syed Unnissa [AIR 1961 SC 808] in which this Court observed: (AIR p. 810, para 7)
In C. Mohammad Yunus [AIR 1961 SC 808], this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry in the revenue records cannot give rise to cause of action.”
61. In the present case, the plaintiff has categorically pleaded that the plaintiff came to know of the infringement or threat to infringement of his rights in the suit property in September, 2016, when he came to know of the filing of CS (OS) 462/2016 by defendant no.1 claiming that the mother had executed a gift deed dated 07.06.2006 in favour of defendant no.1 in respect of the entire 25%.
62. Averments made in the plaint do not prima facie show that the suit is barred by limitation. At this stage, when only the averments made in the plaint are to be seen, suit cannot be rejected on the ground of limitation. Question of limitation being a mixed question of law and fact, would require leading of evidence. In view thereof, plaint cannot be rejected as being barred by limitation at this stage. Thus, in the case of Sri Biswanath Banik and Another Vs. Sulanga Bose and Others[5], Supreme Court has held as follows:
7.1. From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application under Order 7 Rule 11CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint.
7.2. Applying the law laid down by this Court in Ram Prakash Gupta [Ram Prakash Gupta v. Rajiv Kumar Gupta, (2007) 10 SCC 59] to the facts of the case on hand and on going through the entire plaint averments, it cannot be said at this stage that the suit is barred by limitation on the face of it.............. xxxxxxxxxxxxx”
63. The submissions made on behalf of various parties before this Court clearly indicate that there are disputed facts which have been raised on behalf of defendant no.1. Such questions that involve disputed facts have to be considered in trial on the basis of evidence to be led by the parties and cannot be decided at the threshold stage of Order VII Rule 11 CPC. (See: H.S. Deekshit and Ors. Vs. Metropoli Overseas Limited and Ors., MANU/SC/1403/2022). The objections raised by defendant no.1 regarding the suit being barred by provisions of Benami Act or Limitation Act, would require consideration of pleadings and evidence, and cannot be decided based on the plaint alone.
64. Reading of the plaint shows that there is cause of action in favour of plaintiff, wherein plaintiff has asserted his title and ownership to the share in the suit property. Therefore, the averments and pleadings as made on behalf of defendant No.1 in his written statement or the submissions made before this Court in support of rejection of plaint, cannot be taken into account by this Court. If the plaint discloses a cause of action, the same cannot be rejected summarily. The only relevant facts that need to be looked into with reference to Order VII Rule 11 CPC, are the averments as made in the plaint.
65. At the stage of considering an application under Order VII Rule 11 CPC, the relative strength or weakness of a plaintiff‟s case on merit cannot be considered. Likewise, contents of the written statement and defence of the defendants are completely irrelevant at the stage of considering the application under Order VII Rule 11 CPC. What has to be seen is only whether the plaint and the documents filed therewith, taken on the face of it, disclose a cause of action and is not otherwise barred under any law. Defence raised in written statement or in arguments for rejection of plaint are not relevant for an adjudication under Order VII Rule 11 CPC. (See: Mayar (H.K.) Ltd. Vs. Vessel M.V. Fortune Express, (2006) 3 SCC 100)
66. In view of the aforesaid, averments as made on behalf of defendant No.1 cannot as such be considered at the time of adjudication of the case under Order VII Rule 11 CPC.
67. Whether or not there was any „admission‟ by plaintiff in the proceedings before the ld. DRT and what is the effect of such „admission‟, if any, would have to be considered by this court at the time of final adjudication of the matter. Similarly, the effect of any suppression of material facts made by plaintiff at the time of filing of the plaint, shall be considered by this Court at the time of final adjudication of the matter. These questions, as raised on behalf of defendant No.1 with respect to admission or estoppel, would be required to be proved by way of leading evidence and cannot be decided in such a summary manner, especially when as per the law of the land, only the statements as made in the plaint will have to be considered, and not the defence as projected in the written statement.
68. Moreover, it has been held in a catena of judgments that a party is entitled to explain a previous „admission‟. Further, in addition to explaining an „admission‟, the „admission‟ has to be put to the party during evidence by confronting him and the witness then has a further chance to explain the same during cross-examination. This process of confrontation etc. can only be during the course of evidence. Thus, Supreme Court in the case of Udham Singh Vs. Ram Singh and Another[6], held as follows:
69. Further, Supreme Court in the case of Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria[7], in similar facts had allowed a party, who had earlier disclaimed rights in immoveable property stating that they had no right therein, to later file an affidavit to explain/clarify the
“admissions” made earlier. Thus, it cannot be held at this stage that there is no cause of action in favour of the plaintiff on the basis of earlier “admissions”.
