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Judgment
It is a trite law that the Court shall confine its scrutiny on the averments made in the plaint for the purpose of rejection of plaint under Order VII Rule 11 (d) of the Code of Civil Procedure. The Court shall not look into any other documents nor the facts pleaded by the defendants either in the written statement or in an application for rejection of plaint at the time of considering an application filed under the aforesaid provision.
It is only upon meaningful reading of the averments made in the plaint and the cause of action pleaded therein, if the Court finds that the suit is barred by law, the plaint may be rejected. Astonishingly the Court expressly observed that the plaintiffs' right to partition will not be vitiated even by a purchaser in E-auction, as he cannot interfere with his share in the suit property, but proceeded to dismiss the suit having bared under Section 34 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act.).
Our attention is drawn to the plaint and the reliefs claimed therein. It is a simplicitor suit for partition and separation of shares. It is averred in the plaint that initially the property was owned by one Mahal Singh; upon his death it devolves upon his wife, three sons and two daughters. The factum of divestation of undivided right, title and interest in the inherited property has been adumbrated in several paragraphs of the plaint and the cause of action has been stated to have commenced when the request of amicable partition was made, which was not adhered to.
Since the Court has held that the suit is hit by Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act.), we invited Ms. Joshi, learned Advocate, appearing for the Bank, to disclose the extent of mortgage made with her client. It is divulged before us today that the mortgage was restricted to the extent of share held by the respondent no. 3 and not in respect of the entire property.
The plaint case proceeds that there was no partition ever effected in respect of the estate left by Mahal Singh and whatever transaction that have been made was in respect of the undivided portion, though the Deed executed speaks otherwise. If the heirs and legal representatives of the sole owner inherited the estate, such inheritance is in conjoint with the other co-sharers and there remains a unity, unless the shares are separated by a valid Deed or a decree of the Court.
A plea of limitation is sought to be raised by the Bank that the said suit is palpably barred by limitation having not filed within three years from the date of attaining majority.
After inviting the learned Advocate appearing for the Bank to elaborate such submission, it is clarified that the suit for partition should have been filed within three year from the date of attaining majority or at best after acquiring the interest in the property and not thereafter.
We are unable to persuade ourselves to agree with such proposition of law. The right, title and interest came to be vested upon the heirs and legal representatives immediately upon the death of the predecessor and once the right is vested, the right cannot be divested except by the authority of law. The undivided right, title and interest jointly with the other co-sharers does not ipso facto take away the right of the coparcener/co-owner to claim partition at any point of time. The cause of action relating to a suit for partition and separation of shares commenced on request to make an amicable partition and its refusal or non-adherence thereof.
We, thus, do not find that the limitation has role to play in a suit of such nature; more particularly on such plea agitated by the Bank. The Bank consciously mortgaged a share of the borrower held in an undivided property, which does not bind the other co-sharers to the extent of their shares acquired and possessed by them by way of intestate succession. The moment the shares are separated by passing a final decree and the portion is allotted to the borrower, the Bank may lay their claim provided the default persist and continued. Since the account of the borrower became non-performing asset, the Bank initiated a proceeding against the borrower under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act.), which has got nothing to do with the reliefs of partition and separation of shares. The Bank being arraigned as party in the partition suit shall defend to the extent of the share held by the borrower and mortgaged with them and, therefore, Section 34 of the SARFAESI Act cannot be pressed in action to hold that the suit is barred by law.
A plea is taken by the respondent no. 3 that Mahal Singh during his lifetime divested a portion of the property in favour of a third party and, therefore, the suit is not maintainable.
We do not find any reflection of such fact in the plaint and, therefore, we cannot look into such material. At the stage of rejection of a plaint the Court shall consider the averments made in the plaint and not any alien or foreign facts disclosed by the defendants. The distinction has to be drawn between the rejection of a plaint being barred by law and the dismissal of a suit based upon the facts disclosed by the defendants. It is open to the defendants to take defence, which is available to them and ultimately may emerge successful therefrom, provided they prove the same, but certainly not at the stage of rejection of a plaint, as the Court cannot travel beyond the peripheral of the plaint.
We thus find that the findings of the Trial Court are perverse, illegal and infirm and deserve to be interfered with.
The impugned judgement is hereby set aside. The application under Order VII Rule 11 of the Code of Civil Procedure stands rejected.
The suit is restored to its original file and number so the application for injunction filed by the plaintiffs. However, the contesting defendants are at liberty to file written statement within four weeks from date. The Trial Court is directed to hear out the application for injunction afresh without being swayed by any observations made hereinabove.
There will be no order as to costs.