TaxTMI 
TaxTMI 
2023 (8) TMI 1549
X X X X Extracts X X X X
X X X X Extracts X X X X
....d on behalf of plaintiff is a gross abuse of the process of law and has been filed by plaintiff with dishonest and malafide intention. The present application has been filed on the premise that plaintiff has verified the suit and has sworn the accompanying affidavit, fully knowing that the contents of the same are false even to his knowledge. Hence, by making false statements 'On Oath' before this Court, plaintiff has made himself liable to be proceeded under Section 340 of Cr.P.C. 2. Though the present application has been filed under Section 340 Cr.P.C., however, at the outset, at the commencement of the arguments, learned Senior Counsel for defendant No. 1 submitted that the submissions made qua this application would be made treating the present application as an application under Order 7 Rule 11 of Code of Civil Procedure, 1908 ('CPC'), for rejection of plaint. submissions have been advanced by all the parties on the issue of rejection of plaint. In view thereof, the present application is being decided treating the same as an application under Order 7 Rule 11 CPC, for rejection of plaint, on the basis of submissions made by the parties in this regard. 3.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... father. This fundamental assumption on which the suit is essentially based is wholly fraud and mis-conceived. This is evident from the stand taken and repeated by plaintiff on oath, which strikes at the very root of the plaint. 7. Learned senior counsel appearing for defendant no. 1 submits that a completely contrary position as compared to the stand taken in the present plaint, was taken by plaintiff herein in the affidavits/applications filed on behalf of plaintiff earlier. 8. It is submitted that the father was a guarantor for a loan in respect of which recovery proceedings were pending before the learned DRT, in RC No. 247/2002. In the said proceedings, Recovery Officer vide order dated 18.05.2005 had restrained the LRs. of Dr. R.N. Jain (the father) from selling the suit property and had directed to disclose factum of ownership and claim of title of suit property, and further to submit its title deed. In compliance thereof, and seeking to vacate restraint order, plaintiff and other LRs. filed an application dated 11.07.2005, supported by an affidavit, asserting in para 4 that the suit property was purchased by Mrs. Kailash Wati Jain (the mother), Mrs. Ramkali Jain, Mrs.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....10.2004 which was filed in the aforesaid proceedings before the learned DRT, wherein plaintiff categorically stated that only two properties situated in Greater Kailash, New Delhi belonged to the father. Plaintiff also confirmed that he had not inherited any property from the father. The suit property was not mentioned in the affidavit by plaintiff, as property owned by the father. 10. Plaintiff filed additional affidavits dated 11.04.2005 and 02.07.2008 before the learned DRT, wherein plaintiff enumerated various properties as owned by his father, but there was no mention of the suit property. 11. Learned senior counsel for defendant no. 1 has also relied upon affidavit dated 04.12.2012 before DRT-I, Delhi in RC No. 116/2012; affidavit dated 04.12.2012 in RC No. 28/2012 before Recovery Officer, DRT-II; affidavit dated 02.09.2014 in RC No. 353/2012 before DRT-I, Delhi and affidavit dated 22.10.2016 in RC No. 353/2012 before DRT-II. By relying upon the aforesaid affidavits, it is contended that plaintiff has re-confirmed that he had not inherited any property from the father and that the suit property was conspicuously missing from the detailed list of father's properties,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssed on the principle of estoppel/admission in previous pleadings. Plaintiff cannot wriggle out of his categorical stand taken before the learned DRT by urging that DRT is not a Civil Court and cannot decide the issue of title. 17. It is further the case of defendant no. 1 that the present suit is barred by limitation. Plaintiff has filed the present suit on 20.04.2017, whereas, the sale deed in favour of the mother is dated 07.01.1970. Further, the registered gift deed of which plaintiff is seeking cancellation is dated 07.06.2006. Thus, the suit having been filed more than 3 years after execution of the said registered documents, is beyond the prescribed period of limitation. The father during his lifetime never challenged the sale deed dated 07.01.1970, nor did plaintiff choose to do the same within three years from the demise of the father in the year 1997. 18. It is further contended on behalf of defendant no. 1 that mere payment does not make the person owner of a property. It is submitted that even though admittedly the sale consideration was paid by the partnership and not by the father, mere payment by a person of sale consideration will not make him the owner. 19....