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2012 DIGILAW 596 (PNJ)

S. S. Ahluwalia v. S. P. SAhluwalia

2012-04-20

RAJESH BINDAL

body2012
JUDGMENT Mr. Rajesh Bindal J.: - One of the defendants is before this court challenging the order dated 15.11.2011, passed by the learned court below, whereby the application filed by him under Order 7 Rule 11 read with Section 151 CPC and also under Section 11 CPC for rejection of the plaint was dismissed. 2. Learned counsel for the petitioner submitted respondent No. 1- plaintiff filed a suit for declaration, inter-alia, challenging clause 5 of the Will dated 13.10.1993 executed by deceased-Kartar Kaur, in which application was filed by the petitioner-defendant No. 1 under Order 7 Rule 11 read with Section 151 CPC and also under Section 11 CPC for rejection of the plaint on the ground that the Will in question had already been upheld upto this court, hence, the suit filed for challenging the clause thereof was barred by law. Reliance was placed upon Chaman Lal Kapur and others v. Kundan Lal Kapur, AIR 1979 Delhi 240 Amar Singh and others v. Lal Singh and others, (1997) 11 SCC 570 in support of the submission that the Will has to be read in its spirit as is executed by the testator and none of its clause can be challenged by the beneficiaries. 3. On the other hand, learned counsel for respondent No. 1- plaintiff submitted that parties to the earlier litigation were different than the parties to the present suit. Earlier the suit was filed by Manjit Kaur Kalra, daughter of deceased-Kartar Kaur challenging the Will by raising the plea that in fact Pritam Singh Ahluwalia, husband of deceased-Kartar Kaur, had executed a Will dated 7.12.1989, vide which 2/5th share of H. No. 116, Sector 16-A, Chandigarh was given to her and 1/5th share each was given to the defendants in the suit, namely, S. P. S. Ahluwalia, Brig. S. S. Ahluwalia and H. S. Walia. He further submitted that the issue sought to be raised in the suit presently filed was not under consideration before the court in the earlier litigation as it was simpliciter challenge to the Will executed by Pritam Singh Ahluwalia claiming that in terms of an earlier Will executed by deceased-Pritam Singh Ahluwalia, she was entitled to more share in the property. Placing reliance upon Umrao Singh v. Baldev Singh and another, AIR 1933 Lahore 201 and Smt. Rajrani Sehgal v. Parshottam Lal, AIR 1992 Delhi 134, it was submitted that any clause in the Will putting restriction on the sale of property by the beneficiary thereof can always be challenged and the court can adjudicate thereupon. 4. Heard learned counsel for the parties and perused the paper book. 5. The suit was filed by respondent No. 1-plaintiff with the following prayer: “Suit for declaration to the effect that clause 5 of the Will dated 13th October, 1993 of Smt. Kartar Kaur registered at Sr. No. 2555, Book No. 3, Volume 20 dated 13th October, 1993 containing a clause causing embargo on the sale of property bearing House No. 116, Sector 16-A, Chandigarh to any body except defendant No. 1 is void and plaintiff is entitled to sell the property to any other person than defendant No. 1 and for permanent injunction restraining defendant from interfering in the sale of the said property to any other vendee.” 6. By filing the application, it was claimed by the petitioner that in fact the Will in question was challenged by Manjit Kaur Kalra daughter of deceased-Kartar Kaur by filing a civil suit in which respondent No. 1- plaintiff was one of the defendants. The suit was dismissed by Civil Judge (Junior Division), Chandigarh vide judgment and decree dated 6.5.2005. The same was upheld in appeal by Additional District Judge, Chandigarh vide judgment dated 13.4.2010. The said judgment was affirmed by this court in R.S.A. No. 3449 of 2010, decided on 16.5.2011. 7. Clause 5 of the Will, which is sought to be challenged by respondent No. 1 in the suit, is extracted below: “5. Four rooms set of second floor of Kothi No. 116, Sector 16, servant quarter consisting of room and bathroom on the ground floor which is connected with the servant lane through path behind the kothi, I give to my son Jagjit Singh. This will be given to his son Manpreet Singh, if Jagatjit Singh refuses in writing not to have the same. The owners of Kothi No. 116 and their heirs can only sell their share of Kothi to Shri Sarabjit Singh so that Kothi may remain as one unit. My husband also wished the same. This will be given to his son Manpreet Singh, if Jagatjit Singh refuses in writing not to have the same. The owners of Kothi No. 116 and their heirs can only sell their share of Kothi to Shri Sarabjit Singh so that Kothi may remain as one unit. My husband also wished the same. The owners cannot sell their portions to outsiders but can transfer to their brothers and nephews. I do not give the right to sell their shares to any outsider.” 