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2011 DIGILAW 483 (ORI)

BIJAN KISHORE MOHANTY v. KANAKALATA DAS @ MOHANTY

2011-09-12

M.M.DAS

body2011
JUDGMENT M. M. DAS, J. The plaintiff-appellant has filed this appeal challenging the concurrent judgments passed by the learned courts below rejecting the plaint under Order – VII, Rule – 11 C.P.C. on the ground that the plaintiff’s suit does not disclose a right in him to sue and is tainted with an illusory cause of action. 2. The plaintiff filed the suit, being, C.S. No.527 of 2009, before the learned Civil Judge (Senior Division), Puri for declaration of his contingent interest over the suit property and for permanent injunction restraining the defendant no.1 from alienating the suit property either herself or through her agent. The plaintiff is the son of the defendant no.1 (mother). The defendant no.1 inherited the suit property from her parents by way of succession. According to the plaintiff, the defendant no.1 is not in a fit mental condition to deal with the suit property, as she is easily influenced and has no independent thought because of her illness. Taking advantage of such situation, the defendant no.2, who is the younger brother of the father of the plaintiff, has got a Power of Attorney executed by the defendant no.1 in favour of the defendant no.3. 3. After appearance of the defendants, an application was filed by them under Order – VII, Rule – 11 C.P.C. for rejection of the plaint on the ground that the plaintiff has got no semblance of right, title and interest or possession over the suit property. The defendant no.1 succeeded to the suit properties, which belonged to her mother and after the death of her mother, it has been recorded in the name of the defendant no.1 4. The defendant no.1 succeeded to the suit properties, which belonged to her mother and after the death of her mother, it has been recorded in the name of the defendant no.1 4. The learned trial court, upon hearing the said application, by his order dated 05.12.2009, came to the conclusion that as admitted by the plaintiff, the defendant no.1 is the full owner of the suit properties and, thus, the plaintiff can only lay claim on the said properties after the demise of his mother – defendant no.1, but so long as she is alive, the plaintiff has no existing right and hence, the plaintiff has no cause of action to file the suit during the life time of the defendant no.1 claiming any right, title and interest on her property and rejected the plaint under Order VII, Rule 11(a) C.P.C. Being aggrieved by the aforesaid order of the learned trial court, the appellant preferred R.F.A. No. 128 of 2009 before the learned District Judge, Puri. The learned lower appellate court on perusing the pleadings in the plaint and on analyzing the provisions of Order – VII, Rule – 11 C.P.C. and relying upon various decisions of the apex Court, endorsed the findings of the learned trial court confirming the same. 6. The Second Appeal has been admitted on the following substantial questions of law:- (I) Whether the learned courts below have acted contrary to law in rejecting the plaint filed by the appellant under Order – VII, Rule – 11 (a) C.P.C. holding that the plaint does not disclose the cause of action by construing the plaintiff’s suit as a suit on speculative succession without considering the plaint averments made in paragraph – 3 of the plaint to the effect that the defendant no.1 did not have the stability of mind to execute the Power of Attorney, which aspect, if would have been proved factually in the suit, would have nullified all actions of the Power of Attorney Holder, defendant no.3, who is respondent no.3, herein ? (II) Whether the plaintiff under law can maintain a suit on a contingent interest which is conceptually different from a speculative succession and where allegation of fraud has been made ? 7. Mr. (II) Whether the plaintiff under law can maintain a suit on a contingent interest which is conceptually different from a speculative succession and where allegation of fraud has been made ? 7. Mr. R.K. Mohanty, learned counsel appearing for the appellant submitted that an application has been filed by the plaintiff for amending the plaint, during the pendency of the Second Appeal, for introducing a prayer in the plaint to declare the Power of Attorney executed by the defendant no.1 in favour of the defendant no.3 as a void document. He further submitted that Order – VII, Rule – 11 (a) C.P.C. though provides that a plaint shall be rejected, where it does not disclose a cause of action, but a bare reading of the plaint filed by the appellant would go to show that at this stage, the learned courts below could not have held that the plaintiff had no cause of action to file the suit. Mr. Mohanty further submitted that the question, whether the plaintiff had any cause of action or not, was to be determined on the evidence adduced by the parties during trial of the suit. The plaintiff has disclosed the cause of action in paragraph – 5 of the plaint by stating that the cause of action for the suit arose on 03.11.2009, when the defendants planned to dispose of the suit land through the agent and it could come to the notice of the plaintiff, within the local limits of the court. It was also submitted that “cause of action” under law, means a bundle of facts, which give occasion to form the foundation