K. Annpoorna Prasad and Others vs Susheelamma and Others

N. Kumar, J.—It is a plaintiffs regular appeal under Section 96 of the Code of Civil Procedure challenging the order passed by the Trial Court allowing the applications filed under Order 7 Rule 11 of the Code of Civil Procedure and consequently dismissing the suit.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The 1st plaintiff is the mother and 2nd plaintiff is the son. Plaintiffs have filed a suit against the mother, brothers and sister of the 1st plaintiff and the developer - 7th defendant, who purchased a portion of the schedule property, for the following reliefs:

i. Directing the partition of the plaint schedule A property by metes and bounds and to thereafter such partition put the plaintiffs in separate possession of their legitimate 1/6th share in the suit schedule property.

ii. Declare that the partition deed 17-5-2001 executed by and between Defendants 1 to 4 registered as Document No. 1552/01-02 in Book - I, Vol - 4891 at Pages 158 to 163 in the Office of the sub-registrar, Bangalore South Taluka, as null and void does not bind the Plaintiffs.

iii. Declare that the Gift Deed dated 16-6-2004, executed by Defendant No. 1 in favour of Defendant No. 4 of her share in the schedule property on the strength of the alleged partition deed, in vide registered document No. 665/04-05 in Book-I, stored in CD No. 73 in the Office of the sub-registrar, Bangalore South Taluk in respect of 2 acres 15 Guntas in old Sy. No. 96/3 as null and void does not bind the Plaintiffs.

iv. Declare that the Release Deed dated 08/02/2008 executed by the 1st defendant, on the strength of the Registered GPA (In Book IV as No. BSK 4-00187-2007-2008 and preserved in CD No. BSKDU dated 2-2-2008 in the Office of the Sub-Registrar, Banashankari, Bangalore) in favour of the 4trh defendant releasing the plaintiffs share carved out of suit schedule property described as Item No. 1 and Item 2 in the said document registered as documents No.BGR-1-02385-2007-2008 in Book I and preserved in CD No. BGRD 9 dated 8-2-2008 in the Office of the Sub-Registrar, Bangalore City District that 1st plaintiff Smt Annapoorna Prasad has relinquished her share in favour of 4th as a sham and collusive document and does not bind the Plaintiffs in any matter what so ever.

v. Declare that the Confirmation deed dated 19-11/2008 Registered as Document No.BGR-1-02027 of 2008-2009 in Book I and preserved in CD No.BGRD 18 dated 19-11-2008, Registered in the Office of the Senior Sub-Registrar, Bangalore executed by the 1st plaintiff confirming the release deed dated 08/02/2008 registered as documents No.BGR-1-02385-2007-2008 in Book I and preserved in CD No. BGRD 9 dated 8-2-2008 in the Office of the Sub-Registrar, Begur, Bangalore City District as a document secured by strategy of trick and deceit and does not bind the Plaintiffs in any matter what so ever.

vi. Declare that the acts and deed and execution of the Release deed on the strength of GPA in Book IV as No.BSK-4-00187-2007-2008 and preserved in CD No. BSKD 17 dated 2-2-2008 in the office of the Sub-Registrar, Banashankari, Bangalore not binding on the plaintiffs and the powers conferred on the 1st defendant are applied in bad faith and in collusion with the other defendant (1-5 and 7) to derive the Plaintiffs of their property.

vii. Declare that the sale deed executed by the defendants 1 to 4 in favour of the 6th defendant does not bind the plaintiffs and they also be allotted their 1/6th share by metes and bounds in the same and be put in possession of the Plaintiffs.

viii. Direct the Defendants to pay the Plaintiffs the costs of this Suit and grant such other relief or reliefs as this Hon''ble Court deems fit to grant in the circumstances of the case to meet the ends of justice and equity.

ix. The plaintiffs in abundant caution and alternatively pray that in the event the Court comes to the conclusion that the development made by the 7th defendant in suit schedule B. portion, and thereby created third party rights not be disturbed, they be allotted their 1/6th share in the developed property with proportionate undivided share in the same both carved out the developers share and the defendants share and put them in possession of such apartments in accordance with the Karnataka Apartments Ownership Act 1972, free from all encumbrances.

