When we apply this principle to the facts of the present case, we find that cause of action is pleaded. The mere fact that the case is weak and not likely to succeed is no ground for ousting the plaintiff at this stage. Failure to disclose a cause of action is distinct from the absence of full particulars. In the present case, the entire attempt of the appellants is to show that there is absence of full particulars. It is stated at the cost of repetition that the plaintiffs do plead existence of HUF and whether HUF in reality existed or not would be a matter of trial. Only on the ground that full particulars in that behalf are not pleaded by the plaintiffs, cannot be a ground to dislodge the plaintiffs at this stage.
Unreportable
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 16.07.2009
FAO (OS) No.83/2008
Sh. Manjeet Singh Anand
Versus
Sh. Sarabit Singh Anand & Ors.
CORAM :-
THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE V.K. JAIN
The appellant in FAO (OS) No.83/2008 (defendant No.1 in the suit)
had filed an application under Order VII Rule 11 read with Section 151 of
the Code of Civil Procedure seeking rejection of the plaint in the suit filed by
respondents No.1 to 3 herein. That application has been dismissed by the
learned Single Judge vide orders dated 11.2.2008. This order is the subject
matter of challenge in both these appeals. Second appeal, i.e., FAO (OS)
No.84/2008 is preferred by defendant No.1 in CS (OS) No. 1791/2006. To
avoid any confusion, we shall stick to the nomenclature of different parties
as appearing in the suit, i.e., the appellant in FAO (OS) No. 83/2003 shall be
referred to as the defendant No.1 and the respondents No.1 to 3 herein
shall be referred to as the plaintiffs.
2.
The plaintiffs and the defendants are related to each other. Suit filed
by the plaintiffs is for partition and permanent injunction wherein decree of
partition in respect of the property known as 6, Cavalry Lines, Mall road,
Delhi, has been sought. It is stated that all the plaintiffs and the defendants,
who are 10 in number, have 1/10th share each in the said property. The
relationship between the parties, as disclosed in the plaint, is as under:-
FAO(OS) Nos.83 & 84/2008
Page 2
Late Sardar Sucha Singh Anand (Father)
Late Smt. Kundan Kaur Anand
(Mother)
(Second wife)
Jagdish Singh Anand
(Son)
(Def. No.3)
Smt. Basant Kaur Anand
(Mother)
(Third wife)
Plaintiff No. 3
Gurdip Singh Anand
(Son)
(Def. No.4)
Kuljeet Kaur Bhasin
(Daughter)
(Def. No.6)
Sarabjit Singh Anand
(Son)
(Plaintiff No.1)
No.2)
Manjit Singh Anand Gurinder Kaur Sethi
(Son) (Daughter)
(Def. No.1) (Def. No.7)
Amarjit Singh Anand Jasjit Singh Anand
(Son) (Son)
(Def. No.2) (Plaintiff
Brijender Kaur Kohli
(Daughter)
(Def. No.5)
3.
Decree for permanent injunction is also prayed for seeking restraint
against the defendant No.1 from selling, alienating, disposing or otherwise
creating third party interest in the said property (hereinafter referred to as
‘the suit property’). Since we are concerned with the decision on the
application under Order VII Rule 11 CPC and at this stage only averments in
the plaint are to be looked into and examined, we may take note of those
FAO(OS) Nos.83 & 84/2008
Page 3
averments only. The learned Single Judge in his impugned order has made
reference to these averments contained in the plaint. Without any fear of
contradiction we can take note of those averments as they appear in the
impugned order.
4.
The Plaintiffs (excluding Plaintiff No.3) and the defendants are all
sons and daughters of Late S. Sucha Singh Anand, albeit, from different
wives. Plaintiff No.3 is the third wife of Late S. Sucha Singh Anand. Plaintiff
No.1 and 2 and defendants No.2 and 5 are born from Plaintiff No.3
Defendant No.1, 3, 4, 6 and 7 are the children of the second wife of Late S.
Sucha Singh Anand. There were no issues from the first wife.
5.
