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2006 DIGILAW 502 (DEL)

UNMUKT BHATNAGAR v. MANOJ BHATNAGAR

2006-03-13

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) CS (OS) No. 440/2006 the plaintiffs have filed a suit for partition and permanent injunction. Plaintiff no. 3 was the wife of the defendant but the parties separated and are divorced. Plaintiffs no. 1 and 2 have been born out of the wedlock of plaintiff no. 3 and the defendant. The plaintiffs are residing separately in United kingdom. ( 2 ) LATE Bankey Bihari Bhatnagar was the father of the defendant, grand father of plaintiffs no. 1 and 2 and erstwhile father in law of plaintiff no. 3 He owned a property bearing no. A-49, Gulmohar Park, New Delhi measuring about 340 square yards having perpetual lease rights in the said plot. Late Sh. Bhatnagar executed a Will dated 22. 12. 1991 which was duly registered. This Will was prior to the divorce of plaintiff no. 3 and the defendant. ( 3 ) THE relevant portion of the Will reads as under:"after my demise, the whole of property No. A-49, Gulmohar Park, New Delhi, comprising of both ground and first floor shall be inherited absolutely by my wife Smt. Shanti Bhatnagar, residing with me at the said premises. Subsequent to my death and consequent upon the death of my wife Smt. Shanti Bhatnagar, and in case she predeceases me, the property No. A-49, Gulmohar park, New Delhi, would be divisible into two parts and inherited as follows: (a) The entire ground floor will be inherited jointly by my son Sh. Manoj bhatnagar, his (legally married) wife Smt. Meenakashi Bhatnagar, my grandson unmukt Bhatnagar and my grand daughter Kumari Atima Bhatnagar. Notwithstanding the inheritance as above, neither my son Manoj Bhatnagar, nor his wife meenakshi Bhatnagar, nor my grandson, nor my grand daughter Atima shall have any right or power to mortgage and/or sell any part of the said ground floor of the property. " ( 4 ) THE remaining portion of the Will deals with the bequeath of the first floor and the fact that the second floor already stands sold and that the third floor to remain as open terrace. Late Sh. Bhatnagar passed away and was survived by his wife Smt. Shanti Bhatnagar and the defendant as the son. On demise of late bankey Bihari Bhatnagar, the property stood transferred to Smt. Shanti bhatnagar. Smt. Shanti Bhatnagar passed away recently on 17. 12. 2005. Late Sh. Bhatnagar passed away and was survived by his wife Smt. Shanti Bhatnagar and the defendant as the son. On demise of late bankey Bihari Bhatnagar, the property stood transferred to Smt. Shanti bhatnagar. Smt. Shanti Bhatnagar passed away recently on 17. 12. 2005. ( 5 ) PLAINTIFFS claim that on the demise of Smt. Shanti Bhatnagar, they visited delhi and wanted to seek partition of the aforesaid property in which they claimed a share and the defendant declined to do so. This has resulted in filing of the suit. ( 6 ) THE plaintiff no. 3 and the defendant were divorced on 02. 06. 1998. Thus late sh. Bhatnagar had executed the Will dated 23. 12. 1991 during the currency of the marriage of the plaintiff no. 3 and the defendant. ( 7 ) A reading of the Will shows that late Sh. Bhatnagar had bequeathed the property in question absolutely to his wife Smt. Shanti Bhatnagar. Smt. Shanti Bhatnagar had survived her husband, the perpetual lessee of the plot. The second part of the Will states that in case the testator passed away and Smt. Shanti Bhatnagar also passed away ? and in case she predeceased me? the property would devolve in two parts and the entire ground floor was bequeathed to the defendant, ?his legally married? wife Smt. Meenakshi Bhatnagar, plaintiff no. 3 and plaintiffs no. 1 and 2. Thus a reading of the Will itself made it clear that the second part of the bequeath would come into operation only in case Smt. Shanti Bhatnagar predeceased the testator. ( 8 ) THE matter is not one only of interpretation of the Will but arises from a legal bar created by Section 124 of the Indian Succession Act, 1925. The said section along with illustrations reads as under: section 124 Bequest contingent upon specified uncertain event, no time being mentioned for its occurrence where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable. ` illustration (i) a legacy is bequeathed to A, and, in case of his death, to B. If A survives the testator, the legacy to B does not take effect. ? ` illustration (i) a legacy is bequeathed to A, and, in case of his death, to B. If A survives the testator, the legacy to B does not take effect. ? ( 9 ) THE aforesaid Section along with Section 125 contains what is commonly known as a rule against perpetuity. Illustration (i) of Section 124 applies squarely to the facts of the present case. In the said illustration if A is replaced by smt. Shanti Bhatnagar and the plaintiffs and defendant replace B, the illustration prescribes that since Smt. Shanti Bhatnagar was predeceased by the testator, the bequeath, if any, made in favour of the plaintiffs does not take effect. The result is that Smt. Shanti Bhatnagar was the sole owner of the property on the demise of her late husband and no further bequeath had to operate. It