Delhi District Court
Jagdish Misra (Since Deceased) vs Basant Misra on 7 June, 2017
IN THE COURT OF SH. SURINDER S. RATHI: LD. ADDITIONAL DISTRICT
JUDGE03:PATIALA HOUSE COURT:NEW DELHI DISTRICT
CS No. 57442/16
1. Jagdish Misra (since deceased)
son of Late Shri Chandi Prasad Misra
Through his next friend
Mrs. Triveni Misra
wife of Mr. Jagdish Misra
3, Jain Mandir Road,
New Delhi110001.
1(A). Triveni Misra
Wife of late Mr. Jagdish Misra
3, Jain Mandir Road,
New Delhi110001.
1(B). Anjana Misra nee Surolia
Wife of Shri Ravi Surolia
Daughter of late Mr. Jagdish Misra
3, Jain Mandir Road,
New Delhi110001. ......Plaintiffs
VERSUS
1. Basant Misra
son of late Shri Chandi Prasad Misra
3, Jain Mandir Road,
New Delhi110001.
CS No. 57442/16 Page 1 of 41
2. Anita Misra
wife of Mr. Basant Misra
3, Jain Mandir Road,
New Delhi110001.
3. Roopali Misra
Daughter of Mr. Basant Misra
3, Jain Mandir Road,
New Delhi110001.
4. Namrata Misra
Daughter Mr. Basant Misra
3, Jain Mandir Road,
New Delhi110001.
5. Basant Misra (HUF)
Through Mr. Basant Misra (Karta)
3, Jain Mandir Road,
New Delhi110001.
6. Asha Sharma
41/1C, Sector2,
DIZ Area, New Delhi.
7. Sharda Kaushik
Kamal Panna, Shahi Baag Camp Road,
Ahmedabad380004. ......Defendants
Date of Institution : 31.01.1994
Date of Final Arguments : 07.06.2017
Date of Decision : 07.06.2017
CS No. 57442/16 Page 2 of 41
JUDGMENT
1. This suit has been filed by the plaintiff through his wife Smt. Triveni Misra
on a plea that he is a person of weak/infirm mind. He is seeking partition of
several properties located in Delhi, Mumbai, Solan and Pillani, Rajasthan as per
Annexure A to the plaint including partition of 3, Jain Mandir Marg, New Delhi.
Defendant no.1 is brother of plaintiff while defendants no. 6 and 7 are his sisters.
Defendant no.2 and defendants no. 3 and 4 are wife and children of defendant
no.1 respectively. Defendant no.5 is an HUF of family of defendants no. 1 to 4. In
their Written Statement defendants prayed for dismissal of the suit with a plea that
it is without cause of action and some of the properties sought to be partitioned do
not belong to late Shri Chandi Prasad Mishra, father of plaintiff, defendant no.1
and defendants no. 2, 6 and 7.
Appearance
2. I have heard arguments of Ld. counsel for plaintiff Shri Vijay K. Gupta
and Shri Muhul Gupta and Ld. counsel for defendants No. 1 to 5 Shri S K
Bhaduri and Ms. Khushnuda Bano Hina. None has appeared to argue this
case on behalf of defendants no. 6 and 7. I have perused the case file.
Plaintiff's Case
3. The case of the plaintiff as per plaint and the evidence led is that his father
late Shri Chandi Prasad was a renowned "Vaidya" and was appointed to personal
Physician to five Presidents of India apart from being decorated with Padma Shiri.
CS No. 57442/16 Page 3 of 41
He inherited several properties from his father late Shri Ladoo Ramji apart from
purchasing properties in his own name from his personal income. Before he died
on 09.03.1992 he had executed a registered Will dated 05.02.1992 whereby he
bequeathed First Floor, Terrace and Garage in question of Plot no.3, Jain Mandir
Road, New Delhi apart from some share held by him with M/s. Continental
Construction Ltd. in favour of plaintiff's wife Smt. Triveni and his daughter Ms.
Anjana Misra.
4. A separate Probate Petition was filed for this Will as case No. 189/92 at Tis
Hazari Courts. (This petition is still pending in the original side of Hon'ble Delhi
High Court clubbed with another Probate Petition filed by defendant no.1 qua
another Will dated 02.09.1988).
5. Other suit was filed by defendants no.1 to 5 in the year 1993 against the
plaintiff, his wife and daughter qua the aforesaid portion of 3, Jain Mandir Road
property. (This suit is still pending adjudication with Ld. ADJ, Central). It is
pleaded that defendants no. 1 to 5 have never lived at the aforesaid property since
long as they have been living in Mumbai. It is pleaded that the properties
mentioned in Annexure A belong to late Shri C P Mishra in so far as plaintiff was
so told by him. It is case of the plaintiff that since his late father was survived by
plaintiff, defendant no.1 and defendants no. 6 and 7 and as such plaintiff is
entitled to onefourth share in all the properties. With these pleas he prayed for
passing of the preliminary decree followed by partition in the properties by metes
and bounds.
CS No. 57442/16 Page 4 of 41
Defendants' Nos. 1, 3, 4 and 5 Case
6. The suit was contested by defendants no.1, 3, 4 and 5 by filing a joint
Written Statement. They prayed for dismissal of the suit on a plea that it does not
disclose any cause of action and is based on vague and bald statements. It is
pleaded that the properties mentioned in Annexure A does not belong to late Shri
C P Misra. All that the plaintiff has mentioned in the plaint is that late Shri Misra
had apprised him of the properties orally. Dismissal of the suit was also prayed
that the plaint has not been filed by plaintiff Jagdish himself as a plaintiff but has
been filed by his wife Smt. Triveni without plaintiff's consent and concurrence.
They have pleaded that plaint is not covered under Order 32 CPC and no inquiry
has been conducted in this regard. Objection qua valuation and territorial
jurisdiction was also raised.
7. On merits it is pleaded that late Shri C P was a decorated "Vaidya" but he
has never practiced commercially and had absolutely no income from the same.
It is also denied that late Shri C P Mishra inherited any property from his father. It
is pleaded that property No.3, Jain Mandir Road is exclusively owned by
defendants no.1 to 4 in so far as the same was actually purchased by Smt. Revti
Devi, wife of Shri C P Mishra on 27.03.1958 by virtue of registered Sale Deed. It
was duly mutated in her name in the L&DO Office vide mutation letter dated
22.02.1962. In so far as it was her self acquired property, before her death on
10.12.1970, she executed a Will dated 18.08.1978 bequeathing the entire property
i.e 3, Jain Mandir Road, New Delhi to the family of defendant no.1, i.e defendant
Nos. 1 to 5.
CS No. 57442/16 Page 5 of 41
8. In her Will dated 18.08.1978 Smt. Revti Devi appointed late Shri C P Mishra
and her defendant no.1 son as joint and several executors. On the request of
defendant nos.1 to 4 for mutation, affidavits supporting this Will of Smt. Revti Devi
were filed by plaintiff and defendant nos. 6 and 7 apart from defendant no.1 with
L&DO to the effect that this property deserves to be mutated in favour of
defendant nos. 1 to 4. Consequently, the mutation was carried out by L&DO. It is
further pleaded that the entire 3, Jain Mandir Road property was treated
(converted) into HUF property of defendant no.5 and defendants no.1 to 4 became
members of this HUF. However, the pleadings as well as the evidence led by the
defendant is silent qua creation of the HUF qua transfer of 3, Jain Mandir Road
property to the HUF or whether the same was mutated in the name of HUF in the
L&DO records.
