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2024 DIGILAW 244 (HP)

Manjeet Kaur v. Devinder Singh

2024-04-08

VIRENDER SINGH

body2024
JUDGMENT : Virender Singh, J. Defendants No. 1 and 2 have filed the present application, under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’), with a prayer to reject the plaint. 2. The application has been moved in the above titled suit, filed by the plaintiffs, under the provisions of Section 22 of the Hindu Succession Act (hereinafter referred to as ‘the Act’), for preemption of share of the plaintiffs over the suit property/land, by declaring that the plaintiffs have a preferential right, as against defendants No. 1 and 2. 3. The suit has been filed on the ground that the plaintiffs have asserted that they are co-owners and co-sharers in possession of the land, comprised in khata khatauni No. 85/144, bearing khasra No. 3, total measuring 01-22-02 hectares, situated at Muhal Bhatanwali, Tehsil Paonta Sahib, District Sirmaur, H.P., as per the jamabandi for the years 2015-16. The suit land is stated to be joint in nature and no partition, according to the plaintiffs, has taken place between the plaintiffs and the other co-sharers, till date. 4. The suit property is stated to be an ancestral property, wherein, the plaintiffs also have coparcenary rights. According to the plaintiffs, apart from that, the grandmother of the plaintiffs, Smt. Sangat Kaur, widow of late Shri Santa Singh, had given a share of her right in the property to the plaintiffs, by way of gift deed, which was registered on 6th September, 2013, in favour of plaintiff No. 1 and defendant No. 3 and vide another document, registered on 6th September, 2013, the share was also gifted to plaintiff No. 2 and defendants No. 4, 5 and 6. Mutation in this regard is also stated to have been sanctioned. 5. Asserting the fact that the plaintiffs are the coparceners and having the right in the entire suit land, the plaintiffs have pleaded their right, under Section 22 of the Act. 6. It is the further case of the plaintiffs that defendants No. 1 and 2, on 5th November, 2022, have purchased the part of the joint suit land and thereafter, they have got approved the sub-division of the suit land into plots from the competent authority. 6. It is the further case of the plaintiffs that defendants No. 1 and 2, on 5th November, 2022, have purchased the part of the joint suit land and thereafter, they have got approved the sub-division of the suit land into plots from the competent authority. While obtaining the requisite permission, defendants No. 1 and 2 are stated to have forged the affidavit of plaintiffs, dated 2nd February, 2023, by virtue of which, the plaintiffs have allegedly given no objection. While doing so, defendants No. 1 and 2 are also stated to have obtained the valuable portion abutting to the road, in their favour. In this regard, mutation No. 294 was sanctioned and entered in the revenue record. 7. All these facts have been pleaded to claim the relief, in terms of Section 22 of the Act. 8. On the basis of the above facts, the relief, by way of decree of declaration, in favour of the plaintiffs and against the defendants, declaring sale deed No. 3433/22, dated 3rd November, 2022; sale deed No. 3452/22, dated 7th November, 2022, and sale deed No. 3503/2022, dated 15th November, 2022, in respect of the suit land, as null and void, has been sought. 9. In addition to this, the plaintiffs have also sought the relief of permanent injunction, restraining the defendants from selling, alienating or creating any third party right or interest in the suit property. The plaintiffs have also sought the relief of preemption/preferential right to purchase the land sold by defendants No. 3 to 6, vide sale deed, referred to above. 10. In the said case, an application, under Order VII Rule 11 CPC has been filed, on the ground, that Santa Singh, predecessor-in-interest of the parties to the lis, was owner of the suit property. He expired on 28th January, 2001. During his lifetime, he had executed a Will, regarding the suit property, in favour of his widow, Sangat Kaur, by bequeathing 291 biswa and 10 biswa in favour of his daughter, Pritam Kaur. Mutation was sanctioned, accordingly, on 12th June, 2001. 11. He expired on 28th January, 2001. During his lifetime, he had executed a Will, regarding the suit property, in favour of his widow, Sangat Kaur, by bequeathing 291 biswa and 10 biswa in favour of his daughter, Pritam Kaur. Mutation was sanctioned, accordingly, on 12th June, 2001. 11. These facts have been pleaded, in the application, to demonstrate that the plaintiffs have not succeeded the land as heirs, specified in Class I of the Schedule to the Act, as, they themselves have asserted the fact that the plaintiffs, alongwith defendants No. 3 to 6, got the property, by way of registered gift deed, dated 6th September, 2013, executed by Sangat Kaur. 12. According to the applicants, these averments, in themselves, are sufficient to reject the plaint, as, from the statement of facts, in the plaint, the suit is barred by law and no relief can be claimed, under Section 22 of the Act. 13. According to the applicants, when, the suit property has been transferred to defendants No. 3 to 6, by way of gift deed, from Sangat Kaur, then, the same cannot be said to have been succeeded by plaintiffs and defendants No. 3 to 6, as heirs, specified in Class I of the Schedule to the Act, 14. In nut shell, it is the case of the applicants that since Santa Singh had executed the Will, in favour of his widow and daughter, who had further gifted the suit land to the plaintiffs and defendants No. 3 to 6, as such, the same is not devolution of interest of heirs, specified in Class I of the Schedule to the Act, 15. As such, a prayer has been made by the applicants-defendants No. 1 and 2, to reject the plaint. 16. This application has been contested by the plaintiffs, by admitting paras No. 1 to 6 of the application. However, it is their stand that Santa Singh was not their common ancestor. The allegations, with regard to the proxy litigation, have also been denied. 