It is averred in the plaint that late S. Sucha Singh Anand and Plaintiff
No.3 had from their own income and funds purchased the lease hold rights
in the property and premises bearing No.6, Cavalry Lines, Mall Road, Delhi-
110 007 for the residence of all their family members. The entire sale
consideration amounting to Rs.2,05,000/- flowed from Late S. Sucha Singh
Anand and the Plaintiff No.3. The said property was purchased by the
aforesaid persons as a joint family property and Conveyance Deed dated
1.11.1961 was executed in the name of defendant No.1.
6.
At the relevant time when the conveyance was got executed in the
name of defendant No.1, the eldest son (defendant No.3) was in the USA
and since defendant No.1 was the second major son of Late S. Sucha Singh,
FAO(OS) Nos.83 & 84/2008
Page 4
the property was purchased in his name as a trustee of the entire family.
This was the understanding between all members of the family upto the
filing of the suit. The Plaintiff and defendants resided together in the said
property and in course of time, only Late S. Sucha Singh.
Plaintiffs,
defendant No.1 and defendant No.2 were left in the physical possession of
the property, though the property still remained a joint family property of
all. Even upon the demise of Late Sucha Singh Anand on 6.3.2000 his legal
heirs continued in occupation of the said property in the manner in which
they were in possession prior to his demise. Thus, the entitlement of other
legal heirs of Late S. Sucha Singh to the suit property was never disputed at
any time and the defendant No.1 had been holding the said property as a
nominee and trustee of the Plaintiff No.3, Late S. Sucha Singh and the entire
family.
7.
Since the defendant No.1 had with a malafide intention got a notice
published in the Statesman on 22nd July 2006 and was negotiating/
attempting to dispose of the suit property, the Plaintiffs were constrained to
file the instant suit on 18.8.2006.
8.
In the application filed by the defendant No.1 under Order VII Rule 11
CPC it was stated that even as per the averments made in the plaint case
was founded on the basis that there was an HUF of Late Sardar Succha
Singh Anand and the property in question was purchased by him from his
FAO(OS) Nos.83 & 84/2008
Page 5
funds and also money is contributed by the plaintiff No.3 (third wife of Late
Sardar Succha Singh Anand).
Therefore, even when if property was
purchased in the name of defendant No.1, it was purchased as a joint family
property and for the benefit of its members. It was also pleaded in the
plaint that he was the trustee of the suit property in his hands. Submission
was that neither the case of joint family property set up by the plaintiffs
was sustainable in law nor the plea of trustee maintainable in law even on
the basis of averments made in the plaint. According to him, the case
pleaded in essence was that the defendant No.1 was the Benami owner of
the suit property and such a suit was barred by the provisions of Benami
Transactions (Prohibition) Act, 1988 (in short ‘the Benami Act’), inasmuch as
the plaintiffs could not bring out the case within the two exceptions, i.e., (i)
the property is owned by a coparcener of a Hindu Undivided Family or (ii)
the defendant No.1, who had acquired the title of the property, had been
acting in fiduciary capacity and was trustee of the real owner. It was also
pointed out that Late S. Sucha Singh never laid any claim to the said
property during his life time nor was suit filed before his death. After his
death, the present plaintiffs in any case have no right, authority or locus to
institute the present suit. The plaintiff on these facts ought to have been
brought within three years of the date of registration of the Deed of
Conveyance in favour of the defendant/applicant. Thus, there is no cause of
action available to the plaintiff to file a suit after 45 years of registration of
FAO(OS) Nos.83 & 84/2008
Page 6
the Conveyance Deed. The suit is barred by limitation. The plaintiff has
also not sought the cancellation of sale deed executed in favour of
defendant No.1. The suit is not maintainable in the absence of the said
relief.
9.