9. With these submissions it is pleaded by the defendants that Late Shri
Chandi Prasad never owned any portion of 3, Jain Mandir Road and as such he
had no authority to execute the alleged Will dated 05.02.1992 which is the basis of
plaintiff's suit in hand. However, still plaintiff has filed a separate probate petition
before Hon'ble High Court as petition No.189/1992 (New No.50/1995) and
defendants are contesting that probate petition on a plea that the Will purportedly
executed by Late Shri Chandi Prasad was obtained by forgery, fraud, influence
and coercion and also that he was not in proper state of mind to do the same. It is
also case of the defendant that soon after execution of the document, after two
days thereof i.e. on 07.02.1992 a revocation document was executed cancelling
the Will dated 05.02.1992. It is further case of the defendant that late Shri Chandi
CS No. 57442/16 Page 6 of 41
Prashad had executed another Will dated 02.09.88 qua some movable properties
in favor of defendant no.1. This Will is also under Probate in a cross Probate
petition pending with the other probate petition filed by the plaintiff and are being
adjudicated upon in an consolidated proceedings.
10. They have denied that defendants are residing only mostly at Mumbai . It
is pleaded that they have properties in different places including 3, Jain Mandir
Road and as such they reside at different places. It is denied that plaintiff is a
man of weak mind or is suffering from mental infirmity or is incapable of protecting
his interest. It is mentioned that it is for the Court to hold an inquiry in this regard
and adjudicate on the plea. As far as the plea of the plaintiff qua property at Gole
Market it is pleaded that these properties are self acquired properties of
defendant no.1 in so far as they are purchased by him under registered sale deeds
and stand duly mutated in his name.
11. As regards the Paddar Road, Mumbai property it is pointed out that it is a
first floor flat No.11, M L Dhanukar Marg, Mumbai and that it is a tenanted property
taken by defendant no.1on lease.
12. As regards that Samunder Mehal, Worli, Bombay flat it was jointly owned
by Late Shri C P Mishra and defendant no.2 Smt. Anita while the entire payment
for purchase of the flat was made by only defendants no.1 and 2 and nothing was
contributed by Late Shri Chandi Prasad Misra. As regards this onehalf share in
this flat it is case of the defendants that it was bequeathed by Late Shri C P
Mishra in favour of defendant no. 2 in his Will dated 02.09.1988 qua which the
probate is pending before Hon'ble High Court under Probate Petition no. 33 of
CS No. 57442/16 Page 7 of 41
1994. It is further case of the defendants that plaintiff is not entitled to 1/4th share
in all the properties of late Shri Chandi Prasad Misra. As per them these
properties had devolved upon the defendants as per will dated 02.09.1988. With
these pleas, they have prayed for dismissal of this suit.
13. No separate WS has been filed on behalf of defendant no. 2, although, the
court is apprised that ld. counsel who is representing defendant nos. 1, 3 to 5 is
representing defendant no. 2 as well.
14. On completion of issues following issues were identified before the original
side of Hon'ble High Court on 15.11.2002 :
ISSUES
1. Whether the properties mentioned in Annexure A filed to the plaint
were owned by C P Misra as alleged?
2. It issue No.1 is answered in affirmative, to what share the plaintiff is
entitled to in the properties in question?
3. Whether the suit as filed is not maintainable as alleged in para No.2
of the preliminary objections of the written statement filed by
defendant 1, 3, 4 & 5?
4. Whether this court has no territorial jurisdiction to try the suit?
5. Whether suit has not been properly valued for the purposes of court
fee and jurisdiction?
6. Relief.
CS No. 57442/16 Page 8 of 41
15. To prove his case, plaintiff has examined PW1 Smt. Triveni Misra, his
wife. In her deposition, in her affidavit Ex.PW1/A she has deposed on the lines
of her plaint.
16. She was crossexamined at length. In her crossexamination she has
accepted that the details of the properties in Annexure A qua item No.2, 5 , 6 and
7 is not complete. She also could not show any document qua the claim
ownership by her late fatherinlaw Shri C P Mishra. She also accepted that
property no.3 Jain Mandir New Delhi is in the name of her motherinlaw Smt.
Revati Devi and not in the name of her fatherinlaw but claimed that it was
purchased by Shri C P Mishra in her name. She stated that she cannot recognise
signatures of Shri C P Mishra or Smt. Revati Devi. She stated that she is illiterate
and only sign in Hindi. She claimed that she had seen her husband mentally
retarded from the day of her marriage. She got her medically examined and
treated from Dr. RML Hospital. She accepted that owing to her illness her
husband was not doing any work and was not doing anything and did not leave
any money or property for her. She accepted that she has not placed any
document whatsoever on record in support of the claim that the suit property
belong to her late fatherinlaw.
17. She accepted that she does not understand the meaning of the word
Benami Property
18. On the contrary defendants had examined himself as DW1 and
exhibited following documents
S.No. No. of Exhibits Details of the documents
CS No. 57442/16 Page 9 of 41
1 Ex.DW1/1 Sale deed dated 27.03.1958
2 Ex.DW1/2 Will dated 18.08.1978
3 Ex.DW1/3 Copy of mutation letter dated 16.06.1987
4 Ex.DW1/4 to 9 Copies of affidavits
5 Ex.DW1/10 Sale Deed dated 27.03.1971
6 Ex.DW1/11 Certified copy of mutation
7 Ex.DW1/12 Rent agreement dated 01.08.1994
8 Ex.DW1/13 Rent receipts dated 14.08.1996 and 04.11.1997
9 Ex.DW1/14 Letter dated 15.02.1979
10 Ex.DW1/15 Rent receipt
11 Ex.DW1/16 Agreement dated 29.01.1994
12 Ex.DW1/17 Will dated 02.09.1988
19. However, DW was not crossexamined by the plaintiff despite opportunity.
20. During the course of trial of the suit on the application of the plaintiff and
order of status quo was passed only qua Flat No. 221, Samuddar Mahal, Worli,
Mumbai.
21. Now, I shall dispose off the issues framed in this case.
Issue nos. 4 Whether this court has no territorial jurisdiction to try the suit?
22. As far as issue no. 4 regarding territorial jurisdiction is concerned, in so far
as, some of the properties detailed in annexure A are located in New Delhi, it is
conceded by Ld. counsel for defendants that courts in Delhi has jurisdiction to try
this suit. As such this issue is answered in favour of plaintiffs and against the
defendants.
CS No. 57442/16 Page 10 of 41
Issue no. 5Whether suit has not been properly valued for the purposes of
court fee and jurisdiction?
23. It is argued on behalf of defendant that even through Annexure A contains
the list of seven immovable properties apart from movable properties like
ornaments, cash, jeweleries, etc. plaint has not valued each properties
individually. In para 19 of the plaint all that is stated about the value of these
properties is that they have a joint value of more than Rs.20 lacs and that plaintiff
has 1/4 th share therein. He has valued the suit for the purpose of courtfees only
at Rs.500/ and has paid courtfees only on Rs.76.50. As per ld. counsel for
defendant, in so far as plaintiff is not in possession of any of the properties listed
in annexure A, plaintiff is supposed to pay ad valorem courtfees on the 1/4 th
share claimed by him in each individual property.
24. On the contrary, it is argued by ld. counsel for plaintiff that there is no flaw
in the valuation because the suit was filed 22 years ago and the cumulative value
for all the properties was around Rs.20 lacs only. It is also submitted that there is
no legal necessity of give separate value of each of the property sought to be
partitioned. It is further plea of the plaintiff that in so far as he is heir of late Sh.