70. Even otherwise, the pleading by plaintiff in DRT that the mother was the owner of suit property or that plaintiff does not have any right, title or interest in the property, does not make the mother owner of the suit property, if otherwise in law it can be determined that not the mother, but the father was the real owner of the property. Nor does such “admission” divest the plaintiff of ownership in property, if it can be proved that Dr. R.N. Jain (the father) was the real owner of suit property and therefore, plaintiff has ownership rights in the property through the father Dr. R.N. Jain‟s Will dated 05.09.1992. “Admissions” do not confer or take away title in immoveable property. (See Ambika Prasad Thakur and Others Vs. Kamal Singh and Others, AIR 1966 SC 605)
71. There is another aspect of the matter. Submission raised on behalf of defendant no.1 pertaining to suppression/contradictory pleas before the DRT relate to prayer (i) in the plaint with regard to seeking declaration that the suit property was owned by the father. Plaintiff has also sought further prayer for decree for cancellation of gift deed dated 07.06.2006 executed by the mother in favour of defendant no.1 on account of undue influence by defendant no.1 upon the mother and the said gift deed not being based on free and fair consent. Therefore, it is not open to defendant no.1 to pray for rejection of plaint in part.
Holding that a plaint cannot be rejected in part, Supreme Court in the case of Sejal Glass Limited Vs. Navilan Merchants Private Limited[8], held as follows: “4. It is settled law that the plaint as a whole alone can be rejected under Order 7 Rule 11. In Maqsud Ahmad v. Mathra Datt & Co. [Maqsud Ahmad v. Mathra Datt & Co., 1936 SCC OnLine Lah 337: AIR 1936 Lah 1021], the High Court held that a note recorded by the trial court did not amount to a rejection of the plaint as a whole, as contemplated by the CPC, and, therefore, rejected a revision petition in the following terms: (AIR p. 1022 para 4: SCC OnLine Lah para 4) “4. … There is no provision in the Civil Procedure Code for the rejection of a plaint in part, and the note recorded by the trial court does not, therefore, amount to the rejection of the plaint as contemplated in the Civil Procedure Code.”
5. Similarly, in Bansi Lal v. Som Parkash [Bansi Lal v. Som Parkash, AIR 1952 Punj 38], the High Court held: (AIR p. 39, para 7) “7. But the real question which arises in this appeal is whether there can be a partial rejection of the plaint. Mr Chiranjiva Lal Aggarwala submits that a plaint can either be rejected as a whole or not at all, and he has relied on a statement of the law given in Mulla's Civil Procedure Code at p. 612 where it is stated:“This rule (Order 7 Rule 11) does not justify the rejection of any particular portion of a plaint.” In support of this statement the learned author has relied on Raghubans Puri v. Jyotis Swarupa [Raghubans Puri v. Jyotis Swarupa, ILR (1906-07) 29 All 325], Venkata Rangiah Appa Rao v. Secy. of State [Venkata Rangiah Appa Rao v. Secy. of State, 1930 SCC OnLine Mad 123: ILR
54 Mad 416: AIR 1931 Mad 175] and Maqsud Ahmad v. Mathra Datt & Co. [Maqsud Ahmad v. Mathra Datt & Co., 1936 SCC OnLine Lah 337: AIR 1936 Lah 1021] In reply to this argument Mr Puri has submitted that it is really five suits which had all been combined in one and therefore in this particular case the rejection of a part was nothing more than rejection of three plaints. But the suit was brought on one plaint and not five suits were brought. The law does not change merely because the plaintiff chooses in one suit to combine several causes of action against several defendants which the law allows him. It still remains one plaint and therefore rejection of the plaint must be as a whole and not as to a part. I am therefore of the opinion that the learned Senior Subordinate Judge was in error in upholding the rejection as to a part and setting aside the rejection in regard to the other part. This appeal which I am treating as a petition for revision must therefore be allowed and the rule made absolute, and I order accordingly.””
72. Similarly, the fact whether the present suit is maintainable in the absence of prayer for cancellation of the sale deed dated 07.01.1970, is a question which would have to be adjudicated upon by this court at the time of final hearing of the matter.
73. Perusal of the plaint clearly discloses cause of action in favour of plaintiff. Reading of the plaint does not disclose prima facie that the plaint is barred by any law. Therefore, the plaint cannot be rejected under Order VII Rule 11 CPC in a summary manner without trial. The various issues as raised on behalf of the plaintiff and defendant No.1 can only be decided after trial and considering the evidence on record.
74. In view of the aforesaid, the present application is found without any merits and the same is accordingly dismissed.
75. It is clarified that nothing contained herein shall be construed as an expression on merits of the present case. CS(OS) 182/2017 CS(OS) 261/2019 EX.P. 50/2018
76. List before the Roster Bench on 25.08.2023.
(MINI PUSHKARNA) JUDGE