Delhi High Court
Amrit Kaur vs Sarabjeet Singh & Ors on 29 August, 2008
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (OS) No. 1574/2006 & IA Nos.8992-8993/2006,
13731/2006, 2066/2007
Decided on : August 29th, 2008
AMRIT KAUR ......PLAINTIFF
Through : Mr.K.T.S. Tulsi, Sr. Advocate with
Ms. Susha Unni, Advocate
versus
SARABJEET SINGH & ORS ...... DEFENDANTS
Through : Mr. R.M. Bagai, Advocate
CORAM:
Mr. Justice S. Ravindra Bhat
1. Whether reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
Mr. Justice S. Ravindra Bhat:
CS (OS) 1574/2006 Page 1
IA No.7743/2007
1. This order proposes to dispose of an application, (IA
7743/2007) filed by the defendants, for rejection of the plaint, under
Order VII, Rule 11 (d) Code of Civil Procedure, 1908 (hereafter called
"CPC") on the ground of its being time barred.
2. The plaintiff a decree partitioning properties mentioned in
Schedule A (to the suit) and other properties which may come to
light in the course of the trial in these proceeding, which might have
been purchased out of funds of the assets owned by her father, by
metes and bounds, and declared her to be entitled to 1/5th share of
the partitioned property. The plaintiff also claims a decree for
rendition of accounts.
3. The plaintiff avers that Desh Raj Singh, her father was born in
1918. He went to Karachi for earnings and started his transport
business there in a small scale. After partition, he started his
business in Delhi under the name and style of "Karachi Taxi Co". The
plaintiff's father and his family were living at 34/42, Punjabi Bagh,
New Delhi. It is averred that the defendants, all sons of the said
CS (OS) 1574/2006 Page 2
Desh Raj Singh, after attaining majority, joined him in the business
and were inducted as Directors of the company. It is also averred
that from the earnings of the said business, her father Desh Raj
Singh acquired properties listed in Schedule A. With advancing age,
Desh Raj Singh's interest in the business started to wane.
Accordingly, the first defendant, being his eldest son, started acting
as the Karta of the Hindu Undivided Family.
4. The further material averments in the plaint, are extracted
below:
"8. That it is pertinent to mention here that
apart from the aforesaid business the father of the
plaintiff and the defendants also started a
partnership firm in the name and style of
"American Express" wherein apart from her father
and defendant No.1, 2 and Amrit Pal Singh, the
plaintiff was also made a dormant partner to it.
9. That defendant No.1, 2 and Amrit Pal Singh,
married in the year 1978, 1986 and 1983
respectively. The plaintiff was married in the year
1972. The entire expenses of these marriages
was borne by the family business.
10. That Shri Desh Raj Singh expired on
19.08.1988 leaving behind his wife Smt. Ranjit
Kaur, daughter Smt. Amrit Kaur and three sons,
Sh. Sarabjeet Singh, Sh. Bhupinder Singh and Sh.
Amrit Pal Singh as his legal heirs and after this
CS (OS) 1574/2006 Page 3
death the entire property referred to in para no.6
of the instant suit developed upon the plaintiff and
defendants 1 to 3 and Amrit Pal Singh, in equal
shares i.e. 1/5t h share each. Thus the plaintiff is
entitled to 1/5t h share in the property which
developed upon her on the death of her father.
11. That Amrit Pal Singh, youngest son of Sh.
Desh Raj Singh, expired on 10.08.93 (leaving
behind the following legal heirs namely :
a) Anita kaur (wife)
b) Gurdev Kaur (daughter)
c) Gursangat Singh (son)
12. That even after the death of late Sh. Desh
Raj Singh the family remained joint and the joint
business of the family was being looked after by
defendant No.1 as karta of the said HUF with the
help and assistance of defendant No.2.
13. That defendant no.2 obtained divorce from
his wife in the year 1994 and after his divorce he
got married with the wife of his deceased brother
Late Shri Amrit Pal Singh in the year 1995.
14. That, it appears that, soon after the demise
of Sh. Desh Raj Singh and Shri Amrit Pal Singh
defendant No.1 became dishonest and in collusion
with defendant no.2 started carrying on the family
business in an arbitrary manner, detrimental to the
interest of HUF.
15. That after the death of her father, plaintiff
being sole sister of the defendants, was having full
faith and confidence in her brothers and was under
the impression that her interest in the property
CS (OS) 1574/2006 Page 4
and business also devolved upon her and was
being looked after by her brothers. The plaintiff
had no opportunity to imagine that defendants in
collusion with each other were doing family
business arbitrarily and are bent upon to take
away her shares in the HUF property which
devolved upon her after the death of her father.
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20. That despite repeated requests, the
defendants are not willing to give the share of the
plaintiff in the properties mentioned in para no.6 of
the instant suit, more particularly mentioned in
Schedule A, annexed herewith the suit, left behind
by the father of the parties as such the present
suit, nor are the defendants willing to reveal the
exact description and value of the properties
mentioned in Schedule A as well as large nos. of
other properties in and outside Delhi which are not
within the knowledge of the plaintiff.