Chandi Prasad to the extent of 1/4 th share and that each heir have a notional
possession of all the properties even if there is no physical possession thereof.
Accordingly I see no flaw in the valuation of the rent. This issue is answered in
favour of plaintiff and against the defendants.
Issue No. 3Whether the suit as filed is not maintainable as alleged in para
No.2 of the preliminary objections of the written statement filed by
CS No. 57442/16 Page 11 of 41
defendant 1, 3, 4 & 5?
25. Perusal of the plaint shows that it has been filed by Sh. Jagdish through his
next friend and wife Smt. Triveni Mishra. The text of the plaint has not be signed
by anyone except the counsel while only verification clause has been signed in
Hindi by Smt. Triveni Mishra. Also the plaint is not supported with any affidavit and
is not signed by Smt. Triveni on all the pages. In the title of the case itself it has
been shown that Sh. Jagdish was a person of weak/ infirm mind. Thereafter there
is a mention in para 9 of the plaint that plaintiff is suffering from mental infirmity
and that this fact is accepted by defendant nos. 1 to 5 in so far as that plaintiff
Jagdish had a tendency towards alcoholism and on account of the same he is
unable to lookafter himself, his family or take any rational decisions.
26. In response thereof, defendants herein have not denied that they had
pleaded the plaintiff Jagdish is an alcoholic and was not in a position to take
rational decision, however, they contended that the court shall make an enquiry in
case it can be certified to be man with unsound mind and mentally infirm person,
who cannot protect his interests.
27. Upon being asked, it is conceded by Ld. counsel for plaintiff that no
separate application under Order 32 Rule 1, 2 & 15 CPC was ever moved by the
plaintiff in this case requesting permission of the court to appoint Smt. Triveni as
next friend of plaintiff on account of unsoundness of mind of Sh. Jagdish Mishra.
28. However, it is argued on behalf of the plaintiff that the suit in hand was
being filed alongwith connected Suit no. 2175 of 1992 in the original side of the
High Court, in the connected suit an application under Order 32 CPC was moved
CS No. 57442/16 Page 12 of 41
by the defendant no. 1 (who was plaintiff in that case) qua plaintiff herein (who
was defendant no. 3 in that case). On that application, an enquiry was conducted
by Ld. Judge and as per the report of Medical Superintendent based on the
examination conducted on 16.08.1993, he was ruled to be mentally infirm person
incapable of protecting his interests. In that case as well Smt. Triveni was
appointed as Guardian ad litem for her husband Jagdish on 27.01.1995. It is
argued that in so far as the present suit and the above referred suit were between
the same parties, almost qua the same properties and who were being tried in the
same court, the order in the connected suit shall be read and treated as in order
binding on the suit in hand.
29. This plea is opposed by Ld. counsel for defendants on the ground that in
so far as the suit in hand is a stand alone suit, the order passed in some other suit
cannot be read and relied in this suit. Also this suit in hand was filed on 17.01.1994
while the order of appointment of guardian passed in the other suit on 27.01.1995.
Record reveals that the other suit filed by defendant no.1 to 5 was filed in the year
1993 and an application u/O 32 CPC was qua plaintiff herein was moved by the
defendants herein. Although in the fitness of things it would have been appropriate
that either a separate application should have been moved by the plaintiff wife for
being appointed as a guardian or they ought to have requested ld concerned
Court to mention in the order sheet dated 27.01.95 that the order of appointment
of guardian shall be read and relied in both the connected cases. Since the case
is hand was being taken up an heard by the same Court on same dates of
hearings and the two list are between the same parties qua the per se same
CS No. 57442/16 Page 13 of 41
property, I see that the case in hand does not suffer from any infirmity as far as
order 32 CPC is concerned. Moreover, in the connected suit defendant have
themselves accepted that plaintiff is a man of infirm mind, as such now there
estopped from disputed the soundness of his mind as per the convenience in the
name of technical objection.
30. Even otherwise it is ruled in case titled Shiv Baran Singh Vs Board of
Revenue AIR 1993 ALL 247 it has been ruled,
'mere absence of formal order appointing guardian does not vitiate
the degree. More so when the minor/lunatic was represented in the
suit by natural guardian and no prejudice was caused to the
opposite party.'
31. In the case in hand as well plaintiff is represented by his legally wedded
wife and as such it cannot be said that she is filed this suit to prejudice the right
and interest of the plaintiff. This issue accordingly is answered in favour of the
plaintiff and against the defendants.
Issue no.1Whether the properties mentioned in Annexure A filed to the
plaint were owned by C P Misra as alleged?
32. As far as the list of properties contained in Annexure A are concerned it
would come handy to reproduce the properties containing the list .
ANNEXURE 'A'
S.No. Details of Properties
1. House bearing No.1/95, Laxmi Niwas, Gole Market, New Delhi, 110001,
together with all the rights and interests in the said property.
2. Immovable Property know as 'Clif', IInd Floor, Carnichael Road (Padder
Road), Bombay.
CS No. 57442/16 Page 14 of 41
3. Flat bearing No.221, Samaddar Mehal, Worli, Bombay.
4. Ground Floor of Porperty bearing 3, Jain Mandir Road, New Delhi, excepting
garage portion.
5. Ladu Ramji Mishra Haveli, (Share of deceased Shri C P Mishra), near market,
Pillani.
6. Immovable Property situated in Solan belonging to late Shri C P Mishra.
7. Immovable Property situated in Collaba, Bombay.
8. Other movable and immovable property, including ornaments, cash, jewellery
etc. which belongs to late Shri C P Mihsra and which are now in the hands of
defendant no.1.
33. Bare perusal of this list shows that only property No. 1 to 4 are properties
described properties whereas properties no. 5 to 8 are only generalized properties
without any specific details. As such, ld. counsel for the plaintiff was invited to
start his submissions to begin with property no.5 i.e. Ladu Ramji Haveli (share of
deceased Shri C P Mishra) Pillani. It is concealed by ld. counsel for the plaintiff
that apart from making bald plea in plaint no document has been filed to show that
Lt. Shri C P Misra had any share in this property. Defendants have also
questioned about the shere existence of this property. As such, in the absence of
any evidence to show that lt. Shri C P was owner of this property, no right of
intestate inheritance can be claimed.
34. Issue no.1 qua property no.5 is accordingly answered in favour of the
defendants and against the plaintiff.
35. Qua Property No.6 i.e. Immovable Property situated in Solan belonging to
late Shri C P Mishra.
CS No. 57442/16 Page 15 of 41
36. It is accepted by ld. counsel for plaintiff that no specific title of the property
has been proved or filed on record. It is conceded that no document has been
filed to show that Lt. Shri C P Mihsra had any share in this property. As regards
this property in the written statement defendant no.4, 3 and 5 it is mentioned that
there is one such property is in Solan but the whereabouts are not known to them.
The onus of proving this issue is on the plaintiff. The vague reply by the
defendants on being unaware of the property is of no avail to the plaintiff. I have
no hesitation in concluding that plaintiff has no right of inheritance of this
unspecified property.
37. Issue No.1 is answered against the plaintiff and in favour of the defendant.
38. Property No.7 Immovable Property situated in Collaba, Bombay.
39. As above qua this property as well not only the address is incomplete but
plaintiff accepts that no documentary evidence has been filed or proved thereof.
