Full Text
HIGH COURT OF DELHI
5140/2021 & I.A. 3178/2022
NEELMANI SINGH …..Plaintiff
Through: Mr.Roopansh Purohit, Mr. Ankit Chaubey, Ms. Gultas Guron, Advocates
Through: Mr. Sandeep Sethi, Senior Advocate with Mr. Ashim Shridhar and Ms. Niyati Patwardhan, Advocates for D-1
JUDGMENT
1. The instant application has been filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “CPC”) on behalf of defendant No. 1 seeking the following reliefs: “a. Allow the present application under Order VII Rule 11 R/w Section 151 of the Code of Civil Procedure, 1908 and reject the plaint filed by the Plaintiff. b. Pass such other or further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”
FACTUAL MATRIX
2. The plaintiff/non-applicant has filed the captioned suit for partition, declaration, cancellation and permanent injunction.
3. The plaintiff and the defendant No. 1-4 are the immediate successors of late Dr. Jagjit Singh Bedi, who was the sole and absolute owner of the property bearing no. 132, Golf Links, New Delhi – 110003 admeasuring 335 sq. yds. consisting of ground, first and second floor.
4. The above-mentioned property was originally allotted to Smt. Prem Kumari Mehra wife of Sh. J.D. Mehra, resident of Bombay Life Building, Connaught Circus, New Delhi by the Land & Development Office, (hereinafter referred to as “L&DO”) Ministry of Urban Development, Ninnan Bhawan, New Delhi vide registered lease deed dated 24th September, 1956 registered in the supplementary book. no.1, vol. no. 15, pages 23 to 26.
5. The father of the parties herein purchased the suit property from Smt. Prem Kumari Mehra after permission granted vide letter No. Asc.Auction/Golf Link/10/132/56 dated 2nd August, 1956, by Government of India, Ministry of Rehabilitation, Office of the Regional Settlement Commissioner, 35-P Block, New Delhi and vide sale deed dated 6th November, 1956 duly registered having registration no. 3637, in additional book no. 1, vol. no. 303, pages 50 to 54, dated 23rd November,
1956.
6. Mr. Sandeep Sethi, learned senior counsel appearing on behalf of the applicant/defendant No. 1 submits that the captioned suit filed by the plaintiff is ex-facie barred by limitation. Furthermore, the plaint filed by the plaintiff shall be rejected at the very threshold being devoid of any cause of action.
7. It is the submission of the leaned senior counsel appearing on behalf of the applicant/defendant No. 1 that the captioned suit is barred by the virtue of Article 58 & 59 of the Limitation Act, 1963 (hereinafter referred to as “the Limitation Act”) that provides for a limitation period of three years from the date of which the right to sue first accrues or the knowledge of such transaction.
8. It is submitted that in light of the facts and circumstances of the instant case and even as per the plaintiff herself the cause of action first arose on 3rd October, 1992 and then on 21st January, 1992 and thereafter third week of February, 1993. Therefore, the plaintiff/non-applicant cannot be permitted to raise the contentions by way of the instant suit after an in-ordinate delay of 28 years. Reliance is placed upon the judgment passed by the Hon’ble Supreme Court in Md. Noorul Hoda v. Bibi Raifunissa and Ors; (1996) 7 SCC 767 and Abdul Rahim v. S.K. Abdul Zabar; (2009) 6 SCC 160 whereby it was held that the provisions of the Limitation Act, 1963 governs a lawsuit for annulment of a transaction, regardless of whether the transaction is null or voidable. Therefore, the suit should have been filed within three years of the date on which the plaintiff had knowledge that the allegedly void or voidable transaction had occurred. Due to the fact that the suit was not filed within three years, it is liable to be held as barred by limitation.
