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2012 DIGILAW 916 (KER)

K. Anil Kumar v. Ajith

2012-10-05

HARILAL, K.M.JOSEPH

body2012
JUDGMENT K. Harilal, J. 1. The scope and extent of power conferred upon the court to grant relief which is neither pleaded nor prayed for, in a suit, when the defendant admits the claim, is the issue which has cropped up for our consideration in this appeal. 2. This appeal is directed against the judgment and decree passed in O.S.No.615/2009 of the Sub Court, Kozhikode. The suit is one for partition and the appellant is the plaintiff in the above suit. (Parties are referred to as in the original suit). The averments in the plaint in brief are as follows:- The plaintiff is the son of the late Bhaskaran, 5th defendant is his mother and defendants 1 to 4 are his sisters. The sid Bhaskaran died on 07.03.2009. Plaint A schedule is the immovable property and B schedule is the amount deposited (Rs.9 lakhs) in the Bank by the said Bhaskaran. Plaintiff and defendants are governed by the Hindu Succession Act. According to the plaintiff he is entitled to get 1/6th share over the plaint A and B schedule properties. The plaintiff and defendants are in joint possession of the immovable property. He demanded partition, but the defendants were not agreeable to effect partition according to the law of succession and this situation necessitated the suit for partition. 3. Defendants 1 to 5 filed written statement admitting defendants claim for partition over ‘A’ schedule property but denied the claim for partition over ‘B’ schedule property, stating that 5th defendant alone has right over ‘B’ schedule deposit as she is the nominee appointed by Bhaskaran in the Bank. According to them 5th defendant alone has right over ‘B’ schedule and the amount is not partible. 4. After trial, the suit decreed as prayed for. With respect to ‘B’ schedule Bank deposit the court below considered the point whether the Bank deposit for which nominee was appointed is partible in accordance with law of succession among the whole legal heirs. 4. After trial, the suit decreed as prayed for. With respect to ‘B’ schedule Bank deposit the court below considered the point whether the Bank deposit for which nominee was appointed is partible in accordance with law of succession among the whole legal heirs. Relying on the decisions in Smt. Sabarbati Devi v. Ushadevi (AIR 1984 SC 3246), Vishnu N. Khandchaudari v. Vidya Lachmandas Knanchandini (AIR 2000 SC 2747), Safiaya Usman v. Habeebah (2005 (1) KLT SN 84, Shipra Sengupta v. Mridul Sengapta and Others (2009 (10) SCC 680), the court below rightly held that the status of nominee to a bank deposit is an agent only, to receive the amount from the bank; such amount so received should form a part of the estate of the deceased and should be subject to lawful succession applicable to him. As far as legal heirs of the deceased are concerned, the nominee is only a trustee and all legal heirs have right of succession in accordance with law. The nominee is having a priority to receive the amount from the Bank; but all legal heirs have the right to claim their share as per the right of succession to the estate of the account holder. The nominee is accountable to all legal heirs. 5. Though, neither pleaded nor prayed for in the plaint, at the time of hearing the plaintiff claimed his share in the interest accrued on the fixed deposit also. But the court below declined the claim for interest on the ground of the lack of pleadings and specific prayer. Aggrieved by the denial of interest, this appeal is filed by the plaintiff on various grounds. 6. We heard Shri. Biju Abraham, the learned counsel for the appellant/plaintiff and Shri. K.M. Firoz, the learned counsel for respondents/defendants. The learned counsel for the plaintiff submitted that the lower court has erred in declining 1/6th share of the interest accrued on the fixed deposit. According to the learned counsel, no prayer for interest is one which automatically accrued on the deposit. Since the subject matter of the ‘B’ schedule is the term deposit which carried interest, no relief need be claimed specifically for interest. Even in the absence of specific prayer for interest, the lower court ought to have passed decree granting share in the interest, under Order VII Rule 7 of the Code of Civil Procedure, runs the argument. 7. Since the subject matter of the ‘B’ schedule is the term deposit which carried interest, no relief need be claimed specifically for interest. Even in the absence of specific prayer for interest, the lower court ought to have passed decree granting share in the interest, under Order VII Rule 7 of the Code of Civil Procedure, runs the argument. 7. We have considered the arguments advanced by the learned counsel for the plaintiff and defendants. Admittedly there is no whisper in the plaint regarding accrual of interest as well as the rate of interest of the fixed deposit. In the absence of pleadings, neither any issue was framed in this respect, not any question was put to DW2 when he was in the box to give evidence. Thus admittedly this argument was advanced at the time of hearing without pleadings or specific prayer. 