Manmohan Singh, J.@mdashBy this order I shall dispose of the three applications being I.A. No. 9715/2009 under Order XXXIX Rules 1 & 2 filed by the plaintiff under the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC for brevity) and I.A. No. 14362/2009 under Order VII Rule 11 of the CPC along with I.A. No. 14363/2009 under Order XXXIX Rule 4 of the CPC, both filed by defendants No. 1 to 4.
2. The order in I.A. No. 14362/2009 was reserved on 6th November, 2009 and the rest of the two applications were heard and order was reserved on 9th November, 2009.
3. The facts of the matter are that the plaintiffs filed the present suit for cancellation of sale deeds in respect of property bearing No. 2272, Hudson Lines, Kingsway Camp, Delhi-110009 (hereinafter referred to as the ''suit property'') executed by way of three separate sale deeds in favour of defendants No. 1 to 4 on 19th December, 2008, 1st January, 2009 and 1st January, 2009 by Sh. Vivek Goel, defendant No. 5 and defendant No. 6 respectively, the said executants being the legal heirs (son and two daughters respectively) of late Smt. Uma Goel and the actual and lawful owners of the suit property for valuable consideration of Rs. 49.50 lac.
4. It is the plaintiffs'' assertion that plaintiff Nos. 1 and 2 are the two trustees of plaintiff No. 3 Trust which has been created by late Smt. Uma Goel by way of a testamentary deposition dated 27th August, 2007. The plaintiff No. 3 Trust is claimed to have been created for the benefit of late Smt. Uma Goel''s son, namely Sh. Vivek Goel. As per the plaintiff Nos. 1 and 2, they were directed to get the Trust Deed prepared and registered.
5. It is contended in the plaint that the reason for forming the Trust was that its beneficiary Sh. Vivek Goel, brother of defendant Nos. 5 and 6 and son of Mrs. Uma Goel, is not of sound mind and is a lunatic.
6. As per the plaintiffs, Sh. Vivek Goel has always been a child with mentally retarded growth and therefore, is inherently incapacitated when it comes to understanding most things.
7. According to the plaintiff the Trust was created with regard to various properties which include, inter alia, certain Immovable properties which are mentioned below:
(i) Entire Build up property with its roof upto sky heights with all rights therein with freehold land underneath measuring about 160 sq. yds. or whatsoever is more or less in the boundaries, fitted with water and electric connections, bearing property Municipal No. 2272, situated at Hudson Lines, Kingsway Camp, Delhi by virtue of Conveyance Deed dated 18th day of March, 1999 duly registered No. 574, in Addl. Book No. I, Volume No. 60, on pages 10 to 12, registered on 6th day of April, 1999 with the Sub-Registrar, Sub-Distt. No. VI-C, Distt. North West, Delhi.
(ii) 1/4th undivided share in old structure (khandar) entire built up property with roof with 1/4th undivided share in land underneath measuring about 377 sq. yds. approx. fitted with water and electric connections, bearing property municipal No. 2212, situated at Gali Hinga Beg, Tilak Bazar, Delhi-1100 06, by virtue of relinquishment deed registered as document No. 1399, in Book No. I, Vol. No. 2149, on page 123 to 131, registered on 28th March, 2007 with the Sub-Registrar, Kashmere Gate, Delhi.
8. The defendant Nos. 1 to 4 are the purchasers in the three sale deeds. One deed has been executed by defendant No. 5 and another by Sh. Vivek Goel, who is not capable of transacting any business or deed due to his unsound state of mind. The third sale deed is alleged to have been executed by defendant No. 6, however, it is the plaintiffs? contention that they do not have any knowledge or confirmed information in this regard and can only allege that a sale deed has been executed by defendant No. 6 in favour of defendant Nos. 1 to 4 jointly and severally with the involvement of a third person.
9. It is further contended by the plaintiffs that defendant Nos. 5 and 6 wrongfully claimed in the impugned title deeds that Smt. Uma Goel died intestate and that they were her successors. Defendant No. 5 and 6 knew that the document dated 27th August, 2007 was not a Trust Deed but late Smt. Uma Goel''s Will and they were deprived of the succession to the suit property as they were under pressure from her husband who conspired to take undue advantage of the mental infirmity of Sh. Vivek Goel.
10. The suit property comprises of a superstructure which was originally the plot allotted jointly to Adrash Kumar S/o Sh. Ram Lal, Smt.Chander W/o Sh.Adrash vide a perpetual lease deed dated 21st December, 1989 which was registered with the Sub Registrar, Delhi. The said joint allottees sold the said plot through valid sale documents and also executed a general power of attorney in favour of Sh. Vishwanath Goel, husband of late Smt. Uma Goel.
