Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I.A. No. 16744/2011 in CS (OS) 1544/2011
st
% Reserved on: 21 November, 2013
nd
Decided on: 22 April, 2014
SMT.VANDANA SHARMA ..... Plaintiff
Through: Mr. Vijay Hansaria, Sr. Advocate with
Mr. Arun Sharma and Mr. Avnish
Pandey, Advocates.
versus
SMT.HEMLATA GOSWAMY & ANR. ..... Defendants
Through: Mr. Ajay Kumar Jha, Advocate for
Defendant No. 1 with Defendant No.
1 in person.
Mr. S.N. Sharma, Advocate for
Defendant No. 2.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
I.A. No. 16744/2011(u/Order VII Rule 11 CPC by Defendant No. 1)
1. By this application the Defendant No. 1 seeks rejection of the plaint
filed by the Plaintiff, the daughter of Defendant No. 1.
2. Learned counsel for the Defendant No. 1/applicant contends that the
present suit, filed by the Plaintiff is not maintainable and is liable to be
dismissed in view of Order VII Rule 11 (a), (b) and (d) CPC inter alia being
barred by limitation, as no cause of action has accrued in favour of the
Plaintiff and the condition precedent for invoking provisions of Order
XXXII Rule 15 CPC has not been complied with. Further the Plaintiff has
not valued the property correctly for the purposes of court fee and
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 1 of 12
jurisdiction and relief of partition cannot be granted to the Plaintiff. The
Plaintiff having admitted the mother to be the owner of the property cannot
claim herself as co-sharer of the property. The plaint is an abuse of the
process of the court. The Plaintiff has no right in the property. The suit filed
by the Plaintiff is mala fide and vexatious, without cause of action and
contradictory and inconsistence pleas have been taken.
3. The claim of the Defendant No. 1/applicant for the suit being barred
by limitation is based upon the fact that the right to sue accrued to the
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Plaintiff on 15 December, 1985 when the father of the Plaintiff late Shri
M.V. Goswami executed a Will in favour of the Defendant No. 1, his wife to
the exclusion of both his daughters, that is, the Plaintiff and Defendant No.
2. Assuming though not admitting that the Plaintiff had no knowledge of the
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Will dated 15 December, 1985 she certainly had the knowledge of the Will
when the property was mutated in the name of the Defendant No. 1 based on
the no objection given by the Plaintiff and admitted by her in Para-8 of the
suit and her affidavit along with the no objection in DDA in 2011. Thus, the
suit is barred by Section 113 of Limitation Act as the same has not been filed
within three years from the date of accrual of the cause of action. Even as
per Article 110 of the Limitation Act, 12 years is the period for filing a suit
by a person excluded from the joint family property. Further in view of the
provisions of Sections 114 and 115 of the Indian Evidence Act once a
certificate is issued in the name of a person presumption is that he can
transfer his membership to any person and judicial notice can be taken of the
contemporaneous documents which have not been denied.
4. The suit is liable to be dismissed for want to cause of action as the
Plaintiff in Para-8 of the plaint has admitted that she got the mutation of the
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 2 of 12
property No. C-45, Neeti Bagh, New Delhi-110049 in DDA in the name of
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Defendant No. 1 after the death of her father on 26 January, 1996. Once
the property stood mutated in the name of the Defendant No. 1 way back in
1996, the Defendant No. 1 became the absolute owner thereof thus there is
no cause of action in favour of the plaintiff and against the defendant.
Assuming though not admitting, the cause of action, if any, accrued to the
Plaintiff for filing the suit for partition on the date when the mutation was
granted. The suit is thus also barred by limitation. Relying upon Bharat
Kumar and others vs. Ashok Sahdev and others, 2013 VIII AD Delhi 604 it is
stated that clever drafting by advocates should not stop the court from
meaningful reading of pleadings, decipher the real cause of action/case and if
the same is found to be barred by any law, to nip the same in the bud.
Reliance is also placed on Madan Lal Vaid vs. Nand Kumar Walia and
another, 96 (2002) DLT 119 to contend that the suit is liable to be dismissed
for want of cause of action. This Court is not powerless to deal with litigants
who file frivolous and vexatious suit concealing material facts from the
Court. Reference is made to T. Arivandandam vs. T.V. Satyapal and others,
AIR 1970 SC 2421 . It is stated that material facts have been suppressed from
this Court only to make out a sham and flimsy cause of action. Reliance is
also placed on Amrit Kaur vs. Sarabjit Singh, 153 (2008) DLT 392; Bharat
Bhushan Maggon vs. Joginder Lal and others, 2012 IX AD Delhi 241; ITC
Ltd. vs. DRAT, AIR 1998 SC 634, Malvika Madan Sehgal vs. M.M. Sehgal
Ltd., 65 (1997) DLT 381 .