The case of the plaintiffs is the propositus of the family is one Late Ramaiah Naidu. He died intestate on 23.02.1976 at Bangalore leaving behind the 1st plaintiff and defendants 1 to 6 as his legal heirs. He was possessed of several self-acquired movable and immovable properties in and around Bangalore, which were all his self-acquired properties. The plaintiffs are claiming their 1/6th share in the schedule property bearing Sy. No. 93/3 (New Sy. No. 145/1) at Kammanahalli Village, Begur Hobli, Bangalore South Taluka measuring 13 acres and 3 guntas, which was not the subject matter of any partition between the parties and which had been kept in tact. Insofar as the schedule property is concerned, all the parties to hold it jointly, all the legal heirs of the propositus being the co-owners of the property. The 1st plaintiff lost her husband shortly after the birth of the 2nd plaintiff By virtue of this tragedy, she fully trusted her brother and never used to question their suggestions. When her son was in abroad at the relevant time, where he studied, she had to transit frequently between India and USA. Defendants 1 to 4 suggested that the 1st defendant to represent her during her absence, executed a Power of Attorney dated 02.02.2008 in favour of her mother, the 1st defendant, who in turn executed a release deed on 08.02.2008 releasing the right of the plaintiff over item Nos. 1 and 2 of ''B'' schedule property in favour of the defendant No. 4. Later she learnt that the 4th defendant executed a Joint Development Agreement with the 7th defendant for the development of suit item Nos. 1 and 2 of ''B'' Schedule property and also sold some portion to the 6th defendant these things were suppressed from her knowledge. The said fact came to her knowledge recently when she secured the encumbrance certificate and copies of the extracts. She also came to know that defendant No. 1 has executed a release deed stating that the 1st plaintiff has released the share in the two item numbers mentioned in the GPA. The manner in which the partial release deed has been executed to certain portion of the land only demonstrates the fact that defendants 1 and 4, in collusion with defendants 2 and 3 have executed a partial release deed. She had no intention to give up her share in any part of the suit schedule property. Therefore, the said deeds executed in pursuance of the GPA are sham documents and are not binding on the plaintiffs. None of the defendants have disclosed to the plaintiffs about the alleged release deed nor copy of the confirmation deed had been given to them at the time. Moreover, confirmation deed-2 was secured adopting the strategy of trick and deceit on the assurance that her share is intact and that her share would be given to her. The 1st plaintiff was never made known that defendants 1 to 4 were negotiating for development of the property. The 1st plaintiff when she had returned from US, during the year 2008 was requested by the 4th defendant to confirm the release deed and once again in good faith she has executed the confirmation deed. There was no disclosure of material information nor that the 1st plaintiff was competent to understand and decide nor was she even competent to take voluntary decision and still trusted defendants 1 to 6. Recently, she noticed that in the portion culled out of the entire 38 guntas in the GPA, construction activity was in progress. It is then when she approached the defendants, they gave evasive answers. On discreet enquiries, she came to know that the said portion has been alienated and 7th defendant is developing the property. Immediately, thereafter, she caused a legal notice issued and filed the suit for the aforesaid reliefs.

The defendants have filed a detailed written statement contesting the claim denying all the allegations. The 7th defendant has filed I.A. No. 12 under order 7 Rule 11(a) of CPC contending that as the plaint does not disclose the cause of action, the plaint is liable to be rejected. The 4th defendant also has filed an application LA. No. 13 under Order 7 Rule 11(a) and (d) for rejection of the plaint on the ground that it does not disclose any cause of action and also that the suit is barred by law of limitation. The said applications were opposed by the plaintiffs.

The Trial Court after considering the averments in the plaint and the arguments of the learned counsel for the parties, was of the view that a plaint cannot be rejected on the ground that it is barred by limitation as the evidence is necessary to give a finding on the said question. However, the Trial Court recorded a finding that when the 1st plaintiff has executed the confirmation deed and it is duly registered and the 4th defendant has entered into a Joint Development Agreement with the 7th defendant, her case that her share would be intact notwithstanding the execution of the said document is beyond the ordinary conduct. The trial court was of the view that if the said documents are set-aside there would be no end to litigation. On the said grounds, the plaint came to be rejected under order 7 Rule 11(a) of CPC. Strangely, the Court directed the counter claim preferred by the 7th defendant is to be continued. Aggrieved by the said judgment, the plaintiffs are before this Court.

Sri. S.K.V. Chalapathy, learned Senior counsel assailing the impugned order contended that there is no finding recorded by the Trial Court that the plaint does not disclose a cause of action, but still it has allowed the application filed under order 7 Rule 11(a) of CPC and consequently dismissed the suit, which is ex facie illegal and requires to be set-aside. The Court below has recorded a finding that the plaint cannot be rejected on the ground of limitation. But still though it did not dismiss the suit under Order 7 Rule 11(d) of CPC, the rejection of the plaint on a consequential dismissal is illegal and contrary to law and requires to be set-aside.

