Bombay High Court
Ajay Kumar Garg vs Avyaay Anirudh Garg And 26 Ors on 15 June, 2022
Author: Gs Patel
Bench: G.S.Patel, M.G. Sewlikar
Ajay Kumar Garg v Avyaay Anirudh Garg & Ors
6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc
Arun
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO. 15935 OF 2022
IN
INTERIM APPLICATION (L) NO. 9684 OF 2021
IN
SUIT NO. 113 OF 2021
Ajay Kumar Garg,
Having its home address at
224, Tahnee Heights B Wing,
Nepean Sea Road, Mumbai 400 006 ...Appellant
~ versus ~
1. Avyaay Anirudh Garg,
Mumbai Indian Inhabitant Age 6 years
2. Araaya Anirudh Garg,
Mumbai Indian Inhabitant, Age 6 years,
Respondent No. 1 & 2, both minors,
ARUN through their next friend Mrs Fazaa
RAMCHNDRA
SANKPAL Shroff Garg
Digitally signed by
ARUN 3. Fazaa Shroff Garg,
RAMCHNDRA
SANKPAL
Date: 2022.06.21
Indian Inhabitant, Adult, Occ:
Advocate, Residing at 224, Tahnee
15:05:53 +0530
Heights, B Wing, 22nd Floor, Nepean ...Respondents
Sea Road, Mumbai 400 006 (Org. Plaintiffs)
AND
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4. Harshrekha Ajaykumar
Garg,
Hindu, Indian Inhabitant, Adult, Occ,
Homemaker Resident at 224, Tahnee
Heights, B Wing, 22nd Floor, Nepean
Sea Road, Mumbai 400 006
5. Anirudh Ajay Kumar Garg,
Hindu, Indian Inhabitant
Adult, Occ, Homemaker Resident at
224, Tahnee Heights, B Wing, 22nd
Floor, Nepean Sea Road, Mumbai 400
006
6. Gaurav Ajay Kumar Garg,
Hindu, Indian Inhabitant,
Adult, Occ, business, Resident at 103,
A Wing, 18th Floor, Dariya Mahal, 80,
Nepean Sea Road, Mumbai 400 006
7. Priyanka Gaurav Garg,
Hindu, Indian Inhabitant,
Adult, Occ, Service, Resident at 103, A
Wing, 18th Floor, Dariya Mahal, 80,
Nepean Sea Road, Mumbai 400 006
8. Master Granth Gaurav
Garg,
Hindu, Indian Inhabitant, a minor
through his Father & Natural Guardian
Gaurav Ajay Kumar Garg, Resident at
103, A Wing, 18th Floor, Dariya Mahal,
80, Nepean Sea Road, Mumbai 400 006
9. ND Metal Industries Ltd,
a company registered under the
Companies Act 1956 and having its
office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
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10. ND Fiscal Industries Ltd,
a company registered under the
Companies Act 1956 and having its
office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
11. ND Realtors & Builders Pvt
Ltd,
a company registered under the
Companies Act 1956 and having its
office at 417, Maker Chambers V,
Nariman Point, Mumbai 400 021
12. ACE Merchandises Pvt Ltd,
a company registered under the
Companies Act 1956 and having its
office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
13. Bhagyodaya Sales Ltd,
a company registered under the
Companies Act 1956 and having its
office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
14. Dari Traders Pvt Ltd,
a company registered under the
Companies Act 1956 and having its
office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
15. Bandra Merchandisers Pvt
Ltd,
a company registered under the
Companies Act 1956 and having its
office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
16. Samyak Commercial Pvt Ltd,
a company registered under the
Companies Act 1956 and having its
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office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
17. Ani Developers Pvt Ltd,
a company registered under the
Companies Act 1956 and having its
office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
18. Matsun Castings Pvt Ltd,
a company registered under the
Companies Act 1956 and having its
office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
19. Karshney Developers Pvt
Ltd,
a company registered under the
Companies Act 1956 and having its
office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
20. Budhrani Housing
Developers Pvt Ltd,
a company registered under the
Companies Act 1956 and having its
office at, Office at 2, Bhandus Court, 1st
Pasta Lane, Colaba, Mumbai 400 005.