The plaintiffs contested the aforesaid application by filing reply
thereto. In the said reply it was contended that the suit was not hit by
Section 4 of the Benami Act as the transaction cannot be treated as
“Benami”. According to the plaintiffs, they along with the defendants were
in physical possession and occupation of the suit property and the
defendant No.1 was not holding the same solely and exclusively. They
maintained that the suit property was purchased as joint family property for
the benefit and enjoyment of the entire family, though in the name of the
defendant No.1. There was a clear averment to this effect in the plaint and
at this stage nothing more was to be examined. They also pointed out that
in the plaint it was averred that defendant No.1 was to act as a trustee in
respect of the said property, the beneficiaries whereof were all the family
members of late Sardar Succha Singh Anand. The property had been
treated as joint family property throughout. The plea that the doctrine of
blending has no applicability to the contribution made by plaintiff No.3
being a female is also without any merit as a female can always make a gift
of her self-acquired property for the benefit of joint family. All other
FAO(OS) Nos.83 & 84/2008
Page 7
defendants have pleaded that the suit property is a joint family property.
Whether the said property is actually a joint family property or not is a
matter which can be determined only after a full-fledged trial after
recording of evidence by the parties. Being a question of fact it cannot form
the basis for rejection of plaint under Order VII Rule 11 CPC. The averments
in the plaint set up a case which is squarely covered by the exception
provided under clause (a) and (b) of Sub-section (3) of Section 4 of Benami
Act.
10.
The Impugned Order
The learned Single Judge, after delineating the scope of the
application under Order VII Rule 11 CPC and referring to Section 2A of the
Benami Act, which defines “Benami transaction” as well as Section 4 of the
said Act, which creates prohibition of the right to recover the property held
Benami, proceeded on the premise that since suit property was in the name
of defendant No.1, case put forth by the plaintiffs was that of a Benami
transaction. However, there are certain exceptions to the principle of law
mentioned in Section 4 of the Benami Act, as provided in sub-section (3) of
Section 4 itself, which are as under:-
“(a) where the person in whose name the property is
held is a coparcener in a Hindu undivided family and the
property is held for the benefit of the corparceners in
the family; or
(b)
where a person in whose name the property is
FAO(OS) Nos.83 & 84/2008
Page 8
held is a trustee or other person standing in a fiduciary
capacity, and the property is held for the benefit of
another person for whom he is a trustee or towards who
he stands in such capacity.”
11.
The learned Single Judge, then, posed the question as to whether the
averments contained in the plaint would bring the case within any of the
aforesaid clauses. Thereafter the averments in the plaint were taken note
of in the following manner:-
“14. The averments in the plaint along with the
documents filed on record are that the property was
purchased by the father and step-mother of the
defendant No.1 in his name as he was the only major
son/child then available in Delhi in whose name the
property could have been purchased at the relevant
time. The property was purchased in his name as a
nominee of the purchasers. The property was purchased
for the benefit of all the members of the family which
consisted of late Sardar Sucha Singh Anand, his children
from the second wife (including defendant No.1), his
third wife (plaintiff No.3) and his children from plaintiff
No.3. The property has been in the possession and
enjoyment of the entire family. All throughout the
defendant No.1 has been the registered owner and has
held the property for the benefit of all.
15. In para 8 it is averred “It is submitted that Late
Sardar Sucha Singh Anand and Plaintiff No.3 purchased
the suit property as a joint family property and the
conveyance deed dated 1.11.1961 was executed in the
name of defendant No.1 as trustee of entire family
members in respect of the suit property.” In para 16 it is
averred as follows:
“It is submitted that in the year 1961
defendant No.1 was in his final year of
graduation and was about 21 years old. It is
submitted that at the time of registration of
the said conveyance deed dated 1.11.1961
FAO(OS) Nos.83 & 84/2008
Page 9
defendant No.1 had just passed out his
graduation. It is submitted that prior to the
registration of conveyance deed in respect of
the suit property, defendant No.1 was simply a
student having no income of his own and was
completely dependent upon his father for his
day to day expenses. Thus, registration of the
Conveyance deed dated 1.11.1961, in the
name of defendant No.1, was mere faith and
choice of Late Sardar Sucha Singh Anand,
Plaiantiff No.3 and their family members as
trustee of entire family members in respect of
the suit property. Thus conveyance deed in
favour of defendant No. in respect of the suit
property was a sham and was done with the
intention to treat the suit property as joint
family property while defendant No.1 holding
the suit property as trustee for all the family
members in order to maintain harmony. It is
submitted that had any other major son of
Late Sardar Sucha Singh Anand was available
at that particular point of time, conveyance
deed would have been executed also in the
name of such other son(s) jointly with
defendant No.1.”