5. The suit is also liable to be dismissed under Order VII Rule 11 (d)
being contrary to law as conditions precedent for invoking provisions of
Order XXXII Rule 15 have not been complied with as it has been nowhere
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 3 of 12
stated in the suit or in affidavit that interest of Plaintiff is not averse to
Defendant No. 1 which is a mandatory requirement under Rule 1, 3(iii) and
proviso to Rule 4 of Order XXXII CPC. In view of the conduct and false
facts stated before this Court, this Court dismissed I.A. No. 10032/2011 filed
by the Plaintiff seeking leave to represent Defendant No. 1 as she was
incapable of defending herself being mentally ill. Once the foundation of the
suit gets demolished the entire suit is liable to be rejected. This Court has
already held that the Defendant No. 1 is “fully possessed of mental and
intellectual faculties to enable her to form a clear, rational judgment and
make decisions”. Moreover leave to withdraw I.A. No. 10032/2011 has been
declined and I.A. No. 6974/2013 under Order XXIII Rule 1 CPC for
withdrawing the suit has already been opposed.
6. The Plaintiff has not valued the property correctly for the purposes of
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court fee as 1/3 share is claimed as co-owner and co-sharer and only fixed
court fee of Rs. 200/- for partition and Rs. 260/- for permanent and
mandatory injunction has been affixed. Thus the suit is liable to be
dismissed being barred under Order VII Rule 11(b). As per the own
admission of the Plaintiff there is a complete ouster of the Plaintiff from the
property and thus she is required to pay ad-valorem court fee which has not
been done.
7. Further, the relief of partition as claimed cannot be granted since the
measurement of the property has been wrongly mentioned to be 400 sq.
yards instead of 325.33 sq. yards. The suit is thus liable to be rejected.
There is mis-joinder of parties as by prayer (i) (b) the Plaintiff seeks partition
of the ancestral property measuring 23 acres situated at village Manakwara
and Chillauth/ Bankheri, District Hoshangabad, Madhya Pradesh wherein the
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 4 of 12
uncles and cousins are necessary parties but have not been impleaded. In the
absence of proper details of the property at Neeti Bagh and other ancestral
properties without any site plan or schedule of properties, the present suit
cannot be maintained. The Plaintiff has not produced any document in
support of her claim. The claim of the Plaintiff that the Will in question is
forged, not genuine and not probated is not borne out from the record. The
Plaintiff in the pleadings has nowhere shown how she became the co-owner
and the co-sharer of the built up property bearing No. C-45, Neeti Bagh,
New Delhi. The son of the Plaintiff performing the last rites of late Shri
M.V. Goswami does not confer any right or ownership in the suit property.
8. The Plaintiff is neither the co-owner nor co-sharer of the property left
behind by the father. Pleadings in this regard are contradictory and
inconsistent with her own conduct and admission. The Defendant No. 1
became the exclusive owner of the properties mentioned in the suit which
were devolved on her on the basis of mutation done by the DDA which was
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done on the basis of the Will dated 20 December, 1985 in her favour left
behind by her husband. Further the pleadings in the suit have not been
verified as per law. Thus the suit filed by the Plaintiff be dismissed with
heavy costs being malicious, vexatious and without any legal basis.
9. Learned counsel for the Plaintiff on the other hand contends that
undoubtedly in the plaint the Plaintiff could not have claimed that the
Defendant No. 1 was suffering from old age mental infirmities/unsound
mind and is not capable to protect her claims, rights and interest and also not
in a position to move out freely since 1996. For this reason application of
the Plaintiff being I.A. No. 10032/2011 seeking leave to defend on behalf of
the Defendant No. 1 has already been declined. For these averments, the suit
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 5 of 12
cannot be rejected under Order VII Rule 11 CPC. It is contended that there
is no admission of the plaintiff that the Defendant No. 1 is the owner of the
property nor does the Plaintiff in the suit admit execution of a valid Will by
the deceased, bestowing complete ownership of the suit property in
Defendant No. 1. The mutation in respect of the suit property, that is, C-45,
Neeti Bagh, New Delhi does not confer a title on the Defendant No. 1 as
held by the Hon’ble Supreme Court in a number of decisions. The legal
position for rejection of a suit under Order VII Rule 11 CPC is very clear as
laid down in Babu Ram vs. Janak Singh, 2012 (8) SCC 701 . At this stage
only the plaint and the documents filed by the Plaintiff can be looked into
and not the written statement or the defence of the Defendant. Reliance is
also placed on Sankalchan Jaychandbhai vs. Vithalbhai Jaychandbhai, 1996
(6) SCC 433; Suman Verma vs. Union of India, 2004 (12) SCC 58; State of
H.P. vs. Keshav Ram, 1996 (11) SCC 257; Balwant Singh vs. Daulat Singh,
1997 (7) SCC 137; Mahila Bajrangi vs. Badribai, 2003 (2) SCC 464;
Rajinder Singh vs. State of J and K, 2008 (9) SCC 368 and Durga Das vs.
Collector, 1996 (5) SCC 618 .
10. The Plaintiff has nowhere admitted that the deceased father executed a
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Will and in the absence of the Will, the Plaintiff is entitled to 1/3 share in
the suit properties being the class-1 legal heir of the deceased. Even
assuming the case of the Defendants that there is a Will in favour of
Defendant No. 1, the Will has not been probated and in the absence of
probate, the properties of the deceased do not vest in the Defendant No. 1.
Reliance is placed on Hem Nolini Judah vs. Isolyne Sarojbashini Bose, AIR
1962 SC 1471 . The objection with regard to the Court fee is liable to be
rejected as admittedly the Plaintiff is in possession of the suit property and is
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 6 of 12
thus not required to pay ad-valorem court fee. The suit is not barred by
Limitation Act. The right of the Plaintiff to the suit property had never been
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threatened and she has been in continuous possession thereof. Only on 23
May 2011 when the Defendant No. 1 intended to sell the property, the right
to sue accrued and immediately thereafter the Plaintiff filed the present suit.