As regards this property, it is pleaded case of the defendants that this property
has never been a property of late Shri C P Mishra. It is said to be a property in
possession of defendants as a tenant. Attention of this Court is drawn to
Ex.DW1/14 rent agreement and Ex.DW1/15 rent receipt which includes
documents like rent receipt executed by landlord Sugra Bai Taheranny Para in
favour of defendant no.1. DW1 was not crossexamined by the plaintiff's side on
these factual inputs and documents. Accordingly, this issue qua property No.7 is
answered against the plaintiff and in favour of the defendants.
40. Property No.8 i.e. Other movable and immovable property, including
ornaments, cash, jewellery etc. which belongs to late Shri C P Mihsra and which
CS No. 57442/16 Page 16 of 41
are now in the hands of defendant no.1.
41. Qua this item in Annexure A, as well, there is no documentary evidence
except bald pleas in the plaint or the affidavit. No attempt was made to summon
any witness from her Bank qua some locker or Bank accounts etc. In the
absence of any positive evidence from the side of the plaintiff or admission on
behalf of the defendants, this issue qua item is also answered in favour of the
defendants and against the plaintiff.
42. Property No.1 i.e. House bearing No.1/95, Laxmi Niwas, Gole Market,
New Delhi, 110001, together with all the rights and interests in the said property.
43. As regards this property it is case of the plaintiff that it was under legal
ownership of their father lt. Shri C P Mishra and that he died intestate and the
plaintiff has right of inheritance thereof. As far as this property is concerned, it is
conceded by ld. counsel for plaintiff that no document qua title of this property has
been proved or filed by the plaintiff apart from mentioning the same in the plaintiff.
However, attention of this Court is drawn to document Ex.DW1/10 a Sale Deed
dated 27.03.1971 executed by Shri Shyam Nath Janju son of Shri J N Janju
through Shri C P Mihsra son of Shri Ladu Ramji as a GPA as a Vendor in favour of
M/s. Basant and Company.
44. It is submitted by ld. counsel for the plaintiff that in this document in favour
of the purchaser Basant and Company, 3 Jain Mandir Road, New Delhi. Para 3 of
this document also carries the name of defendant no.3 Shri Basant where it is
mentioned that Basant and Company is a nominee of Basant Mishra. This
document is sought to be read and interpreted by the plaintiff that despite
CS No. 57442/16 Page 17 of 41
execution of this registered Sale Deed by Shri C P Mishra in favour of Basant and
Company, his father Shri C P Mishra shall still be treated as registered owner of
the property, entitling the plaintiff to inherit a onefourth share therein. This
submission is not only contrary to Section 92 of Evidence Act it is devoid of factual
logic.
Section 92 of Evidence Act, 1872
92. Exclusion of evidence of oral agreement.--When
the terms of any such contract, grant or other disposition of property,
or any matter required by law to be reduced to the form of a document,
have been proved according to the last section, no evidence of any
oral agreement or statement shall be admitted, as between the parties
to any such instrument or their representatives in interest, for the
purpose of contradicting, varying, adding to, or subtracting from, its
terms:
Proviso (1) .--Any fact may be proved which would invalidate any
document, or which would entitle any person to any decree or order
relating thereto; such as fraud, intimidation, illegality, want of due
execution, want of capacity in any contracting party, 1[want or failure]
of consideration, or mistake in fact or law: (1).--Any fact may be
proved which would invalidate any document, or which would entitle
any person to any decree or order relating thereto; such as fraud,
intimidation, illegality, want of due execution, want of capacity in any
contracting party, 3[want or failure] of consideration, or mistake in fact
or law\:"
Proviso (2).--The existence of any separate oral agreement as to any
matter on which a document is silent, and which is not inconsistent
with its terms, may be proved. In considering whether or not this
proviso applies, the Court shall have regard to the degree of formality
of the document:
Proviso (3).--The existence of any separate oral agreement,
constituting a condition precedent to the attaching of any obligation
under any such contract, grant or disposition of property, may be
proved:
Proviso (4).--The existence of any distinct subsequent oral agreement
to rescind or modify any such contract, grant or disposition of property,
CS No. 57442/16 Page 18 of 41
may be proved, except in cases in which such contract, grant or
disposition of property is by law required to be in writing, or has been
registered according to the law in force for the time being as to the
registration of documents:
Proviso (5).--Any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to contracts of that
description, may be proved: Provided that the annexing of such
incident would not be repugnant to, or inconsistent with, the express
terms of the contract:
Proviso (6).--Any fact may be proved which shows in what manner the
language of a document is related to existing facts.
45. Upon being asked it is accepted that in the suit no specific prayer has been
dedicated to get the Sale Deed declared null and void. Until and unless the
existence and validity of this document is challenged the legal impact of the same
on the property in question cannot be changed in the manner sought. This
document was executed 46 years ago. The suit in hand was filed in 1994, 23
years after execution of this document. There is no change to this document in
the last more than three decades. Hence by virtue of this document the property
sold in the name of Basant and Company nominee of defendant no.1, Basant
Mishra. It is submitted by ld. counsel for defendant that deposition of DW1 in this
regard in Para 12 in affidavit has remained unrebutted.
46. Attention of this Court is drawn by ld. counsel for plaintiff to document
Ex.DW1/11 which is actually a certified copy of mutation carried out by L&DO qua
this property in favour of defendant no.1 as sole Proprietor of M/s. Basant and
Company. It is argued on behalf of the plaintiff that successors of earlier owner of
the property Ms. T V Janju has filed a suit against defendant no.1 which is still
CS No. 57442/16 Page 19 of 41
subjudice in the Hon'ble High Court. In so far as plaintiff has not taken pain to
prove the purpose of that litigation, no consequence which is of any avail to the
plaintiff can be said to have come out of the same. In any case plaintiff admittedly
is not a party to that suit and no litigation by the plaintiff qua claiming any right as
a person or intestate inheritance of the property in any other suit is filed with
regard to this property.
47. In view of the above, I have no hesitation that plaintiff has miserably failed
to show that the property in question was owned by Late C P Mishra on the date
he died or that he has a right to inheritance of the same.
48. It is further submitted on behalf of the plaintiff that defendants should have
placed on record the General Power Attorney referred to above in favour of Lt.
Shri C P Mishra but they failed to do so and as such they should be held
responsible for concealment of facts. However, perusal of record shows that not
only the GPA dated 31.07.1969 is already on record but also the agreement to sell
dated 31.07.1969 purportedly executed by Shri S N Ganju in favor of Shri Basant
Mishra, Defenadnt no.1 is available on record but neither of these documents are
exhibited on record. Perusal of the contents of GPA shows that attorner Shri S N
Ganju has mentioned receiving Rs.55,000/ under the agreement to sell as
earnest money. There is no reference as was initially argued on behalf of the
plaintiff that this money was paid by Shri C P Mihsra. In view of the above, I have
no hesitation in concluding that issue no.1 qua property no.1 deserves to be
answered against the plaintiff and in favour of the defendants.
CS No. 57442/16 Page 20 of 41
49. Property No. 2 i.e. Immovable Property know as 'Clif', IInd Floor,
Carnichael Road (Padder Road), Mumbai.
50. The address of this property is not only incomplete but plaintiff accepts that
no documentary evidence has been proved thereof. As regards this property, it is
pleaded case of the defendants that this property had never been a property of Lt.
Shri C P Mishra. It is a property which was in possession of the defendant as a
tenant. Attention of this Court is drawn to Ex.DW1/12 a rent agreement in
favour of Shri Basant Mishra and Ex.DW1/13 rent receipt which includes
documents like rent receipt executed by landlord Shri Rusi H. Modi in favour of
defendant no.1. DW1 was not crossexamined by the plaintiff's side on these
factual inputs and documents. Accordingly, this issue qua property No.2 is
answered against the plaintiff and in favour of the defendants.
