Rajasthan High Court - Jaipur
M/S Ratnalaya Diamond Pvt. Ltd vs Ms. Ambika D/O Smt. Manjulika W/O Shri ... on 5 April, 2022
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 54/2020
1. M/s Ratnalaya Diamond Pvt. Ltd., Registered Office At
619, Panchratna, Opera House, Mumbai (as per address
mentioned in the plaint) however At Present Having Its
Office Registered At 3rd Floor, KGK Tower -II, Dutta Pada
Road, Rajendra Nagar, Near Ekta Bhoomi Garden, Boriwali
(East) Mumbai-400066 through its Authrorized Signatory
Shri Rajendra Agarwal S/o Late Shri Govind Ram Agarwal
R/o 7/406, Malviya Nagar, Jaipur
2. Navrattan Kothari S/o Late Shri Ghisilal Kothari, Aged
About 78 Years, R/o B-1, Kamani House, Mahavir Marg,
C-Scheme, (as Per address mentioned in the plaint)
However, Correctly Residing At B-1 And B-2, Prithviraj
Road, C-Scheme, Jaipur Rajasthan
3. Anila Kothari W/o Shri Navrattan Kothari, Aged About 76
Years, R/o B-1, Kamani House, Mahavir Marg, C-Scheme,
(as per address mentioned in the plaint) However,
Correctly Residing at B-1 & B-2, Prithviraj Road, C-
Scheme, Jaipur Rajasthan
4. Sandeep Kothari S/o Shri Navrattan Kothari, Aged About
48 Years, R/o B-1, Kamani House, Mahavir Marg, C-
Scheme, (as per address mentioned in the plaint)
However, Correctly Residing At B-1 & B-2, Prithviraj Road,
C-Scheme, Jaipur Rajasthan Through Power Of Attorney
Holder Shri Navrattan Kothari S/o Late Shri Ghisilal
Kothari
----Petitioners/Defendants no. 2 to 5
Versus
1. Ms. Ambika, aged about 32 years,
2. Ms. Aditi aged about 31 years,
Both daughters of Smt. Manjulika W/o Shri Vibhav
Mishra, R/o 203, Kuber Building, Maidan Gadi, Near
IGNOU, New Delhi
....Respondents-Plaintiffs
3. Vibhav Mishra alias Vibhav Sharma, adoptive Son Of Late
Shri Mahesh Chand Sharma and biological Son of Late
Shri Madhav Dixit, R/o D-46, Subhash Marg, C-Scheme,
Jaipur (as per address mentioned in the plaint) However
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Presently Residing At Plot No. 1, Saran Kutir, Naglika
Chauraha, Alwar Rajasthan
4. Manorma D/o Late Shri Mahesh Chandra Sharma W/o
Late Shri Madhav Prasad Dixit, R/o B-14, Sagar Sanjog,
Jaypee Road, Andheri West, Mumbai, Maharashtra
5. Government Of India, Income Tax Department, 8th Floor,
Janpath Bhawan, New Delhi through its Authorized Officer
6. Appropriate Authority, Income Tax Department,
Government Of India, 8th Floor, Janpath Bhawan, New
Delhi Through its Authorized Officer
----Respondents
For Petitioner(s) : Mr. G.P. Sharma, Advocate
For Respondent(s) : Ms. Gayatri Rathore, Sr. Advocate
with Mr. Ran Singh, Advocate
Mr. Parag Rastogi, Advocate
HON'BLE MR. JUSTICE PRAKASH GUPTA
Judgment
Date of Judgment :: 5th April, 2022
This revision petition has been preferred by the
petitioners-defendants no. 2 to 5 (for short, 'the defendants')
under Section 115 of the Code of Civil Procedure against the order
dated 20.2.2020 passed by the Court of Additional District Judge
No.1, Jaipur District Jaipur in Civil Suit No.63/2019.