16. In para 21 it is stated that “It is submitted that right
from the date of purchase of the suit property till the date
of filing of the present suit there was/is no controversy, at
all, with regard to the status of suit property that the same
is joint family property and that defendant No.1 has been
holding the suit property as the nominee and trustee of
Late Sardar Sucha Singh Anand, Plaintiff No.3 and entire
family members. It is submitted that entitlement of the
legal heirs of Late Sardar Sucha Singh Anand as co-owners
of the suit property was neither denied nor disputed at any
time, by any person including defendant No.1, either
during the life time of Late Sardar Sucha Singh Anand or
after his death, as also evident and clear from some
subsequent events as averred hereinafter.”
FAO(OS) Nos.83 & 84/2008
Page 10
12.
From the aforesaid averments the learned Single Judge concluded
that the plaintiffs had brought out the case within Exception (b) to Section
4(3) of the Benami Act as existence of the Trust was specifically pleaded.
Various judgments on this aspect, including provisions of Sections 81 and 82
of the Indian Trust Act have been noticed by the learned Single Judge in this
behalf. In the opinion of the learned Single Judge averments in the plaint
do make out a case which can be covered by Exception (a) in Section 4(3) of
the Benami Act inasmuch as the case of joint Hindu family was specifically
pleaded, more particularly the act of the plaintiff No.3 contributing towards
purchase of the suit property. The question as to whether or not Hindu
joint family existed could not be decided at this stage as it was a matter of
evidence. Here again, much case law is discussed in coming to the aforesaid
conclusion on the application of the defendant No.1. Contention about the
suit being barred by limitation is also rejected in the following manner:-
“31. I find that the plaintiffs are not seeking a
cancellation of sale deed in this case. Their claim is that
the said property though in the name of one party, was
purchased for the benefit of all and constituted co-
parcenary property. Now a joint family property may
not stand in the name of all the co-parceners as
ownership in the said property is governed by law and a
co-parcener acquires interest in the same by birth and
independent of any document of title. So long as his
title is not denied by the others i.e., a cloud is not cast on
his title, there is no obligation on him to seek a
FAO(OS) Nos.83 & 84/2008
Page 11
declaration of his title from the court. However, the
moment his title is so denied or threatened to be denied
or an act detrimental to his interest is committed so as
to curtail his right, the time begins to run for seeking the
appropriate relief. The plaintiffs had categorically
averred that their rights and title was admitted by the
defendant no.1 till the publication of the notice in the
Statesman on 22.07.2006, and it was only thereafter that
the cause of action for seeking a declaration
commenced. I find that none of the cases referred on
behalf of the defendant deal with a fact situation where
the property in question is alleged to be coparcenary
property and issue/relief is only for declaration of a
share by a co-parcener. This matter also therefore
cannot be decided without leading of evidence. The
plaintiff have already filed a separate suit being CS(OS)
No.1791/2006 to challenge the title of the transferees
from defendant No.1.”
13.
Mr. Sunil Gupta, learned Senior Advocate, who appeared on behalf of
the defendant No.1 made a fervent plea for setting aside the impugned
order and allowing the application of the defendant No.1 filed under Order
VII Rule 11 CPC contending that the learned Single Judge had not decided
the said application in correct perspective. Mr. Ravi Gupta, who appeared
for the appellants in other appeal, supported the cause advanced by the
defendant No.1 submitting that neither the case of an HUF nor that of a
trustee established even from the bare reading of the averments made. In
this behalf it was argued that first exception carved out by clause (a) to sub-
section (3) to Section 4 of the Benami Act categorically states that the
property should be held by persons as “coparcener in a Hindu Undivided
FAO(OS) Nos.83 & 84/2008
Page 12
Family” and for the benefit of “coparceners in the family”. On this basis
submission was that pre-requisites of pleading was that there has to be
“coparcenery” in an HUF. In this behalf learned counsel submitted that
following pre-requisites of pleadings of coparcenery in an HUF were
essential:
1. INHERITED PROPERTY – There is property in the
hands of the present holder (i.e. holder for the time
being) inherited by him from his father or father’s
father or father’s father’s father viz. ancestor –
whether such property in the hands of such ancestor
himself was ancestral, separately received or self-
acquired.
