Manju Vats & Ors. v. Meena Pandey

4. I have heard the learned counsels for the parties on the two issues raised by the defendant and recorded herein above.

5. Before adverting to the submissions made, it would be relevant to note the averments made in the Amended Plaint.

6. It is the case of the plaintiffs that property bearing no. F-45, Bali Nagar, New Delhi-110015 (hereinafter referred to as the ‘Suit Property’) was purchased jointly by the mother of the plaintiffs- Smt. Savitri Devi, and the mother of the defendant- late Smt. Sita Devi, vide registered Sale Deed dated 11.07.1960. The plaintiffs further state that after the purchase of the property, for purposes of construction, a certain amount was required to be generated as loan. The plaintiffs claim that during 1966, loan used to be provided by the Delhi Administration through the Assistant Housing Commissioner (Loans), New Delhi. Such a loan was, however, extended only to the sole owner of the property.

7. The plaintiffs assert that the father of the defendant- late Shri Jagdish Sarup Vats was responsible for obtaining the loan from the said authority, and on his request, the mother of the plaintiffs- late Smt. Savitri Devi executed a Sale Deed dated 18.03.1966 in favour of the mother of the defendant- late Smt. Sita Devi so as to show her as the sole owner of the property for the purposes of raising a loan. The plaintiffs assert that it was, however, agreed that the mother of the plaintiffs would otherwise continue to remain a co-owner of the Suit Property.

8. The plaintiffs further claim that the entire amount of the loan was thereafter repaid from the funds of the family.

9. The plaintiffs claim that the above understanding of the family was also reflected in the Mutual Will(s), both dated 16.04.1981 executed by the mothers of the parties and basis whereof the present suit has been filed.

10. The plaintiffs assert that it is only in 2014, when the plaintiffs requested the defendant to partition the Suit Property, that the defendant refused to do so, forcing the plaintiffs to file the present suit.

11. Originally, the suit was filed by the plaintiffs praying only for a decree of partition, claiming that the mothers of the parties were coowners of the Suit Property and in terms of the mutual Will(s) executed by the two of them, the plaintiffs were entitled to a share in the Suit Property and, therefore, entitled to a decree of partition of the Suit Property.

12. The defendant filed the written statement stating that with the execution of the Sale Deed dated 18.03.1966, the mother of the plaintiffs was left with no right, title or interest in the Suit Property. The defendant further pleaded that late Smt. Sita Devi had left behind a subsequent Will dated 08.04.1988 bequeathing the Suit Property in favour of the defendant. The defendant also denied the genuineness of the Will dated 16.04.1981, propounded by the plaintiffs in the suit.

13. Based on the pleadings of the defendant, the plaintiffs applied for permission to amend the plaint, so as to include additional prayers, including prayer (ccc) and (cccc) which are reproduced hereinbelow:- “(ccc) Pass a Decree of Declaration that the Sale Deed dt. 18.03.1966 was a sham document and did not confer any ownership right upon Smt. Sita Devi over any portion of immovable property bearing Municipal No. F- 45, Bali Nagar, New Delhi measuring about 200 sq. yds.;

(cccc) Pass a Decree of Cancellation, thereby cancelling the Sale Deed dt. 18.03.1966, executed by Smt. Savitri Devi, in favour of Smt. Sita Devi, registered with Sub-Registrar, Kashmere Gate, Delhi vide registration NO. 6169 Book No. I Vol. No. 1569, at pages 163 to 164, registered on 23.03.1966.”

14. The permission to amend the plaint was granted in favour of the plaintiffs vide order dated 15.12.2016, leaving all objections of the defendant open to be considered in the trial of the present suit.

15. In the above background of the case, the learned counsel for the defendant submits that it is the own plea of the plaintiffs that the Sale Deed dated 18.03.1966 was executed by the mother of the plaintiffs-late Smt. Savitri Devi to defraud the authorities and to obtain a loan. Placing reliance on the judgment of this Court in Vinod Popli (supra), he submits that, therefore, the claim of the plaintiffs is liable to be rejected on the doctrine of pari delicto and the property shall remain in the exclusive title of the mother of the defendant-late Smt. Sita Devi.

16. The learned counsel for the defendant further submits that the plaintiffs were always in the know of the Sale Deed dated 18.03.1966 that had been executed by their mother, in favour of the mother of the defendant. The present suit was filed only in 2015, that is, almost 50 years after the execution of the Sale Deed. Placing reliance on the judgment of this Court in Smt. Seema Thakur v. Union of India & Ors., 2015 SCC OnLine Del 11386, he submits that the relief challenging the Sale Deed would be barred by Limitation and, therefore, prayer (ccc) and (cccc) of the amended plaint are liable to be rejected.