9. It is submitted on behalf applicant/defendant No. 1 that certain documents have been admitted by the plaintiff by way of which the suit property was bequeathed by the late father of the parties in favour of defendant No. 1. The said documents are enlisted included the following:i. Affidavit/NoC executed and filed before the L&DO. ii. Family Settlement/Memorandum of Understanding (MoU) dated 7th August, 1992. iii. Handwritten Note & Compromise Deed dated 17th February,
1993. iv. Letter dated 16th March, 1993. In the aforementioned documents, the plaintiff has categorically admitted that the suit property was bequeathed to defendant No. 1 in the last Will and testament dated 19th January, 1991 executed by the father of the parties. In addition, the plaintiff acknowledged the rights of defendant No. 1 vide Agreement/MoU dated 7th August, 1992 and acknowledged relinquishing her rights in the subject property in accordance with her handwritten note dated 17th February, 1993. In addition, in the letter dated 16th March, 1993 addressed directly to the L&DO by the plaintiff, she stated unequivocally that substitution of the suit property be carried out in favour of defendant No.1 in accordance with the Will dated 19th January, 1991 executed by the deceased father of parties. Therefore, the act of the plaintiff in filing the instant suit is completely malicious and thereby should be rejected at threshold.
10. It has been submitted by the applicant/defendant No. 1 that the plaintiff has relinquished her rights in suit property in compliance of handwritten note dated 17th February, 1993. Furthermore, vide letter dated 16th March, 1993 addressed by the plaintiff to the L&DO, she has categorically stated that substitution of the suit property be carried out in favour of defendant No.1 in terms of the last Will and testament dated 19th January, 1991 executed by the deceased father of parties. Therefore, it is submitted that the captioned suit filed by the plaintiff/non-applicant being frivolous and vexatious ought to be nipped in the bud.
11. It is submitted that the plaintiff has misled this Court into believing that she learned of the Will dated 19th January, 1991 and the Affidavits/NOC filed with the L&DO only in March 2018 as a result of filing an RTI with the L&DO. Further, it is argued that the blatant falsehood being propagated by the plaintiff is evident because firstly, L&DO did not provide any document containing the Will of 1st September, 1989 or any document revoking/cancelling the registered Will dated 1st September, 1989 and the plaintiff has concealed how and under what circumstances she discovered the cancellation dated 5th October, 1990 after 28th March, 2018. Secondly, the L&DO did not provide the agreement/MoU on 7th August, 1992.
12. It is submitted that admittedly substitution of the suit property was carried out in favour of defendant No.1 in the year 1993 and the same has been reaffirmed by the L&DO in its letter dated 8th March, 2021. The letter dated 8th March, 2021 addressed to the plaintiff further corroborates that substitution in favour of defendant No.1 was carried out on the basis of the consent letter dated 16th March, 1993 sent by the plaintiff herself. It is further submitted that the relief of cancellation sought by the plaintiff qua the said substitution is barred by virtue of Article 59 of the Limitation Act, 1908 which provides for a period of three years from the date on which the facts entitling the plaintiff to have the instrument rescinded first became known to him. The plaintiff being well aware of the substitution having been carried out in the year 1993 in favour of the defendant No.1 cannot be permitted to wake up 28 years later and seek setting aside of the same. Therefore, the plaint is liable to be rejected. (on behalf of the non-applicant/plaintiff)
13. Per contra, learned counsel appearing on behalf of the nonapplicant/plaintiff submitted that father of the parties died intestate on 3rd October, 1992 and the applicant/defendant no.1 has failed to establish his claim regarding sole and exclusive owner of the suit property.
14. It is submitted that the applicant did not produce any legal document on record in order to support his contention that he is sole and exclusive owner of the suit property. The said contention is premised on the unregistered Will dated 19th January, 1991 that is forged and Family Settlement/MoU dated 7th August, 1992 which is also a tampered document. In view of the said submission, it is submitted that the said MoU is inadmissible as evidence being an unregistered document/instrument. Furthermore, the said MoU does not contain the signatures of late father of the plaintiff, thus, has no validity in the eyes of law.
15. It is submitted that the Will dated 19th January, 1991 prepared by the defendant No. 1 is forged and fabricated. Furthermore, the affidavit dated 19th February, 1993 relied upon by the applicant is also forged and fabricated.
16. The unregistered Will dated 19th January, 1991 executed by the father of parties, upon which defendant No. 1 relies, is invalid because it is a forgery that is void ab initio. In addition, it is asserted that father of the parties passed away intestate on 3rd October, 1992. Consequently, the plaintiff is entitled to 1/5th share of the subject property based on the provisions under the Succession Act.
17. It is submitted that the Family Settlement dated 7th August, 1992 is not binding on the plaintiff because the defendant committed fraud against her and induced her to sign the settlement after the death of her father by misrepresenting that the father had left behind the Will dated 1st September, 1989 while concealing its cancellation.