2. ANCESTRAL PROPERTY – The said holder has his own
son(s) etc., the property thus being ancestral
property vis-a-vis such son(s).
The holder (father) and his sons(s) will then form a coparcenary. The
sons would acquire the share by birth and survivorship (not by death of
father and succession) an interest in the joint/ancestral/coparcenary
property.
14.
It was argued that Coparcenary is different from HUF simpliciter and
its ingredients are:
a) there needs to be, at least, 3 generations with an ancestor in the
picture
FAO(OS) Nos.83 & 84/2008
Page 13
b) the property needs to be ancestral property devolving from the 1st
generation upon the 2nd generation
c) 2nd generation being accompanied by the 3rd generation, the 3rd
generation by birth acquires right to the ancestral property along
with the 2nd generation. The 3rd generation can prevent alienation by
or demand partition from the 2nd generation in respect of the
ancestral property.
Thus, the 2nd & 3rd generation(s) form a coparcenary as regards the
said ancestral property. The property though in the hands of the 2nd
generation is ancestral vis-a-vis the 3rd generation.
15.
The learned counsel pleaded that in the present case, none of the
basic ingredients of a ‘coparcenary in a HUF’ have been pleaded so as to be
covered by the saving clause in S.4(3)(a) of the Benami Transaction
(Prohibition) Act, 1988. There is no mention of grandfather, grandfather’s
property, inheritance of grandfather’s property by the father, SSA, etc or is
clear from the reading of paras 8, 9, 15, 16, 21 & 31 of the Plaint.
16.
He also referred to the following judgments to demonstrate that
coparcenery was different from HUF:
i.
ii.
iii.
Sathyaprema M. Gowda v. CED (1997) 10 SCC 684.
CET v. Darshan Surendra Prarekh, AIR 1968 SC 1125.
SBI v. Ghamandi Ram, (1969) 2 SCC 33.
FAO(OS) Nos.83 & 84/2008
Page 14
iv.
v.
vi.
vii.
CED v. Alladi Kuppuswamy, (1977) 3 SCC 385.
Hindu Law Mulla 15th Ed. (1982).
Hindu Law Mulla 15th Ed. (2007).
Ramesh Chand v. Tekchand, 115 (2004) DLT 193.
After reading various paras in the plaint the learned counsel pointed
out that these pleadings lacked the following:-
a) COPARCENERY IN HUF:
‘Coparcenary in HUF’ and not merely HUF is required by S.4(3)(a).
Benefit pleaded in the plaint is not of coparcenary, but of the general
and broad joint family, including females etc. This could be simply
moral or ethical burden of defendant No. 1 but not the legal
obligation of Defendant No. 1 as a coparcener for the benefit of and
towards other coparceners.’
b) FUNDS - Source
Far from ancestral funds being pleaded as the source of the funds,
the avowed case of the plaintiff is that the suit property was
purchased by SSA and his 3rd wife from their ‘own funds’.
c) NUCLEUS
Presumption of Joint Family (normal state) does not mean
presumption of there being also Joint family property. No ‘nucleus
of Joint family or HUF property’ pleaded in plaint: No such lis.
Mayne, Hindu Law & Usage, 16th Ed. (2008) pp. 7445-746.
Srinivasa K. Kango v. N.D. Kango, AIR 1954 SC 379.
Mohan Lal v. Ram Dayal, AIR 1941 Oudh. 331.