21. Spring Merchandisers Pvt
Ltd,
a company registered under the
Companies Act 1956 and having its
office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
22. Invicta Trading Pvt Ltd,
a company registered under the
Companies Act 1956 and having its
office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
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23. Winner Avenues Pvt Ltd,
a company registered under the
Companies Act 1956 and having its
office at, Office at Shop No. 135,
Agarwal Trade, Center Plot No. 62,
CBD, Belapur, New Mumbai 400 641
24. Blue Sky Infra Project Pvt
Ltd,
a company registered under the
Companies Act 1956 and having its
office at Office at Shop No. 135,
Agarwal Trade, Center Plot No. 62,
CBD, Belapur, New Mumbai 400 641
25. ND Tuscon Realtors LLP,
a Limited Liability Partnership,
registered under the Limited Liability
Partnership Act 2008 and having its
office at 417, Maker Chamber V,
Nariman Point, Mumbai 400 021
26. Krishna Organisors &
Builders Pvt Ltd,
a company registered under the
Companies Act 1956 and having its
office at FF8, Divya Mangal Complex,
Kathwada, GIDC, Odhav,
Ahmedabad, Gujarat 382430
27. Mapusa Goa Enterprises,
a Partnership Firm registered under the
Indian Partnership Act, 1932 and ...Respondents
having its office at 417, Maker Chamber (Org. Defendants Nos.
V, Nariman Point, Mumbai 400 021 2 to 25)
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A PPEARANCES
for the appellant Mr Subhash Jha, with
Harshavardhan Khambate.
for respondent nos. Dr Veerendra Tulzapurkar, Senior
1 to 3 Advocate, with Viraag
Tulzapurkar, Senior
Advocate, Chetan Kapadia,
Vishal Kanade, Jehan Mehta,
Sunil Tilokchandani & Sneha
Javeri, i/b Manilal Kher
Ambalal & Co.
for respondent no. 5 Mr Srinivas Bobde, with Ankita
Pawar.
for respondent nos. Mr Akash Warang.
9, 10, 12 to 18, 21, 23,
25 & 27
for respondent nos. Ms Nupur Mukherjee, i/b NN
20 & 26 Vaishnawa & Co.
CORAM : G.S.Patel &
M.G. Sewlikar, JJ
DATED : 15th June 2022
ORAL JUDGMENT (Per GS Patel J):-
1. The Appeal is directed against an Order of 21st April 2022. This order was a common order that disposed of three Interim Applications all filed under Order 7 Rule 11(a) of the Code of Civil Procedure 1908 ("CPC"). There are two other Appeals filed by the Page 6 of 29 15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc Corporate Applicants, original Defendants Nos. 18 and 24, Budhrani Housing Developers Private Limited and Krishna Organisors and Builders Private Limited. At the commencement of the hearing today we were requested to club those matters along with the principal appeal filed by the 1st Defendant, Ajay Kumar Garg. It was only after the hearing concluded after several hours that we were asked to take the appeals by the two cooperate entities separately. It is only because they are not listed today that we will take them separately on 23rd June 2022.
2. We have heard Mr Jha for the Appellant at some length. We have also heard Mr Bobde in support for a non-appealing Defendant and Dr Tulzapurkar for the original Plaintiffs, Respondents Nos. 1 to
3.
3. By the impugned order, the learned Single Judge rejected and dismissed all three Interim Applications under Order 7 Rule 11(a) of the CPC.
4. To appreciate the nature of controversy and to put Mr Jha's submissions in an appropriate context, of necessity, we will have to refer to the Plaint. We begin with a description of the array of parties as they stand in the suit. Plaintiffs Nos. 1 and 2 are two minors. They are the twin children, a son and a daughter, born to the 3rd Plaintiff and the 3rd Defendant. The 3rd Defendant is the son of Defendants Nos. 1 and 2. Their other son is the 4th Defendant. The Plaint recites at the very beginning that the Suit is for declaration, partition and separate possession of a 1/16th Page 7 of 29 15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc undivided share each of the three Plaintiffs respectively in the HUF or coparcenary properties mentioned in Exhibit "B" to the Plaint. Plaintiffs Nos. 1 and 2 sue through their next friend, their mother and natural guardian, the Plaintiff No.3.
5. The family history is briefly narrated in paragraph 6. The 3rd Plaintiff and the 3rd Defendant were married on 12th February 2011. The twins were born on 5th September 2014. Other details are not relevant except to note that there are evidently matrimonial disputes. Some proceedings have been filed. The 3rd Plaintiff and the 3rd Defendant are not yet divorced.
