Shri Atma Singh & Anr v. Shri Prem Singh & Ors

(iii) B-46, Madhuban, Delhi

(iv) 200 sq. yards Plot at Dilshad Garden, Delhi (v) 112 Karishma Apartment, 27, 1.P. Extension, Patparganj, Delhi.”

6. According to the defendants, perusal of contents of the plaint along with the documents appended thereto, show that the plaint does not disclose any cause of action to institute the present suit in favour of the plaintiffs. The averments made in the plaint are concocted, imaginary and completely based on the whims and fancies of the plaintiffs.

7. According to learned counsel for the defendants, perusal of the plaint reveals that the pleas that have been raised in the plaint completely lack any substance. It is contended that the plaintiffs have falsely and wrongfully claimed that late Sh. Gurdial Singh died intestate or that he left behind legal heirs as detailed in Para 3 of the plaint. It is further contended that the plaintiffs have falsely and wrongly claimed that the business of Imperial Tailoring House was a proprietorship firm of late Sh. Gurdial Singh. It is submitted that the plaintiffs have wrongly sought to suggest that from the earning of alleged proprietorship firm i.e. Imperial Tailoring House, late Sh. Gurdial Singh purchased various properties, as detailed hereinabove. Thus, the plaintiffs are seeking partition of the properties allegedly left behind by late Sh. Gurdial Singh, without any basis or right whatsoever. There is no basis or right in the plaintiffs to seek a declaration that the registered Will dated 25.09.1978 executed by late Sh. Gurdial Singh, is null and void.

8. The defendants have referred to order dated 23.03.2018 passed by this Court in the present proceedings in order to contend that partition of the properties in question would be barred by law, by virtue of The Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as „the Benami Act‟). It is contended that in the said order dated 23.03.2018, this Court had categorically held that the present suit for partition was not maintainable, being barred by the Benami Act. It was only by virtue of the said order dated 23.03.2018 that this Court had granted an opportunity to the plaintiffs to amend their suit in order to give particulars/ details of the title deeds by which Sardar Gurdial Singh could be said to be the owner of the properties as mentioned from Serial No.

(ii) to (v) as aforesaid.

9. It is submitted on behalf of the defendants that even after the amendment, the amended plaint is bereft of any cause of action and is completely baseless. It is contended that the plaintiffs have merely amended the plaint to somehow bring the suit within the exceptions as carved out in Section 2(9) of the Benami Act, by alleging a falsehood that Imperial Tailoring House is a joint family business. It is, thus, submitted on behalf of the defendants that there are no averments even in the amended plaint which justify filing of the captioned suit with respect to the properties, whose title deeds are not in the name of late Sh. Gurdial Singh.

10. It is contended on behalf of the defendants that the business of Imperial Tailoring House was constituted as a partnership firm between Defendant No.5 and Late Sh. Gurdial Singh, which in 1978, also included Defendant No.7 as the third partner. Thus, the case set up by the defendants is that the defendant Nos. 5 & 7 purchased the property at B-46, Madhuban, Delhi in 1981 and property No. 52, Main Bazar, Paharganj in 1982, from the income earned by virtue of being partners at Imperial Tailoring House. It is further contended that plaintiffs have neither filed any documents, nor have furnished any particulars of the title deeds by which Sardar Gurdial Singh can be said to be the owner of the properties mentioned at serial nos.

(ii) to (v). Thus, it is contended that the plaint completely fails to disclose as to how Late Sh. Gurdial Singh can be even remotely be said to have owned the suit properties except the property bearing No. 51, Paharganj, in respect of which he executed the duly registered Will dated 25.09.1978. Further, by way of judgment and order of the probate court dated 29.11.2007 passed in P.C. No. 134/2006, the Will dated 25.09.1978 has attained finality qua the plaintiffs. Thus, it is contended that plaintiffs can neither claim to be the legal heirs of late Sh. Gurdial Singh nor can they lead evidence to prove that Imperial Tailoring House was a proprietorship firm of Late Sh. Gurdial Singh or that the suit properties, except property bearing No. 51, Paharganj, were purchased by him.