51. Property No.3 i.e. Flat bearing No.221, Samanddar Mehal, Worli, Bombay.
52. As regards this property, attention of this Court is drawn to a document
which is not exhibited on record but is filed by the defendants and denied by the
plaintiff. This document is an agreement between M/s. Helicopter Services Pvt.
Ltd. and Padam Shri Raj Vaid Chandi Prasad and Company and is dated
25.01.1974. This is a flat purchase agreement to buy a flat No.221, Samanddar
Mehal, Dr. Annie Besant Road, Worli. The same bears signatures with rubber
stamp "Chandi Prasad Company and Partner". It is case of the plaintiff that it is
only through this unregistered agreement that his late father Shri C P Mihsra
purchased this property by investing his own money and the property still
continuous to be in his name. Even though there is an endorsement at the end of
CS No. 57442/16 Page 21 of 41
the document that it is purchased by the above referred partnership firm.
53. It is mentioned that it is jointly owned by Shri C P Mishra and defendant
no.2 Smt. Anita wife of defendant No.1 Shri Basant Mishra, as a Partner of the
firm. It is pleaded that entire payment of the flat was made by defendant no.1 Shri
Basant and his wife defendant no.2 while Shri C P Mishra had not contributed to
the same. It is further case of the defendant that during his lifetime vide
Ex.DW1/16 Shri C P Mishra had entered into an agreement with defendant no.1
Smt. Anita wherein it was agreed that in case of death of either of the parties the
other party would acquire share of the deceased party. This document also
endorses the fact that both the parties own the flat as coowners equally. Upon
death of Shri C P Mishra vide Ex.DW1/18 issued by Samundar Mehal Premises
Cooperative Society Ltd. whereby 5 fully paid shares No.121 to 125 in the Society
stood transferred in the name of Smt. Anita on 13.10.1993. Consequently the
entire flat in question stood transferred in the name of defendant no.2. It is
submitted on behalf of the plaintiff that by taking this Court during the details of
the unexhibited flat Purchase Agreement there is a clear ambiguity and forgery
which is apparent in the face of this document when read with document
Ex.DW1/16 and DW1/18. In so far as this flat purchase agreement has been filed
by the defendant however not formerly proved on record, by virtue of settled legal
preposition plaintiff can read this document and rely the same in support of his
pleaded case. In the second page of this document Court is apprised that while
describing the flat purchaser agreement, there is a mention of Padamshri Raj Vaid
Chandi Prasad and Company. It is argued that the last two words "and company"
CS No. 57442/16 Page 22 of 41
appears to be have been added at a later point of time in so far as initial five
letters are in capital case and with a relatively thinner font width while the letter
and company are written in a running and in a small case with a thicker font width
by hand. Likewise, it is shown that in the opening stage of the document the
name mentioned is Padamshri Raj Vaid Chandi Prasad and Company it is
apparent that the word "and company" have been added on on later point of time.
In the internal page 13 of this flat purchase agreement it is shown that instead of
writing Padamshri Raj Vaid Chandi Prasad and Company, the rubber stamp
appended is a different one i.e. Chandi Prasad and Company. It is purportedly
signed by Shri Basant whereas as per pleaded case of the defendant the firm was
having two partners Shri C P Mishra and Smt. Anita Mishra. It is further shows
that in the endorsement made by Sub Registrar, Bombay 08.02.1974 it is
mentioned that Shri Basant Mishra is partner of M/s. Padamshri Raj Vaid Chandi
Prasad and Company.
54. Further attention of this Court is drawn to document Ex.DW1/16 which is
an agreement entered between Shri C P and Smt. Anita on 29.01.1974. This is
referred to by ld. counsel for plaintiff as an endevour on the part of the defendants
to transfer the shares of Shri C P Mishra and that even though it is shown to be
concluded on 29.01.1974 but it is a document created after death of Shri C P in
1992. It is further argued that apart from this agreement Will dated Ex.DW1/17
which is subject matter of Probate petition of 33/94 before Hon'ble Delhi High
Court was executed by Shri C P Mishra qua his share in the flat in favour of
defendant no.2 apart from some other movable property. As per ld. counsel for
CS No. 57442/16 Page 23 of 41
the plaintiff the Will was of no avail to the defendant firstly because according to
the laws applicable at City of Mumbai, the Will could not have been used for
transfer of shares as per Ex.PW1/18 without seeking probate thereof. In so far as
Bombay was the Presidency Town and Will could not have been used for transfer
of shares. The same and substance of submission of ld. counsel for plaintiff is
that the document Ex.DW1/16 was forged and fabricated to get the shares
transferred qua the suit property. It is submitted that the Court should not believe
on this document should accept the submissions on the plaintiff that the flat in
question continuous to remain in the sole ownership of Shri C P Mishra and that it
was never coowned property of Shri C P Mishra and Smt. Anita Mishra. It is
further added that the reason why DW2 did not file her written statement is that
the forged documents were used for getting the flat transferred in her sole name.
Cross checking this oral plea made during the final arguments, with the text of the
plaint, it is found that all this is mentioned in the plaint regarding the above
submissions is one line in para 11 where it is said that during his lifetime plaintiff
Shri C P Mishra flat No.221, Samanddar Mehal, Bombay belong to him.
Evidently, the plaint is totally silent on the plea that the document that documents
are forged and C P Mishra and company is never existed. Also admittedly no
prayer has been made by the plaintiff qua declaring the flat purchase agreement
dated 25.01.1974 or the agreement between Shri C P Mishra and defendant no.2
dated 29.01.1974 or for that matter Ex.DW1/18, the shares transfer certificate are
forged or null and void. Ld. Counsel for the plaintiff has further controverted the
plea that flat purchase agreement was a registered document even though it is
CS No. 57442/16 Page 24 of 41
only a photocopy available on record.
55. By referring to the written statement of the defendant no.1, 3, 4 and 5 qua
the Samanddar Mehal Flat in question it is contended that the defendants no
where pleaded that there was a partnership firm by the name M/s. Chandi Prasad
Mishra. Although it is contended that the flat was owned by Shri C P Misra and
Smt. Anita but the written statement is silent qua existence of agreement
Ex.DW1/16. It is said that the only reference made qua inheritance of share of
Shri C P Mishra in Samundar Mehal flat is a Will left by him which is dated
02.09.1988 qua which probate petition is already subjudice. On the same lines it
is contented that the written statement is silent qua execution of Flat Purchase
Agreement although there is a reference of transfer of share agreement. Even
though a specific reference is made that the entire payment for purchase of the
flat in question was allegedly made by defendant no.1 and his wife defendant no2
but no proof thereof is either pleaded or filed.
56. The above documents were not filed by the defendants along with written
statement in the year 1995 but were rather filed in March, 1999 after five years of
filing of the written statement and all the documents are only notarized photocopy
without producing the originals. It is further pointed out that there is also no
document that shows that M/s. C P and Company existed as a partnership firm or
that Lt. Shri C P Mishra and Smt. Anita were partners therein. Concluding his
submissions on this score, it is argued on behalf of the plaintiff that Samaddar
Mehal is owned by Shri C P Mishra and not only there was an admission on the
part of the defendant that the property was at least coowned by Shri C P but the
CS No. 57442/16 Page 25 of 41
act of defendants by interpolating the flat purchase agreement by adding the suffix
"and company" in agreement Ex.DW1/16 shows that property was owned by
none other than Shri C P Mishra.