17. On the other hand, the learned counsel for the plaintiffs submits that though the principles of Order XII Rule 6 of the Code of Civil Procedure, 1908 (in short ‘CPC’) can be invoked to dismiss a particular prayer made in the plaint, the present case would not warrant such a course to be adopted. Placing reliance on the judgments in Karan Kapoor v. Madhuri Kumar, (2022) 10 SCC 496; Himani Alloys Ltd. v. Tata Steel Ltd., (2011) 15 SCC 273; S.M Asif v. Virender Kumar Bajaj, (2015) 9 SCC 287; Express Towers v. Mohan Singh & Ors., 2006 SCC OnLine Del 929; and Manisha Commercial Ltd. v. N.R. Dongre & Anr., 2000 (52) DRJ, he submits that for a decree to be passed exercising power under Order XII Rule 6 of the CPC, which is a discretionary power, the admission must be specific, clear and categorical. Even if the admission claimed is on a question of law, if it is of a vexed nature, the Court would normally refuse the passing of a decree exercising the said power. He submits that in the present case, there is no admission of the plaintiffs on the basis whereof the prayers in question can be rejected at this stage.

18. On the submission of the learned counsel for the defendant that prayer (ccc) and (cccc) of the amended plaint, would be hit by the doctrine of pari delicto, the learned counsel for the plaintiffs, placing reliance on the Kedar Nath Motani & Others v. Prahlad Rai & Others, AIR 1960 SC 213; Dal Chand v. Babu Ram & Ors., AIR 1981 ALL 335; Sita Ram v. Radhabai & Ors., AIR 1968 SC 534; T.P. Petherpermal Chetty v. R. Muniandi Servai & Others, 1908 SCC OnLine PC 5; and Babita Pal & Ors. v. J. Jagdish Bansal, 2013 (133) DRJ 332 (DB), submits that it is not the case of the plaintiffs that the alleged Sale Deed was executed by the mother of the plaintiffs to perpetuate a fraud on any third party. The case of the plaintiffs is that the parties required a loan for the purposes of construction on the suit land, and as it was a condition that such loan will be extended only to a sole owner of the property, the sale transaction was entered into with a clear understanding that the same shall, however, not vest exclusive ownership only on the mother of the defendant or in any manner exclude the mother of the plaintiffs from such ownership rights. In fact, the loan has been completely repaid from the family funds and, therefore, even otherwise, there was no fraud perpetuated on any third party. He submits that, therefore, the doctrine of pari delicto shall not apply to the facts of the present case.

19. On the question of the claim being barred by Limitation, the learned counsel for the plaintiffs, placing reliance on Gannon Dunkerley and Co. Ltd. v. Union of India, (1969) 3 SCC 607; Sri Biswanath Banik & Anr. v. Sulanga Bose & Ors., (2022) 7 SCC 731; Mussamat Bolo v. Musammat Koklan & Ors., Calcutta Weekly Notes vol.

XXXIV Pg. 1169; and State of Punjab & Ors. v. Gurdev Singh, (1991) 4 SCC 1, submits that the cause of action for filing of the suit and making the above prayers arose only when the defendant, based on the Sale Deed dated 18.03.1966, claimed exclusive ownership rights of the Suit Property in favour of her mother. Before such date, as the mother of the defendant had admitted that the Sale Deed was not to be acted upon, there was no cause of action for the mother of the plaintiffs or the plaintiffs to file the suit. He submits that, therefore, the present suit is within the period of limitation. He submits that the judgment of Seema Thakur (supra) would not be applicable to the facts of the present case, inasmuch, as, in the said case, the plaintiffs therein had admitted to the execution of the Sale Deed in previous judicial proceedings and thereafter set up a case of its illegality.

20. The learned counsel for the defendant, in rejoinder, while reiterating his submission in the opening, further submits that the mother of the defendant died on 28.06.1991. Therefore, even if the case of the plaintiffs is to be believed, the right of the plaintiffs to seek partition would have arisen on that date. Merely because the father of the defendant died in 2014, it cannot give a fresh cause of action to the plaintiffs to institute the present suit.

21. This submission of the learned counsel for the defendant is refuted by the learned counsel for the plaintiffs by reiterating that the cause of action for filing of the suit and the prayers in question arose only when the defendant set up an exclusive title of the Suit Property in favour of her mother relying upon the Sale Deed. Prior thereto, there was no dispute between the parties, including a cause of action for the plaintiffs to seek partition of the Suit Property. He submits that, therefore, the suit is within the period of limitation.

22. I have considered the submissions made by the learned counsels for the parties.

23. As is evident from the above, the two issues that are to be determined are whether:a) The prayers in question are liable to be rejected on the basis of the doctrine of pari delicto; b) The prayers in question are barred by Limitation.

24. My answer to both the above issues is in the negative.

25. At the outset, the principles applicable to Order XII Rule 6 of the CPC need to be noticed.

26. In Karan Kapoor (supra), it has been held that Order XII Rule 6 of the CPC confers discretionary power to a Court which should be exercised only where specific, clear and categorical admission of facts and documents are on record, otherwise, the Court can refuse to invoke the power of Order XII Rule 6 of the CPC.

27. In fact, this Court in Manisha Commercial Ltd. (supra), has held that it would not be appropriate for a party to employ Order XII Rule 6 of the CPC in instances where vexed and complicated questions or issues of law have arisen.

