Dr. Kiran Datar vs Sh. H.B. Datar

Manmohan Singh, J.—Defendant No. 6 has filed this application under Order VII Rule 11 of the Code of Civil Procedure, 1908 for rejection of the plaint with regard to the maintainability of the suit.

As disclosed in the plaint, the plaintiffs and the defendants are the descendants of Lt. Mr. B.N. Datar. The plaintiffs are the legal heirs and representatives of the deceased Mr. R.B. Datar (Son of Late Shri B.N. Datar). Mr. B.N. Datar during his life time from his self earned income acquired certain moveable and immovable properties. He died intestate on 13th February, 1963 leaving behind four sons and four daughters besides his wife Smt. Subadhra. Mr. H.B. Datar, the eldest son (defendant herein) in the family took charge of all the assets moveable and immovable.

It is stated in the plaint that Mr. H.B. Datar took over the assets as trustee for and on behalf of the legal representatives/legal heirs of the deceased Mr. B.N. Datar. The property bearing H. No. C-462, Defence Colony, New Delhi (hereinafter referred to as disputed property) was purchased by disposing of the estate of the deceased Mr. B.N. Datar in the name of Mr. H.B. Datar as a trustee for the family and for the benefit of all. It is further stated that all the family members except the two sisters who were discharged from the estate of the deceased, were in actual possession and enjoyment of the property since its acquisition. The property in question has never been shown by Mr. H.B. Datar either in his wealth tax or income tax returns. He held it for the benefit of the remaining family, who all had equal right, title and interest therein. In 1971, Mr. R.B. Datar on getting married moved out of the disputed property but continued his legal practice from the office/chamber in the said premises.

The wife of the deceased Smt. Subadhra expired in 1973 when Sh. R.B. Datar alongwith the plaintiffs shifted back to the disputed property. It is submitted that it was only Sh. R.B. Datar who was managing the said property. Mr. R.B. Datar then acquired an accommodation at B-86, Niti Bagh, New Delhi. The disputed property was let out to M/s. Vikas Publishing House on 25th November, 1988 and the rent was being paid by accounts payee cheques in the names of defendants No. 3, 4 and 5 (other sons and daughter of Mr. B.N. Datar) in terms of the family arrangements. Even after the demise of Sh. R.B. Datar in March, 1991 when the defendants No. 3 to 5 shifted from New Delhi to Bangalore, they continued to received rental proceeds from the disputed property. It was alleged that on the pretext of partitioning the property, defendant No. 1 Sh. H.B. Datar took all the documents pertaining to the disputed property in order to comply with the legal formalities.

It is averred in the plaint that on 29th July, 1996 defendant No. 1 in collusion with defendant Nos. 2 to 5 entered into an agreement to sell and to alienate the property in favour of defendant No. 6 and in this regard defendants No. 2 to 5 had executed a deed of declaration dated 15th May, 1996 entitling defendant No. 1 to sell the disputed property. However, the said deed of declaration was revoked by a letter of revocation dated 19th July, 1996.

It is contended that since defendant No. 1 was never the owner of disputed property, he has no title or interest in law or otherwise to sell the same to any one. A mere agreement to sell does not and cannot confer any right or title on defendant No. 6. Even in a declaration under the Income Tax Act, 1961 filed on 10th April, 1996 the defendant No. 1 had declared source of fund for the purchase of the disputed property as devolution of ancestral property.

It is stated that the defendant No. 1 has committed a breach of trust and is entitled only to 1/6th share in the disputed property and cannot dispose of or sell the disputed property. The plaintiffs claim to be in deemed possession of the disputed property.

The plaintiff affixed a court fee of Rs. 20/- on the basis of deemed possession on the relief of declaration and partition.

The Defendant No. 6 raised contentions to the effect that (a) the suit does not disclose a cause of action against defendants including Defendant No. 6 and is barred by law and (b) that the plaintiff has not paid proper court fee on the relief of declaration which is required to be ad valorem court fee on the market value of the property at the time of institution of the suit. Hence the suit is not maintainable.

As far as the first contention of Defendant No. 6/Applicant in the present application is concerned, learned Counsel for Defendant No. 6 has argued that defendants 2 to 5 by Deed of Declaration dated 15th May 1996 handed over to the Defendant No. 1 declared that the defendant No. 1 has acquired and purchased the said property by virtue of sale deed registered in the office of the Sub Registrar on 6th July 1963 and mutation was effected in the records of L & DO.

It is further argued that the possession of the property has already been handed over to defendant No. 6 and the third party rights have already been created in the suit property. Infact the whole structure of the suit property had been demolished and a new building has been constructed by defendant No. 6, therefore, no suit for declaration and injunction lies.

It is settled law that while considering the rejection of plaint under Order 7 Rule 11 CPC, the duty of the Court is to see whether the plaint contains the necessary allegations against the defendants. It is only when the entire plaint does not disclose any cause of action, the plaint is liable to be rejected. The pleas taken by the defendant in the written statement would be wholly irrelevant at this stage.

The power of rejecting the plaint has to be exercised by courts sparingly and cautiously. Benefit of doubt must go to plaintiff. For rejecting a plaint, the court has to confine itself only to the averments made in the plaint and is not supposed to look into the defence taken up by a defendant. Examination of a plaint under Order 7 Rule 11 does not permit the court to examine or declare under the correctness of the contents, or otherwise, of the plaint.

I have considered the various paras of the plaint as well as the written statement and the contents of the present application. Without going into the merit of the case, since there are serious allegations made by the plaintiff in Paras 15 to 20 of the plaint and unless these averments and allegations are examined in the trial, it is difficult at this stage to come to the conclusion that the plaint is liable to be rejected on the grounds stated in the application. Therefore, this Court is of the opinion that the allegations made by the plaintiff in the plaint are yet to examined at the time of trial of the suit.

As regards the second submission of the defendant No. 6 is concerned that no proper court fee has been paid, I agree with the learned Counsel for defendant No. 6 as admittedly the present suit had been filed by the plaintiffs for declaration to the effect that the sale deed executed was illegal and void on the ground of fraud or in other words for cancellation of the sale deed. It is also not in dispute that the property has already been handed over by defendant No. 1 to defendant No. 6.

In the present case, since third party right has already been created in the suit property and admittedly, after the purchase of the property by the defendant No. 6, it was demolished and new building has been constructed by the defendant, the question of constructive/deemed possession raised by the plaintiff does not arise.

In a suit for declaration where the execution of sale deed was alleged to be illegal and void on the grounds of fraud, the plaintiff is required to pay the ad valorem court fee under the Court Fees Act, 1870. As such, the present suit is covered u/s 7(iv)(b) and Article 17 (vi) Schedule II of the Court Fees Act, 1870 and the plaintiffs are required to pay ad valorem court fee to seek declaration of nullity of sale deed as alleged.

However, before passing the orders, an opportunity is granted to the plaintiff to pay the deficient court fee within 6 weeks from today and in failure to do so within time fixed as mentioned above, the plaint shall be treated as rejected under Order 7 Rule 11 CPC. The application is accordingly disposed of. No costs.