Per contra, Sri. Ashok Haranahalli, learned Senior counsel for the 4th respondent, supporting the impugned order contended that when the 1st plaintiff has executed GPA in favour of her mother, who in turn executed the release deed in favour of the 4th defendant, who in turn has entered into a Joint Development Agreement and executed a confirmation deed without seeking cancellation of these documents could not maintain a suit for a mere declaration that the said transactions are not binding on her. The suit is clearly barred under Section 31 of the Specific Relief Act. He also contended that the suit is barred by Limitation. Though the Trial Court has negatived their contention, it is open to the defendants to urge before this Court the said grounds. He has pressed into service the judgments of various Courts where it is held that if the suit is to be barred by limitation of time, the plaint is to be rejected under Order 7 Rule 11(d) of CPC. Therefore, he submits that the plaint is liable to be rejected on the ground of bar of limitation.

Sri. Rajeshwara P.N., learned counsel appearing for the 7th defendant contended that the 7th defendant has put up more than 300 apartments. He has sold more than 100 apartments. He has entered into contract to sell another 60 apartments. Even if the 1st plaintiff has any right, she has to work out her right in the flats, which are in the possession of the owner. Therefore, she cannot seek for any relief against the 7th defendant and therefore in the absence of any specific plea showing any cause of action against the 7th defendant, the application filed by the 7th defendant for rejection of the plaint is perfectly maintainable and the Trial Court committed no error in rejecting the plaint and therefore, he submits that no case for interference is made out.

In the light of the aforesaid facts and the contentions urged before us, the point that arise for our consideration is as under:

[a] Whether the Trial Court was justified in allowing the application filed under Order VII Rule 11[a] of the CPC rejecting the plaint on the ground of want of cause of action?

[b] Whether the finding of the Trial Court that the plaint cannot be rejected on the ground it is barred by limitation as evidence is required to be taken to answer the question one way or the other?

Order VII Rule 11[a] and [d] of the CPC, read 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] xxxx

[c] xxxx

[d] where the suit appears from the statement in the plaint to be barred by any law."

A plaint would be rejected when it does not disclose cause of action or where suit appears from the statement in the plaint to be barred by any law. The 7th Defendant entered into a Joint Development Agreement with the 4th Defendant being persuaded by the Power of Attorney dated 2.2.2008, the Release Deed dated 8.2.2008 and the Confirmation Deed dated 19.11.2008. It is by virtue of the said Joint Development Agreement, the 7th defendant has put up construction. However, it is clear, under the Joint Development Agreement, the 7th Defendant did not acquire any right, tide or interest in the immovable property. Therefore, in the suit for partition between the family members, at the stage of preliminary decree all that the Court is called upon to decide is as to what is the share to which the family members are entitled to in the schedule property. The question whether one of the family members if he has alienated the property, whether such alienation is valid or not is not a matter to be gone into at the stage of preliminary decree. Similarly, if he has entered into a Joint Development Agreement with a Builder, the legality or correctness of that document cannot be the subject matter of a preliminary decree proceedings. Therefore, the 7th Defendant who is neither necessary nor proper party in the suit for partition between the family members, cannot maintain an application under Order VII Rule 11[a] of CPC as no relief is sought against the 7th Defendant nor can it be granted by the Court at the stage of preliminary decree. It is his contention that the plaintiffs have executed a general Power of Attorney in favour of the 1st Defendant her mother who in turn has executed the release deed in favour of 4th Defendant her son and subsequently the said release deed has been confirmed by Deed of Confirmation by the 1st plaintiff and therefore the plaintiffs are estopped from challenging those documents. As none of those documents are in favour of the 7th Defendant, the 7th Defendant is no way affected by the said challenge and therefore he cannot contend that there is no cause of action for the suit. The suit is one for partition and separate possession. The relationship between the parties is admitted. The plaintiffs contend the subject matter of the suit is self acquired property of the father of 1st plaintiff and therefore she has a right in the said property on his death and therefore it cannot be said there is no cause of action for the suit. The question whether the 4th Defendant was justified in entering into a Joint Development Agreement, whether it affects the interest of the plaintiffs is a matter to be gone into after recording of evidence during trial. In fact, the Trial Court in the entire order has not gone into the question whether the plaint is to be rejected on the ground it did not disclose cause of action at all and therefore allowing the application under Order VII Rule 11[a] of CPC which speaks about the plaint not disclosing cause of action is ex facie illegal and requires to be set aside. The 4th Defendant sought rejection of the plaint both on the ground of want of cause of action as well as on the ground of limitation. The 4th Defendant cannot contend that the plaint does not disclose cause of action because he is a member of the family, he is also claiming right to the property from his father as 1st plaintiff is claiming right as daughter under section 8 of the Hindu Succession Act, 1956 and whether he acquires absolute title in respect of property which is subject matter release deed and confirmation deed is again the matter to be gone into after trial after evidence being recorded and therefore his application under Order VII Rule 11[a] of CPC is misconceived. Insofar as the ground of bar of limitation is concerned, the Trial Court has recorded categorical finding that without evidence being recorded, it is unable to say whether the suit is barred by limitation or not. In fact, the limitation is a mixed question of law and fact. Therefore, unless evidence is recorded, categorical finding is recorded based on evidence, it cannot be said that the suit is barred by limitation. In fact, section 3 of the Limitation Act, 1963 categorically states ''subject to the provisions contained in sections 4 to 24 [inclusive] every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence''. So the Court can dismiss the suit only if the case does not fall within sections 4 to 24. Suit, appeal or application can be dismissed only if the case does not fall within sections 4 to 24. Whether the case falls within sections 4 to 24 is a question of fact. Therefore, it is well settled, limitation being mixed question of law and fact can neither be tried as preliminary issue nor on that ground the plaint could be rejected. In the instant case, the plaintiffs have categorically stated in the plaint that suit is in time. In order to find out the limitation, the entire plaint has to be read as a whole, it is not mere cause of action column. If the plaint is read as a whole, the plaint alleges though 1st plaintiff has executed several documents, only recently, i.e., prior to the filing of the suit, she came to know the trick played on her to obtain those documents. Whether the limitation starts from the date of knowledge or from the date of execution of the document is a matter to be decided after trial after recording of evidence. Therefore, the Trial Court was justified in not allowing the application filed under Order VII Rule 11[d] of CPC.