Babu Bisar v. Babu Raja, AIR 1950 PC 204.
d) COMMON STOCK
For blending in HUF common stock, common stock must exist from
before.
Kewal Krishan Mayor v. Kailash Ch. Mayur, 95 (2002) DLT 115
(DB).”
17.
He also submitted that all legal heirs of late Sardar Succha Singh
Anand could be co-owners after his death, by succession and not
coparceners by birth and survivalship during his life time. It was also
FAO(OS) Nos.83 & 84/2008
Page 15
pointed out that if intention was to treat the suit property as joint family
property, he could have purchased this in his name. It was also argued that
merely by mentioning that the plaintiff No.3 allegedly contributed the
money from her funds would lead to the case to nowhere as wife could not
be treated as coparcener and therefore, could not ‘blend’ her property with
HUF property. Moreover, neither Sardar Succha Singh Anand during his
lifetime, nor any of his sons and daughters ever raised the claim of HUF for
more than 45 years. In so far as pleading that defendant No.1 was a trustee
and holding that the property in fiduciary capacity is concerned, the
submission was that the same was antithesis of HUF/coparcenery theory.
Both the things could not be pleaded at the same time. Clause (b) of
Section 4(3) of the Benami Act regarding holding of the property in a
fiduciary capacity could be pleaded only in a case of betrayal as held in Anil
Bhasin v. Vijay Kr. Bhasin, 102 (2003) DLT 932. Argument of limitation was
again pressed on the ground that suit for cancellation of sale deed could be
filed only within three years.
18.
Plaintiff No.1, who appeared in person, countered the aforesaid
submissions. He reiterated that intention was to purchase the property for
the benefit of all and therefore, the defendant No.1 was holding the same
in fiduciary capacity. He read the impugned order of the learned Single
Jude and submitted that the reasons contained therein were perfectly valid
FAO(OS) Nos.83 & 84/2008
Page 16
and at this stage plaint should not be rejected in view of the averments
made in the plaint which needed trial. He emphasized the fact that when
the property was purchased in the name of defendant No.1, he was a young
boy without any income and therefore, he could not plead nor was his case
that the property was purchased by him from his funds. The intention
which was manifest was even acted upon all these years as the property
was enjoyed by other siblings/relations of defendant No.1. Therefore,
defendant No.1 was holding the said property only in a fiduciary capacity.
He referred to the provisions of Section 41 of the Transfer of Property Act
and the following judgments in support of his case:-
1) Laxman Sakharam Salvi and others v. Balkrishna Balvant
Ghatage, AIR 1995 Bombay 190.
2) Rajinder Prashad Malik v. Shanti Devi Malik and other, AIR
2003 P & H 29.
3) V. Shankaranarayana Rao (D) by LRs & Ors. v. Leelavathy
(D) by LRs & Ors., AIR 2007 SC 2637.
4) Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah, JT
1996 (4) SC 725.
19.
We have given our utmost consideration to the respective
submissions of the counsel and the parties on both sides.
20.
In the present case we are concerned with the application moved by
the appellant herein in the suit under Order VII Rule 11 of the CPC.
FAO(OS) Nos.83 & 84/2008
Page 17
Therefore, the scope and ambit of such a provision has to be kept in mind
and the Court is to proceed taking into consideration its limited power and
jurisdiction while dealing with the prayer made in such an application for
rejection of the plaint at this stage when the trial in the suit has not taken
place and the evidence is yet to surface. It cannot be disputed, nor was it
disputed, that while dealing with such an application and to see whether
cause of action is pleaded or not or the suit is barred by law, the Court is
required to go by the averments made in the plaint alone. The defence of
the defendants in the written statement, or the documents on which they
seek to place reliance, is not to be looked into at this stage. Rejection of a
plaint is a serious matter. It non-suits the plaintiff(s). Therefore, such a
course of action is adopted by the courts only when conditions mentioned
in Order VII Rule 11 CPC are strictly satisfied. It is not to be resorted to
cursorily. In order to see whether Order VII Rule 11 CPC is attracted or not
in a given case, the Court is to examine, from the averments made in the
plaint, whether the jurisdiction of the court is made out or not and whether
the suit is barred by any law or the plaint does not disclose any cause of
action. (See – Kanwal Kishore Manchanda v. S.D. Technical Services Pvt.