11. The defendants have also raised objections and have contended that the plaint is liable to be rejected on the ground of non-payment of ad valorem court fees. It is contended that plaintiff No.1 migrated to Norway in 1975 and he is not in a possession of the suit properties. Thus, the plaintiffs are required to pay ad valorem court fees on the share claimed by them in the suit properties on the market value of the suit properties.

12. On the other hand on behalf of the plaintiff, it is contended that the present application is totally misconceived and baseless in the facts of the case.

13. It is contended that the suit is not barred by the provisions of Benami Transaction Act. The plaintiffs have clearly pleaded in the plaint that all the properties as detailed in paragraph 4 of the plaint, are self acquired properties of Late Sardar Gurdial Singh from the income of his sole proprietorship business of M/s Imperial Tailoring House. It is contended that late Sardar Gurdial Singh had thrown all the assets and properties as mentioned in paragraph 4 of the plaint, in the common hotchpotch of joint family property. Thus, it is contended that paragraph 19 of the plaint categorically states that the properties, even if held in the individual name of either of his legal heirs, the property is held for the benefit of the legal heirs of Late Sh. Gurdial Singh.

14. It is submitted on behalf of the plaintiff that the present case clearly falls under exception (iii) of Section 2 (9) of the Benami Transactions Act. It is further contended that the properties as mentioned in para 4 of the plaint, were purchased and created from the earning of “Imperial Tailoring House” and that the Imperial Tailoring House was the sole proprietorship business of late Sardar Gurdial Singh. Thus, all the assets and properties are the self acquired properties of late Sardar Gurdial Singh.

15. The ld. Counsel for the plaintiff has further argued that in defense to the suit, the defendants have alleged that Sardar Gurdial Singh had converted the sole proprietorship business into a partnership business by inducting defendant Nos. 5 & 7 as partners. In support of their claim, defendant Nos. 5 & 7 have filed unregistered partnership deed and income tax receipts. The said documents have been denied by the plaintiff on the ground that the said documents are forged and fabricated documents and that they bear forged and fabricated signature of late Sardar Gurdial Singh. Further, ld. Counsel for the plaintiff has also relied upon the written statement filed on behalf of defendant No.9, wherein it is submitted that the properties at serial nos. (i) & (ii) in para 4 of the plaint, are the self acquired property of Late Sh. Gurdial Singh.

16. It is further contended on behalf of the plaintiff that undisputedly, property bearing No.51, Main Bazar, Paharganj, Delhi is in the exclusive name of Late Sardar Gurdial Singh. As regards the Will dated 25.11.1978, it is submitted that the plaintiffs were not party to the Probate Petition, P.C. No.134/2006 and even otherwise the said Probate Petition was dismissed vide order dated 29.11.2007. The plaintiff has also challenged the said Will in the present proceedings alleging that the Will dated 25.11.1978 is a forged and fabricated document. It is categorically contended on behalf of the plaintiffs that probate of the aforesaid Will was not granted in favour of anyone.

17. As regards the objection regarding the Court fees, it is contended that the plaintiff is not required to pay ad valorem court fee on the market value of his share in the suit property by relying upon the judgments in the case of Neelavathi and Ors Vs. N. Natrajan and Ors., AIR 1980 SC 691 and Sushma Tehlan Dalan Vs. Shivran Singh Tehlan and Ors., 2011(4) AD (Delhi) 341. It is contended on behalf of the plaintiffs that the plaintiffs are in constructive possession.

18. I have heard the ld. Counsels for the parties and perused the record.

19. As regards the authority of the court under Order VII Rule 11 CPC, the Hon‟ble Supreme Court in the case of P.V. Gururaj Reddy Rep. by GPA Laxmi Narayan Reddy and Anr. Vs. P. Neeradha Reddy and Anr., reported as (2015) 8 SCC 331 held as follows: “5. Rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.”