57. It is argued on behalf of the ld. counsel for the defendant that there is
neither any forgery nor any interpolation carried by the defendants. It is stated
that the share in the property which was is in the name of Shri Chandi Prasad
was subsequently transferred by virtue of Ex.DW1/16 in the name of defendant
no.2 in terms of not only Ex.DW1/18 but also in terms of the photocopy of the
resolution dated 16.11.1993 filed by the defendant. It is submitted that these
documents are available on record for the last around 18 years since 1999 but no
effort was made by the plaintiff to either examine any handwriting expert to prove
that there were interpolations as alleged. No attempt was made to cross check
the record from either Helicopter Services Private Ltd. or from Samaddar Mehal
Premises Company Society Ltd. Despite claiming that the documents are forged
and fabricated no such relief was pleaded or prayed or subsequently added in the
plaint.
58. As regards addition of prefix Padamashri Raj Vaidya before Chandi
Prasad, it is said that it was casually added a plaintiff's father Shri C P Mishra
was awarded Padamshri by President of India. Upon being confronted with the
text of the document filed by the defendant wherein defendant no.1 has portrayed
himself as partner of "Shri Chandi Prasad and Company" in flat buyer agreement
as well as before Office of Sub Registrar, no cogent reason was put forth. All that
Ld. Counsel has submitted that he was representing the firm. Although his
CS No. 57442/16 Page 26 of 41
portrayal of partner of this company before M/s. Helicopter Services Pvt. Ltd. and
before the Sub Registrar indicate that something was amiss in the way the things
were carried out but all this does not have the effect of uprooting the entire
defence of the defendants or tilt this case in any manner in favour of the plaintiff
qua his plea that the flat in question was solely owned by his father late Shri C P
Mishra. It is evident from record that as far as ownership of the flat in question is
concerned the plaintiff has not placed any document on record. The photocopies
are sought to be relied by the plaintiff as they have been filed by defendant no.1
himself. Had there been any intention of willful forging or criminal conspiracy the
defendants would not placed these documents on record. As mentioned supra no
attempt was made by the plaintiff to summon any witness either from Helicopter
Services Pvt. Ltd. or from the Society qua the contract of defendant no.1
portraying himself as partner of the flat qua the agreement dated 29.01.1994 and
Share Transfer Certificate dated 13.10.1993 Ex.DW1/16 and Ex.DW1/18
respectively.
59. The resolutions filed by the defendant have not been proved on record.
Although they were relied by the plaintiff but they are of no avail to the plaintiff as
far as of the plea that the property was solely owned by plaintiff Shri C P Mishra.
On this score, both the sides have failed to prove on record their respective pleas.
Plaintiff has pleaded that Shri C P Mishra had made the entire payments whereas
defendant had pleaded that payments were made by defendant no.2.
60. As regards the fact that the flat in question was transferred into the sole
name of defendant no.2, it is a matter of record that written statement contained
CS No. 57442/16 Page 27 of 41
the reference of only the Will dated 02.09.1988 and the written statement is silent
qua document Ex.DW1/16. Although no specific pleading is available on record
but the fact that the agreement Ex.DW1/16 was produced in original which
contains the signature of Late Shri C P Mishra and defendant no.2 is evident. The
bald plea of the plaintiff that it is a forged document has remained
unsubstantiated. Nothing has been filed on record from the side of the plaintiff to
show that transfer in flat in question from late Shri C P Mishra and Company to
sole name of Smt. Anita could not have been legally done. Combined reading of
the documents filed by the defendant, in the light of the pleadings contained,
herein do not show flat was solely owned by late Shri C P Mishra. Clause 8 of
document Ex.DW1/16 categorically provides that in case either of the two
executors i.e. late Shri C P Mishra or Smt. Anita dies, the either party will have a
right to get the other share transferred into their name without payment of any
premium. It cannot be concluded that this document of 29.01.1994 was prepared
by the defendants' side only to make out a defence in the suit which was filed
after two decades.
61. As per preponderance of probability qua the ownership of the flat this issue
is decided against the plaintiff and in favour of the defendants.
62. As far as property appearing at item no.4 in the list of properties Annexure
A to the suit i.e. portion of ground floor of 3 Jain, Mandir Marg, it is submitted by
ld. counsel for the plaintiff that onus of proving issue no.1 as detailed supra does
not lay solely on the plaintiff and that it should be read as onus placed on parties.
At the cost of repetition for ready reference the same is reproduced along with
CS No. 57442/16 Page 28 of 41
issue no.1 and 2.
Issues no.1 and 2
• Whether the properties mentioned in Annexure A filed to the plaint
were owned by C P Misra as alleged?
• It issue No.1 is answered in affirmative, to what share the plaintiff is
entitled to in the properties in question?
63. Upon plain reading of this issue, I am not in conformity with the plea of Ld.
counsel for plaintiff that onus of proving that late Shri C P Mishra was owner of the
suit portion of 3 Jain Mandir Marg is also laid on the defendant. The reason is
simple that factual story that Shri C P Mishra was sole owner of the suit property
i.e. part of 3 Jain Mandir Marg is of plaintiff and not of defendant.
64. It is further argued on behalf of the plaintiff that Shri C P Mishra was
owning the entire 3, Jain Mandir Marg as a Benami holder of property which he
purchased in the name of wife Smt. Revti Devi who died on 10.12.1978. It is
argued that either Shri C P Mishra should be held sole owner of the property or in
alternative this Court finds that the property was owned by Smt. Revti Devi by
virtue of sale deed dated 27.03.1958 Ex.DW1/1, since it is case of the plaintiff that
his mother died intestate by virtue of 15 and 16 of Hindu Succession Act, plaintiff
shall be held to be having a right to inherit onefifth share therein apart from
inheriting onefourth share in the onefifth share of Shri C P Mishra, his father who
died on 09.03.1992.
65. It is further argued on behalf of the ld. counsel for the plaintiff that he was
not required in law to either challenge the Will purportedly set up by the
defendants of Smt. Revti Devi in so far as the Will was subjudice in suit referred
CS No. 57442/16 Page 29 of 41
to supra before Ld. ADJ. It is submitted on behalf of the plaintiff that since the
copy of that other suit is available on record of this suit in hand, the pleadings of
that suit shall be considered and treated as pleadings of this suit. As far as the
last plea is concerned upon checking the record it is found that it is only the plaint
of that other suit filed by the defendants which is available on record as an
Annexure 2 of the written Statement. But the written statement filed by the plaintiff
herein in the other suit has not been filed or relied by the plaintiff in this case. In
this scenario I find it difficult as to how the plaintiff expects this Court to consider
the defence taken by him in other suit as a plea is taken by him as a plaintiff in this
suit. In case plaintiff was desirous of challenging the Will dated 18.08.1978, set up
by defendants in the other suit, executed by Smt. Revti Devi, copy of which is
available as Ex.DW1/2, he should have dedicated pleadings to the same in this
suit apart from seeking reliefs thereunder.
66. This Court cannot make any observation to a plea of ld. counsel for plaintiff
that the issue of succession of property belonging to Smt. Revti Devi is subjudice
in some other Court in so far as no such pleadings have been filed by the plaintiff
before this Court. Even otherwise it is evident from the copy of the other suit is
that it is simplicitor suit for possession and mesne profit.