28. Applying the above tests to the facts of the present case, it is not the case of the plaintiffs that the Sale Deed dated 18.03.1966 was executed by the mother of the plaintiffs and the mother of the defendant to defraud the Delhi Administration to grant a loan to them for raising construction on the Suit Property. The plaintiffs, in fact, claim that the said loan had been fully repaid.

29. In Vinod Popli (supra), it was the own case of the plaintiff that he had executed a registered Gift Deed in favour of the defendant no.1 therein and also set up a false case of divorce with the defendant no.1, so as to save his properties due to huge losses. It was because of the said pleadings that this Court invoked the doctrine of pari delicto, finding that the plaintiff was guilty of playing a fraud upon the Court.

30. In Kedar Nath Motani (supra), the Supreme Court has held that where both the parties do not show that there was any conspiracy to defraud a third person or to commit any illegal act, the maxim of pari delicto would not be applicable.

31. In Sita Ram (supra), the Supreme Court explained the doctrine of pari delicto, and exceptions on its application, as under:-

32. It was further held that where the parties are not in pari delicto, the less guilty party may be able to recover money paid or property transferred under the Contract, including where the person to whom such property is transferred is under a fiduciary duty to the plaintiff.

33. In the present case, it is not the case of the plaintiffs that the subject Sale Deed was executed to carry out any illegal or immoral act. As noted, it is the case of the plaintiffs that the Sale Deed was executed to meet the condition for obtaining a loan, which was for the mutual benefit of the mothers of the parties. There was no intention not to repay the loan, and, in fact, the loan stood fully repaid. The mother of the defendant, as per the case of the plaintiffs, would, in fact, be holding the property for or on behalf of the plaintiffs in a fiduciary capacity.

34. In view of the above, in my opinion, the doctrine of in pari delicto, at least, prima facie is not applicable to the facts of the case, so as to empower this Court to pass a decree rejecting the subject prayers in exercise of its discretionary powers under Order XII Rule 6 of the CPC.

35. Coming to the issue of limitation, it is the case of the plaintiffs that till the filing of the written statement by the defendant, there was no dispute with respect to the fact that the mother of the plaintiffs and the mother of the defendant were co-owners of the Suit Property; the suit was in fact filed on that basis. The learned counsel for the plaintiffs has asserted that it is only when the plea of exclusive ownership of the mother of the defendant based on the Sale Deed dated 18.03.1966 was taken by the defendant in the written statement, that a cause of action arose in favour of the plaintiffs to challenge the said Sale Deed. In support of the above submission, the learned counsel for the plaintiffs has placed reliance on the purported Will dated 16.04.1981 of Late Smt. Sita Devi, mother of the defendant, which inter alia records as under: “WHEREAS I, the above named executant is the owner of house bearing No.F-45, Bali Nagar, New Delhi, which is a two and a half storyed building. That this plot was originally purchased jointly by the above named executant and her sister Smt. Savitri Devi Vats, but later, on mutual consent it was transferred in the name of the Executant alone to enable her to raise loan for the construction of the same. The construction of the building was raised by the joint funds of the Executant and her sister Smt. Savitri Devi Vats and even the instalments of the loan amount are also being paid jointly by them although the same are being paid in the name of the Executant alone.”

36. In Gannon Dunkerley (supra), the Supreme Court has held that there is no right to sue until there is an accrual of right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.

37. In Biswanath Banik & Anr. (supra), the Supreme Court reiterated that the cause of action can be said to have arisen only on the date when the right of the plaintiff is challenged.

38. In any case, limitation is a mixed question of fact and law. The defendant herein is claiming that on the contents of the plaint itself, the suit is barred by Limitation. I do not find any merit in the said submission. Once the plaintiffs have asserted that till the filing of the written statement, the defendant or her predecessor-in-interest was not claiming an exclusive right over the Suit Property, and there is no admission that the defendant at any time had set up an exclusive right to the Suit Property prior to the filing of the written statement, a judgment on admission on issue of limitation cannot be passed.

39. In Smt. Seema Thakur (supra), the Court found that the plaintiff therein in at least two previous judicial proceedings had categorically admitted to the execution of the Sale Deed. The plaintiff therein sought to place this blame on the lawyer representing her in those previous judicial proceedings. The Court did not find in favour of the above submission. The Court, therefore, found that having admitted the execution of the document and having sued on basis thereof, it was a case where the decree deserved to be passed under Order XII Rule 6 of the CPC. The facts in the present case, are totally distinguishable from those with which the Court was confronted with in Smt. Seema Thakur (supra).

40. I also do not find any merit in the submission of the learned counsel for the defendant that the cause of action for filing of the suit arose on the death of the mother of the defendant. A co-owner is under no obligation to obtain immediate partition of the property on the death of the predecessor-in-interest of the co-owners. Such a party can choose to remain joint. The cause of action would, therefore, arise when one of the co-owners expresses his/her opinion to separate from others.

41. In view of the above, I find no merit in the challenge of the learned counsel for the defendant on the subject prayers being barred by Limitation.

42. It is made clear that any and all observations made hereinabove, including on the question of limitation, are only prima facie in nature and shall not bind this Court at the time of final adjudication of the suit on merits, once the parties have led their respective evidence.

43. List for framing of issues on 24th July, 2023.