Ltd., 2005 IV AD (Del) 541; Arvinda Kumar Singh v. Hardayal Kaur, 2005 II
AD (Delhi) 430; Asha Bhatia v. V.L. Bhatia, 116(2005)DLT191; Punam
Laroia v. Sanjeev Laroia, 2003 V AD (Delhi) 370; Condour Power Products
Pvt. Ltd. v. Sandeep Rohtagi, 111(2004)DLT121)
FAO(OS) Nos.83 & 84/2008
Page 18
21.
The suit filed by the plaintiff is for partition of property known as 6,
Cavalry Lines, Mall Road, Delhi. No doubt, this property is registered in the
name of the defendant No.1. At the same time, it is also not in dispute that
the property in question was purchased by late Sardar Sucha Singh Anand,
al beit in the name of defendant No.1. It is also an admitted fact that
parties are related to each other, i.e. they are all children of late Sardar
Sucha Singh Anand. Again, what is not disputed even by the defendant
No.1 is that when the property was purchased, he was only 21 years of age
and was a student who was in the final year of graduation with no income
of his own. According to the plaintiffs, ever since the purchase of the
property in the year 1961, all the parties have been residing in the disputed
property. Apart from the aforesaid averments made in the plaint, which is
almost the admitted position, the plaintiffs have made specific pleadings, as
is clear from paras 14 to 16 of the impugned order where the pleadings are
incorporated, to the following effect :-
(i)
Property was purchased in the name of defendant No.1 as nominee
of the purchasers for the benefit of all the members of the family.
(ii)
The property was purchased by late Sardar Sucha Singh out of his
funds, along with funds contributed by plaintiff No.3 (his third wife) as a
Joint Hindu Property.
FAO(OS) Nos.83 & 84/2008
Page 19
(iii)
The property has been in possession and enjoyment of the entire
family all throughout.
(iv)
Defendant No.1 has held the property, for the benefit of all, as a
trustee of entire family members.
(v)
Registration of Conveyance Deed dated 1.11.1961 was made in the
name of the defendant No.1 as he was in Delhi at that time living with his
father and other brothers, including plaintiff No.1, were not in Delhi.
(vi)
Right from the date of purchase of the suit property till the date of
filing of the suit, there was no controversy at all with regard to the status of
the suit property that the same is a Joint Family Property.
(vii)
Entitlement of legal heirs of late Sardar Sucha Singh Anand as co-
owners of the suit property was neither denied nor disputed at any time by
any person, including the defendant No.1, either during his lifetime or after
his death. To demonstrate this specific pleading events are stated in the
plaint.
22.
Thus, the plaintiffs have specifically pleaded that there existed a Joint
Family (which would imply Hindu Undivided Family) and the property was
held for the benefit of the coparceners in the family. It has also been
specifically pleaded that defendant No.1 holds the property as a trustee for
the benefit of all the family members and, in fact, all the family members
have enjoyed the property in this manner throughout. In this manner,
FAO(OS) Nos.83 & 84/2008
Page 20
attempt is made to bring the case within the exceptions contained in sub-
section (3) of Section 4 of the Benami Transactions (Prohibition) Act, 1988
23.
We are, therefore, of the opinion that there are specific pleadings
regarding HUF and holding of the property by the defendant No.1 for the
benefit of the coparceners and also specific pleadings that defendant No.1
is the trustee holding the property in question for the benefit of all family
members.
In these circumstances, we are inclined to agree with the
reasoning of the learned Single Judge that case of Joint Hindu Family is
specifically pleaded and the question as to whether, in fact, Hindu Joint
Family existed or not could not be decided at this stage as it was a matter
of evidence.