6. Prayer clauses (a), (b) and (c) of the Plaint from page 319 of the Appeal paper-book read:
(a) This Hon'ble Court may be pleased to declare that each of the Plaintiff has 1/16th undivided share, right, title and interest in the properties mentioned in the Schedule of the Properties annexed at Exhibit "B" hereto,
(b) This Hon'ble Court may be pleased to pass a decree of partition by metes and bounds so separate 1/16th share of each of the Plaintiffs from the properties mentioned in the Schedule of the Properties annexed at Exhibit "B" hereto,
(c) This Hon'ble Court may be pleased to pass order and decree to put the Plaintiffs in separate and exclusive possession of their 1/16th share each in the properties mentioned in the Schedule of the Properties annexed at Exhibit "B" hereto."
7. The narrative in the Plaint is that the 1st Defendant, the 3rd Plaintiff's father-in-law, traces his ancestry to one Phoolchand, Page 8 of 29 15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc himself the son of one Narsinghdas Garg of Mathura. Narsinghdas dealt in steel vessels in Mathura and elsewhere in Uttar Pradesh. Phoolchand joined the family business. This business prospered and Phoolchand is said to have amassed a considerable fortune, including immovable properties and other assets in Mathura, Delhi and elsewhere in North India. An important averment in paragraph 3(i) at the very head of the Plaint is that Phoolchand acquired these assets "through the corpus and/or nucleus and income earned from the said joint family business."
8. It is then said that Phoolchand expanded his business to Mumbai and Delhi and also increased the range of activities to trading, manufacturing, import and export and sales of metals. Phoolchand migrated to Mumbai with his family, though he retained his home base in Mathura. His family consisted of his wife, Shakuntaladevi, and three sons, of whom the present 1st Defendant is one.
9. Paragraph 2(VI) of the Plaint says that the business grew in under the stewardship of the 1st Defendant. But this was by investing the corpus and income generated through the joint family business into other avenues such as film finance and production. Paragraphs 2(VII) and 2(VIII) of the Plaint need to be reproduced in full.
"VII. Over a period of time, multiple assets and business were acquired in Mumbai, Delhi, Mathura and other places in North India by the joint family of Late Phoolchand by utilizing the joint family corpus and income and/or nucleus generated through the joint Page 9 of 29 15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc family business. To the best of the knowledge and information of the Plaintiffs which the Plaintiffs verily believe that the partition took place between late Phoolchand and his sons the said Shyam Sunder Agarwal, Defendant No.1 Ajay Kumar Garg and late Rajendra Garg and whereupon the Defendant No.1 became entitled to corpus, assets and funds generated from the aforesaid joint family business and assets of the joint family of late Phoolchand which is hereinafter referred to as the "Joint Family Funds". The Defendant No.1 from time to time invested the said Joint Family Funds and acquired various movable and immovable properties, assets, income and funds from the said Joint Family Funds as hereinafter appearing. Hence, all the movable and immovable properties, assets, income and funds generated and/or acquired from the said Joint Family Funds by the Defendant Nos. 1 to 6 are joint family properties and/or coparcenary properties of the branch of Ajay Kumar Garg and/or assets of Ajay Kumar Garg HUF.
VIII. To the best of the knowledge and information of the Plaintiffs which the Plaintiffs verily believe to be true, following assets were acquired by late Phoolchand from the income generated from the joint family business and Joint Family Funds and upon partition of late Phoolchand joint family, the Defendant No.1 Ajay Kumar Garg became entitled to the said assets acquired from the Joint Family Funds of late Phoolchand.
(i) Flat No.103, "A" Wing, 18th Floor in the Building "Dariya Mahal" 80, Nepean Sea Road, Mumbai 400 006, ('Dariya Mahal').
(ii) Premises in Damodar Bhavan, Cavill Lane, Kalbadevi Road, Mumbai - 400 002.Page 10 of 29
15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc Present suit for partition is related to the joint family properties and/or coparcenary properties acquired by the branch of Defendant No.1 from the corpus and income and/or nucleus and/or seed capital generated from the joint family funds."