8. The respondents/ defendants entered appearance at the time of admission itself. The learned counsel for the respondents also admitted the claim of the plaintiff, for his share of interest which was neither pleaded, nor prayed for in the suit. According to him also the claim for the share of interest on the fixed deposit can be granted invoking the power of the court to mould relief under Order VII Rule 7. Defendants filed an application under Order VII Rule 7. Defendants filed an application under Order XII Rule 6 read with Order XLI, Rule 32 to pass a decree on admission, granting share of interest to plaintiff and defendants. 9. Thus the question that arises for consideration is whether the relief which is neither pleaded nor prayed for can be granted, when the defendants admit the claim. Order VII Rule 7 reads as follows: 7. Relief to be specifically stated : Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. 10. On a close analysis of the section, it could be seen that the general principle is that every relief shall be stated specifically. And the same rule shall apply to any relief claimed by the defendant in his written statement. 10. On a close analysis of the section, it could be seen that the general principle is that every relief shall be stated specifically. But the second part of the section further states that, it shall not be necessary to ask for general or other relief which may always be given as the court may think just to the same extent as if it had been asked for. The power of the court to grant just and proper relief to a party without his asking is also recognized by the second part of Order VII Rule 7. So a discretionary power is vested under the second part. In short, the second part operates as an exception to the general principles to a limited extent. Thus a procedural flexibility is granted under Order VII Rule 7 in the matter of certain general reliefs. As per third part, the same rule shall apply to reliefs claimed by the defendant in his written statement. 11. With regard to Order VII Rule 7 C.P.C., in page 1827 of Mulla’s Book on the Code of Civil Procedure, 18th Edition, it is stated that:-Under the system of pleadings hitherto followed in India, it was usual to add in the plaint a prayer for general relief called general prayer which ran thus: ‘The plaintiff claims such further or other relief as the nature of the case may require’. Under the present rule it is no longer necessary specifically to ask for such relief. Such relief may now always be given to the same extent as if it had been asked for, provided it is not inconsistent with that specifically claimed, and with the case raised by the pleading. 12. Let us examine judicial precedents. In the decision reported in Sriniwas Ram Kumar v. Mahabir Prasad and others (AIR 1951 SC 177) the Supreme Court held that: “There would be nothing improper in giving the plaintiff a decree upon the case which the defendant, himself makes. A demand of the plaintiff based on the defendant’s own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. A demand of the plaintiff based on the defendant’s own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to file a separate suit.” 13. In the decision reported in Bhagwati Prasad v. Chandramaul (AIR 1966 SC 735) J. Gajendragadkar C.J. speaking for a four Judge Bench observed:- “The general rule no doubt is that the relief should be founded on pleadings made by the parites. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial.” 14. Similar view was taken in Ramesh Kumar v. Kesho Ram (1992 Supp (2) SCC 623), wherein the Supreme Court held that: “6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a ‘cautious cognizance’ of the subsequent changes of fact and law to mould the relief.” (emphasis supplied) 15. But the Supreme Court cautioned the limits of discretion also. In the decision reported in Thankamma Mathew v. Azamathulla and others (AIR 1993 SC 1120) the Supreme Court held that the power under Order VII Rule 7 conferred on the court does not enable it to override a statutory limitation. But the Supreme Court cautioned the limits of discretion also. In the decision reported in Thankamma Mathew v. Azamathulla and others (AIR 1993 SC 1120) the Supreme Court held that the power under Order VII Rule 7 conferred on the court does not enable it to override a statutory limitation. In the decision reported in Sheikh Abdul Kayum and others v. Mulla Alibhai and others (AIR 1963 SC 309) it has been held by this Court that it does not lie which the jurisdiction of a Court to grant relief against a defendant against whom no reliefs have been claimed. In the decision reported in Ganesh Shet v. C.S.G.K. Setty and others (1998 (5) SCC 381) the Supreme Court held that the general or other reliefs as court may deem fit sought by the plaintiff can be granted only when it is consistent with the pleading as well as proof. In the decision reported in Pratap Rai Tanwani v. Uttam Chand (2004 (8) SCC 490) the Supreme Court held that subsequent development can be taken into consideration to afford relief to the parties and to shorten litigation provided only when such developments had a material impact on those rights and obligations. 