24. To ascertain whether the plaint discloses cause of action or not the
averments made in the plaint only have to be seen. A cause of action is a
bundle of facts which are required to be pleaded and proved for the
purpose of obtaining relief claimed in the suit. For the aforementioned
purpose, the material facts are required to be stated but not the evidence
except in certain cases where the pleading relies on any misrepresentation,
fraud, breach of trust, willful default, or undue influence. 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
FAO(OS) Nos.83 & 84/2008
Page 21
entirety must be held to be correct. The test is, if the averments made in
the plaint are taken to be correct in their entirety, a decree would be
passed or not. 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. By the statute the jurisdiction of the
court is restricted to ascertaining whether on the allegations a cause of
action is shown. In Vijai Pratap Singh v. Dukh Haran Nath Singh AIR 1962 SC
941 the Supreme Court held: (AIR pp.943-44, para 9)
“By the express terms of Rule 5 Clause (d), the court is
concerned to ascertain whether the allegations made in the
petition show a cause of action. The court has not to see
whether the claim made by the petitioner is likely to succeed: it
has merely to satisfy itself that the allegations made in the
petition, if accepted as true, would entitle the petitioner to the
relief he claims. If accepting those allegations as true no case is
made out for granting relief no cause of action would be shown
and the petition must be rejected. But in ascertaining whether
the petition shows a cause of action the court does not enter
upon a trial of the issues affecting the merits of the claim made
by the petitioner. It cannot take into consideration the defenses
which the defendant may raise upon the merits; nor is the court
competent to make an elaborate enquiry into doubtful or
complicated questions of law or fact. If the allegations in the
petition, prima facie, show a cause of action, the court cannot
embark upon an enquiry whether the allegations are true in
fact, or whether the petitioner will succeed in the claims made
by him.”
25.
When we apply this principle to the facts of the present case, we find
that cause of action is pleaded. The mere fact that the case is weak and not
likely to succeed is no ground for ousting the plaintiff at this stage. Failure
FAO(OS) Nos.83 & 84/2008
Page 22
to disclose a cause of action is distinct from the absence of full particulars.
In the present case, the entire attempt of the appellants is to show that
there is absence of full particulars. It is stated at the cost of repetition that
the plaintiffs do plead existence of HUF and whether HUF in reality existed
or not would be a matter of trial. Only on the ground that full particulars in
that behalf are not pleaded by the plaintiffs, cannot be a ground to dislodge
the plaintiffs at this stage.
26.
The whole attempt of learned counsel for the appellants, as is clear
from their arguments noted above, is to show that no case of HUF is made
out or that of a trustee established. In this behalf, their attempt is to point
out that the pre-requisites of coparcenery or the HUF are not specifically
pleaded. No doubt there are no detailed pleadings in this behalf. However,
at this stage, pleadings cannot be construed in the manner in which it is
sought to be done by the learned counsel for the appellants. When we find
that the appellants have pleaded that there was a Joint Family, it would be
for them to bring on record sufficient evidence to show that all the pre-
requisites of coparcenery in HUF are proved. Again that would be a matter
of evidence. Same thing applies to the pleadings qua the plea of the
plaintiffs that the property in question is a trust property. As pointed out
above, the learned Single Judge has referred to various judgments dealing
with exception (b) to Section 4(3) of the Benami Transactions (Prohibition)
FAO(OS) Nos.83 & 84/2008
Page 23
Act, 1988 relating to the plea of existence of the trust by the plaintiffs,
including provisions of Sections 81 and 82 of the Indian Trust Act. Since we
are agreeing with the said reasoning, which is based on many judgments
referred to by the learned Single Judge, it is not necessary to burden this
judgment by repeating the same.
27.
Only after the evidence is led and keeping in view that evidence
various pleas put forth by the learned counsel for the appellants can be
examined and appreciated.
28.
In these circumstances, we do not find any merit in these appeals as
we are of the opinion that the order of the learned Single Judge does not
call for any interference. The appeals are accordingly dismissed.
(A.K. SIKRI)
JUDGE
July 16, 2009
Hp/nsk
FAO(OS) Nos.83 & 84/2008
(V.K. JAIN)
JUDGE
Page 24
No comments:
Post a Comment