11. As per the documents filed by the Plaintiff she has only given a no
objection to the mutation in favour of Defendant No. 1 in respect of the
property C-45, Neeti Bagh, New Delhi and the same can at best be an
admission for mutation which does not deprive the Plaintiff of her right in
the property. In a suit for partition there is a continuing cause of action and
thus it is never barred by limitation. Relying upon Krishna Pillai
Rajasekharan Nair vs. Padmanabha Pillai, 2004 (12) SCC 754 it is stated
that in a suit for partition a cause of action only arises when the right is
denied. Reliance is place on Nanak Chand and Ors. vs. Chander Kishore
and others, AIR 1982 Delhi 520 and S. Jaswant Singh (Deceased by LRs) vs.
S. Darshan Singh (Deceased by LR) and others, AIR 1992 Delhi 80.
12. I have heard learned counsel for the parties.
13. As regards the objection of the learned counsel for the Defendants
with regard to the court fee being inadequate, I find no merit therein as
admittedly the plaintiff is in possession of one floor in the suit property, that
is, C-45, Neeti Bagh, New Delhi and in view thereof she would not require
to pay ad-valorem court fee and thus the suit cannot be dismissed on this
count. Also I do not find any merit in the contention of the learned counsel
for the Defendants stating that the suit is barred by limitation. Admittedly
the Plaintiff is in possession of part of the suit property and the cause of
action arose to her only when her ownership/possession in the suit property
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 7 of 12
was threatened after the Defendant No. 1 sought to sell the property and
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called the prospective buyers on 27 May, 2011 whereafter immediately the
Plaintiff filed the present suit.
14. The plea of the learned counsel for the plaintiff that in the absence of a
probate the Will cannot be acted upon is liable to be rejected in view of the
legal position laid down in by this court in Sambhav Gupta vs. State and
others, 2013 (II) AD Delhi 349 and Shri Shivraj Krishan Gupta vs. Chander
Krishan Gupta and others, 2007 (96) DRJ 466 which holds that Section 213
of the Indian Succession Act is not applicable in Delhi and it is not necessary
to obtain probate before any claim is based on the Will. A person has a right
to set up a Will even in collateral proceedings and there is no need for
obtaining probate thereof. Further there can be no dispute to the proposition
that while deciding an application under Order VII Rule 11 CPC only the
averments in the plaint are required to be seen.
15. However the moot question in the present case is whether the present
suit is liable to be rejected on the ground that the Plaintiff has concealed
material facts and made mala fide, vexatious and contradictory averments to
maintain the suit.
16. A brief factual matrix is that the Plaintiff is the daughter of the
Defendant No. 1 and sister of Defendant No. 2. The father of the Plaintiff
and Defendant No. 2 and the husband of Defendant No. 1 Shri M.V.
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Goswami expired on 26 January, 1996 leaving behind the Plaintiff and the
Defendants as the only legal heirs as his son Mukesh Goswami died in an
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accident on 24 October, 1982. After the death of her father, the Plaintiff
with her family shifted to C-45, Neeti Bagh, New Delhi to look after the
mother as the Defendant No. 2 is settled in U.K. since her marriage. In the
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 8 of 12
plaint it is stated that the Defendant No. 1 is suffering from old age mental
infirmity/unsound mind and is unable to protect her claims, rights and
interest and is not in a position to move out freely since 1996. Based on this
claim the Plaintiff filed I.A. No. 10032/2011 under Order XXXII Rule 15
CPC seeking leave to defend on behalf of the Defendant No. 1. This court
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called the Defendant No. 1 on 10 October, 2012 and interacted with her.
This Court found that the Defendant No. 1 was absolutely lucid, did not
suffer from any mental infirmity and was quite capable of protecting her
interest. Thereafter the Plaintiff was summoned and despite opportunities
she failed to appear before this Court and thus costs of Rs. 5,000/- was
st
imposed on the Plaintiff. On 1 March, 2013 the Plaintiff was present in
Court and offered her unqualified apology to Defendant No. 1/her mother for
hurting her feelings by stating on record that she is of unsound mind.
However the Defendant No. 1 stated that the Plaintiff’s apology was hollow
and did not inspire any confidence. Thus this Court dismissed I.A. No.
10032/2011 filed by the Plaintiff being devoid of merits, vexatious and
deliberate attempt on her part to portray her mother as a person of unsound
mind with costs of Rs. 50,000/- on the Plaintiff to be paid to the Defendant
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No. 1 in two weeks from the said date and dismissed the application on 20
May, 2013.