18. Learned counsel for the non-applicant/plaintiff submits that the signatures of plaintiff on affidavit dated 1st March, 1993 and no objection letter dated 16th March, 1993, compromise dated 17th February, 1993 and a relinquishment note dated 17th February, 1993 were obtained by the defendant No. 1 on the basis of misrepresentation and deception that the Will dated 1st September, 1989 is valid. All these documents are result of fraud committed upon the non-applicant herein and therefore, are not binding on the plaintiff.
19. Learned counsel for the non-applicant further highlights that the defendant No. 1 prepared a forged affidavit dated 19th February, 1993 on behalf of the defendant No. 2 regarding her no objection filed with the L&DO regarding substitution of the suit property in the name of the applicant/defendant No. 1 herein. The claim is that defendant no. 1 was not in India on 19th February, 1993.
20. It is submitted that vide reply dated 28th March, 2018, it had been categorically informed by the office of L&DO that the applicant/defendant No. 1 filed a copy of the alleged Will alongwith affidavits of the legal heirs and the death certificate of the late father of the parties. It is submitted that the plaintiff learned of the fraud committed by defendant no. 1 for the first time after reading the L&DO response dated 28th March, 2018.
21. It is further submitted that reading of plaint discloses that the cause of action for filing this suit first arose in favour of the plaintiff and against the applicant/defendant No. 1 when the plaintiff became aware of the fraud, forgery and fabrication committed by the defendant No.1 pursuant to receiving documents via response submitted by L&DO on 28th March,
2018. It is submitted that the defendant No. 1 is also alleged to have submitted these fraudulent documents to the L&DO in order to illicitly transfer property into his name.
22. It is further submitted that the plaintiff obtained a forensic examination of the unregistered Will dated 19th January, 1991 of her late father. The forensic report dated 19th May, 2018 revealed that the will is forged document. As such the right to sue accrued to the plaintiff for the first time after going through the documents that were supplied by the L&DO on 28th March, 2018. The suit is filed well within limitation period.
23. It is submitted that the reply dated 28th March, 2018 provided by the L&DO clearly established that the affidavit was filed by the defendant no. 1 along with his own letter for the purpose of substitution of the suit property. The same is not binding on the rights of the plaintiff. Furthermore, the Family Settlement/MoU dated 7th August, 1992 is also a tampered document. When the plaintiff signed the MoU dated 7th August, 1992, the words “registered with the Sub registrar” were clearly mentioned. The affidavit and this document were signed upon the fraudulent representation of the defendant No.1 regarding the validity of the registered Will dated 1st September, 1989 belonging to the late father.
24. It is submitted that it is an admitted fact that father of the parties revoked the registered Will dated 1st September, 1989 on 5th October,
1990. Moreover, as a result of securing the plaintiff's signature on the MoU dated 7th August, 1992, the defendant No. 1 fabricated the aforementioned MoU. In addition, the said MoU is an unregistered document and is, therefore, inadmissible as evidence. Moreover, because the handwritten note dated 17th February, 1993 and the compromise dated 17th February, 1993 were signed as a result of fraudulent misrepresentation by the defendant No. 1, therefore, they are not binding on the plaintiff.
25. It is submitted that the suit property was substituted in the name of the defendant No. 1 based on a fabricated Will dated 19th January, 1991 and a forged affidavit of the plaintiff and the defendant No. 2. The plaintiff has asserted categorically in the plaint that she learned of the revocation of the registered Will dated 1st September, 1989 after the L&DO provided documents with its response dated 28th March, 2018. As the plaintiff was under the impression that the substitution was carried out by the L&DO based on the registered Will of the deceased father dated 1st September, 1989, she was unaware that the defendant No. 1 had filed fraudulent documents for the purpose of substitution prior to 28th March,
2018.
26. It is submitted that the contents of the letter dated 8th March, 2021 cannot limit the rights of the non-applicant/plaintiff, who is a legal heir of the decedent's intestate estate. The fact remains that the father of the parties expired intestate and the plaintiff is entitled to her share of the property in question. The substitution was made by L&DO on the basis of a forged Will dated 19th January, 1991 and a fabricated affidavit of the plaintiff and defendant No. 2, therefore, it is not binding on the plaintiff.