(Emphasis added)
10. As these paragraphs show there is a consistent assertion in the Plaint that the acquisition of assets was from income generated from joint family business and joint family funds. What is equally important in paragraph 7 is the specific assertion that there was a partition between Phoolchand and his sons (including the 1st Defendant), upon which the 1st Defendant became entitled to the corpus, assets and funds generated from the joint family business. The next averment is that the 1st Defendant invested these joint family funds to acquire various movable and immovable properties. It is therefore asserted that all these assets, properties, income and funds, all of them generated or acquired from joint family funds are joint family properties and coparcenary properties of the 1st Defendant or the assets of the 1st Defendant's HUF (one that existed since 1982).
11. As we shall presently see, and particularly for the purposes of an Application under Order 7 Rule 11(a) this set of averments is crucial to a correct reading of the law relating to coparcenary properties. We will turn to the various decisions cited before us a little later in this judgment.
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12. Paragraph 9 of the Plaint at page 315 and its two sub- paragraphs are, in our view critical. It is here that the Plaintiffs set out their claim in precise terms. It reads:
"9. CLAIM OF THE PLAINTIFFS: Plaintiffs are claiming declaration, partition by metes and bounds and separate possession of their respective 1/16th undivided share in the joint family/coparcenary properties mentioned in the Schedule of Property. The shares of the Plaintiffs is worked out as under:
(i) In Partition between Defendant No.1 and Defendant Nos.3 and 4 who are his sons, sons take equal share with their father and Defendant No.2 being wife of Defendant No.1 and mother of Defendant Nos. 3 and 4 also takes share equal to her sons. Hence, Defendant Nos. 1 to 4 have 1/4th share each in the joint family properties mentioned in Schedule of Properties more particularly described in Exhibit "B" hereto.
(ii) The Plaintiff Nos. 1 and 2, being children of Defendant No.3, take share equal to Defendant No.3 and Plaintiff No.3 being wife of Defendant No.3 and mother of Plaintiff Nos. 1 and 2 take share equal to her husband and her children in partition between them.
Hence, Plaintiff Nos. 1 to 3 and Defendant No.3 take 1/4th share each in 1/4th share of the Defendant No.3 in the joint family properties mentioned in Schedule of Properties more particularly described in Exhibit "B" hereto. Hence, each of the Plaintiffs has 1/16th share respectively in the joint family properties mentioned in the Page 12 of 29 15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc Schedule of Properties more particularly described in Exhibit "B" hereto."
13. This paragraph presents the controversy in question. The issue is not, for the purposes of an Application under Order 7 Rule 11(a), whether the Defendants are able to show that a particular property is or is not coparcenary or ancestral or joint family property. When the Defendants allege that there is no cause of action disclosed in the Plaint, it is paragraph 9 of the Plaint that must be addressed, i.e. to show that the Plaintiffs have vested in them no right to partition. These are conceptually two different things. A right to partition is one thing. A right to partition of a particular property is another. For, a plaintiff in a given case may have a right to partition one particular property but not another. When therefore, a defendant contends that 'no cause of action' is disclosed in a plaint seeking partition of joint family property, to our mind, the submission must be that the plaintiff has no vested legal right to partition at all, whatever the property in question. Indeed, as we shall presently see this is precisely the net result of the very judgments that Mr Jha himself relies on. Almost all the cases that he cites are ones where the Court held that the Plaintiff seeking partition had no right to partition. The reasons for that will become evident shortly.
14. Mr Jha frames his case somewhat differently. He says that the Plaint is entirely inadequate from start to finish. There is no case made out that Phoolchand or Narsing had HUFs of their own. Without a substantial, precise and accurate pleading such a suit cannot be sustained and, in his submission, must suffer an order Page 13 of 29 15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc under Order VII Rule 11(a) rejecting the plaint. To merely assert that there was a partition is not enough. Such a plaint must, in his submission plead when the grandfather died, what he held, how he held it and how it was passed on. The same must apply for the father, Phoolchand.
15. Perhaps to assist in a curtailing of the controversy before us, we will first set out the legal position as enunciated by the Supreme Court. This is perhaps most succinctly captured in a recent decision of the Supreme Court in Arshnoor Singh v Harpal Kaur & Ors 1 -- actually relied on by both Mr Jha and Dr Tulzapurkar. In paragraphs 7.1 to 7.7, 7.9 and 7.12, the Supreme Court said this:
"7.1. Mulla in his commentary on Hindu Law (22nd Edition) has stated the position with respect to succession under Mitakshara law as follows:
Page 129 A son, a grandson whose father is dead, and a great-grandson whose father and grandfather are both dead, succeed simultaneously as single heir to the separate or self-acquired property of the deceased with rights of survivorship."