17. Thus, a prayer has been made by the non-applicants/plaintiffs to dismiss the application. 18. Alongwith the reply to the application, copy of the Civil Suit, titled as Randeep Kaur versus Devender Kaur and another, has also been annexed. The said suit has been filed by defendant No. 6 against defendants No. 1 and 2. 19. 17. Thus, a prayer has been made by the non-applicants/plaintiffs to dismiss the application. 18. Alongwith the reply to the application, copy of the Civil Suit, titled as Randeep Kaur versus Devender Kaur and another, has also been annexed. The said suit has been filed by defendant No. 6 against defendants No. 1 and 2. 19. From the stand, as taken in the application, the applicants are seeking the rejection of the plaint, in terms of the provisions of Order VII Rule 11 (d) CPC. The provisions of Order & Rule 11 CPC, are reproduced, 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 returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-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 with the provisions of rule 9 : 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 form 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. 20. The present suit has been filed under Section 22 of the Act, which reads, as under: “22. 20. The present suit has been filed under Section 22 of the Act, which reads, as under: “22. Preferential right to acquire property in certain cases.— (1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application. (3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation.—In this section, “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.” 21. While deciding the application, under Order VII Rule 11 CPC, only the pleadings, as contained in the plaint, are to be considered. 22. In para-3 of the plaint, it has been pleaded that the grandmother of the plaintiffs, Sangat Kaur, widow of Santa Singh, had given a share of her right, by way of gift deed. According to the considered opinion of this Court, the grandmother of the plaintiffs, Sangat Kaur, was absolute owner of the land, as per the provisions of Section 14 of the Act and when, the property was gifted by Sangat Kaur to the plaintiffs, then, the same was not inherited by the plaintiffs, as heirs specified in Class I of the Schedule to the Act. Receiving the property, by way of gift, does not fall within the definition of devolution of interest in the suit land, being heirs, specified in Class I of the Schedule to the Act, which is the sine quo non, for seeking the relief, under Section 22 of the Act. 23. Even otherwise, it has been pleaded in paras-1 to 6, of the application, that the property was earlier owned by Santa Singh, who expired on 28th January, 2001 and he has executed a Will, regarding the suit land, in favour of his widow-Sangat Kaur, to the extent of 291 biswas and 10 biswas in favour of his daughter-Pritam Kaur. 24. Meaning thereby, the property has not devolved upon the plaintiffs as heirs, specified in Class I of the Schedule to the Act. The estate of Santa Singh was not devolved on the basis of non testamentary succession, but, the same was bequeathed to Sangat Kaur and Pritam Kaur, on the basis of the Will. The property, which was in the hands of Sangat Kaur and Pritam Kaur, was their absolute property, which, as per the pleaded case of the plaintiffs, was gifted to the plaintiffs and defendants No. 3 to 6, on the basis of the gift deeds. 25. Even, the plain reading of the plaint does not make out a case, in favour of the plaintiffs, that the suit property was devolved upon them, being the heirs, specified in Class I of the Schedule to the Act. 26. The law, is no longer res integra that while deciding the application, under Order 7 Rule 11 CPC, only averments of the plaint, as made, are material, and can only be taken into consideration. 27. The Hon’ble Supreme Court in case, titled as Sopan Sukhdeo Sable versus Charity Commr., reported in 2004 (3) SCC 137 , has elaborately discussed the provisions of Order VII Rule 11 CPC. Relevant paragraphs 11 and 12 of the judgment, are reproduced, as under: “11. 27. The Hon’ble Supreme Court in case, titled as Sopan Sukhdeo Sable versus Charity Commr., reported in 2004 (3) SCC 137 , has elaborately discussed the provisions of Order VII Rule 11 CPC. Relevant paragraphs 11 and 12 of the judgment, are reproduced, as under: “11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70 ] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code. 12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See Arivandandam v. T.V. Satyapal [ (1977) 4 SCC 467 ].)" 28. The similar view has been taken by the Hon’ble Supreme Court in a case, titled as, Madanuri Sri Rama Chandra Murthy versus Syed Jala, reported in 2017 (13) SCC 174 . Relevant paragraph-7 of the judgment is reproduced as under: “7. The plaint can be rejected under Order 7 Rule 11, if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip in the bud at the earliest so that bogus litigation will end at the earlier stage." (Self emphasis supplied) 29. Judging the facts and circumstances of the present case, in the light of the above decisions, as well as, the meaningful reading of the plaint, this Court is of the considered opinion that the ingredients of Section 22 of the Act does not fulfill, in this case, and, the applicants are able to bring their case, within the purview of Order VII Rule 11 CPC. As such, the plaintiffs are having no cause of action to file the suit. Thus, the application deserves to be allowed and is accordingly, allowed. CS No. 40 of 2023 30. As such, the plaintiffs are having no cause of action to file the suit. Thus, the application deserves to be allowed and is accordingly, allowed. CS No. 40 of 2023 30. In view of the order passed in OMP No. 504 of 2023 (supra), whereby, the application, under Order VII Rule 11 CPC, for rejection of plaint, has been allowed, the plaint is ordered to be rejected. 31. Pending miscellaneous applications, if any, are also disposed of accordingly. 32. Decree sheet be prepared accordingly.