21. That the plaintiff has learnt that defendants
are negotiating for sale of some immovable
properties left behind by the father of the parties.
However, the details of the same are not
available with the plaintiff.
22. That since the plaintiff is a married woman
and generally remains busy in house hold affairs it
is not possible for he r to keep a watch and vigil
over the suit prop er ties on a regular basis. It is
very likely and taking advantage of the fact that
she lives separately with her husband, the
CS (OS) 1574/2006 Page 5
defendants may dispose of the suit proper ties
posing themselves to be the sole owners.
23. That the plaintiff has a strong prima facie
case and balance of convenience is also in her
favour as they are among the surviving legal heirs
of Sh. Desh Raj Singh who died intestate without
leaving his property to any one of his legal heirs
or others in particular. T he plaintiff is sure to
succeed the present suit and if the defendants are
not rest rained from committing their illegal design
to sell of the property without giving share to the
plaintiff, then the plaintiff will suffer Irreparable
loss and injury which cannot be compensated in
terms of money. Therefore the plaintiff is entitled
to have an injunction against defendants from
transferring, selling, assigning or par ting with the
proper ties which came to the share of the
plaintiff.
24. That the cause of action arose in January
2006 when defendant No.1 became dishonest and
in collusion with defendant no.2 started carrying
on the family business in an arbitrary manner ,
detrimental t o the interest of HUF. The cause of
action further accrued in favour of the plaintiff and
against the defendants when the defendants
despite repeated requests failed to render the
accounts of the family business as well of
partnership firm. The cause of action in favour of
the plaintiff and against the defendants also
accrued on various dates when the defendants
refused to give the plaintiff shares in the HUF
property and the accounts of the partnership firm.
T he cause of action in favour of the plaintiff and
against the defendants further accrued when the
CS (OS) 1574/2006 Page 6
plaintiff after learning from common friends that
the defendants were fraudulently planning to sell
of the suit property without giving them their
rightful shares, asked for their share and the
defendants refused for the same stating that being
a daughter, she did not have right to claim for the
same. The cause of action in favour of the plaintiff
and against the defendants is still subsisting since
the defendants failed to give the share of the
plaintiff in the HUF property and accounts of the
partnership firm till date."
5. Learned counsel for the applicant defendant submits that the
plaint has to be rejected. Being an action seeking enforcement of
rights in the joint family property, the relevant provision concerned
is Article 110 of the schedule to the Limitation Act, 1963 ("the Act")
which prescribes that the period of limitation is 12 years. Counsel
submitted that the period of limitation begins when the exclusion
(from the property) becomes known to the aggrieved party or the
plaintiff. He submitted that according to the plaintiff, immediately
after her father's death, she was excluded from her share in the
properties left by him. As such the cause of action for the suit
commenced from 19-8-1988; the limitation thus expired on 18-8-
2000.
CS (OS) 1574/2006 Page 7
6. Learned counsel submitted that the plaintiff did not have any
cause of action to approach this court and file the suit. Being a
daughter of the late Desh Raj Singh, she was not a coparcener, in
the Hindu undivided family. Counsel submitted that the plaintiff
could not take advantage of amendment to Section 6 of the Hindu
Marriage Act, since it was brought into force in 2005, and operated
prospectively. Learned counsel submitted that the court should
exercise its power under Order VII, Rule 11 and reject the plaint, to
avoid what is a patently frivolous and vexatious litigation, filed
speculatively.
7. Mr. K.T.S. Tulsi, learned senior counsel for the plaintiff, urged
that the suit clearly reveals a cause of action. At the stage of
considering whether a suit can be entertained or rejected, the court
cannot look into the feasibility of the plaintiff's case on merits; it has
to merely consider the averments in the plaint, and proceed on the
assumption that they are correct. It was submitted that the
averments in the plaint show that the late Desh Raj Singh had
acquired properties; after his death, the defendants took charge of
CS (OS) 1574/2006 Page 8
those, as well as the family business. The plaintiff's brother, Amrit
Pal Singh, died in 1993. Thereafter, the defendants became
dishonest, and started to deny her rights. The plaintiff made several
attempts, including the one recently, in 2007, to seek her rights, but
all of them failed. As a result, she filed the present suit. The same is
within the period of limitation prescribed by law.
8. Article 110 of the Schedule to the Act provides that a suit by a
person excluded from a joint family property, to enforce a right to
share therein is twelve years. The starting point is when the
exclusion becomes known to the plaintiff.