Page 327 "All property inherited by a male Hindu from his father, father's father or father's father's father, is ancestral property. The essential feature of ancestral property according to Mitakshara law is that the sons, grandsons and great-grandsons of the person who inherits it, 1 (2020) 14 SCC 436.
Page 14 of 2915th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc acquire an interest, and the rights attached to such property at the moment of their birth. A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son's sons, and son's son's sons', but as regards other relations, he holds it, and is entitled to hold it as his absolute property.
(emphasis supplied) 7.2. In Shyam Narayan Prasad v. Krisha Prasad (2018) 7 SCC 646 : (2018) 3 SCC (Civ) 702, this Court has recently held that (SCC p. 651 para 12) :
"12. It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship."
(emphasis supplied) 7.3 Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him, would get an equal right as Page 15 of 29 15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc coparceners in that property.
7.4 In Yudhishter v Ashok Kumar (1987) 1 SCC 204, this Court held that: (SCC p.210, para 10) "10. This question has been considered by this Court in CWT v Chander Sen (1986) 3 SCC 567: 1986 SCC (Tax) 64, where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karia of his own undivided family but takes it in his individual capacity.
(emphasis supplied) 7.5 After the Hindu Succession Act 1956 came into force, this position has undergone a change. Post 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his self- acquired property, and does not remain coparcenary property.
Page 16 of 2915th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc 7.6 If succession opened under the old Hindu law, i.e. prior to the commencement of the Hindu Succession Act 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act 1956.
7.7 In the present case, the succession opened in 1951 on the death of Lal Singh. The nature of the property inherited by his son Inder Singh was coparcenary in nature. Even though Inder Singh had effected a partition of the coparcenary property amongst his sons in 1964, the nature of the property inherited by Inder Singh's sons would remain as coparcenary property qua their male descendants upto three degrees below them.
7.9 In the present case, the entire property of Lal Singh was inherited by his son Inder Singh as coparcenary property prior to 1956. This coparcenary property was partitioned between the three sons of Inder Singh by the court vide a decree of partition dated 04.11.1964. The shares allotted in partition to the coparceners, continued to remain coparcenary property in their hands qua their male descendants. As a consequence, the property allotted to Dharam Singh in partition continued to remain coparcenary property qua the Appellant. ... ...
7.12 The suit property which came to the share of late Dharam Singh through partition, remained coparcenary property qua his son, the Appellant herein, who became a coparcener in the suit property on his birth i.e. on 22.08.1985. Dharam Singh purportedly executed the two Sale Deeds on 01.09.1999 in favour of Respondent No. 1 Page 17 of 29 15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc after the Appellant became a coparcener in the suit property."
(Emphasis added)
16. There is, therefore, a clear distinction between what happens in regard to coparcenary property when a person inherits property from paternal ancestors and what happens if there is a partition. If succession opened prior to the Hindu Succession Act 1956, Mitakshara law would apply and this inherited property would continue to remain coparcenary property in the hands of the heirs up to a degree of descent of three degrees below. The situation is different where the property is acquired on partition. In that situation, as paragraphs 7.9 and 7.12, the property does not descend by inheritance; and the coparcenary continues. The averments in the plaint will have to be construed keeping this legal position in mind.
17. Mr Jha invited our attention to several authorities from a compilation that he tenders. One aspect of the matter we will take as a uncontroverted on both sides is that in an Order 7 Rule 11(1) application, it is only the averments in the Plaint that are to be looked at. None quarrel with this proposition and it is, therefore, not necessary to delve into authorities in that regard.
18. The first submission by Mr Jha is based on decision in Srihari Hanumandas Totala v Hemant Vithal Kamat And Others. 2 The Court was considering an application under Order 7 Rule 11 though that was under sub-clause (d). Mr Jha invites reference to paragraph 25. 2 (2021) 9 SCC 99.