Learned Counsel for the defendants relied on several Judgments, one such Judgment being the Apex Court Judgment in the case of ''N.V. SRINIVASA MURTHY AND OTHERS v. MARIYAMMA [DEAD] BY PROPOSED LRs. AND OTHERS'' reported in 2005 SAR [CIVIL] 604.

In the aforesaid Judgment, the Apex Court held the High Court does not seem to be right in rejecting the plaint on the ground that it has not disclosed any cause of action. But, in their view, the Trial Court was right in coming to the conclusion that accepting all averments in the plaint, suit seems to be barred by limitation. In the facts of the said case, the plaintiff had filed civil suit No. 557/1990 claiming that sale deed dated 5.5.1953 to be declared as really not sale deed but a loan transaction. Relief of conveyance of property under the alleged oral agreement, the loan has been deliberately omitted from the relief clause. It is during the pendency of the said suit, second suit was filed on 26.8.1996 for declaration that the plaintiffs are the absolute owners of the suit lands for permanent injunction restraining the defendants from wrongfully entering the schedule property and from interfering with peaceful possession and enjoyment of the schedule lands. It is in this background, it was held when cause of action arose in the year 1990, the suit for declaration should have been filed within three years therefrom. But, the suit is filed on 26.8.1996 and therefore the application filed under Order VII Rule 11[d] of CPC came to be allowed.

Firstly, in the instant case, there are no such earlier suits. Secondly, the 1st plaintiff is seeking for declaration that the document she has executed are sham transactions as there was no meeting of the mind and she was not aware of the contents of the documents. In other words, it is non est in the eye of law. The question whether she was not aware of the contents of the documents, whether such documents were obtained by playing any trick is a matter to be investigated after trial and therefore said Judgment has no application.

Again, reliance is placed on the Judgment of the Apex Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, AIR 2010 SC 2807 : (2010) 3 JT 472 : (2010) 158 PLR 707 : (2010) 3 SCALE 389 : (2010) 4 SCR 1121 : (2010) AIRSCW 3308 : (2010) 2 Supreme 670 , where it has been held in what circumstances the plaintiff has to seek for cancellation of a deed and declaration that deed is not binding on him. It has nothing to do with Order VII Rule 11[d] of CPC and therefore it has no application.

Similarly, Apex Court in the case of '' Ranganayakamma and Another Vs. K.S. Prakash (D) by L.Rs. and Others, (2008) 8 JT 510 : (2008) 9 SCALE 144 : (2008) 15 SCC 673 dealing with the Judgment rendered by a High Court under section 96 of CPC, was of the view when fraud is alleged, necessary particulars have to be furnished and thereafter evidence has to be adduced. In the absence of material particulars regarding fraud being played in the plaint, the case of fraud is not established. Again it has nothing to do with Order VII Rule 11[d] of CPC.

Under these circumstances, we are of the view that the Trial Court has committed serious error in allowing the application under Order VII Rule 11[a] of CPC and consequently dismissing the suit. The said Judgment and Decree is not sustainable.

In the result, we pass the following:

ORDER

The appeal is allowed.

The impugned Judgment and Decree of the Trial Court is hereby set aside. Applications filed under Order VII Rule 11[a] and [d] of CPC filed by Defendants 4 and 7 respectively are dismissed. The suit is restored to file.

The matter is remitted back to the Trial Court for fresh disposal in accordance with law after affording opportunity to both the parties to adduce evidence in support of their respective pleas.