11. According to the plaintiffs, late Smt. Uma Goel constructed the existing superstructure as it existed in January 2009 by her own means and the said structure comprises of a basement, ground floor, first floor and half second floor with terrace thereon.
12. The title of the suit property in the hands of late Smt. Uma Goel and the conveyance deed dated 18th March, 1999 were executed through the DDA regarding the sale transaction, reaffirming the title in respect of the suit property in favour of late Smt. Uma Goel.
13. The case of the plaintiffs is that in order to secure the suit property, late Smt. Uma Goel executed a Will on a stamp paper of Rs. 100/- titled as a Trust Deed dated 27th August, 2007 and she never intended for herself to have any role in the functioning of the Trust in her lifetime. The said document was to come into operation only after her demise and a bare perusal of the document shows the intent of the author, who is described therein as ''settler'', in the said document to create the Trust by appointing two of her most trusted persons to look after the welfare of her son Sh. Vivek Goel, who was to be the beneficiary of the aforesaid testamentary deposition.
14. Late Smt. Uma Goel died on 15th December, 2007 and, therefore, the said documents came into operation resulting in the formation of the Trust. As a consequence, plaintiff Nos. 1 and 2 were to take over the suit property in the capacity of the trustees and only the trustees alone could have become the executants in any sale deed of the suit property, having acquired the exclusive right to dispose of the same as custodian thereof, and only in terms of the Trust as based on the details contained in the document dated 27th August, 2007.
15. According to the plaintiffs, after the death of their mother, defendant Nos. 5 and 6 shifted to the suit property on the pretext of looking after Sh. Vivek Goel and once there, they hatched a conspiracy in collusion with defendant Nos. 1 to 4 for sale of the suit property in order to grab their share at the expense of the welfare of their brother Sh. Vivek Goel.
16. The said defendant Nos. 5 and 6, therefore, executed three sale deeds as mentioned above. The plaintiffs have sought a decree in their favour for declaration against the defendants declaring that the three sale deeds be cancelled and have prayed that a decree for possession be passed in favour of the plaintiffs as trustees for the welfare of Sh. Vivek Goel and permanent injunction be passed restraining defendant Nos. 1 to 4 from transferring, selling or otherwise alienating in any manner the suit property to any third person without the consent of the plaintiffs and further from carrying out any kind of construction work/renovation work on the basis of the three impugned sale deeds.
17. The suit as well as I.A. No. 9715/2009 under Order XXXIX Rules 1 and 2 were listed on 3rd August, 2009 when summons were issued to the defendants and defendant Nos. 1 to 4 were ex parte restrained from creating any kind of third party interest in the suit property.
18. Defendant Nos. 1 to 4 thereafter filed the two applications i.e. I.A. No. 14362/09 under Order VII Rule 11 for rejection of plaint and I.A. No. 14363/09 under Order XXXIX Rule 4 for vacation of the ex parte ad interim order granted on 3rd August, 2009. Subsequent to these applications, the plaintiff filed the application under Order VI Rule 17 being I.A. No. 12540/2009 for amendment of the plaint.
19. The contentions of the defendants in their applications and in the written statement are common and to the effect that the plaintiffs have filed the suit on the basis of a forged and fabricated document allegedly executed by late Smt. Uma Goel claiming that though the plaintiff Nos. 1 and 2 are the trustees of plaintiff No. 3 but the document where under they are claiming to be trustees is not a Trust Deed.
20. The contention of the defendants is that the document now purported by the plaintiffs to be a Will creating a Trust Deed is not only a forged document, but that the plaintiffs, unsure of their contentions since the same are based on lies sent a notice dated 7th March, 2009 to the defendants, categorically admitted that late Smt. Uma Goel created the Trust by way of the alleged deed and that they are the trustees of the said Trust. The plaintiffs have not raised even a whisper in the said notice that the said document was in fact a Will.
21. The contention of the defendants is that after sending the above-mentioned notice, the plaintiffs obtained some legal advice as a result of which they have made a summersault and completely altered their stand and the nature and form of the document which was the basis of filing of the present suit is contended to be different i.e. this suit was filed on the basis of an unregistered Trust Deed which is now claimed to be a Will creating a Trust.