20. It is seen that at the time of dealing an application under Order VII Rule 11 CPC, only the averments as made in the plaint are germane. The pleas taken by the defendant in the written statement are wholly irrelevant at the stage of considering an application under Order VII Rule 11 CPC. The settled legal position is that the court is only required to look at the plaint for deciding an application under Order 7 Rule 11 CPC and averments made in the plaint are presumed to be correct. This Court in the case of Tilak Raj Bhagat Vs. Ranjit Kaur, 2012 (V) AD (Delhi) 186: (2012) SCC OnLine Del 1675 has held as follows: “6. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff. In Sri Kishan v. Shri Ram Kishan 159 (2009) DLT 470, a Single Judge of this Court observed thus, “Order 7 Rule 11 of the Civil Procedure Code contemplates that where the suit appears from the averments made in the plaint to be barred by any law, then the plaint can be rejected. The legal position is that to decide whether a plaint is liable to be rejected under Order 7 Rule 11, averments in the plaint have to be read without looking at the defence and thereupon it has to be seen whether on the averments made in the plaint Procedure under Order 7 Rule 11 of the Code of Civil gets attracted. For rejection of the plaint under Order 7 Rule 11 the averments in the plaint should be unequivocal, categorical and specific leading to only conclusion that the plaint is barred”.

21. Considering the aforesaid law position, this Court at this stage is only required to see the averments made in the plaint with a presumption that the said averments as made in the plaint are true and correct, and totally discard the submissions that may have been made in the written statement filed on behalf of the defendants.

22. In paragraph 2 of the plaint, the plaintiffs have contended as follows: “2. That late Shri S. Gurdial Singh, S/o late Shri Sampuran Singh was the permanent resident Lahal Pind, Ludhiana, Punjab. In the year 1943, Shri S. Gurdial Singh came to Delhi along with his family, took the House NO. 51, Main Bazar, Paharganj, Delhi-110005 on rent for their residence and started working in the tailoring shop at Chandni Chowk for his livelihood. Thereafter, in around 1947-48, late Shri S. Gurdial Singh had taken the adjoining property House No. 52, Main Bazar, Paharganj, Delhi-110005 also on rent and started his business of tailoring in the name and style of "Imperial Tailoring House". Thereafter, in the year 1963-65, late Shri S. Gurdial Singh from the income from the said tailoring business, purchased both the aforesaid properties. That on 11.01.1963 late Shri 8. Gurdial Singh purchased the house No. 51, Main Bazar, Paharganj, Delhi Vide Sale Deed dated 11.01.1963, Registration no. 8673, Addl. Book No. I, Vol. No. 530, on Page No. 241 to 254, Sub Registrar-Ill, New Delhi. Thereafter, late Shri S. Gurdial Singh also purchased the House No. 52, Main Bazar, Paharganj, Delhi. However, copy of its Sale Deed is with the defendant No. 5; however, since late Shri S. Gurdial Singh was in occupation in the said House No. 52, Main Bazar, Paharganj, Delhi and was running his business "M/s. Imperial Tailoring House" from the said House No. 52; he was paying house tax of the said property. The house tax assessment order dated 18.03.1991 and 01.04.1990 of the House No. 52 was as such issued/addressed to late Shri S. Gurdial Singh. Copy of the tax assessment letter/ order is filed on the record of this case. Neither any partition nor any family settlement for the aforesaid Houses/ properties nor of the business have even taken place.”

23. From a perusal of the aforesaid, it is clear that the plaintiffs have submitted in categorical terms that House No.52, Main Bazar, Paharganj, Delhi was purchased by late Sardar Gurdial Singh from the income of his sole proprietorship business.

24. Para 4 of the plaint, states as under: “4. That late Shri S. Gurdlal Singh, during his life time established a sole proprietorship business of M/s. Imperial Tailoring House at 52, Main Bazar, Paharganj, Delhi; and from the earnings from the said business of M/s. Imperial Tailoring House, purchased and acquired various properties in Delhi, detailed as under:

(i) House No. 51, Main Bazar, Paharganj, Delhi

(ii) House No. 52, Main Bazar, Paharganj, Delhi

(iii) B-46, Madhuban, Delhi

(iv) 200 sq. yards Plot at Dilshad Garden, Delhi (v) 112 Karishma Apartment, 27, I.P. Extension, Patparganj, Delhi”