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e, with mala fide and dishonest intention of playing fraud upon the court, has deliberately suppressed and concealed the material facts from this Court of having filed applications and affidavits before DRT, which are contrary to the pleadings made in the present proceedings. 25. It is further contented on behalf of defendant No. 1 that plaintiff's attempt to explain the suppressions by taking recourse to replication, is misconceived. Replication is not a substitute to a fair and honest plaint. 26. It is further contended by ld. Sr. Counsel for defendant No. 1 that plaintiff's excuse that he took the stand before the DRT for saving the suit property from clutches of the bank, is completely vexatious and perverse. Permitting a person to alter his position in this manner in different proceedings, would lead to legal anarchy. It is further submitted that the plaint would be without any cause of action if the averments made in the earlier suit have not been explained in the present suit. 27. In support of his submissions, ld. Senior Counsel for defendant No. 1 has relied upon the following judgments: i. S.P. Chengalvaraya Naidu Vs. Jagannath, AIR 1994 SC 853 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xxix. Umrao Singh Vs. Man Singh and Ors., AIR 1972 Delhi 1 xxx. Vinod Popli Vs. Ragini Popli and Ors., 219 (2015) DLT 294 28. Per contra, ld. Senior Counsel appearing for defendant Nos. 3 to 6 submits that none of the contentions raised on behalf of defendant No. 1 are sustainable in law and are completely misconceived. It is submitted that the suit filed by plaintiff is maintainable in law and defendant No. 1 cannot be permitted to avoid trial on merits of the several issues that have been raised by plaintiff and supported by defendant Nos. 3 to 6. 29. Ld. Senior Counsel appearing for defendant No. 3 to 6 contends that defendant No. 1 has not filed any formal application under the provisions of Order VII Rule 11 CPC, and has yet proceeded to advance oral arguments relying on the said provisions. Without a formal application being filed by defendant No. 1 invoking the provisions of Order VII Rule 11 CPC, the objections of defendant No. 1 cannot be examined and adjudicated in law. 30. It is further contended that there is no material suppression by plaintiff in the suit which would warrant dismissal of the suit without trial. It is submitted that the so called asse....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Likewise, Ld. Counsel for plaintiff, has vehemently opposed the submissions made on behalf of defendant No. 1. It is submitted that defendant No. 1 has not filed any application under Order VII Rule 11 CPC and only oral submissions have been advanced by defendant No. 1 for rejection of the present plaint. 37. It is submitted that the relative strength or weakness of plaintiff's case cannot be considered while considering submissions under Order VII Rule 11 CPC. Contents of written statement are completely irrelevant and only the plaint has to be seen as to whether it discloses any cause of action or is not otherwise barred under any law. 38. It is further submitted that a plaint cannot be rejected in part. The plaintiff's averments not only disclose a cause of action, but are also not barred under any law. The plaintiff is entitled in law to take the pleas as taken in the plaint. 39. It is further submitted that while a person is not entitled to withdraw an admission, he can always explain an admission previously made. Admissions are not conclusive. 40. It is submitted that the argument of defendant no.1 that no disclosure was made in the plaint of the previou....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... viii. Anita Kumari Gupta Vs. Ved Bhushan, MANU/DE/1147/2014 ix. Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria, (2015) 10 SCC 203 x. Baldev Singh Vs. Manohar Singh, (2006) 6 SCC 498 xi. Udham Singh Vs. Ram Singh, (2007) 15 SCC 529 xii. Yogita Dasgupta Vs. Kaustav Dasgupta, MANU/DE/1778/2016 xiii. Manoj Arora Vs. Mamta Arora, MANU/DE/2790/2018 xiv. Thakur Bhim Singh (Dead) by LRs. & Anr. Vs. Thakur Kan Singh, (1980) 3 SCC 72 xv. Binapani Paul Vs. Pratima Ghosh, (2007) 6 SCC 100 xvi. Punjab Tractors Limited Vs. International Tractors Ltd., (2010) 167 DLT 490 xvii. Abdul Rehman Vs. K.M. Anees ul Haq. (2011) 10 SCC 696 xviii. Ambika Prasad Thakur Vs. Kamal Singh, AIR 1966 SC 605 xix. Jai Narayan Mathur Vs. Jai Prakash Mathur, (2016) 228 DLT 515 xx. Mani Vs. Madhavi, MANU/KE/0633/2017, Kerala High Court xxi. Sejal Glass Ltd. Vs. Navilan Merchants Pvt. Ltd., MANU/SC/1098/2017 xxii. Syed Asadullah Kazmi Vs. Additional Magistrate, D.D.C. and Ors., MANU/UP/0671/1987 xxiii. YU Televentures Private Limited Vs. Telefonaktiebolaget LM Ericsson (PUBL) And ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint.........." 48. In the plaint, the following facts have been pleaded: I Present suit pertains to property bearing No. 14, Alipur Road, Civil Lines, Delhi. The said property measures 6170 Sq. yards. Plaintiff and defendants are the legal heirs of late Dr. R.N. Jain (the father). II The suit property was originally owned by Ms. Sushila Devi, wife of late Sh. Shyam Nath. Late Dr. R.N. Jain along with his three brothers, namely, Mr. J.R. Jain, Mr. S.R. Jain and Mr. N.L. Jain were partners of M/s Jain Brothers. The partnership firm was constituted in the year 1955. III All the four partners of M/s Jain Brothers decided to purchase the suit property in the name of their wives, who were all housewives. Thus, the suit property was purchased by partners of M/s Jain Brothers in the name of their wives vide Sale Deed dated 07.01.1970. The sale consideration of Rs. 3 Lakhs was paid by M/s Jain Brothers to the sellers vide Bank Draft No. DBU489701/1/70 dated 13.01.1970 from their bank account number-12269/4, Punjab National Bank, Chawari Bazar Branch, Delhi. The said am....