Rajesh Rajpal v. Rakesh Rajpal & Ors.

4. Stall No. 52, Ghaffar Market, Karol Bagh, New Delhi -110005

5. B-5/44, Paschim Vihar, New Delhi — 110063admeasuring

250.84 Sq Mtrs. (approx.) Ground Floor Second Floor with roof rights

6. 2768, Qutub Road, Sadar Bazar, Delhi – 110006admeasuring 133 Sq Yards. (approx.)

7. Property bearing No. 2761, Qutub Road, Sadar Bazar,Delhi — 110006 admeasuring 66 Sq.yards (approx.)

2. In order to comprehend the issues involved in the present case, relevant facts in brief are required to be noticed by this Court. The dispute finds it genesis in the estate of Mr. K.C. Rajpal, who died intestate on 30.08.2006, leaving behind four sons namely Mr. Rajesh Rajpal (Appellant/Plaintiff), Mr. Rakesh Rajpal (Respondent No. 1/ Defendant No.1), Mr. Rajiv Rajpal (Respondent No. 2/ Defendant No.2) and Late Mr. Sanjay Rajpal thr his LRs (Respondent NO. 3/Defendant No. 3). The third son, Mr. Sanjay Rajpal also passed away on 07.02.2024, consequently, he is now being represented by his LRs, including his wife Ms. Aarti Rajpal and two minor children namely Ms. Nandini Nagpal and Master Sejas Rajpal. Upon the demise of Mr. K.C. Rajpal, it is contended that his estate has devolved upon Class I legal heirs with each having 1/4th share in the estate left behind by their father.

3. The Appellant owing to the familial dispute with respect to the estate left behind by Late Mr. K.C. Rajpal, filed a suit seeking a relief of partition, separate possession, mandatory and permanent injunction. The genealogy of the family of the parties at dispute, as mentioned under paragraph no.1 of the plaint is extracted and reproduced herein below: ―The family tree is as under: ‖

4. Before delving into the merits of the case owing to which the parties have moved before this Court, it is deemed appropriate to consider the case made out by the Appellant before the learned Single Judge. In order to examine the extenuating circumstances that precipitated the present round of litigation, the Plaint filed by the Appellant before the learned Single Judge that forms a part of the pleading, as Annexure B, filed before this Court is read in whole and referred to accordingly.

5. Upon a perusal of the Plaint, it is abundantly clear that the Appellant claims that the father of the parties, late Mr. K.C. Rajpal, during his lifetime, acquired and owned various movable and immovable properties, all of which were purchased exclusively out of his own funds. As many as 11 properties have been enlisted under paragraph no.2 of the Plaint to this effect. Additionally, in paragraph no.3 of the Plaint, as extracted above, the Appellant claims that late Mr. K.C. Rajpal was also the owner of two properties enlisted therein. Subsequently, the Appellant states that these properties were purchased in the name of Respondent No.2 and/or wives of Respondent Nos.[1] and 2, although the sale consideration of these properties was paid by late Mr. K.C. Rajpal. Furthermore, it is also the case of the Appellant that the properties enlisted under paragraph no.5 of the Plaint were relinquished in favour of the Respondent No.1, in the manner as outlined in the table provided under paragraph no.5 of the Plaint. It is contended by the Appellant that the paragraph no.8 of the Plaint, provides a description of as many as seven properties and it is an admitted position in the Plaint that the property mentioned at S.No.7 thereof is owned and possessed by Respondent No.1.

6. It is not the case of the Appellant that the suit properties are joint Hindu family properties or coparcenary properties. The aforestated stand of the Appellant is substantiated by the following prayers: ―(a) A) Pass a preliminary decree of partition in respect of properties detailed in Para 11 above, thereby holding the plaintiff and the defendants to be the co-owners to the extent of 1/4th share each; B) Pass a decree of partition in respect of the estate left behind by the deceased Mr. K.C. Rajpal in favour of the Plaintiff and against the Defendants after evaluating the excess amount of properties already transferred in favour of Defendant No.1 as well as the property transferred in favour of Defendant No 2. The Defendant No.1 and 2 be also directed to execute Relinquishment Deed in favour of Plaintiff for the Second Floor along with roof rights and a Relinquishment Deed in favour of the LRs of Defendant No.3 for the Ground Floor of the property bearing No. B-5/44, Paschim Vihar, New Delhi - 110063. In the alternative to Prayer B The documents executed by the Plaintiff and the other Defendants for the transfer of the title of the properties owned by the father be declared as null & void and a preliminary decree of partition holding Plaintiff entitled to 1/4th share in the entire estate detailed in Para 2 above, be passed; C) appoint a Local Commissioner to inspect the suit property and suggest the ways and means to divide/partition the properties by metes and bounds; OR In the alternative, if the properties are found to be not divisible by metes and bounds, then the same be ordered to be put to inter se bidding between the parties, failing which a final decree may be passed; D) Plaintiff be put into separate possession of his share in the properties; E) Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining them from creating any third party interest in the suit property in any manner. F) Direct the Defendants for rendition of accounts in respect of the business of the father, the partnership firm and the company - M/s Rajpal Polytex Pvt. Ltd. incorporated under the Companies Act and the share of the Plaintiff be divided. G) Pass a decree of mandatory injunction, thereby directing the defendants to hand over the original title deeds of the properties and not to misuse the blank signed papers of the Plaintiff; H) Award costs of the proceedings throughout.‖

7. Learned senior counsel representing the Appellant submits that the property at S.No.7 of paragraph no.8 has been erroneously deleted, and the learned Single Judge erred in declaring that the properties enlisted in paragraph nos.[3] and 5 shall not be governed by rule of lis pendens as enshrined under Section 52 of the Act. Learned senior counsel further submits that the proceedings before the learned Single Judge were at a preliminary stage and that the Respondents, during the pendency of the Civil Suit, did not even file an application under Order VII Rule 11 of the Code of Civil Procedure, 1908[4]. Upon such premise, it is contended by the learned senior counsel that a part of the Plaint cannot be rejected while exercising the enabling powers provided under Order VII Rule 11 of the CPC.