67. Pleas have been raised by ld. counsel for the plaintiff that first Shri C P
Mishra is owner of the property annexed in Annexure A and he died intestate. As
far as Benami holding of title of entire 3 Jain Mandir Marg, of which suit property is
a portion, in the name of Shri C P Mishra it is submitted that although it is clear
that sale deed Ex.DW1/1 is registered in the name of Smt. Revti Devi wife of Shri
CS No. 57442/16 Page 30 of 41
C P Mihsra but it is claimed that the funds were paid by Shri C P Mishra.
Attention of this Court is drawn to text of the Sale Deed wherein on an internal
page no.3 of the sale deed it is mentioned that out of the sale consideration of
Rs.86,000/ the initial money of Rs.10,000/ was paid by Shri Chandi Prasad to the
seller Smt. Malan Devi. It is however, accepted that no proof has come either
from the plaintiff or from the defendant as to who paid the remaining of
Rs.76,000/ but it is contended on behalf of the plaintiff that even this remaining
balance was paid by Shri C P Misra. In this regard, attention of this Court is
drawn to para 4 of the written statement where defendants have claimed that Smt.
Revti Devi had clear and is absolute owner of the property. It is contended that
defendants have not specified that Smt. Revti Devi herself paid the said
consideration of Rs.86,000/ so as to become the absolute owner.
68. In this regard Section 4 of Prohibition of Benami of Property
Transaction Act , 1988
4. Prohibition of the right to recover property held benami.--
(1) No suit, claim or action to enforce any right in respect of any property held benami
against the person in whose name the property is held or against any other person
shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether
against the person in whose name the property is held or against any other person,
shall be allowed in any suit, claim or action by or on behalf of a person claiming to be
the real owner of such property.
(3) Nothing in this section shall apply,--
(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 coparceners in the family; or
(b) where the person in whose name the property is 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 whom he stands in such
CS No. 57442/16 Page 31 of 41
capacity.
69. This has been omitted vide amendment of 2016. With the aid of this
Section it is sought to be argued on behalf of the plaintiff that in so far as the
entire consideration was made by the plaintiff's father Shri C P Mishra while the
property was purchased in the name of his wife Smt. Revti Devi in the fiduciary
capacity for the benefit of the entire property the property shall be treated held by
late Shri C P Mishra and not by Smt. Revti Devi. In this regard attention of this
Court is drawn to Section 3 with the aid of Section 3 (2) it is submitted that the Act
provides that the Benami Prohibition apply to property purchased in the name of
wife. Having said this it is case of the defendant that they are claiming that the
entire payment was made by Shri C P Misra.
70. In this regard as far as this plea of Benami is concerned, it is found that this
property was purchased in the year 1958 whereas the act in question was
promulgated in 1988. It is contended that Benami Transactions were permissible
prior to that. It is found that no such pleading was raised or prayer made in the
case in hand or any other suit in the proceedings any time before 1958 till date.
The above plea of plaintiff that his father is holding the property Benami is
beyond pleadings. The Law of pleading is well settled that no party can be
allowed to raise pleas during the course of final arguments which are not
specifically pleaded in the suit. I do not find strength in the plea of ld. counsel for
the plaintiff that in the suit of partition, his plea that his father is holding the suit
property Benami is intrinsic. Not only there is delay of more than 34 years on the
CS No. 57442/16 Page 32 of 41
date of filing of the suit and now around more than 60 years when this plea is
raised during the course of final arguments for the very first time.
In Ram Sarup Gupta (dead) by Lrs. Vs. Bishun Narain Inter
College Manu/SC/0043/1987, the Hon'ble Supreme Court observed that,
"It is well settled that in the absence of pleading, evidence, if any,
produced by the parties cannot be considered. It is also equally
settled that no party should be permitted to travel beyond its
pleading and that all necessary and material facts should be
pleaded by the party in support of the case set up by it. The object
and purpose of pleading is to enable the adversary party to know
the case it has to meet. In order to have a fair trial it is imperative
that the party should state the essential material facts so that other
party may not be taken by surprise. The pleadings however should
receive a liberal construction, no pedantic approach should be
adopted to defeat justice on hair splitting technicalities. Sometimes,
pleadings are expressed in words which may not expressly make
out a case in accordance with strict interpretation of law, in such a
case it is the duty of the court to ascertain the substance if the
pleadings to determine the question. It is not desirable to place
undue emphasis on form, instead the substance of the pleadings
should be considered. ". Whenever the question about lack of
pleading is raised the enquiry should not be so much about the the
form of pleadings, instead the court must find out whether in
substance the parties knew the case and the issues upon which
they went to trial. Once it is found that in spite of deficiency in the
pleadings, parties knew the case and they proceeded to trial on
those issue by producing evidence, in that event it would not be
open to a party to raise the question of absence of pleadings in
appeal. (Emphasis Supplied)
In The National Textile Corporation Ltd. Vs. Nareshkumar Badrikumar Jagad
and Ors., AIR 2012 SC 264, the Hon'ble Supreme Court observed that,
In Ram Sarup Gupta (dead) by Lrs. Vs. Bishun Narain Inter College
Manu/SC/0043/1987: AIR 1987 SC 1242, this Court held as under:
"....in the absence of pleadings, evidence if any, produced by the
parties cannot be considered....No. Party should be permitted to
CS No. 57442/16 Page 33 of 41
travel beyond its pleading and that all necessary and material facts
should be pleaded by the party in support of the case set up by it.
In Syed and Company and Ors. Vs. State of Jammu and Kashmir and
Ors.:1995 Supp (4) SCC 422, this Court held as under:
"Without specific pleadings in that regard, evidence could not be led
in since it is settled principle of law that No. amount of evidence can
be looked unless there is a pleading. Therefore, without
amendment of the pleadings merely trying to lead evidence is not
permissible.
In J. Jermons Vs. Aliammal and Ors. MANU/SC/0477/1999: (1999) 7 SCC 382,
while dealing with a similar issue, this Court held as under:
"......there is a fundamental difference between a case of raising
additional grounds based on the pleadings and the material
available on record and a case of taking a new plea not borne out
of the pleadings. In the former case No. amendment of pleadings
is required, whereas in the latter it is necessary to amend the
pleadings... The Respondents cannot be permitted to make out a
new case by seeking permission to raise additional grounds in revision."
In Bachhaj Nahar Vs. Nilima Mandal & Ors., AIR 2009 SC 1103 Hon'ble Supreme Court held as under:
"The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claims or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result, the defendant does not get an opportunity to place the facts and contentions necessary to repudiate of challenge such a claim or relief. Therefore, the court cannot on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such CS No. 57442/16 Page 34 of 41 a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus, it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.
71. In this regard, it is further found that although specific pleas were raised by the defendant in the written statement and in reply on merits the same have been remaining uncontoverted and unrebuted in so far as no replication has been filed by the plaintiff. It is a settled legal proposition that factual averments contained in the written statement if not denied by the plaintiff are akin to admissions.
72. It is argued that the term Replication does not find mentioned in the Court of Civil Procedure. While Order 7 pertains to Plaint and Order 8 to Written Statement set off and counter claim. The only stipulation qua the procedural Code which can be closely related to Replication is Order 8 rule 9 CPC which is as under Under Order 8 Rule 9 CPC
9. Subsequent pleadings. No pleading subsequent to the written statement of a defendant other than by way of defence to setoff or counterclaim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.