is not disputed by learned counsel for the plaintiff that none of the plaintiffs are the legal heirs to late Smt. Shanti Bhatnagar in view of the provisions of Section 15 of the Hindu Succession Act, 1956 providing for the general rules of Succession in case of female Hindus. The said Section reads as under:"15. General rules of succession in the case of female Hindus 1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, a) firstly, upon the sons and daughters (including the children of any pre- deceased son or daughter) and the husband; b) secondly, upon the heirs of the husband; c)thirdly, upon the mother and father; d) fourthly, upon the heirs of the father; and e) lastly, upon the heirs of the mother. " ( 10 ) THE property in terms of aforesaid section has to thus devolve upon the sons and daughters and the husband firstly. The husband had already pre-deceased Smt. Shanti Bhatnagar while the defendant and his sister Ms Sadhna Bhatnagar are the two legal heirs to Smt. Shanti Bhatnagar. Thus by rule of succession, the plaintiff is not entitled to any share. It is not the case of the plaintiffs that Smt. Shanti Bhatnagar had executed any Will in favour of any of the plaintiffs. ( 11 ) IN view of the aforesaid legal position, the plaintiffs cannot claim any share in the property and have no legal right to sue on the basis of the facts averred int he plaint. It is not the case of the plaintiffs that Smt. Shanti Bhatnagar had executed any Will in favour of any of the plaintiffs. ( 11 ) IN view of the aforesaid legal position, the plaintiffs cannot claim any share in the property and have no legal right to sue on the basis of the facts averred int he plaint. In fact there is no cause of action in favour of the plaintiff. ( 12 ) THE provisions of Order 7 Rule 11 of Code of Civil Procedure, 1908 reads as under:"11. Rejection of plaint ? the plaint shall be rejected in the following cases:- a) where it does not disclose a cause of action; b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so. c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite st amp paper within a time to be fixed by the Court fails to do so; d) where the suit appears from the statement in the plaint to be barred by any law: e) where it is not filed in duplicate; f) where the plaintiff fails to comply provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp paper shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. " ( 13 ) A reading of the aforesaid provision shows that where there is no disclosure of cause of action or where the suit appears from the statement in the plaint to be barred by any law, the plaint is liable to be rejected. " ( 13 ) A reading of the aforesaid provision shows that where there is no disclosure of cause of action or where the suit appears from the statement in the plaint to be barred by any law, the plaint is liable to be rejected. ( 14 ) IN my considered view, no purpose would be served in routinely issuing summons in the suit and notice in the application when the plaint itself does not disclose any cause of action and the claim made by the plaintiff is barred by Section 124 of the Indian Succession Act, 1925. ( 15 ) THE whole premises of the case of the plaintiffs is that even after late Smt. Shanti Bhatnagar inherited the property from her late husband, the latter part of the Will would come into operation. As noticed above, even a reading of the latter portion of the Will makes it clear that the same would come in to operation only in case Smt. Shanti Bhatnagar had pre-deceased the testator and in any case plaintiff would be barred by illustration (i) of Section 124 of the indian Succession Act, 1925. ( 16 ) LEARNED counsel for the plaintiff at this stage states the plaint seeks a dual relief of partition and permanent injunction. Insofar as the permanent relief is concerned, the only averment is that there are some household goods of plaintiff no. 3 kept in the property. I fail to appreciate as to how the same is possible when admittedly since 1998 the parties being the plaintiff and the defendant have been divorced and all the plaintiffs are residing in England. The relief of injunction is only a sequitor to the relief of partition. The documents filed by the plaintiff do not show any demand made by the plaintiff at any stage of return of any goods lying there. The plaintiffs have chosen not to file the terms of divorce before this court. The present suit is clearly an attempt on the part of the plaintiffs to get inroads into the house of the defendant where they have no share even while plaintiff no. 3 after her divorce with the defendant has been living separately along with her children, being the other plaintiffs, for a period of eight years in London. The present suit is clearly an attempt on the part of the plaintiffs to get inroads into the house of the defendant where they have no share even while plaintiff no. 3 after her divorce with the defendant has been living separately along with her children, being the other plaintiffs, for a period of eight years in London. ( 17 ) IN view of the aforesaid, I consider it appropriate to reject the plaint under Order 7 Rule 11 of the Code. .