17. Few facts admitted by the Plaintiff in the plaint and the documents are
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that on 1 August, 1972 the perpetual lease deed was executed by the
Supreme Court Advocates Group Housing Society (in short ‘SCBCHBS
Ltd.) in favour of Shri M.V. Goswami, the father of the Plaintiff and the
Defendant No. 2 and the husband of Defendant No. 1 whereby Plot C-45,
Neeti Bagh, New Delhi measuring 325.33 sq. yards was allotted to him for
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 9 of 12
th
Rs. 6,886/- on the terms mentioned therein. On 8 December, 1976 the
occupancy certificate was issued by DDA in favour of Shri M.V. Goswami.
th th
On 26 January, 1996 Shri M.V. Goswami passed away whereafter on 30
March, 1996 the Plaintiff shifted to C-45, Neeti Bagh, New Delhi and in the
same year the Plaintiff got mutated the property C-45, Neeti Bagh in the
name of her mother, Defendant No. 1. The Plaintiff has filed copies of the
Sale Deed of agricultural land at Manakwara and Chilloth, District
Hoshangabad, Madhya Pradesh entered into between the Defendant No. 1
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and one Rajesh Kumar. On 24 May, 2011 the Plaintiff also filed objections
with DDA for conversion of lease hold property to free hold as applied by
the Defendant No. 1 in respect of C-45, Neeti Bagh and requested to cancel
the no objection given by her earlier for the said property.
18. Defendant No.1 has placed on record the affidavit of the Petitioner
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dated 25 November, 1997 which was filed before the DDA in relation to
the mutation of Plot No. C-45, Neeti Bagh in the name of Defendant No.1.
The said affidavit of the plaintiff states that the Plaintiff is one of the legal
heirs of Shri M.V. Goswami deceased being his daughter, accepts the
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contents of Will dated 20 December, 1985 left behind by the deceased
allottee/ Lessee/ Sub-Lessee of plot No. C-45, Neeti Bagh and has no
objection if the said plot is mutated in favour of Smt. Hemlata Goswami,
Wife of late Shri M.V. Goswami and the legatee as per the said Will.
19. A perusal of the plaint shows that there is no reference to the Will
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dated 25 November, 1997. In the replication to the written statement of
Defendant No.1, the Plaintiff has not denied the Will but has stated that the
Will is forged having not seen the light of the day, and the same cannot be
acted upon as there is no probate of the said Will. The Plaintiff has nowhere
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 10 of 12
denied the filing of the affidavit. Undoubtedly, no objection for mutuation in
the revenue records neither extinguishes the title nor has any presumptive
value on title, as held in Smt. Sawarni Vs. Smt. Inder Kaur and Ors. (1996) 6
SCC 223 but it clear that there has been suppression of material fact in the
plaint. Though the Plaintiff states that the Will is forged but she does not
claim that the affidavit filed by the Plaintiff before the DDA acknowledging
the Will was a forged document. The Plaintiff does not deny the copy of the
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affidavit dated 25 November, 1997 of the plaintiff filed by the Defendant
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No.1 on 1 October, 2011, in the affidavit of the Plaintiff for admission/
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denial of documents filed by Defendant No.1 on 31 August, 2013.
20. In T. Arivandandam (supra ) while dealing with the suit pending
before the First Munsif’s Court, Banglore the Supreme Court held that on a
meaningful, not formal reading of the plaint, the suit was manifestly
vexatious and meritless, in the sense of not disclosing a clear right to sue,
thus the Court should exercise its power under Order VII Rule 11 CPC,
taking care to see that the ground mentioned therein is fulfilled. It was held
that if clever drafting has created the illusion of a cause of action, it should
be nipped in the bud, at the first hearing by examining the party searchingly
under Chapter X CPC. The Trial Court should insist imperatively on
examining the party at the first hearing so that bogus litigation can be shot-
down at the earliest stage.
21. The prayers in the present suit are for a decree of partition in favour of
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the Plaintiff, seeking a declaration of 1/3 share in property No. C-45, Neeti
Bagh and ancestral property measuring 23 acres situated at Village
Manakwara and Chillauth/ Bankheri District. As noted above, though the
Plaintiff denies that the Will is a forged document, however the Plaintiff
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 11 of 12
does not deny the affidavit executed by the Plaintiff before the DDA
pursuant to which mutation of property No. C-45, Neeti Bagh has been done
in the name of Defendant No.1. Hence, non-denial of the affidavit clearly
shows that there has been suppression of material facts as regards prayer
No.1 is concerned. There is yet another fact which persuades this Court to
reject the plaint. With regard to ancestral property neither complete family
tree has been filed nor have the other legal heirs been made parties. In the
absence of necessary parties the present suit is liable to be rejected. Nor the
details of the properties have been mentioned. As regards prayer No.2 the
Plaintiff can only claim of use and enjoyment of physical possession of the
house at C-45, Neeti Bagh, New Delhi in case she has a right in the property.
The Plaintiff has not been able to show the same and in the absence of the
same the prayer No.2 cannot be allowed. As regards prayer No.3 seeking a
mandatory injunction in favour of the Plaintiff and against the Defendant
No.2 and her family members seeking handing over of all the original
documents as the Defendant No.1 is of unsound mind/ incapable of taking
independent decision, this Court after examining the Defendant No.1 has
already held that the Defendant No.1 is of sound mind and capable of
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looking after her affairs vide its order dated 10 October, 2012which order
has not been challenged till date. Thus, there is no merit in this prayer as
well.