of the suit and it is well settled in law that cause of action can be deciphered from the entire reading of the plaint and it is the substance and not merely the form that has to be looked into. According to Mr. Mohanty, the pleading has to be construed, as it stands without addition or subtraction of words or change of its apparent grammatical sense. It is not permissible to cull out a sentence or a passage and to read it, out of context in isolation. For the above contentions, Mr. According to Mr. Mohanty, the pleading has to be construed, as it stands without addition or subtraction of words or change of its apparent grammatical sense. It is not permissible to cull out a sentence or a passage and to read it, out of context in isolation. For the above contentions, Mr. Mohanty took support of the decisions in the case of Sidramappa v. Rajashetty and others, AIR 1970 SC 1059 , Smt. Puspa Devi v. the Commissioner of Income Tax, New Delhi, AIR 1977 SC 2230 and Hardesh Ores (P) Ltd. v. Hede & Company, 2007 (II) OLR (SC) 613. 8. It was also contended by Mr. Mohanty that in the instant case, a composite reading of the plaint would disclose that the plaintiff has alleged that her mother, defendant no.1 is not in a fit mental condition to deal with disposal of her property, as she is easily influenced because of her illness. The above assertion in the plaint is required to be proved during trial of the suit, if the defendants do not admit the same. Thus, a factual adjudication is necessary to find out the mental capacity of defendant no.1 with regard to disposal of her properties and the plaintiff has every right to protect such property over which, he has a contingent interest. Hence, the learned courts below should not have thrown out the plaintiff from the precinct of the court by rejecting the plaint at the threshold. 9. With regard to contingent interest of the plaintiff, Mr. Mohanty submitted that such an interest can be declared in a suit along with the relief of permanent injunction. In support of his contention, he also relied upon the decisions in the case of Sashi Kantha Acharjee and others v. Pramode Chandra Roy and others, AIR 1932 Calcutta 600 and Tarak Chandra Das and another v. Anukul Chandra Mukherjee , AIR 1946 Calcutta 118. 10. Mr. In support of his contention, he also relied upon the decisions in the case of Sashi Kantha Acharjee and others v. Pramode Chandra Roy and others, AIR 1932 Calcutta 600 and Tarak Chandra Das and another v. Anukul Chandra Mukherjee , AIR 1946 Calcutta 118. 10. Mr. P.K. Rath, learned counsel appearing for the respondents, on the contrary, submitted that the only question to be dealt with in the present appeal is, as to whether the learned courts below have committed any error of law in rejecting the plaint on the ground that the plaintiff has no cause of action to file the suit and in this context, it is required to be examined as to whether the contention advanced by the appellant that he has a contingent interest over the suit properties and is entitled to a declaration thereon, can be accepted ? Mr. Rath contended that admittedly the defendant no.1 has inherited the property by succession, and, therefore, in view of Section 14 of the Hindu Succession Act, she is the only absolute owner having right to deal with the properties in the manner she likes. He took support of Section 30 of the Hindu Succession Act for his contention that a Hindu can dispose of his/her properties by Will or other testamentary disposition, which is capable of being so disposed of by him/her in accordance with law which is applicable to Hindus. After the Hindu Succession Act came into force, the concept of reversionary right has been given a go-bye and thus, the plaintiff cannot claim any such right. Mr. Rath also contended that the question of contingent interest is not recognized by the Hindu Succession Act, 1956, which by itself is a codified law governing succession to property by a Hindu. Succession under the Mitakshyara School of Hindu Law opens only upon the death of a male or female Hindu dying intestate and during the life time of the absolute owner of such properties even his or her legal heirs cannot claim any right over the same anticipating the death of such person and future succession. 11. The Transfer of Property Act deals with “vested interest” and “contingent interest”. Section 19 of the said Act is the provision governing “vested interest”. 11. The Transfer of Property Act deals with “vested interest” and “contingent interest”. Section 19 of the said Act is the provision governing “vested interest”. The said provision may not be referred to in the present case, as admittedly, the plaintiff does not claim a “vested interest” over the suit property. Section 21 of the said Act deals with “contingent interest” which is as follows:- “21. Contingent interest.-Where, on a transfer of property an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes vested interest in the former case, on the happening of the event; in the latter, when the happening of the event becomes impossible. Exception.-Where, under a transfer of property, a person becomes entitled to an interest therein upon attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income, or so much thereof as may be necessary, to be applied for his benefit, such interest is not contingent”. “Contingent interest” is also provided in section 120 of the Indian Succession Act, 1925 which is as follows:- “120. Date of vesting when legacy contingent upon specified uncertain event.