Page 18 of 2915th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc This sets out the general proposition that we have noted above, viz., that the defence is immaterial and it is only the averments in the Plaint that have to be considered. But his emphasis is on paragraph 27 to say that an application under Order 7 Rule 11 must be decided within the four corners of the Plaint. His submission is that if he is therefore, able to show that the plaint itself does not meet the necessary criteria for a partition of coparcenary property, then it must be rejected under Order 7 Rule 11(a). Indeed, in such a situation, in his submission, the Court has virtually no choice in the matter.
19. The next decision relied on by Mr Jha is in Uday Narendra Shah v Narendra Amritlal Shah.3 This is a judgment of a learned Single Judge of this Court. Emphasis is laid on paragraph 30 regarding the position of a wife as regards the right to partition. He cites this for the proposition that a wife has no share, right, title and interest in the HUF of which her husband with his brothers, father and sons are coparceners. This in our view will not assist Mr Jha because the relief sought is not only by the wife. There may be other reasons to clarify the decision but it is not necessary at this stage.
20. Then Mr Jha relies on the Supreme Court decision at Popat & Kotecha Property v State Bank of India Staff Association. 4 Here again the Supreme Court had before it a case coming up under Order 7 Rule 11(d) (where the suit appears from a statement in the Plaint to be barred by any law), not under Order 7 Rule 11(a). Be that as it 3 (2013) SCC OnLine Bom 93.
4 (2005) 7 SCC 510.
Page 19 of 2915th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc may, the emphasis by Mr Jha is on paragraphs 21 to 23 of this authority but we will start the extract below from paragraph 20.
"20. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of he courts by resorting to which and by searching examination of the party in case the court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised.
21. Order 6 Rule 2(1) of the Code states the basic and cardinal rule of pleadings and declares that the pleading has to state material facts and not the evidence. It mandates that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
22. There is distinction between "material facts" and "particulars". The words "material facts" show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between "material facts" and "particulars" was brought by Scott, L.J. in Bruce v Odhams Press Ltd (1936) 1 KB 697 : (1936) 1 All ER 287 (CA).
23. Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not Page 20 of 29 15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used clearly implying thereby that it casts a duty on the court to perform us obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13."
(Emphasis added)
21. We do not think that there is any quarrel with the proposition regarding the requirement in a Plaint to set out material facts and particulars. But that will take us to an assessment of whether, as Dr Tulzapurkar would have it, the averments in the Plaint are sufficient. In that context we will revisit some portions of the Plaint and also consider how the learned Single Judge approached this aspect of the matter a little later in this order.
22. Mr Jha then also relies the decision in Arshnoor Singh (cited above), including some of the paragraphs that we have extracted earlier. Arshnoor Singh came up from a second appeal decided by the Punjab and Haryana High Court. This was therefore not a case that was decided on a confinement of a consideration of the averments in the Plaint or on a demurrer. The proposition in law that we have noted above is one on which we do not think there can be any quarrel.
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23. At this stage Mr Jha was persuaded to rely on the Supreme Court decision in Regu Mahesh Alias Regu Maheswar Rao v Rajendra Pratap Bhanji Dev And Another5 for the proposition to assert that the verification in the Plaint was insufficient because it did not trace the precise source of knowledge. We do not think there is merit in this submission. The decision in Regu Maheswar Rao arose under the Representation of Peoples Act, a statute that demands strict compliance because of the evident consequences.
24. Then Mr Jha took us to paragraph 10 of Saroj Salkan v Huma Singh And Others,6 for what we believe are well settled principles which the Supreme Court reiterated. The first of these is that no amount of evidence can be looked into in support of a plea not taken. A Court cannot make out a case not pleaded. The Court should confine its decision to the question raised in the pleadings and it cannot grant relief which is not claimed and which does not flow from the facts and the cause of action alleged in the Plaint. This again does not admit of any dispute.
25. We come now to the decision in Yudhishter v Ashok Kumar.7 This is of relevance inter alia because as the decision in Arshnoor Singh points out in paragraph 7.4, the decision in Yudhishter contains a correct enunciation of the law regarding coparcenary property, inheritance, succession and partition. Paragraph 10, the very paragraph cited by Mr Jha before us, is in fact reproduced in paragraph 7.4 of Arshnoor Singh which we have extracted above.
5 (2004) 1 SCC 46.
6 (2016) SCC OnLine Del 2673 : (2016) 157 DRJ 388. 7 (1987) 1 SCC 204.