8. Per contra, learned counsel representing the Respondent No.15 submits that the Appellant has unnecessarily involved the property at S.No.7 in paragraph no.8 of the Plaint, as well as the seven properties set out in paragraph nos.[3] and 5.Learned counsel seeks to rely upon the judgment passed by the Supreme Court in Vinod Seth vs. Devinder Bajaj & Anr.[6] in support of his submissions.

9. This Court has heard learned counsels representing the parties at length and with their able assistance, has perused the documents produced thereof in support of their submissions.

10. It is trite law that in the absence of an application under Order VII Rule 11 of the CPC, the power to strike out a part of the Pleading can be traced to Order VI Rule 16 of the CPC, which is extracted as under: ―16. Striking out pleadings-The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleadings- (a) which may be necessary, scandalous, frivolous or vexatious, of (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

(c) which is otherwise an abuse of the process of the Court.‖

11. Order VI Rule 16 of the CPC vests a discretionary jurisdiction Hereinafter referred to as ‘CPC’ The contesting Respondent to strike out the pleadings under specific circumstances as envisaged therein. This Rule contains three clauses out of which this Court deems it appropriate to place reliance on Clauses (a) and (c) of the Rule as reproduced above. A plain reading of Rule 16(a) goes on to reveal that the Court, at any stage of the proceedings, may strike out the part of pleadings which is deemed to be unnecessary, scandalous, frivolous or vexatious, whereas Rule 16(c) of the CPC enables the Court to strike out any part of the pleading, which is otherwise an abuse of the process of the Court. Accordingly, taking into consideration the provisions set out in this paragraph, this Court is of the view that the learned senior counsel for the Appellant is not correct in asserting that the power to strike out pleadings is referable to Order VII Rule 11 of the CPC.

12. The Supreme Court in Sathi Vijay Kumar vs. Tota Singh & Others[7] noticed that the underlying object of Order VI Rule 16 of the CPC is to ensure that every party to a suit should present his pleading in an intelligible form without causing embarrassment to his adversary.

13. Similarly, the Supreme Court in Abdul Razak (D) Thr. Lrs. & Ors vs. Mangesh Rajaram Wagle & Ors[8] cautioned that the power of striking out pleading should be exercised with extreme care, caution and circumspection.

14. A meticulous reading of the Plaint discloses that the Appellant does not claim that the properties enlisted in paragraph no.3 were purchased benami by late Mr. K.C. Rajpal, in the name of Respondent

No.2 and/or wives of Respondent Nos.[1] and 2. Consequently, any attempt of recovery of the properties purchased in the name of son and two daughter-in-laws would not succeed, particularly, in view of the provisions of Prohibition of Benami Property Transactions Act, 1988.

15. Similarly, with respect to property no.7 in paragraph no.8, learned Single Judge has disclosed that property at S.No.7 is registered in the name of Respondent No.1. The Appellant does not dispute this fact. Though, the Appellant, in paragraph no.5 of the Plaint, claims that the Respondent No.1 dishonestly got transferred to himself properties exceeding his rightful ¼ share from other siblings, however, property no.7 in paragraph no.8 is not included in the properties enlisted in paragraph no.5 of the Plaint.

16. With respect to the properties enumerated under paragraph no.5, it is expressly acknowledged that the transfer of these properties to Respondent no.1 took place pursuant to Relinquishment Deeds dated 25.03.2009, 03.03.2008, 03.07.2007 and 04.07.2008 along with a gift deed dated 03.07.2007, executed jointly by the Appellant and Respondent Nos. 2 and 3. While the Appellant contends that neither of the brothers formally requested the Respondent no.1 to effectuate the transfer of title in their favour as agreed upon, however, the execution of the Relinquishment Deeds along with the Gift Deed remains unchallenged and thus stands as an admitted fact.

17. In absence of prayer to annul/cancel the Relinquishment Deeds and the Gift Deed in terms of Section 31 of the Specific Relief Act, 1963, which involved payment of Ad Valorem Court Fee, the suit for partition qua the properties which are in the name of individuals will not be maintainable. The Appellant has filed a suit for grant of decree of declaration in terms of Section 34 of the Specific Relief Act, 1963; however, if the Appellant, who is one of the executants, wishes to avoid or seek annulment of a document transferring the property, a Civil Suit in terms of Section 31 of the Specific Relief Act, 1963 seeking cancellation or annulment of the document is required to be filed.

18. Keeping in view aforesaid discussion, this Court does not deem it appropriate to interfere with the Impugned Order passed by learned Single Judge.

19. However, this order shall not be construed as final expression on the merits and the Appellant on leading evidence shall have liberty to file an application for inclusion of property no.7 in paragraph no.8 and applicability of rigours of Section 52 of the Act with the properties enlisted under paragraph nos.[3] and 5 of the Plaint, if found necessary.

20. The Appeal, along with pending applications, is accordingly dismissed. ANIL KSHETARPAL, J. HARISH VAIDYANATHAN SHANKAR, J. AUGUST 18, 2025/jn/hr