22. Mr. Sandeep Sethi, learned senior Counsel appearing on behalf of the defendant Nos. 1 to 4 has referred the pleadings of defendant Nos. 1 to 4 and argued that the plaintiffs have changed their stance from time to time. The details of this varying stand taken by the plaintiffs are given as under:
a) When the legal notice dated 7th March, 2009 was issued by the plaintiffs, it was categorically admitted that the purported document was a Trust Deed. In the present suit, according to the plaintiffs, the said document is a Will and now it has been argued by the plaintiffs that the document is a Trust created by the Will. According to the senior Counsel, the plaintiffs forget that if a Trust is created under a Will, the documents need to be willed first i.e. the instrument operates only after the death of the author whereas in the present case, assuming for the sake of argument that the said document is not forged and fabricated, Clause 14 of the purported document conclusively demonstrates the intention of the alleged author to bring the document into operation during her lifetime and not after the author''s death.
b) It is the primary contention of the learned senior Counsel for the defendants that the document is a forged and fabricated document which was not executed by late Smt. Uma Goel. The plaintiff Nos. 1 and 2 are the brothers-in-law of Smt. Uma Goel and no other person is involved in plaintiff No. 3 Trust and the present suit has been filed in order to grab the property of defendant Nos. 5 and 6 as well as of Sh. Vivek Goel.
c) Admittedly, in the notice the plaintiffs have not raised any question regarding the mental soundness or not of Sh. Vivek Goel while addressing the same to him among the other defendants, which indicates that Sh. Vivek Goel is capable of discerning, responding and/or abiding by the legal notice like other mentally and physically healthy persons and the plaintiffs'' stand in the present suit is totally contrary, indicating their mala fide intentions.
23. It is argued by the defendants'' Counsel that no Trust in the name of Sh. Vivek Goel was ever created by late Smt. Uma Goel nor was the suit property ever subjected to any legal or valid Will. In fact, Smt. Uma Goel died intestate and the property devolved upon defendant Nos. 5 and 6 and upon Sh. Vivek Goel as per the law of succession.
24. The defendants have challenged the said document purported to be a Trust created by a Will on the following grounds:
i. non-registration of the Deed, which was required to be registered compulsorily;
ii. non-opening of any bank accounts in the name of Trust-Trustees as per the stipulation in the Trust Deed;
iii. non-conversion of current account in the name of Trust, as stipulated in the purported document;
iv. absolutely, no steps taken ever to perform any of the obligations, apparently, enjoined upon the Trustees under the purported Trust Deed;
v. Its never being acted upon by (Late) Smt. Uma Goel during her lifetime nor by the self-styled Trustees, the plaintiffs, after the demise of Smt. Uma Goel and till the property stood sold to answering defendants No. 1 to 4;
vi. even the House tax for last five years has been paid by the answering defendants after purchasing said property;
vii. plaintiffs have offered no evidence to show that they took over the property on record any document i.e. House tax bill, electricity bill, water bill, telephone bill or any receipt or voucher of whatever nature or character, to find such claim of theirs;
viii. at no occasion plaintiffs? ever even whispered the existence of any Trust Deed to any public office or anybody concerned; and,
ix. there is absolutely no record before any Authority, whatsoever, whereas, a Trust in respect of immovable property commences its life only after its registration into Sub-Registrar office.
25. Learned senior Counsel for the defendants has also argued that even assuming for the sake of argument that the purported document is a Trust Deed, the same requires compulsory registration u/s 5 of the Indian Trust Act, 1882 in the absence of which no suit with regard to the same is maintainable under the statutory provisions of law, and admittedly the said document i.e. the alleged Trust Deed is unregistered.
26. Learned Counsel for the defendants has argued that in view of the alleged Trust Deed which is unregistered, the present suit is not maintainable and the plaintiffs cannot claim a valid and legal Trust Deed and also cannot claim the same to be a Will in view of Clause 14 of the said document as the same is not admissible in evidence.
27. Learned senior Counsel has relied upon various paras of the written statement and application filed by defendant Nos. 1 to 4 in support of his submission. Section 5 of the Trust Act reads as under:
Section 5. Trust of immovable property - No trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.
Trust of movable property - No trust in relation to movable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee.
These rules do not apply where they would operate so as to effectuate a fraud.
28. According to him, from a plain reading of Section 5 of the Trust Act it is clear that a suit filed on the basis of unregistered Trust Deed is not maintainable. He further argued that since after issuance of the Notice the plaintiffs took some advice as a result of which they changed their stand and started calling the Trust Deed a Will, although there is a vast difference between the two types of documents. He has referred to the decision of the Supreme Court in this regard reported in
19. A will denotes a testamentary document. It means a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It is in its own nature ambulatory and revocable during his life.
29. It is also argued by the learned Counsel for defendant Nos. 1 to 4 that defendant Nos. 5 and 6 and Sh. Vivek Goel have executed the sale deeds for valid consideration and, therefore, the same cannot be declared as void or voidable and consequently, Section 31 of the Specific Relief Act, 1963 is not applicable to the facts and circumstances of the present case.