The defendants moved an application under Order VII
Rule 11 CPC seeking rejection of the plaint filed by the
respondents no. 1 and 2-plaintiffs (for short, 'the plaintiffs') for
partition, declaration and permanent injunction. The application
has been dismissed by the trial court vide the impugned order.
Hence, this revision petition has been filed.
Learned counsel for the defendants submits that the
property in question had never been a coparcenery property at
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any point of time. Rather the property in question was acquired
way back in the year 1946 by Shri Nand Lal Ji. Shri Nand Lal Ji
being the owner of the aforesaid property executed a Will dated
23.7.1970, by which half share of the disputed property was
devolved upon the daughter in law Smt. Sushila Devi and his
grandson Mr. Vibhav Mishra and 1/2th share was retained by Shri
Nand Lal Ji, who died in the year 1974. Thereafter the entire
property was devolved upon Smt. Sushila Devi and Vibhav, who
entered into an agreement to sell in the year 1989 for half
undivided share with defendant M/s. Ratnalaya Diamond Pvt. Ltd.
He further submits that the disputed property was acquired by late
Shri Nand Lal Ji vide allotment dated 24.8.1946. He further
submits that sale of the disputed property had already been made
in the year 1989 and 1992. Under Section 60 of the Limitation Act,
limitation has been provided for filing suits of declaration, but the
suit was not filed within the prescribed period of limitation. In
support of his contentions, he has placed reliance on the following
judgments:
i) Dahiben Versus Arvindbhai Kalyanji Bhanusali (Gajra)
(D) Thr Lrs and others reported in AIR 2020 Supreme
Court 3310
ii) Raghwendra Sharan Singh Versus Ram Prasanna Singh
(Dead) by LRs reported in 2019 (2) Civil Court Cases
417 (S.C.)
iii) Prem Kumar Rastogi Versus M/s. On-Up Automobiles
Pvt. Ltd. & Ors. reported in 2019 (4) Civil Court Cases
055 (Allahabad)
(iv) M/s. Key Pee Buildtech Pvt. Ltd. Versus Smt. Shahjahan
Begum reported in 2015 (4) WLC (Raj.) 212
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(v) S.B. Civil Revision Petition No. 79/2016 tilted Smt.
Vimla Kasliwal & Anr. Versus Shri Rajendra Kumar
Kasliwal & Ors.; decided on 3.8.2018
(vi) Vineet Sharma Versus Rakesh Sharma & ors. reported
in AIR 2020 Supreme Court 3717
On the other hand, learned counsel for the respondents
has defended the impugned order and stated the same to be just and proper.
Heard. Considered.
It is no more res-integra that for deciding the application under Order VII Rule 11 CPC, only the averments made in the plaint and the documents referred and appended with the plaint can be looked into. The defence or plea taken by the defendants is wholly immaterial and not required to be considered while deciding the application under Order VII Rule 11 CPC. It is also trite that the averments of plaint should be read as a whole and that too, a careful and meaningful reading is required, instead of a bare and superficial reading. Since the defendants have filed the application under Order VII Rule 11 CPC stating inter-alia that the plaint does not disclose a cause of action and clear right to sue to the plaintiffs; the plaint by its averment is barred by limitation; and the plaint is under-valued and suffers from deficit of payment of court fees, in order to deal with such objections within the scope of Order VII Rule 11 CPC, a careful and meaningful reading of the averment of the plaint is necessary.