8. While praying for rejection of the plaint at the threshold, reliance of the petitioner is on the judgments in the earlier litigation pertaining to the Will. The application has been filed under Order 7 Rule 11 read with Section 151 CPC and also under Section 11 CPC. The plea is sought to be raised on the ground that in the earlier litigation the Will had already been upheld and further as per law, no modification can be made in terms of the Will. 9. The issue as to whether in exercise of power under Order 7 Rule 11 CPC, a plaint can be rejected especially when reference is sought to be made to earlier judgments of the court was considered by Hon’ble the Supreme Court in Kamala and others v. K. T. Eshwara Sa and others, [2008(4) Law Herald (SC) 2541] : (2008) 12 SCC 661, wherein it was opined that for the purpose of consideration of the legal objection raised, the conclusion must be drawn only on a perusal of the averments made in the plaint. For the purpose of invoking the said provision, no amount of evidence can be looked into. The issue of res judicata is a mixed question of law and fact which may require not only examination of plaint but also other evidence and order passed in the earlier suit. Relevant paragraphs thereof are extracted below: “21. Order 7 Rule 11 (d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Relevant paragraphs thereof are extracted below: “21. Order 7 Rule 11 (d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or substraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one. Order 14 Rule 2 is another. 22. For the purpose of invoking Order 7 Rule 11 (d) of the Code, no amount of evidence can be looked into. The issues on merits of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision. 23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. 24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. 25. The decisions rendered by this court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. 25. The decisions rendered by this court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained.” 10. In the present case as well, the claim is sought to be made by the petitioner while referring to the judgment in the earlier litigation between the parties. As is evident from the documents placed on record, the parties to the earlier litigation were different, even though the petitioner as well as respondent No. 1 are common. Earlier the suit was filed by Manjit Kaur Kalra daughter of deceased-Kartar Kaur claiming 2/5th share in House No. 116, Sector 16-A, Chandigarh on the basis of a Will dated 7.12.1989 and the judgment and decree dated 6.4.1993 passed by Sub Judge IInd Class, Chandigarh in a suit titled as “Smt. Kartar Kaur v. Shri S. P. S. Ahluwalia and others”, which declared deceased-Kartar Kaur as the absolute owner of the property was challenged. Further it was prayed that the defendants in the suit were not entitled to share the property in terms of the Will dated 13.10.1993 executed by deceased-Kartar Kaur. The Court, while dismissing the suit, upheld the decree dated 6.4.1993 passed in favour of Kartar Kaur and also the Will executed by her. The claim in the present suit is that Clause 5 of the Will dated 13.10.1993 is not in consonance with other provisions of the Will which places a restriction on respondent No. 1- plaintiff from selling the property in dispute, hence, deserves to be set aside. 11. For rejection of a plaint on the ground of res judicata, besides the plaint, the court will have to take on record and peruse the plaint and the judgment in the earlier litigation. Without that no finding of res judicata can be recorded. This is not permissible at the stage of consideration of application under Order 7 Rule 11 CPC, hence the plaint cannot be rejected at this stage on the plea sought to be raised by the petitioner. Without that no finding of res judicata can be recorded. This is not permissible at the stage of consideration of application under Order 7 Rule 11 CPC, hence the plaint cannot be rejected at this stage on the plea sought to be raised by the petitioner. The learned court below has not committed any illegality in rejecting the application filed by the petitioner. The order cannot be faulted with, hence, the present petition is dismissed. 12. Though both the counsels have cited judgments of different High Courts on the issue as to whether a clause in the Will can be challenged, which restricts the beneficiary from disposing of the property, however, a judgment of Hon’ble the Supreme Court on the issue, which may be relevant, was not referred to, i.e., K. Naina Mohamed (Dead) through LRS v. A. M. Vasudevan Chettiar (Dead) through LRS and others, [2010(4) Law Herald (SC) 2899] : (2010) 7 SCC 603, wherein a restriction on alienation of a property to a stranger, was held to be valid. ---------0.B.S.0------------