16. In the decision reported in Kerulan Pillai Narayana Pillai v. Narayana Pillai Raghavan Pillai (1953 KLT 566) this Court held that it is competent for a court to decide a case and adjust the rights of the parties according to the truth which clearly emerged out of evidence in the case though that may not be strictly in accordance with the case set up by either of the parties. But this jurisdiction should be exercised in exceptional cases, very cautiously and without occasioning embarrassment or prejudice to any of the parties. In the decision reported in Michael Thankiah v. Ponnan Nadar (1954 KLT 501), the suit was one for redemption of mortgage but recovery of possession was not sought for. This Court granted recovery of possession, invoking jurisdiction under Order VII Rule 7 of the C.P.C. In the decision reported in Veevi Ummal Maimoonummal v. Salma Ummal (1957 KLT 1211) (Trivandrum Bench) suit was one for partition. Claim was for one-third of one-forth. But later found that the plaintiff is entitled to one third of whole item and passed decree accordingly. Claim was for one-third of one-forth. But later found that the plaintiff is entitled to one third of whole item and passed decree accordingly. This was confirmed and held that in a suit for partition a larger relief than that claimed is allowable. In the decision reported in Chief Secretary v. Mathai Kuriakose (1988 (2) KLT 221), this Court held that plaintiff is entitled to reliefs not pleaded, in exceptional circumstances. An exceptional circumstance would arise if among others, the following conditions are satisfied: (1) when the claim had been admitted by the defendant (2) no injustice could possibly result to the defendant by granting such relief (3) the relief was one which the plaintiff could have made. 17. Let us examine the instant case in the light of judicial precedents. Here claim for interest was neither pleaded nor prayed for in the suit. The object of pleading is to secure the attention of the opposite party on matters in dispute so as to narrow the controversy to precise issues. Put it differently, pleadings are intended to prevent cases being expanded or ground being shifted during trial. Pleadings get significance only when facts in issue are disputed. So when the defendants admit plaintiff’s claim, the rigour of pleading does not preclude the granting of a relief which is not claimed in the suit, but admittedly by defendants. 18. Then the question is Can a relief be granted merely on the reason that defendants admit the claim? No doubt, the Court cannot grant any relief merely on the reason that defendants admit the same. The court can grant relief which permissible under law only, because relief is circumscribed by court fee, limitations, parties to suit, grounds barring relief like resjudicata, estoppel, acquiescence, non-joinder of cause of action etc., which require pleadings and proof. Therefore if the defendants admit the claim, though without pleadings, relief can be granted, unless it is legally barred. It is incumbent upon the Court to put to the test, whether the relief sought for without pleadings is a legally barred one, though the defendants admit the claim? The court cannot stamp its seal of decree on a relief or compromise, which is barred under law, on the reason that defendants also admit or agree to do so. It is incumbent upon the Court to put to the test, whether the relief sought for without pleadings is a legally barred one, though the defendants admit the claim? The court cannot stamp its seal of decree on a relief or compromise, which is barred under law, on the reason that defendants also admit or agree to do so. Similarly, such relief to be granted and which is not specifically claimed shall not be inconsistent with existent pleadings and relief specifically claimed. 19. In a suit for partition, defendant also gets the status of a plaintiff also, and the main issues are the right for partition and partibility of the item which is sought to be partitioned. Here these issues are not disputed. The accrual of interest on fixed deposit is an undisputed fact and it also forms part of the estate of the deceased. Claim for share of interest accrued on deposit is a right which comes as a corollary to the claim for share in the deposit amount. So when the main issues stated above with respect to deposit amount stand undisputed, the claim for share of interest also can be granted even if such a relief is neither pleaded nor specifically asked for, invoking jurisdiction under Order VII Rule 7 C.P.C. We have taken cautious cognizance of the factum of the accrual of interest also. The claim is not a legally barred one. Therefore plaintiff and defendants are entitled to get 1/6th share each on the interest accrued on B schedule fixed deposit and a modified decree granting share of interest is passed accordingly to that extent. In the result, the Appeal is allowed.