By perusal of the pleadings of plaint, it transpires that the plaintiffs are daughters of Vibhav Mishra @ Vibhav Sharma, who is respondent no.3 herein and defendant no.1 in the plaint. It has been pleaded in the plaint that plaintiffs' father namely Vibhav (Downloaded on 24/12/2022 at 06:04:44 PM) (5 of 13) [CR-54/2020] has sold part of the suit property through three registered sale deeds in question to the defendant nos.2, 3 and 4, who are partners of a partnership firm defendant no.5 and while claiming the partition of the suit properties, as a consequence, three sale deeds executed by the father (defendant no.1) in favour of defendant nos. 2, 3 and 4 have also been prayed to be declared as null and void. The fundamental and basic case of the plaintiffs, as pleaded in the plaint, is that they are co-parceners in the suit property and have their vested undivided 2/3rd share out of the joint 5/6th share of their father Vibhav (defendant no.1) with them. The suit property is plot no. D-46, Subhash Marg, C- Scheme, Jaipur admeasuring 180 X 120 Sq. ft. Although no pedigree or family tree has been shown in the plaint, however, it has been alleged that the suit property belonged to Nand Lal Ji and Narsingh Das Ji in equal ½ and ½ share. It is pleaded that Nand Lal Ji had got ½ share by virtue of Will. It is not in dispute that Narsingh Das Ji had 1/2 share in the property.
As far as ½ share of Narsingh Das Ji, described as "Non Disputed Share" is concerned, the plaintiffs have derived their right, title and interest being co-parceners in the manner that Narsingh Das Ji was survived by his adopted son namely Mahesh, his son's wife Sushila, Vibhav (who was adopted son of Mahesh) and Mahesh's daughter Manorma. Vibhav (defendant no.1) entered into marriage with Smt. Madhulika and out of the wedlock, the plaintiffs were born. In paragraph no. 10 of the plaint, the plaintiffs have explained that after the amendment in Section 6 of the Hindu Succession Act, 1956 w.e.f 9.9.2005, the plaintiffs being daughters, acquired status of co-parceners in the ancestral and joint undivided hindu family. The ½ share of (Downloaded on 24/12/2022 at 06:04:44 PM) (6 of 13) [CR-54/2020] Narsingh Das Ji described as "Non Disputed Share" devolved into his adopted son Mahesh and Mahesh's adopted son Vibhav. After the death of Mahesh (on 21.10.1967), his ½ share further devolved upon his wife (Sushila), daughter (Manorma) and adopted son Vibhav. Since Mahesh's wife (Sushila) died on 29.1.1991, her share also came to Vibhav and thus, Vibhav got 5/6th share and his sister Manorma (defendant no. 6) got 1/6th share in the "Non Disputed Share" of Narsingh Das Ji. The plaintiffs being natural daughters of Vibhav, have acquired the status of co-parceners, as such in the 5/6th undivided share of Vibhav, they have their 2/3rd share, which is vested in them since birth. Thus, the plaintiffs have claimed partition of 5/6th share out of 1/2 "Non Disputed Share" of Narsingh Das Ji between the two plaintiffs and defendant no.1 each having 1/3 share. For better understanding of the claim of partition made by the plaintiffs, paragraph 10 is relevant and the same is reproduced below:
";g fd fgUnq mRRkjkf/kdkj vf/kfu;e] 1956 dh /kkjk 6 esa fd;s x;s la'kks/ku o bls Hkwry{kh izHkko nsrs gq, ykxw fd;s tkus dh frfFk fnukad 09-09-2005 ds vlj ls oknhx.k us Hkh okn lEifÙk tks fd lgnkf;dh lEifÙk gS] esa vius tUe ls lgnkf;d gksus dh lafLFkfr izkIr dj yh gSA okn lEifÙk ds lgnkf;d ferk{kjk fgUnq fof/k ls 'kkflr gSA okn lEifÙk ds vfookfnr fgLls ds lgnkf;d izfroknh la[;k 1 foHko o buds nRrd firk egs'k pUn th 'kekZ Fks] ftudk fnukad 29-10-1967 dks nsgkolku gks x;k Fkk ,oa rRle; mudh iRuh lq'khyk nsoh o mudh ,d iq=h euksjek nsoh Hkh thfor FkhA bl izdkj mRrjthfork ds fl)kUr ds vuqlkj egs'k pUn th 'kekZ nRrd iq= ujflag nkl th 'kekZ dk nsgkolku gksus ls okn lEifRr ds vfookfnr fgLls dk fgLlk 2/3[1/2+(1/2X1/3)] izfroknh la[;k 1 esa o 'ks"k fgLlk 1@6 o 1@6 Øe'k% lq'khyk nsoh o izfroknh la[;k 6 esa fufgr gks x;k FkkA Jherh lq'khyk nsoh esa okn lEifRr ds vfookfnr (Downloaded on 24/12/2022 at 06:04:44 PM) (7 of 13) [CR-54/2020] fgLls ds fgLlk 1@6 dks viuh e`R;q fnukad 29-01-1991 rd O;fur ugh fd;k x;k Fkk ,oa fuoZlh;rh e`R;q gksus ij mudk mDr fgLlk rRdkyhu lgnkf;d izfroknh la[;k 1 foHko esa fufgr gks tkus ij izfroknh la[;k 1 dk] okn lEifRr ds olh;rh fgLls ls bZrj] okn lEifRr ds vfookfnr fgLls esa dqy fgLlk 5@6 ¼2@3$1@6½ fufgr gks x;k FkkA izfroknh la[;k 1 foHko }kjk vkt fnol rd bl izdkj ls fufgr gq, okn lEifRr ds vfookfnr fgLls ds fgLlk 5@6 ds laca/k esa fdlh Hkh izdkj dk iathd`r ;k viathd`r laO;ogkj ugha fd;k x;k gSA bl izdkj okn lEifRr ds mDr vfookfnr fgLls ds fgLlk 5@6 esa oknhx.k o izfroknh la[;k 1 dk cjkcj&cjkcj fgLlk gS] ftls oknhx.k foHkkftr djkus dh vf/kdkfj.kh gSA As far as ½ share of Nand Lal Ji in the suit property, which was received through Will is concerned, it has been averred in the plaint that Nand Lal Ji executed a Will dated 23.7.1970. The Will was made in favour of Mahesh's wife Sushila and Mahesh's adopted son Vibhav. As per the Will, Sushila got an absolute right to live and finally after her death, the share of Nand Lal Ji was to vest in favour of her son Vibhav. It appears that Mahesh was a natural son of Nand Lal Ji, who was adopted by Narsingh Das Ji. It has been pleaded that Sushila and Vibhav both agreed to sell this ½ share (Will Share) through an agreement to sell dated 31.8.1989 to a partnership firm M/s. Ratnalaya Diamond Private Limited (Defendant No.5), although Sushila did not acquire any ownership rights under the Will as her right was confined to live in the property. It has also been averred that the Government of India, Income Tax Department (defendant no. 7) seized this ½ portion for recovery of tax and took possession on 29.11.1989. Sushila and the prospective buyer M/s. Ratnalaya Diamond Private Limited challenged the seizure order dated 29.11.1989 by filing two separate writ petitions which came to be (Downloaded on 24/12/2022 at 06:04:44 PM) (8 of 13) [CR-54/2020] numbered as S.B. Civil Writ Petition No. 1475/1990 and S.B. Civil Writ Petition No. 1605/1990. Initially both the writ petitions were dismissed vide common order dated 29.8.2003 (wrongly mentioned as 29.10.2003). However, on filing special appeals before the Division Bench, the order dated 29.11.1989 was quashed by the Division Bench vide judgment dated 16.8.2017. This judgment dated 16.8.2017 passed by the Division Bench was later-on clarified vide order dated 19.12.2017 to the effect that this order is confined to the issue of levying tax and would not affect the rights of parties in the properties. Against the order of Division Bench, presently Special Leave Petitions are pending before the Hon'ble Supreme Court at the instance of Government of India. It may also be noted that after passing the seizure order dated 29.11.1989 in favour of Union of India, Union of India also instituted a suit for partition. However, that partition suit was finally dismissed on 16.12.2017 after quashing the order dated 29.11.1989.