22. Hence the plaint is liable to be rejected. Ordered accordingly.
23. Application is disposed of.
(MUKTA GUPTA)
JUDGE
APRIL 22, 2014/‘vn’
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 12 of 12
+ I.A. No. 16744/2011 in CS (OS) 1544/2011
st
% Reserved on: 21 November, 2013
nd
Decided on: 22 April, 2014
SMT.VANDANA SHARMA ..... Plaintiff
Through: Mr. Vijay Hansaria, Sr. Advocate with
Mr. Arun Sharma and Mr. Avnish
Pandey, Advocates.
versus
SMT.HEMLATA GOSWAMY & ANR. ..... Defendants
Through: Mr. Ajay Kumar Jha, Advocate for
Defendant No. 1 with Defendant No.
1 in person.
Mr. S.N. Sharma, Advocate for
Defendant No. 2.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
I.A. No. 16744/2011(u/Order VII Rule 11 CPC by Defendant No. 1)
1. By this application the Defendant No. 1 seeks rejection of the plaint
filed by the Plaintiff, the daughter of Defendant No. 1.
2. Learned counsel for the Defendant No. 1/applicant contends that the
present suit, filed by the Plaintiff is not maintainable and is liable to be
dismissed in view of Order VII Rule 11 (a), (b) and (d) CPC inter alia being
barred by limitation, as no cause of action has accrued in favour of the
Plaintiff and the condition precedent for invoking provisions of Order
XXXII Rule 15 CPC has not been complied with. Further the Plaintiff has
not valued the property correctly for the purposes of court fee and
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 1 of 12
jurisdiction and relief of partition cannot be granted to the Plaintiff. The
Plaintiff having admitted the mother to be the owner of the property cannot
claim herself as co-sharer of the property. The plaint is an abuse of the
process of the court. The Plaintiff has no right in the property. The suit filed
by the Plaintiff is mala fide and vexatious, without cause of action and
contradictory and inconsistence pleas have been taken.
3. The claim of the Defendant No. 1/applicant for the suit being barred
by limitation is based upon the fact that the right to sue accrued to the
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Plaintiff on 15 December, 1985 when the father of the Plaintiff late Shri
M.V. Goswami executed a Will in favour of the Defendant No. 1, his wife to
the exclusion of both his daughters, that is, the Plaintiff and Defendant No.
2. Assuming though not admitting that the Plaintiff had no knowledge of the
th
Will dated 15 December, 1985 she certainly had the knowledge of the Will
when the property was mutated in the name of the Defendant No. 1 based on
the no objection given by the Plaintiff and admitted by her in Para-8 of the
suit and her affidavit along with the no objection in DDA in 2011. Thus, the
suit is barred by Section 113 of Limitation Act as the same has not been filed
within three years from the date of accrual of the cause of action. Even as
per Article 110 of the Limitation Act, 12 years is the period for filing a suit
by a person excluded from the joint family property. Further in view of the
provisions of Sections 114 and 115 of the Indian Evidence Act once a
certificate is issued in the name of a person presumption is that he can
transfer his membership to any person and judicial notice can be taken of the
contemporaneous documents which have not been denied.
4. The suit is liable to be dismissed for want to cause of action as the
Plaintiff in Para-8 of the plaint has admitted that she got the mutation of the
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 2 of 12
property No. C-45, Neeti Bagh, New Delhi-110049 in DDA in the name of
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Defendant No. 1 after the death of her father on 26 January, 1996. Once
the property stood mutated in the name of the Defendant No. 1 way back in
1996, the Defendant No. 1 became the absolute owner thereof thus there is
no cause of action in favour of the plaintiff and against the defendant.
Assuming though not admitting, the cause of action, if any, accrued to the
Plaintiff for filing the suit for partition on the date when the mutation was
granted. The suit is thus also barred by limitation. Relying upon Bharat
Kumar and others vs. Ashok Sahdev and others, 2013 VIII AD Delhi 604 it is
stated that clever drafting by advocates should not stop the court from
meaningful reading of pleadings, decipher the real cause of action/case and if
the same is found to be barred by any law, to nip the same in the bud.
Reliance is also placed on Madan Lal Vaid vs. Nand Kumar Walia and
another, 96 (2002) DLT 119 to contend that the suit is liable to be dismissed
for want of cause of action. This Court is not powerless to deal with litigants
who file frivolous and vexatious suit concealing material facts from the
Court. Reference is made to T. Arivandandam vs. T.V. Satyapal and others,
AIR 1970 SC 2421 . It is stated that material facts have been suppressed from
this Court only to make out a sham and flimsy cause of action. Reliance is
also placed on Amrit Kaur vs. Sarabjit Singh, 153 (2008) DLT 392; Bharat
Bhushan Maggon vs. Joginder Lal and others, 2012 IX AD Delhi 241; ITC
Ltd. vs. DRAT, AIR 1998 SC 634, Malvika Madan Sehgal vs. M.M. Sehgal
Ltd., 65 (1997) DLT 381 .