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he father) as well as other co-owners of the suit property were aware about the execution of the alleged gift deed. X Defendant no. 1 influenced the mother and took advantage of her old age, illiteracy and medical condition; and got the alleged gift deed executed in his favour. 49. A bare reading of the plaint manifests that the case of plaintiff is that the subject property to the extent of 25% was held only in the name of the mother, whereas in actuality, the owner of the same was the father, late Dr. R.N. Jain. Thus, the actual and beneficial owner of 25% of the property was the father, while the property was held in the name of the mother only. Therefore, upon the death of the father, in terms of his Will dated 05.09.1992, the mother acquired only a life interest of the property and the three sons of late Dr. R.N. Jain (the father) were to have ownership of the property in terms of his Will. Therefore, the property neither exclusively belonged to the mother, nor did she have any right, title or interest in the same to have been capable to gift the same to defendant no.1 by virtue of a gift deed or dispose of the same in any other way. 50. On the basis of the afor....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... definition of prohibited benami transactions in Section 2(9) of the Benami Act as amended in 2016, various exceptions have been provided under which the transaction is not considered as a benami transaction. Such exceptions as provided in Section 2(9) of the Benami Act are such as purchase of property in the name of spouse or in the name of any child by an individual and the consideration for such property has been provided or paid out of the known sources of such individual; property held by a karta or member of HUF and the property is held for the benefit of other members in the family and consideration for such property has been provided or paid out of the known sources of the HUF; persons standing in fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, etc. 52. The above discussion would show that till 1988, benami transactions were legal and valid in India. Post 1988, a prohibition was introduced on benami transactions, with certain exceptions, inter-alia where purchase by a husband in the name of the wife was accepted as a recognized and legally permissible valid mode....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s a housewife throughout her life. V As per the plaintiff, a sum of Rs. 75,000/-in the year 1970 was a huge sum of money, equal to several crores in today's date. To believe that a lady (the mother) who was married about 30 years prior, in the 1940s, would retain such a large amount of cash as a stridhan, almost 30 years after marriage, is totally unbelievable. 54. This Court also takes note of the following facts that have emerged during the course of arguments: I It is not only the recorded owner, i.e. the mother alone, but rather the entire family of Dr. R.N. Jain (the father) that stayed in the suit property. Consequently, possession of the mother was neither exclusive nor was there any ouster of any of the other family members, nor has the same been pleaded. II Even today, plaintiff's family and the family of defendant Nos. 3 to 6 stay at the suit property, apart from defendant no.1's family. Thus, defendant no.1 is not the only person in possession of the suit property. III The original title deed of the suit property was not in possession of the mother, but in possession of plaintiff. The same has now been deposited by plain....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject-matter of assessment at the stage when application under Order 7 Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. We may quote the following observations of this Court in Popat and Kotecha Property v. SBI Staff Assn. [Popat and Kotecha Property v. SBI Staff Assn., (2005) 7 SCC 510] : (SCC p. 515, para 10) "10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale.' (Jaydayal Poddar v. Bibi Hazra [(1974) 1 SCC 3] , SCC p. 7, para 6) 14. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia. *** 18. It is well settled that intention of the parties is the essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami. The evidence shows clearly that the original plaintiff did....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ere existence of an adverse entry in the revenue records had given rise to the cause of action as contemplated under Article 58 or had it accrued when the right was infringed or threatened to be infringed. 13. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the Schedule which has prescribed the period of limitation relates to suits concerning declarations. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues. 14. In support of the contention that the suit was filed within the period of limitation, the learned Senior Counsel appearing for the appellant-plaintiffs before us submitted that there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In support of this contention the learned Senior Counsel strongly relied on a decision of the Privy Council in Bolo v. Kokl....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., it is seen that the suit is barred by limitation, then and then only a plaint can be rejected under Order 7 Rule 11(d)CPC on the ground of limitation. At this stage what is required to be considered is the averments in the plaint. For the aforesaid purpose, the Court has to consider and read the averments in the plaint as a whole. As observed and held by this Court in Ram Prakash Gupta [Ram Prakash Gupta v. Rajiv Kumar Gupta, (2007) 10 SCC 59] , rejection of a plaint under Order 7 Rule 11(d)CPC by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said decision, in para 21, it is observed and held as under: (SCC p. 68) "21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he submissions made before this Court in support of rejection of plaint, cannot be taken into account by this Court. If the plaint discloses a cause of action, the same cannot be rejected summarily. The only relevant facts that need to be looked into with reference to Order VII Rule 11 CPC, are the averments as made in the plaint. 65. At the stage of considering an application under Order VII Rule 11 CPC, the relative strength or weakness of a plaintiff's case on merit cannot be considered. Likewise, contents of the written statement and defence of the defendants are completely irrelevant at the stage of considering the application under Order VII Rule 11 CPC. What has to be seen is only whether the plaint and the documents filed therewith, taken on the face of it, disclose a cause of action and is not otherwise barred under any law. Defence raised in written statement or in arguments for rejection of plaint are not relevant for an adjudication under Order VII Rule 11 CPC. (See: Mayar (H.K.) Ltd. Vs. Vessel M.V. Fortune Express, (2006) 3 SCC 100) 66. In view of the aforesaid, averments as made on behalf of defendant No. 1 cannot as such be considered at the time of adjudi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that an opportunity is given to the person under cross-examination to tender his explanation and clear the point on the question of admission. In our view, the High Court was again wrong in attaching much weight to the averments made in the earlier plaint and coming to the conclusion that the defendants were admitted to be the tenants by the plaintiff on the land in question." 69. Further, Supreme Court in the case of Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria (2015) 10 SCC 203, in similar facts had allowed a party, who had earlier disclaimed rights in immoveable property stating that they had no right therein, to later file an affidavit to explain/clarify the "admissions" made earlier. Thus, it cannot be held at this stage that there is no cause of action in favour of the plaintiff on the basis of earlier "admissions". 70. Even otherwise, the pleading by plaintiff in DRT that the mother was the owner of suit property or that plaintiff does not have any right, title or interest in the property, does not make the mother owner of the suit property, if otherwise in law it can be determined that not the mother, but the father was the real owner of the property. Nor does such "....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... it is stated: "This rule (Order 7 Rule 11) does not justify the rejection of any particular portion of a plaint." In support of this statement the learned author has relied on Raghubans Puri v. Jyotis Swarupa [Raghubans Puri v. Jyotis Swarupa, ILR (1906-07) 29 All 325] , Venkata Rangiah Appa Rao v. Secy. of State [Venkata Rangiah Appa Rao v. Secy. of State, ILR 54 Mad 416 : AIR 1931 Mad 175] and Maqsud Ahmad v. Mathra Datt & Co. [Maqsud Ahmad v. Mathra Datt & Co., AIR 1936 Lah 1021] In reply to this argument Mr Puri has submitted that it is really five suits which had all been combined in one and therefore in this particular case the rejection of a part was nothing more than rejection of three plaints. But the suit was brought on one plaint and not five suits were brought. The law does not change merely because the plaintiff chooses in one suit to combine several causes of action against several defendants which the law allows him. It still remains one plaint and therefore rejection of the plaint must be as a whole and not as to a part. I am therefore of the opinion that the learned Senior Subordinate Judge was in error in upholding the rejection as to a part and setting aside the....