During the pendency of this litigation, Vibhav (Defendant No.1) executed three sale deeds dated 30.3.1992 (wrongly mentioned as 30.3.1994), 23.3.1992 and 28.2.1992 in favour of Defendants No. 2, 3 and 4, who happen to be the partners of the firm (Defendant No.5). It appears that these three sale deeds have been made in furtherance to the Agreement to Sell dated 31.8.1989 executed by Sushila and Vibhav in favour of the partnership firm M/s. Ratnalaya Diamond Private Limited. With disclosure of all such facts, the plaintiffs have pleaded in the plaint, more particularly in paragraph 4 that Plaintiff No.1 was born on 5.8.1987 and Plaintiff No.2 was born on 2.9.1988 and they became of co-parceners in the family of their father by virtue (Downloaded on 24/12/2022 at 06:04:44 PM) (9 of 13) [CR-54/2020] of their birth in the family and, as such being co-parceners, their right vested in ½ share of Nand Lal Ji. However thereafter, their father Vibhav has executed three sale deeds on 30.3.1992 (wrongly mentioned as 30.3.1994), 23.3.1992 and 28.2.1992, and therefore, these three sale deeds are liable to be declared as null and void qua the vested and undivided share of the plaintiffs in the suit property in the ½ Share of Nand Lal Ji. Thus, from a perusal of pleadings of paragraph no. 4 to 9, it appears that firstly the plaintiffs have claimed partition and separation of their 2/3rd share out of joint 5/6th share of their father, both daughters being co-parceners and consequentially sought declaration of the three registered sale deeds as null and void. In the alternative, the plaintiffs have prayed that in case the Union of India succeeds in their SLPs and this share goes in favour of the Union of India, then plaintiffs be held entitled to get their 2/3rd share out of the proceeds of three sale deeds received by their father.
Perusal of paragraph no. 18 of the plaint goes to show that the suit properties are co-parcenary properties and both the plaintiffs alongwith Defendant No.1 and Defendant No.6 are in joint possession being co-parceners of the ancestral and joint undivided property of Hindu family.
The primary relief sought by the plaintiffs is declaration of their share in the suit properties by way of partition and deriving their right and status being co-parceners by virtue of amendment under Section 6 of Hindu Succession Act, 1956. The relief of declaration to three registered sale deeds as null and void is ancillary and consequential to the relief of permanent injunction. The plaintiffs valued the plaint for Rs. 50.00 lacs, but invoked the provisions of Section 35 (2)(iii) for payment of court (Downloaded on 24/12/2022 at 06:04:44 PM) (10 of 13) [CR-54/2020] fees on the principle relief of partition. Since the plaintiffs alleged themselves to be co-parceners and have alleged to have legal possession being co-parceners in the joint family, therefore, fixed court fees as per the statutory provisions on the claim of partition has been paid. The relief of declaration of sale deed is ancillary and consequential, and therefore, taking resort to the proviso of Section 6 of the Rajasthan Court Fees and Suit Valuation Act, the court fees has been paid on the relief of partition and permanent injunction.
Having a careful and meaningful perusal of the plaint as a whole, it stands clear that the plaintiffs have pleaded, in detail, showing their clear and legal right to sue with disclosure of cause of action to bring the present civil suit for partition, declaration and permanent injunction in relation to the co-parcenary properties. The claim of plaintiffs alleging themselves to be co- parcener and claiming their vested share and interest in the co- parcenary property cannot be disbelieved and declined at the stage of deciding the application under Order VII Rule 11 CPC.
The defendants have tried to make out a case that the suit property is not a co-parcenary property and as such no cause of action accrued to the plaintiffs to bring the suit for partition of the disputed property.
It is a settled proposition of law that cause of action is a bundle of facts and entire plaint as a whole is required to be read to cull out disclosure of cause of action and right to sue available to the plaintiffs. Compartmentalization, dissection and segregation of the pleadings of plaint is impermissible in order to examine the accrual of the cause of action. In the backdrop of the afore-mentioned factual matrix and the legal proposition, it cannot (Downloaded on 24/12/2022 at 06:04:44 PM) (11 of 13) [CR-54/2020] be interfered that the present plaint does not disclose a cause of action.