5. The suit is also liable to be dismissed under Order VII Rule 11 (d)
being contrary to law as conditions precedent for invoking provisions of
Order XXXII Rule 15 have not been complied with as it has been nowhere
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 3 of 12
stated in the suit or in affidavit that interest of Plaintiff is not averse to
Defendant No. 1 which is a mandatory requirement under Rule 1, 3(iii) and
proviso to Rule 4 of Order XXXII CPC. In view of the conduct and false
facts stated before this Court, this Court dismissed I.A. No. 10032/2011 filed
by the Plaintiff seeking leave to represent Defendant No. 1 as she was
incapable of defending herself being mentally ill. Once the foundation of the
suit gets demolished the entire suit is liable to be rejected. This Court has
already held that the Defendant No. 1 is “fully possessed of mental and
intellectual faculties to enable her to form a clear, rational judgment and
make decisions”. Moreover leave to withdraw I.A. No. 10032/2011 has been
declined and I.A. No. 6974/2013 under Order XXIII Rule 1 CPC for
withdrawing the suit has already been opposed.
6. The Plaintiff has not valued the property correctly for the purposes of
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court fee as 1/3 share is claimed as co-owner and co-sharer and only fixed
court fee of Rs. 200/- for partition and Rs. 260/- for permanent and
mandatory injunction has been affixed. Thus the suit is liable to be
dismissed being barred under Order VII Rule 11(b). As per the own
admission of the Plaintiff there is a complete ouster of the Plaintiff from the
property and thus she is required to pay ad-valorem court fee which has not
been done.
7. Further, the relief of partition as claimed cannot be granted since the
measurement of the property has been wrongly mentioned to be 400 sq.
yards instead of 325.33 sq. yards. The suit is thus liable to be rejected.
There is mis-joinder of parties as by prayer (i) (b) the Plaintiff seeks partition
of the ancestral property measuring 23 acres situated at village Manakwara
and Chillauth/ Bankheri, District Hoshangabad, Madhya Pradesh wherein the
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 4 of 12
uncles and cousins are necessary parties but have not been impleaded. In the
absence of proper details of the property at Neeti Bagh and other ancestral
properties without any site plan or schedule of properties, the present suit
cannot be maintained. The Plaintiff has not produced any document in
support of her claim. The claim of the Plaintiff that the Will in question is
forged, not genuine and not probated is not borne out from the record. The
Plaintiff in the pleadings has nowhere shown how she became the co-owner
and the co-sharer of the built up property bearing No. C-45, Neeti Bagh,
New Delhi. The son of the Plaintiff performing the last rites of late Shri
M.V. Goswami does not confer any right or ownership in the suit property.
8. The Plaintiff is neither the co-owner nor co-sharer of the property left
behind by the father. Pleadings in this regard are contradictory and
inconsistent with her own conduct and admission. The Defendant No. 1
became the exclusive owner of the properties mentioned in the suit which
were devolved on her on the basis of mutation done by the DDA which was
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done on the basis of the Will dated 20 December, 1985 in her favour left
behind by her husband. Further the pleadings in the suit have not been
verified as per law. Thus the suit filed by the Plaintiff be dismissed with
heavy costs being malicious, vexatious and without any legal basis.
9. Learned counsel for the Plaintiff on the other hand contends that
undoubtedly in the plaint the Plaintiff could not have claimed that the
Defendant No. 1 was suffering from old age mental infirmities/unsound
mind and is not capable to protect her claims, rights and interest and also not
in a position to move out freely since 1996. For this reason application of
the Plaintiff being I.A. No. 10032/2011 seeking leave to defend on behalf of
the Defendant No. 1 has already been declined. For these averments, the suit
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 5 of 12
cannot be rejected under Order VII Rule 11 CPC. It is contended that there
is no admission of the plaintiff that the Defendant No. 1 is the owner of the
property nor does the Plaintiff in the suit admit execution of a valid Will by
the deceased, bestowing complete ownership of the suit property in
Defendant No. 1. The mutation in respect of the suit property, that is, C-45,
Neeti Bagh, New Delhi does not confer a title on the Defendant No. 1 as
held by the Hon’ble Supreme Court in a number of decisions. The legal
position for rejection of a suit under Order VII Rule 11 CPC is very clear as
laid down in Babu Ram vs. Janak Singh, 2012 (8) SCC 701 . At this stage
only the plaint and the documents filed by the Plaintiff can be looked into
and not the written statement or the defence of the Defendant. Reliance is
also placed on Sankalchan Jaychandbhai vs. Vithalbhai Jaychandbhai, 1996
(6) SCC 433; Suman Verma vs. Union of India, 2004 (12) SCC 58; State of
H.P. vs. Keshav Ram, 1996 (11) SCC 257; Balwant Singh vs. Daulat Singh,
1997 (7) SCC 137; Mahila Bajrangi vs. Badribai, 2003 (2) SCC 464;
Rajinder Singh vs. State of J and K, 2008 (9) SCC 368 and Durga Das vs.
Collector, 1996 (5) SCC 618 .
10. The Plaintiff has nowhere admitted that the deceased father executed a
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Will and in the absence of the Will, the Plaintiff is entitled to 1/3 share in
the suit properties being the class-1 legal heir of the deceased. Even
assuming the case of the Defendants that there is a Will in favour of
Defendant No. 1, the Will has not been probated and in the absence of
probate, the properties of the deceased do not vest in the Defendant No. 1.
Reliance is placed on Hem Nolini Judah vs. Isolyne Sarojbashini Bose, AIR
1962 SC 1471 . The objection with regard to the Court fee is liable to be
rejected as admittedly the Plaintiff is in possession of the suit property and is
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 6 of 12
thus not required to pay ad-valorem court fee. The suit is not barred by
Limitation Act. The right of the Plaintiff to the suit property had never been
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threatened and she has been in continuous possession thereof. Only on 23
May 2011 when the Defendant No. 1 intended to sell the property, the right
to sue accrued and immediately thereafter the Plaintiff filed the present suit.