27. In light of the arguments advanced, it is submitted that the instant application filed by the applicant/defendant No. 1 is devoid of merit and deserves to be dismissed at threshold.
ANALYSIS
28. Heard the learned counsel for the parties are perused the record.
29. In order to adjudicate upon the instant application filed under Order VII Rule 11 of CPC, this Court finds it imperative to peruse the said provision, which reads as follows:
30. Having heard the learned counsel appearing on behalf of the parties and perusal of the instant application is of the view that the issue that arises for consideration before this Court is, whether the captioned suit for partition between the members of the family could be rejected on the ground of being time barred and secondly, whether the existence of the Will executed by the deceased father of the parties, as alleged by the applicant/defendant No. 1 is a valid ground for rejection of the captioned suit.
31. The position of law with respect non-cancellation of valid document is no more res integra. However, if a document is void ab initio, there is no requirement of a decree as the same is non est in the eyes of law. The said principle has been reiterated by the Hon’ble Supreme Court in Prem Singh v. Birbal reported as (2006) 5 SCC 35. Further, it was held that Article 59 of the Limitation Act, 1963 applies uniquely when a relief sought is based on fraud or error. It includes only fraudulent transactions that are voidable. Article 59 would apply if, the plaintiff's allegations of coercion, undue influence, misappropriation or deceit requires proof. Article 59 would be applicable to such instruments. Therefore, it would apply when a document is prima facie valid. It would not only apply to presumptively invalid instruments.
32. Furthermore, the law has not prescribed any period of limitation for filing a suit for partition because partition is an incident of the property and there is always a cause of action for seeking partition by one of the co-sharers, if he decides not to keep his share joint with the other cosharers. Since, the filing of the suit is entirely dependent on the will of the co-sharer, the period of limitation, specifically the date or time from which such period would begin, could not have been conceivably prescribed by the legislature. Consequently, no such provision exists in the law of limitation with regard to suits for partition. The has been reiterated by the Hon’ble Supreme Court in Vidya Devi alias Vidya Vati v. Prem Prakash reported as (1995) 4 SCC 496.
33. In order to decide the former issue, the Court finds it appropriate to apply the settled principles of law to test the maintainability of the instant suit with respect being barred by limitation and finds that the captioned suit has been filed seeking partition of the suit property left behind by the late father of the parties, therefore, the said averment fails to support the contention of the applicant/defendant No. 1 as a cogent ground for rejection of the instant application.
34. With respect to the latter issue, this Court is of view that existence of a Will shall not curtail the rights of the plaintiff/non-applicant thereby disabling him to file the suit for partition.
35. Furthermore, the position of law with respect to adjudication of an application filed under Order VII Rule 11 of CPC is settled that only the contentions/averments raised in a plaint are to be considered, the objection raised in the written statement and application are immateriale to decide an application filed under the said provision. The Court has to read the plaint in its entirety in order to decide that whether or not a plaint discloses a cause of action and if it does, then such plaint is not liable to rejection by virtue of Order VII Rule 11 of CPC. The same has been settled by the Hon’ble Supreme Court in Abdul Gafur v. State of Uttrakhand, (2008) 10 SCC 97.
36. Thus, applying the said principle to the set of averments/contentions and arguments advanced by the learned senior counsel appearing on behalf of the applicant/defendant No. 1, this Court is of view that existence of the said will is a triable issue, cannot be ground for rejection of the plaint in the captioned suit at this stage. This Court further finds it relevant to peruse the contentions raised by the plaintiff by way of his plaint, which reads as follows:
37. The contentions mentioned above states that the Will executed by the deceased father of the parties is forged and fabricated. Such contention is a matter of trial and cannot be decided by this Court at this stage, under Order VII Rule 11 of the CPC.
38. Therefore, keeping in view of the aforesaid submissions and contentions, as well as the discussion in the foregoing paragraphs, this Court finds that the present application is devoid of merit and the defendant no. 1 has not been able to establish any ground for rejection of plaint in the captioned suit.
39. Accordingly, the instant application is dismissed.
40. The judgment be uploaded on the website forthwith.
JUDGE APRIL 18, 2023 SV/UG