25. Reference may be made to para 8 of the plaint, wherein it is submitted as follows: “8. In the year 1981, Late Shri S. Gurdial Singh, from the income of the business of "M/s Imperial Tailoring House" purchased 330 Sq. yards plot at B-46, Madhuban, Delhi, vide Regd. General Power of Attorney dated 22.05.1981 and Special Power of Attorney dated 22.05.1981 in favour of late Shri S. Gurdial Singh (copy of the General Power of Attorney and Special Power of Attorney has already filed on record). Late Shri S. Gurdial Singh constructed a two-story house on the said plot. All the title document of this property is with defendant No. 7. Since the plaintiff No. 1 was the eldest son of Late Shri S. Gurdial Singh and was settled in Norway, on the request of his father late Shri S. Gurdial Singh, the plaintiff No. 1 had also contributed funds in the construction of the said house at B-46, Madhuban, Delhi. It is not out of place to mention that at that time of purchase and construction of the said house at B-46, Madhuban, Delhi, the defendants had no independent source of earning nor had the defendants contributed any fund in the purchase or the construction of the said house. The said plot and house at B-46, Madhuban, Delhi, was exclusively purchased and constructed from the funds of sole proprietorship business of late Shrl S. Gurdlal Singh and the fund contributed by the plaintiff No. 1. Late Shri S. Gurdlal Singh, repeatedly told everyone that the aforesaid property was purchased / constructed for the benefit of all his family members and would be used and enjoyed by everyone jointly.”

26. Perusal of the aforesaid shows that it is the categorical contention on behalf of the plaintiffs in the plaint that property No. B- 46, Madhuban was purchased from the income of Imperial Tailoring House, which is stated to be the sole proprietorship business of late Sardar Gurdial Singh.

27. Para 11 of the plaint states as under: “11. That thereafter, late Shri S. Gurdial Singh also purchased a 200 sq. yards plot at Dilshad Garden, Delhi in the name of his wife Smt. Satwant Kaur from the earning of his aforesaid tailoring business.”

28. Para 14 of the plaint states as under: “14. That in the May 1994, late Shri S. Gurdial Singh purchased a Flat No. 112, Karishma Apartment, 27, IP Extension, Patparganj, Delhi, again from the funds of M/s. Imperial Tailoring House. In around August 1994, Late Shri Sher Singh (father of the plaintiff No. 2) shifted in the aforesaid flat along with his family. The defendant No. 5 alone continued to reside in the house 51, Main Bazar, Paharganj, Delhi.”

29. Para 16 of the plaint reads as under: “16. That Late Shri S. Gurdial Singh had died intestate and no partition of the assets and properties and of the business of late Shri S. Gurdial Singh were ever effected. Since late Shri Sher Singh, defendant No. 5 (Manjeet Singh) and defendant No. 7 (Ajeet Singh) were assisting late Shri S. Gurdial Singh in the business of M/s. Imperial Tailoring House, as such, they were tacitly permitted to continue with the said business. All the legal heirs of late Shri S. Gurdial Singh continued in joint, constructive and legal possession of his assets, properties and business.”

30. Thus, perusal of the averments made in the plaint clearly show that there are categorical submissions on behalf of the plaintiffs that the suit properties have been purchased by Late Shri S. Gurdlal Singh out of the income of his sole proprietorship business of Imperial Tailoring House. There is categorical submission that the partition of the assets and properties and of the business of late Shri S. Gurdial Singh were never effected. Thus, the present suit cannot be said to be barred by the provisions of Benami Transactions Act, 1988. This Court at this stage is required to consider only the contents of the plaint and ignore any submissions/defence that may be taken up in the written statements by the defendants.

31. As regards the issue of court fees, it is pertinent to mention that Hon‟ble Supreme Court has held that the question of court fees was to be considered in the light of allegations made in the plaint and decision on this issue cannot be influenced either by the plea taken in the written statement or by final decision of the suit on merits. Thus, if the averments made in the plaint do not show that the plaintiff has been completely ousted from possession, the plaintiff is not required to pay ad valorem court fee on the market value of his share in the suit property.