The judgments rendered by the Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable and others Versus Assistant Charity Commissioner and others reported in 2004 (3) SCC 137 and Begum Sabiha Sultan Versus Nawab Mohd.
Mansur Ali Khan reported in 2007 (4) SCC 343 extend support to the proposition of law as discussed hereinabove. Thus, this Court is of the considered opinion that the objection raised by the defendants that the plaint deserves to be rejected on the ground of non disclosure of cause of action is misconceived. The trial court has not committed any illegality or jurisdictional error in dismissing the defendants' application on this ground. The judgments relied upon by counsel for the defendants do not apply to the facts of the instant case.
The defendants have raised another objection that present suit is barred by limitation.
By perusal of plaint and the prayer, as discussed and detailed out in the foregoing paragraphs, it stands clear that the present suit is a composite suit making prayers for partition, declaration and permanent injunction. The objection as to limitation raised by the defendants is confined to the relief of seeking declaration of three sale deeds dated 30.3.1992 (wrongly mentioned as 30.3.1994), 23.3.1992 and 28.2.1992. In the present civil suit filed on 29.10.2018, the defendants have taken resort to Article 60 of the Limitation Act, 1963. Firstly, a perusal of plaint shows that challenge to the three sale deeds is ancillary and consequential to the relief of partition and the foremost fundamental of principal prayer in the present suit is claim for (Downloaded on 24/12/2022 at 06:04:44 PM) (12 of 13) [CR-54/2020] partition in the co-parcenary property for separation of the shares of the co-parceners. Secondly, it transpires from the averment made in the plaint that the issue of limitation cannot be treated as a pure question of law, rather it seems to be a mixed question of fact and law. Thus, the issue of limitation can be considered and examined by the trial court after framing of the issues and after recording of evidence of both the parties and at the time of deciding the suit finally on merits. Thirdly, it is settled law that part of the plaint cannot be rejected under Order VII Rule 11 CPC. In this regard, judgment of the Hon'ble Supreme Court in the case of Roop Lal Sathi Versus Nachhattar Singh Gill reported in (1982) 3 SCC 487 can be relied upon. Thus, the trial court has not committed any illegality and jurisdictional error in dismissing the defendants' application and declining to reject the plaint on the said ground i.e. limitation in the given facts and circumstances.
As far as the objection regarding improper valuation and deficit court fees is concerned, the trial court has observed in the impugned order dated 20.2.2020 that considering the nature of present suit for partition, the plaintiffs have valued the suit property and they have paid the court fees according to the provisions of Section 35 (2)(iii) of the Rajasthan Court Fees and Suit Valuation Act, 1961. This Court having considered the claim of partition by the plaintiffs claiming themselves to be co- parceners and claiming the suit property as co-parcenary joint Hindi family property does not find any material or jurisdictional error in the impugned order dated 20.2.2020 passed by the trial court.
The outcome of discussions made hereinabove is that the order dated 20.2.2020 passed by the trial court does not call (Downloaded on 24/12/2022 at 06:04:44 PM) (13 of 13) [CR-54/2020] for any interference within the scope of Section 115 CPC. The present civil suit is not liable to be rejected at the threshold under Order VII Rule 11 CPC on the grounds raised by the defendants. The order dated 20.2.2020 is well within jurisdiction and parameters of law, as such deserves to be affirmed.
As a consequence, revision petition does not survive and the same is hereby dismissed.
Consequent upon the dismissal of the revision petition, stay application and all pending applications, if any, also stand dismissed accordingly.
(PRAKASH GUPTA),J Dk (Downloaded on 24/12/2022 at 06:04:44 PM) Powered by TCPDF (www.tcpdf.org)