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26. At this stage we turn to the Interim Application filed by the 1st Defendant under Order 7 Rule 11. The Application itself says in paragraph 24 that all properties mentioned in the Plaint are self- acquired properties or belong to other entities and are not inherited from the 1st Defendant's ancestors. In paragraph 27, the 1st Defendant accepts the some properties are shown in Income Tax Returns as HUF properties. Then in paragraph 28 there is a discussion on what according to the 1st Defendant is the correct legal position. This is a strawman argument. The case in the Plaint is not that the 1st Defendant inherited the properties but that he acquired these on partition. As we have noted above, in law, this is a distinct situation. If the plaint said the joint family properties were inherited and that this happened after the Hindu Succession Act, 1956, then the properties would indeed no longer be impressed in the 1st Defendant's hands as coparcenary but would be his individual and personal properties. But that is not the frame of the suit at all. The plaint clearly pleads that the 1st Defendant acquired properties in a partition, i.e., they continued to be coparcenary properties, and these coparcenary or joint family assets were used to beget further assets. Read thus, the Appellant's Order 7 Rule 11(a) application seem us to assail a case not made in the plaint.
27. This is of importance in view of what follows, for Mr Jha then took us through a number of decisions of the Delhi High Court including Sagar Gambhir v Sukhdev Singh Gambhir, 8 Saroj Salkan v Hima Singh & Ors,9 Aarshiya Gulati (Minor) Through Next Friend & 8 (2017) SCC OnLine Del 7305.
9 (2016) SCC OnLine Del 2673.
Page 23 of 2915th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc Ors v Kuldeep Singh Gulati & Ors,10 and Master Ansh Kapoor & Anr v KB Kapur & Ors.11 In all these, and we are not shown otherwise, the question was of whether the person involved inherited coparcenary properties and whether he did so before or after 1956, on the coming into effect of the Hindu Succession Act. None of these authorities can be said to be at variance with the legal position enunciated in Arshnoor Singh which we have extracted above.
28. If this be so, then we are clearly of the opinion that the averments in the Plaint especially those in VII and VIII and in paragraph 9 make it abundantly clear that the Plaintiffs have positioned their case precisely not under a question of inheritance either by the 1st Defendant or by his father but on the basis of partition between the 1st Defendant and his father Phoolchand.
29. In response, apart from relying of the decision in Arshnoor Singh, Dr Tulzapurkar drew out attention to the decision of the Supreme Court in Shyam Narayan Prasad v Krishna Prasad & Ors.12 Paragraphs 11, 12, 14 and 16 reads thus:
"11. Having regard to the contentions urged, the first question for consideration is whether the property allotted to Defendant 2 in the partition dated 31.07.1987 retained the character of a coparcenary property. Admittedly, Gopalji Prasad and his five sons partitioned the property by a deed of partition dated 31.07.1987. It is clear from the materials on record that Gopalji Prasad retained certain properties in the partition. Certain properties had 10 (2019) SCC OnLine Del 6867.
11 (2021) SCC OnLine Del 510.
12 (2018) 7 SCC 646.Page 24 of 29
15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc fallen to the share of Defendant 2 who is the father of Plaintiffs 1 to 3 and grandfather of Plaintiff 4. Certain properties had fallen to the share of the first defendant. The trial court has held that the properties are ancestral properties. The High Court has confirmed the finding of the trial court. We do not find any ground to disagree with this finding of the courts below.
12. It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.
14. In M. Yogendra v. Leelamma N (2009) 15 SCC 184 :
(2009) 5 SCC (Civ) 602, it was held as under: (SCC p. 192.
para 29) "29. It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him . It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor Page 25 of 29 15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid."
(emphasis supplied)
16. Therefore, the properties acquired by Defendant 2 in the partition dated 31.07.1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. In the instant case, there is a clear finding by the trial court that the properties are ancestral properties which have been divided as per the deed of partition dated 31.07.1987. The property which had fallen to the share of Defendant 2 retained the character of a coparcenary property and the Plaintiffs being his sons and grandson have a right in the said property. Hence, it cannot be said that the suit filed by the plaintiffs was not maintainable.