32. At this stage, reference may be made to the judgment in the case of Neelavathi and Ors. Vs. N.Natarajan and Ors., (1980) 2 SCC 247, wherein Hon‟ble Supreme Court has held as follows: “6. On reading of the plaint as a whole, we are unable to agree with the view taken by the High Court. It is settled law that the question of court fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole vide S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar [AIR 1958 SC 245: 1958 SCR 1021, 1031-32: 1958 SCJ 407]. The plaint in para 5 states that Muthukumaraswamy Gounder died intestate and undivided and Muthukumaraswamy's father Vanavaraya Gounder was managing all the ancestral joint family property as the head of the Hindu undivided joint family till his death. In para 8 the plaintiffs stated that on the death of Muthukumaraswamy Gounder his 1/3rd share in the joint family properties devolved upon his sons and daughters. It further alleged that the plaintiffs were in joint possession of the properties along with Vanavaraya Gounder and his other sons. In para 9, it is stated that each of the plaintiffs is entitled to a share in the suit properties as heirs of the late Muthukumaraswamy Gounder and also as heirs of the late Vanavaraya Gounder. In para 11, it is stated that since the death of Vanavaraya Gounder Defendants 1 to 6 are receiving the income from the properties and are liable to account to the plaintiffs. In para 12, it is stated that since the death of Vanavaraya Gounder Defendants 1 to 6 failed to give the plaintiffs their share of income and the plaintiffs could not remain in joint possession. Therefore the plaintiffs demanded partition and the Defendants 1 to 6 were evading. Again in para 13, it is claimed that each of the plaintiffs as co-owners is in joint possession of the suit properties, and this action is laid to convert the joint possession into separate possession so far as the shares of the plaintiffs are concerned. Throughout the plaint, the plaintiffs have asserted that they are in joint possession. We are unable to agree with the High Court that recitals in all the paragraphs is merely a formal statement repeating the statutory language. The plea in para 12 which was relied on by the High Court states that the Defendants 1 to 6 failed to give the plaintiffs their share of the income and the plaintiffs could not remain in joint possession. The plea that they were not given their due share would not amount to dispossession. Reading the plaint at its worst against the plaintiffs, all that could be discerned is that as the plaintiffs were not given their share of the income, they could not remain in joint possession. The statement that they are not being paid their income, would not amount to having been excluded from possession. The averment in the plaint cannot be understood as stating that the plaintiffs were not in possession. In fact, the defendants understood the plaint as stating that the plaintiffs are in joint possession of the suit properties. In para 18 of the written statement the defendants pleaded that the plaintiffs have framed the suit as though they are in joint possession and enjoyment of the suit properties. Asserting that the plaintiffs were out of possession, the defendants stated: “While it is so, the allegation that they are in joint possession of the suit properties, is not correct”.

7. The trial court has not placed any reliance on the recitals in para 12 of the plaint on which the judgment of the High Court is based. The trial court found on evidence that the plaintiffs never enjoyed the suit properties at any time. This finding is not enough for, the mere fact that the plaintiffs were not paid their share of the income or were not in actual physical possession, would not amount to the plaintiffs having been excluded from joint possession to which they are in law entitled. On a consideration of the plaint as a whole and giving it its natural meaning, we are unable to agree with the conclusion arrived at by the High Court.”

33. This Court in the case of Sanjay Bhargava vs. Seema Bhargava, reported as (2014) 212 DLT, 632 on the aspect of general law related to considering an application under Order 7 Rule 11 CPC and on the aspect of rejection of plaint on the ground of the suit not being properly valued for the purposes of court fees and jurisdiction, has held as follows: “18. Now, I shall take up another application being I.A. No. 4435/2014 filed by the defendant. The abovementioned application has been filed by the defendant under Order VII Rule 11(a) & (b) read with Section 151 CPC for rejection of plaint, mainly, on the ground that the plaintiff has never been in the actual physical possession of the suit property. The plaintiff cannot take the advantage of paying the fixed Court fee. The suit is not properly valued for the purposes of Court fee and jurisdiction. Therefore, the plaint is liable to be rejected and the other ground taken by the defendant is that after execution of the three documents, the suit property has duly been mutated in the name of the defendant. There is no cause of action in favour of the plaintiff and against the defendant in the present suit. The suit property even otherwise is neither the HUF property, nor the Hindu intestate property. Therefore, the question of partition as alleged by the plaintiff does not arise.