73. It is submitted that since filing of replication referred to as "additional written statement" is not mandatory in law, the law of pleadings as applicable to written statement u/O 8 rule 3, 4 and 5 CPC shall not be CS No. 57442/16 Page 35 of 41 applicable in the Replication. It is said that the duty of defendant to specifically denied each and every allegation in the plaint cannot be casted upon the plaintiff qua allegation containing in the written statement. Under Order 8 Rule 3 CPC
3. Denial to be specific. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
Under Order 8 Rule 4 CPC
4. Evasive denial. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
Under Order 8 Rule 5 CPC
5. Specific denial. (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.
Provided that the Court may in its discretion require any fact so admitted to be provided otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require an such fact to be proved.CS No. 57442/16 Page 36 of 41
(3) In exercising its discretion under the proviso to sub rule (1) or under subrule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.
74. In support of their plea, defendant has referred to DB Judgment of Hon'ble High Court of Delhi titled as "Saranpal Kaur Anand Vs Praduman Singh Chandhok" MANU/DE/0960/2016 where in while discussing the Order 7 and Order 8 rules 3, 4 and 5 and while applying the same on the replication, it was ruled, "Non denial of the knowledge of the Will in the replication would be treated as an admission of the plaintiff qua the knowledge of the Will..... further in view of the evasive denial in the replication of the specific pleadings int the written statement about the knowledge of the plaintiff in respect of the Will.... plaintiff would be deemed to have admitted the fact."
75. Another judgment relied on behalf of defendant is "Mohan Madan VS Sheel Gulati" 223 (2015) DLT 57, wherein Hon'ble Delhi High Court observe "9(i). Before discussing in detail the aforesaid deposition and pleading of the plaintiff in para 5 of the plaint, it needs to be noted (and I have already stated this in the earlier part of this judgement) that plaintiff has for some strange reason chosen not to file any replication to the written statement filed by the defendant. In the written statement, the defendant has pleaded the categorical case that plaintiff out of the sum of Rs.25 lacs paid an CS No. 57442/16 Page 37 of 41 amount of Rs.10 lacs by a cheque of Sh. Dharampal Malik and this cheque bounced on presentation.
(ii) In my opinion, nonfiling of replication in a case such as the present will amount to deemed admission of the facts of the written statement with respect to the amount of Rs.10 lacs being paid by cheque out of the amount of Rs. 25 lacs paid on 5.10.2005. Deemed admission will arise in view of Order 8 Rule 9 read with Order 8 Rule 5 and Order 8 Rule 10 of the Code of Civil Procedure, 1908 (CPC) and which provides that on non filing of replication (technically called as an additional written statement and not replication in Order 8 Rule 9, CPC), the same will amount to deemed admission of the contents of the written statement filed by a defendant."
76. The failure on the part of the plaintiff to specifically deny the averments of the defendant contained in the written statement amounts to admission by the plaintiff.
77. As discussed supra the plea of ld. counsel for plaintiff that apart from initial Rs.10,000/ remaining Rs.76,000/ too was paid by the plaintiff is a plea beyond the pleadings. It is contended on behalf of the plaintiff that Smt. Revti Devi was illiterate housewife could not have resources to pay remaining Rs.76,000/.
78. On this score apart from the fact that these pleas are also beyond the pleadings, there is no evidence to show that Shri C P Mishra paid the remaining Rs.76,000/ as well. Further more, the defendant subsequent pleading of Smt. Revti Devi being absolute owner of 3, Jain Mandir Marg as a self acquired property has itself remained unrebutted. In this regard further attention of this Court is drawn to Para No.5 and 6 of affidavit in chief of Smt. Triveni Mishra, wife of deceased plaintiff that the real owner of the property was Shri C P Mishra and CS No. 57442/16 Page 38 of 41 that it was purchased Benami. It is contended that this witness has not been crossexamined on this score. I am not inconformity with the plea of the plaintiff firstly on the ground that above two paras are beyond pleadings. Secondly, in her crossexamination done on 16.03.2012 plaintiff has stated that she is not aware of the contents of the affidavit in chief as she does not understand English. As such he filed a suit for claiming 50% share in all the properties. She could not even explain the correct meaning of the word Benami and ended up by saying that Benami property is one which does not belong to any person. Although no specific suggestion was put to her to the effect that entire funds were paid by Smt. Revti Devi but for the reason that these two paras were not borne out of the pleaded case of the plaintiff, omission on the part of the defendant is no avail to the plaintiff.
79. As far as an alternative case of the plaintiff that defendants have failed to prove on record the necessary ingredients of sale i.e. payment of consideration receiving of possession and execution of due registered document, it is observed that although there is no specific proof of payment under the Sale Deed but what is surprising is that these pleas are being raised for the first time during the course of final arguments. It is not the case of the plaintiff that no consideration was paid at all to the seller Smt. Malan Devi. As referred to supra plaintiff has failed to establish on record that Shri C P Mishra actually paid the entire sale consideration apart from Rs.10,000/. In this regard, it is relevant to mention here that it is accepted by PW1 in her crossexamination that she has not placed any document on record to show the ownership of portion of 3 Jain Mandir Marg in favour of her CS No. 57442/16 Page 39 of 41 fatherinlaw Shri C P Mishra rather she has categorically admitted that portion of 3 Jain Mandir Marg was belonged to Smt. Revti Devi since it was purchased by Shri C P Mishra. This means that plaintiff on his part has never controverted the execution of Sale Deed and rather admitted it.
80. An objection was taken by ld. counsel for the defendant that suit deserves to be dismissed on the ground that the plaintiff is seeking partition of portion of 3 Jain Mandir Marg and not the entire property. I do not find any strength in this plea not only because no such objection is taken in the written statement but also because it is for the plaintiff to decide as to what portions remains to be partitioned. According to the plaintiff some portions of 3 Jain, Mandir Marg have already devolved upon him and it is for this reason he has omitted to include them in the suit. It is open for any plaintiff to decide as to what reliefs he wish to claim in the suit or he wish to leave, I do not see any maintainability flaw on this ground. Rest is taken care of by Order 2 Rule 2 CPC.
81. As referred to supra it is rightly submitted by ld. counsel for the defendant that alternative story line of the plaintiff that in case his plea of seeking inheritance in portion of 3 Jain Mandir Marg through his father is not accepted then he has right to inherit it as a successor of Smt. Revti Devi. Even this plea is beyond pleadings. Not only there is not a whisper qua the same but PW2 is totally silent even in her affidavit in chief. Since nothing was stated in this regard the defendant could not have pleaded or contested this alternative story line. As referred to supra the factual pleas of the written statement have remained uncontroverted and unrebutted. Plaintiff can not be allowed to improve his case CS No. 57442/16 Page 40 of 41 beyond the pleaded facts by merely floating theories.
82. Likewise, even no suggestion in this regard was put to the defendant no.1 Basant who appeared as DW1, as the right of the plaintiff to crossexamining him was closed.
83. Summing up the above it is concluded that even though the onus of proving that the portion of 3 Jain Mandir Marg i.e. property No.4 in the list Annexure A was on the plaintiff, plaintiff has failed to establish on record that it was owned by Shri C P Mishra or that he has a right of inheritance therein. His alternative plea of seeking inheritance through his mother as a successor is found to be beyond pleadings and as such is of no avail. Neither it is pleaded case of the plaintiff nor the issue was casted in this regard.
84. Accordingly, entire issue no.1 is decided against the plaintiff and in favour of the defendant.
Relief
85. In view of the decision of above issue there is no question of passing of preliminary decree in favour of the plaintiff as plaintiff is found to be not entitled to any relief.
86. In view of the above, suit of the plaintiff is dismissed with cost.
File be consigned to record room.
Announced in an open Court
On 7th day of June, 2017.
(Surinder S. Rathi)
ADJ03/PHC/NEW DELHI
07.06.2017
CS No. 57442/16 Page 41 of 41