-(1) A legacy bequeathed in case a specified uncertain event shall happen does not vest until that event happens. (2) A legacy bequeathed in case a specified uncertain event shall not happen does not vest until the happening of that event becomes impossible. (3) In either case, until the condition has been fulfilled, the interest of the legatee is called contingent. Exception:-Where a fund is bequeathed to any person upon his attaining a particular age, and the Will also gives to him absolutely the income to arise from the fund before he reaches that age, or directs the income, or so much of it as may be necessary, to be applied for his benefit, the bequest of the fund is not contingent”. Section 21 of the Transfer of Property Act can only be made applicable where there is a transfer of property. Section 21 of the Transfer of Property Act can only be made applicable where there is a transfer of property. Section 120 of the Indian Succession Act occurs in part-VI of the said Act, which deals with testamentary succession and such a succession is not claimed by the plaintiff. 12. In the case of T. Arivandandam v. T. V. Satyapal and anther, AIR 1977 SC 2421 , it was laid down that on a bare reading of the plaint, if the Court finds that the plaint is manifestly vexatious and meritless in the sense not disclosing a clear right to sue, the Court can exercise power under Order – VII, Rule – 11 C.P.C. and reject the plaint. 13. Considering the rival contentions of the parties and on perusal of the case laws relied upon by the learned counsel for the respective parties, this Court comes to the conclusion that it is well settled by the apex Court that for rejecting a plaint under Order – VII, Rule – 11 C.P.C. only the averments of the plaint are to be gone into and the Court has to ensure that meaningless litigations, which are otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the Court. In the above background, it is to be examined whether the plaint in the instant case does disclose any cause of action, which is solely based on the ground that the plaintiff has a contingent interest over the suit properties. 14. With regard to the contention of Mr. In the above background, it is to be examined whether the plaint in the instant case does disclose any cause of action, which is solely based on the ground that the plaintiff has a contingent interest over the suit properties. 14. With regard to the contention of Mr. Mohanty, learned counsel for the appellant that there are allegations in the plaint that the defendant no.1 (mother of the plaintiff) is ill and not in a fit condition of mind to deal with her properties and such allegations can only be proved during the trial of the suit, besides cause of action connotes a bundle facts and the plaint should not be thrown out on the ground that the plaintiff has no cause of action to bring the suit, this Court finds that if from perusal of the plaint itself it is seen that the plaintiff has absolutely no interest over the suit properties, even if, the plaintiff has alleged some facts to be existing, which are required to be proved during the trial of the suit, the plaint can be rejected under Order – VII, Rule – 11(a) C.P.C. for want of cause of action. 15. With regard to the contention of the appellant that the appellant has a contingent interest over the disputed properties, which can be declared in the suit for which, the appellant has relied upon the decisions of the Calcutta High Court in the case of Sashi Kantha Acharjee and others (supra) and Tarak Chandra Das and another (supra), it is found that in the case of Sashi Kantha Acharjee and others (supra), the Calcutta High Court was considering the question of dealing with the properties under a “Will”. The Calcutta High Court in the said case held that reversioners under the Hindu law are expectant heirs with a spes successionis. The ratio of the said decision, therefore, cannot be made applicable to the facts of the present case, where the plaintiff does not claim as a reversioner, more so, both the aforesaid cases were decided much prior to the Hindu Succession Act came into force, which does not recognize the right of the reversioners. The said decisions also do not deal with the question of contingent interest. This Court, therefore, while accepting the contention of Mr. The said decisions also do not deal with the question of contingent interest. This Court, therefore, while accepting the contention of Mr. Rath, learned counsel appearing for the respondents, comes to the conclusion that as held by the learned courts below, the suit filed by the plaintiff is based on speculative succession and it cannot be said that the plaintiff has a contingent interest in the suit property, as envisaged under Section 21 of the Transfer of Property Act nor any interest over the said properties, which admittedly is the absolute property of the defendant no.1 and thus, as held by the learned courts below, the appellant had no cause of action on the date of filing of the suit to bring the suit for the reliefs claimed. I, therefore, find no error in the judgments of the learned courts below. 16. In the result, the appeal, being devoid of merit, is dismissed, but in the circumstances without cost. Appeal dismissed.