19. The plaintiff has filed the reply to this application. As far as the cause of action is concerned, in the plaint the specific statement has been made by the plaintiff that the cause of action for filing the suit arose in favour of the plaintiff as the property of the deceased is jointly owned by the parties and the father/deceased was the owner of the property who had died intestate, therefore, there is a valid cause of action. With regard to the Court fee, the contention of the plaintiff is that the plaintiff was in continuous possession of the ground floor of the suit property. He used to visit the suit property regularly until the death of the father and on most occasions for 2-3 times in a month used to live with his parents on the ground floor of the suit property. Therefore, it is a valid cause of action as per the case of the plaintiff. Even, the Court fee has been properly paid by the plaintiff.

20. Learned counsel for the defendant has referred the following decisions: i) Zahoor Ahmed v. Rakhi Gupta, 188 (2012) DLT 9. ii) S. Majinder Singh v. Krishna Bhat, 206 (2014) DLT 58. iii) Harjit Kaur v. Jagdeep Singh Rikhy, 116 (2005) DLT 392. iv) Bhagwan Kaur v. Amrik Singh, AIR 2007 Punjab & Haryana 100. v) Sonu Jain (Smt.) v. Sh. Rohit Garg, 2006 II AD (Delhi) vi) Suhrid Singh @ Sardool Singh v. Randhir Singh, AIR 2010 SC 2807. vii) Smt. Jai Lakshmi Sharma v. Smt. Dropati Devi, AIR 2010 Delhi 37.

21. The general principle of law is that in the case of coowners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession otherwise allegations of the plaint are to be taken into consideration. The court is not required to examine the truthfulness of the said allegation.

22. The following judgments referred by the learned counsel for the plaintiff in this regard are as under: -

(i) Shobha Jolly v. Suraj S.J. Bahadur, reported in 2013 IX

AD (Delhi) 213. Relevant para are as follows:

23. In the case of Neelavathi v. N. Natarajan, AIR 1980 SC 691, the Supreme Court has laid down that it is settled law that the question of court fees must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. It was held that the general principle of law is that in the case of co-owners the possession of one is in law the possession of all, unless ouster or exclusion is proved.

24. As far as paying of ad valorem court fee at the market value of the property is concerned, it is the admitted position that all the three documents relied upon by the defendant, the plaintiff is not signatory of any document. The plaintiff's contention is that the said documents are null and void. He seeks cancellation of said documents. The Supreme Court in Suhrid Singh's case (supra) in para 7 held as under:

25. With regard to the principle of law under Order VII Rule 11 CPC, the learned counsel for the plaintiff has referred the decision of the Supreme Court in the case of Bhau Ram v. Janak Singh, reported in (2012) 8 SCC 701, relevant paras 13 & 15 whereof read as under: -

26. It is well settled that the Court, at the stage of considering an application under Order 7 Rule 11 CPC has to examine only the plaint averments, and the list of documents filed along with the suit. Other pleas advanced by parties, including the pleadings in the written statement, have no relevancy in order to decide the present application in hand. The following decisions are necessary to be referred in this regard: i) The Supreme Court in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success, (2004) 9 SCC 512, while dealing with the law relating to rejection of plaint under Order VII Rule 11 CPC, observed as follows: “Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. So long as the claim discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars.” ii) In the case of Saleem Bhai v. State of Maharashtra, AIR 2003 SC 759, it was held with reference to Order VII Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. iii) In the case of Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510, it was held as under: - “The real object of Order VII Rule 11 of the Code is to keep out of courts irresponsible law suits.” “Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word „shall‟ is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.”

34. Perusal of the plaint brings forth the categorical assertion on behalf of the plaintiffs that all the legal heirs of late Shri S. Gurdial Singh continued in joint, constructive and legal possession of his assets, properties and business. The plaint further makes categorical assertions that no partition of the assets and properties and business of late Shri S. Gurdial Singh ever took place; and that various properties have been purchased by late Shri S. Gurdial Singh out of the income of his sole proprietorship business of Imperial Tailoring House. Further, in para 19 of the Plaint, there is unequivocal assertion that properties, even if it is held in the individual name(s) of either of his legal heirs (plaintiffs or defendants), the property is held for the benefit of the legal heirs of late Shri S. Gurdial Singh.

35. In view of the aforesaid law position and detailed discussion including the unequivocal assertions made in the plaint, I find no merit in the present application. Accordingly, the present application is dismissed.

(MINI PUSHKARNA) JUDGE August 24th, 2022 au/c