9. It has been held that the object underlying this Article is to
afford protection to a member of a joint Hindu family against
prejudicial action by the other members of the family behind his
back with respect to his interest in the family property. It has been
held that this provision, prescribing the period of limitation, and the
conditions of its applicability also apply to suits for partition
(Radhoba -vs- Aburao AIR 1929 PC 231). It has also been held that
"exclusion" is a fact specific circumstance, to be seen in the light of
CS (OS) 1574/2006 Page 9
materials on record in every case. However, what should be seen by
the court is the intention of the persons so seeking to exclude the
plaintiff, from the enjoyment of his (or her) share (Haresh -vs-
Hardevi 1927 (1) ILR 49 All 763; Velayudhan -vs- Velumpi Kunji, ILR
1958 Ker 389 (FB) and Marudhanayagam Pillai -vs- Sola Pillai 77 Mad
LW 697). This court too, had applied a similar criteria, when
considering whether the suit was time barred, and in the judgment
reported as Ramesh Chand V. Tek Chand & Others 115 (2004) DLT
193.
10. In this case, the plaintiff avers, clearly enough that her
entitlement arose upon the death of Desh Raj Singh, in 1988; she
further submits that:
"14. That, it appears that, soon after the demise of Sh.
Desh Raj Singh and Shri Amrit Pal Singh defendant No.1
became dishonest and in collusion with defendant no.2
started carrying on the family business in an arbitrary
manner, detrimental to the interest of HUF."
In the averments prior to the above allegations, it was contended
that the family properties were acquired by the late father, who had,
after becoming advanced of age, left its management to the first
CS (OS) 1574/2006 Page 10
defendant, who acted as the Karta. Even if the plaintiff's right to
seek partition assuming there to be one, were to be reckoned on the
later date indicated, i.e after the death of the late Amrit Pal Singh,
(who died in 1993) the suit was time barred, having been filed only
in 2006.
11. When the court has to consider whether or not to reject the
plaint, it is guided by the principles evolved by the Supreme Court in
T. Arivandandam v. T.V. Satyapal and Another, (1977) 4 SCC 467.
The Court had held that if on a meaningful, not formal, reading of
the plaint it is manifestly vexatious, and meritless, in the sense of
not disclosing a clear right to sue, the Court should exercise its
power under Order VII Rule 11 of the Code taking care to see that
the ground mentioned therein is fulfilled. In Roop Lal Sethi v.
Nachhattar Singh Gill, (1982) 3 SCC 487, the Court observed that
when the plaint discloses no cause of action, it is obligatory upon the
Court to reject it; yet the rule does not justify the rejection of any
particular portion of a plaint.
CS (OS) 1574/2006 Page 11
12. Later again, in ITC Ltd. v. Debts Recovery Appellate Tribunal,
(1998) 2 SCC 70, it was held that the basic question to be decided in
dealing with an application filed by the defendant under Order VII
Rule 11 of the Code is to discern if a real cause of action has been
set out in the plaint or something illusory has been projected, to get
out of the said provision. Saleem Bhai and Others v. State of
Maharashtra and Others, (2003) 1 SCC 557 is an authority on the
issue that the Court can exercise its powers under Order VII Rule 11
of the Code at any stage of the suit before registering the plaint or
after issuing summons to the defendant at any time before the
conclusion of the trial and for that purpose averments in the plaint
are germane and the pleas taken by the defendant in the written
statement would be wholly irrelevant. It was also held in Mayar
(H.K.) Ltd. & Ors -Vs- Owners & Parties, Vessel M.V. Fortune Express
& Ors 2006 (3) SCC 100 that the provision, the Court would be
justified in rejecting the plaint where it does not disclose a cause of
action, where the relief claimed is undervalued and the valuation is
not corrected within a time as fixed by the Court, where insufficient
CS (OS) 1574/2006 Page 12
Court-fee is paid and the additional Court-fee is not supplied within
the period given by the Court, and where the suit appears from the
statement in the plaint to be barred by any law.
13. The averments in the plaint are sufficient to deduce that the
even according to the plaintiff, she was excluded from enjoyment of
the joint family properties immediately after her father's death. The
suit is, significantly enough, not accompanied by any document; it
does not also rely on any document. No list of documents has been
filed in the last two years. Further, the plaintiff does not advert to a
single specific date when the defendants were asked to give her the
share in properties, and when they refused. The entire case set up is
on an oral demand. No notice, of lawyer, or even of the plaintiff, is
relied upon. Thus, on a meaningful reading of the plaint, it has to be
concluded that the allusion of demand in 2007, when other parts of
the suit show that the grievance about the plaintiff's share having
arisen in 1988, is an attempt to get over the question of limitation.
14. In the opinion of this court, an overall reading of the plaint
shows that the alleged cause of action for filing this suit, for
CS (OS) 1574/2006 Page 13
enforcement of the plaintiff's rights in the Schedule A properties,
according to her, arose in 1988; at best in 1993. In either case, the
suit, filed in 2006 is clearly time barred. Therefore, the application IA
7743/2007 has to succeed; it is accordingly allowed. For the same
reasons, the plaint in CS OS 1574/2006 is rejected. All pending
applications are also dismissed. The parties shall bear their own
costs.
DATED: 29th August, 2008 S. RAVINDRA BHAT, J.
CS (OS) 1574/2006 Page 14