11. As per the documents filed by the Plaintiff she has only given a no
objection to the mutation in favour of Defendant No. 1 in respect of the
property C-45, Neeti Bagh, New Delhi and the same can at best be an
admission for mutation which does not deprive the Plaintiff of her right in
the property. In a suit for partition there is a continuing cause of action and
thus it is never barred by limitation. Relying upon Krishna Pillai
Rajasekharan Nair vs. Padmanabha Pillai, 2004 (12) SCC 754 it is stated
that in a suit for partition a cause of action only arises when the right is
denied. Reliance is place on Nanak Chand and Ors. vs. Chander Kishore
and others, AIR 1982 Delhi 520 and S. Jaswant Singh (Deceased by LRs) vs.
S. Darshan Singh (Deceased by LR) and others, AIR 1992 Delhi 80.
12. I have heard learned counsel for the parties.
13. As regards the objection of the learned counsel for the Defendants
with regard to the court fee being inadequate, I find no merit therein as
admittedly the plaintiff is in possession of one floor in the suit property, that
is, C-45, Neeti Bagh, New Delhi and in view thereof she would not require
to pay ad-valorem court fee and thus the suit cannot be dismissed on this
count. Also I do not find any merit in the contention of the learned counsel
for the Defendants stating that the suit is barred by limitation. Admittedly
the Plaintiff is in possession of part of the suit property and the cause of
action arose to her only when her ownership/possession in the suit property
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 7 of 12
was threatened after the Defendant No. 1 sought to sell the property and
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called the prospective buyers on 27 May, 2011 whereafter immediately the
Plaintiff filed the present suit.
14. The plea of the learned counsel for the plaintiff that in the absence of a
probate the Will cannot be acted upon is liable to be rejected in view of the
legal position laid down in by this court in Sambhav Gupta vs. State and
others, 2013 (II) AD Delhi 349 and Shri Shivraj Krishan Gupta vs. Chander
Krishan Gupta and others, 2007 (96) DRJ 466 which holds that Section 213
of the Indian Succession Act is not applicable in Delhi and it is not necessary
to obtain probate before any claim is based on the Will. A person has a right
to set up a Will even in collateral proceedings and there is no need for
obtaining probate thereof. Further there can be no dispute to the proposition
that while deciding an application under Order VII Rule 11 CPC only the
averments in the plaint are required to be seen.
15. However the moot question in the present case is whether the present
suit is liable to be rejected on the ground that the Plaintiff has concealed
material facts and made mala fide, vexatious and contradictory averments to
maintain the suit.
16. A brief factual matrix is that the Plaintiff is the daughter of the
Defendant No. 1 and sister of Defendant No. 2. The father of the Plaintiff
and Defendant No. 2 and the husband of Defendant No. 1 Shri M.V.
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Goswami expired on 26 January, 1996 leaving behind the Plaintiff and the
Defendants as the only legal heirs as his son Mukesh Goswami died in an
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accident on 24 October, 1982. After the death of her father, the Plaintiff
with her family shifted to C-45, Neeti Bagh, New Delhi to look after the
mother as the Defendant No. 2 is settled in U.K. since her marriage. In the
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 8 of 12
plaint it is stated that the Defendant No. 1 is suffering from old age mental
infirmity/unsound mind and is unable to protect her claims, rights and
interest and is not in a position to move out freely since 1996. Based on this
claim the Plaintiff filed I.A. No. 10032/2011 under Order XXXII Rule 15
CPC seeking leave to defend on behalf of the Defendant No. 1. This court
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called the Defendant No. 1 on 10 October, 2012 and interacted with her.
This Court found that the Defendant No. 1 was absolutely lucid, did not
suffer from any mental infirmity and was quite capable of protecting her
interest. Thereafter the Plaintiff was summoned and despite opportunities
she failed to appear before this Court and thus costs of Rs. 5,000/- was
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imposed on the Plaintiff. On 1 March, 2013 the Plaintiff was present in
Court and offered her unqualified apology to Defendant No. 1/her mother for
hurting her feelings by stating on record that she is of unsound mind.
However the Defendant No. 1 stated that the Plaintiff’s apology was hollow
and did not inspire any confidence. Thus this Court dismissed I.A. No.
10032/2011 filed by the Plaintiff being devoid of merits, vexatious and
deliberate attempt on her part to portray her mother as a person of unsound
mind with costs of Rs. 50,000/- on the Plaintiff to be paid to the Defendant
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No. 1 in two weeks from the said date and dismissed the application on 20
May, 2013.
17. Few facts admitted by the Plaintiff in the plaint and the documents are
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that on 1 August, 1972 the perpetual lease deed was executed by the
Supreme Court Advocates Group Housing Society (in short ‘SCBCHBS
Ltd.) in favour of Shri M.V. Goswami, the father of the Plaintiff and the
Defendant No. 2 and the husband of Defendant No. 1 whereby Plot C-45,
Neeti Bagh, New Delhi measuring 325.33 sq. yards was allotted to him for
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 9 of 12
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Rs. 6,886/- on the terms mentioned therein. On 8 December, 1976 the
occupancy certificate was issued by DDA in favour of Shri M.V. Goswami.