(Emphasis added)
30. We note this because Shyam Narayan Prasad is also noted in Arshnoor Singh in paragraph 7.2.
31. With this we turned to the impugned order. After a thorough discussion of the factual position, the learned Single Judge assiduously noted the rival submissions and the authorities cited. A very great deal of time was devoted to a consideration of the case law regarding the correct approach to be taken under Order 7 Rule 11 and in matters of construction of the Plaint. These are not issues that have been canvassed before us and no part of the impugned order is assailed on this aspect. Paragraph 35 of the Plaint is where Mr Jha's submissions before the learned Single Judge are first noted.
Page 26 of 2915th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc The various authorities relied on by Mr Jha including those that have been cited before us (Shyam Narayan Prasad, Arshnoor Singh and Yudhishter among them). What is important is what the learned Single Judge held on two aspects. First on his appreciation of the legal position, which we find in paragraph 45 at page 62. The learned Single Judge said:
"45. The aforesaid decisions in the cases of Shyam Narayan Prasad (Supra) And Arshnoor Singh (Supra) make it clear that the nature of the property which devolves upon a male Hindu in a situation contemplated by section 8 of the Act, 1956 turns upon two factors. First, the character of the property which devolves upon a male Hindu. Second, whether the succession had opened prior to the commencement of the Hindu Succession Act, 1956. If that is a case, the character of the property would remain a coparcenary property even after the commencement of the Hindu Succession Act, 1956. A broad proposition that whatever be the source of property which devolves upon a male Hindu, the property assumes the character of separate property may not be sustainable."
(Emphasis added) In our view, this is completely correct.
32. The learned Single Judge then proceeded to approach an interpretation of the Plaint, as indeed he had to. As we have noted, there is an HUF and there are Income Tax Returns showing its existence. Before us, nobody has canvassed any arguments about the properties that are in that HUF and the properties that are outside it. We need not concern ourselves with that aspect of the matter. It is also not urged before us that the Plaint should be rejected in part, Page 27 of 29 15th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc a legal position that is now settled by Madhav Prasad Aggarwal And Anr v Axis Bank Ltd And Anr. 13 What the learned Single Judge said in paragraph 64 was that a meaningful reading of the Plaint did make out a cause of action at least in respect of a few of the properties.
33. On behalf of the 3rd Defendant, Mr Bobde submitted that the suit is so vexatious that it ought to be dismissed on that ground alone. He submitted that the 3rd Plaintiff has used this partition suit as some sort of counter blast or perhaps an illicitly motivated attempt to drag into the matrimonial dispute between the 3rd Plaintiff and the 3rd Defendant all family properties including properties of corporate entities and so on. He accepts that this may not strictly speaking be an application or a submission under Order 7 Rule 11(a) but is certainly an additional reason to support Mr Jha's submission. In short, if the Plaint is defective and in addition is also vexatious, he joins Mr Jha in saying that there is no reason why the Defendants should be put through the needless expense and trauma of a trial. Whether or not the suit is vexatious is not a question that can be decided under Order 7 Rule 11(a). That is not part of the cause of action or, more accurately, a reason to say that there is no cause of action disclosed in the plaint. We understand Mr Bobde's clients anxiety but this is not the correct avenue for it. We say nothing further in that regard.
34. Having considered carefully the rival submissions before us as also the impugned judgment, we are not persuaded that it calls for the slightest interference. After all, the learned Single Judge has 13 (2019) 7 SCC 158.
Page 28 of 2915th June 2022 Ajay Kumar Garg v Avyaay Anirudh Garg & Ors 6-appl-15935-2022-in-ial-9684-2021-in-s-113-2021-J.doc exercised his discretion in a measured, careful and circumspect manner. The view that he took was indeed plausible. We would even venture to add that it was the only possible view on a reading of the Plaint although we may have extracted in our judgment a few portions that the learned Single Judge did not. That will make no difference.
35. It is not shown to us how the impugned judgment runs afoul of the well settled decision of the Supreme Court in Wander Limited And Another v Antox India Private Limited,14 emphatically reaffirmed by the Supreme Court in Mohd Mehtab Khan v Khushnuma Ibrahim Khan.15
36. In the facts and circumstances of the case, we find no merit in the Appeal. It is dismissed. There will be no order as to costs.
(M.G. Sewlikar, J) (G. S. Patel, J)
14 1990 (Supp) SCC 727.
15 (2013) 9 SCC 221.
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