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On 26 January, 1996 Shri M.V. Goswami passed away whereafter on 30
March, 1996 the Plaintiff shifted to C-45, Neeti Bagh, New Delhi and in the
same year the Plaintiff got mutated the property C-45, Neeti Bagh in the
name of her mother, Defendant No. 1. The Plaintiff has filed copies of the
Sale Deed of agricultural land at Manakwara and Chilloth, District
Hoshangabad, Madhya Pradesh entered into between the Defendant No. 1
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and one Rajesh Kumar. On 24 May, 2011 the Plaintiff also filed objections
with DDA for conversion of lease hold property to free hold as applied by
the Defendant No. 1 in respect of C-45, Neeti Bagh and requested to cancel
the no objection given by her earlier for the said property.
18. Defendant No.1 has placed on record the affidavit of the Petitioner
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dated 25 November, 1997 which was filed before the DDA in relation to
the mutation of Plot No. C-45, Neeti Bagh in the name of Defendant No.1.
The said affidavit of the plaintiff states that the Plaintiff is one of the legal
heirs of Shri M.V. Goswami deceased being his daughter, accepts the
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contents of Will dated 20 December, 1985 left behind by the deceased
allottee/ Lessee/ Sub-Lessee of plot No. C-45, Neeti Bagh and has no
objection if the said plot is mutated in favour of Smt. Hemlata Goswami,
Wife of late Shri M.V. Goswami and the legatee as per the said Will.
19. A perusal of the plaint shows that there is no reference to the Will
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dated 25 November, 1997. In the replication to the written statement of
Defendant No.1, the Plaintiff has not denied the Will but has stated that the
Will is forged having not seen the light of the day, and the same cannot be
acted upon as there is no probate of the said Will. The Plaintiff has nowhere
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 10 of 12
denied the filing of the affidavit. Undoubtedly, no objection for mutuation in
the revenue records neither extinguishes the title nor has any presumptive
value on title, as held in Smt. Sawarni Vs. Smt. Inder Kaur and Ors. (1996) 6
SCC 223 but it clear that there has been suppression of material fact in the
plaint. Though the Plaintiff states that the Will is forged but she does not
claim that the affidavit filed by the Plaintiff before the DDA acknowledging
the Will was a forged document. The Plaintiff does not deny the copy of the
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affidavit dated 25 November, 1997 of the plaintiff filed by the Defendant
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No.1 on 1 October, 2011, in the affidavit of the Plaintiff for admission/
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denial of documents filed by Defendant No.1 on 31 August, 2013.
20. In T. Arivandandam (supra ) while dealing with the suit pending
before the First Munsif’s Court, Banglore the Supreme Court held that on a
meaningful, not formal reading of the plaint, the suit was manifestly
vexatious and meritless, in the sense of not disclosing a clear right to sue,
thus the Court should exercise its power under Order VII Rule 11 CPC,
taking care to see that the ground mentioned therein is fulfilled. It was held
that if clever drafting has created the illusion of a cause of action, it should
be nipped in the bud, at the first hearing by examining the party searchingly
under Chapter X CPC. The Trial Court should insist imperatively on
examining the party at the first hearing so that bogus litigation can be shot-
down at the earliest stage.
21. The prayers in the present suit are for a decree of partition in favour of
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the Plaintiff, seeking a declaration of 1/3 share in property No. C-45, Neeti
Bagh and ancestral property measuring 23 acres situated at Village
Manakwara and Chillauth/ Bankheri District. As noted above, though the
Plaintiff denies that the Will is a forged document, however the Plaintiff
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 11 of 12
does not deny the affidavit executed by the Plaintiff before the DDA
pursuant to which mutation of property No. C-45, Neeti Bagh has been done
in the name of Defendant No.1. Hence, non-denial of the affidavit clearly
shows that there has been suppression of material facts as regards prayer
No.1 is concerned. There is yet another fact which persuades this Court to
reject the plaint. With regard to ancestral property neither complete family
tree has been filed nor have the other legal heirs been made parties. In the
absence of necessary parties the present suit is liable to be rejected. Nor the
details of the properties have been mentioned. As regards prayer No.2 the
Plaintiff can only claim of use and enjoyment of physical possession of the
house at C-45, Neeti Bagh, New Delhi in case she has a right in the property.
The Plaintiff has not been able to show the same and in the absence of the
same the prayer No.2 cannot be allowed. As regards prayer No.3 seeking a
mandatory injunction in favour of the Plaintiff and against the Defendant
No.2 and her family members seeking handing over of all the original
documents as the Defendant No.1 is of unsound mind/ incapable of taking
independent decision, this Court after examining the Defendant No.1 has
already held that the Defendant No.1 is of sound mind and capable of
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looking after her affairs vide its order dated 10 October, 2012which order
has not been challenged till date. Thus, there is no merit in this prayer as
well.
22. Hence the plaint is liable to be rejected. Ordered accordingly.
23. Application is disposed of.
(MUKTA GUPTA)
JUDGE
APRIL 22, 2014/‘vn’
I.A. No. 16744/2011 in CS (OS) 1544/2011 Page 12 of 12