30. Another argument of the learned Counsel for defendant Nos. 1 to 4 that in Para 5 of the plaint it is mentioned that the value of the suit property is Rs. 3 crores but the court fee has been accessed on the value of the property being assessed at Rs. 23 lakhs, therefore, the suit itself is bad for purposes of court fees in view of the provisions of the Court Fees Act and therefore, not maintainable.
31. On the other hand, learned Counsel for the plaintiffs has argued that although the document in question has been referred as a Trust Deed but in order to see the true nature of the document one has to look into the recital and content of the document and not the title of the document. According to him the intention of the parties has to be gathered from the recital of the deed, conduct of the parties and evidence on record.
32. Learned Counsel for the plaintiffs has argued that at this stage the court has to read the plaint only for the purpose of rejection of the plaint and on the basis of the averments made therein, the plaint cannot be rejected at this stage. On the other hand learned Counsel for the defendants has referred the judgment of Apex court reported in
5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif''s Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good."
33. The learned Counsel for the plaintiff has also argued that the plaintiffs have filed the application for amendment of plaint along with the documents in order to show that Sh. Vivek Goel is of unsound mind, hence I.A. No. 12540/2009 under Order VI Rule 17 of the CPC should also be considered. The pleadings in this application are yet to be completed. Learned senior Counsel for defendant Nos. 1 to 4 has opposed the submission of the plaintiff''s Counsel on the grounds that there is no hurdle to consider the interim applications as when the interim order was passed, the court had examined the averments at that point in time and now considering the amendment application before hearing of the interim relief application would cause great injustice to the case of the defendants who are under injunction.
34. I agree with the submission of the senior Counsel of the defendant Nos. 1 to 4 in view of the latest decision given by a Division Bench of this court in FAO (OS) No. 192/2009 titled Rajeev Food Marketing (I) Pvt. Ltd. v. Amrit Banaspati Co. Ltd., pronounced on 2nd December, 2009. In this case, an appeal had been filed against an order of a learned Single Judge of this court whereby instead of considering and deciding the application of the appellant under Order XXXIX Rule 4 which had been filed laying bare the material suppression of facts the respondent on the basis of which the injunction was obtained, the learned Single Judge listed the application for amendment filed by the respondent under Order VI Rule 17 of the CPC along with the application under Order XXXIX Rule 4 CPC. The relevant portion of the said order is reproduced hereinbelow:
14. ...It also cannot be lost sight of that in a given case for the Court to become instrumental in delaying the disposal of an application under Order XXXIX Rule 4 CPC merely because an application for amendment of the plaint has been subsequently filed by the party availing the benefits of an ex parte injunction order would certainly work injustice on the other party, for, if the amendment application is subsequently rejected by the Court on the ground that a valuable right had in the meanwhile accrued to the other party the damage caused to the said party by the subsistence of the ex parte ad interim injunction order over a prolonged span of time could be both unjust and inequitable and in certain cases irreversible. Thus when interim orders are obtained on particular pleadings, the confirmation/vacation of such an order must only be on the basis of such pleadings and the consideration of the application for amendment under Order VI Rule 17 CPC must await the determination of the applications under Order XXXIX Rules 1 and 2 CPC and Order XXXIX Rule 4 CPC, if any.
35. In view of the above-mentioned decision, the application of the plaintiff being I.A. No. 12540/2009 under Order VI Rule 17 CPC has to be considered later on, particularly, after the completion of pleadings of the application.
36. I have heard the arguments of Counsel for both the parties. There are certain admitted and undisputed facts between the parties which are enumerated hereinbelow:
a) In the notice dated 7th March, 2009 sent by plaintiffs, it was nowhere mentioned that late Smt. Uma Goel executed any Will, rather it is specifically mentioned that she created a Trust. Further in the said notice, there is not a whisper about any mental unsoundness of Sh. Vivek Goel. In fact, in the said notice the plaintiffs have stated that the Trust was created so that in case there was matrimonial discord between Sh. Vivel Goel and his wife, then plaintiff Nos. 1 and 2 would make arrangements for Sh. Vivel Goel''s second marriage. The alleged Trust Deed which is now being called a Will by the plaintiffs is an unregistered document. Further, no action was ever taken in accord of the said document i.e. the bank account was opened in the name of the Trust, even after the execution of sale deed in favour of defendant Nos. 1 to 4 no activities were ever done or were planned or purported to be done on the basis of the said document, no bills for consumption charges or house tax etc. were paid by the Trust.
b) After purchasing the said property, the plaintiffs never took over possession of the property nor produced any documents like house tax bill, electricity and water bill, telephone bills etc. nor did the plaintiffs on any occasion mention the Trust Deed at any public office or forum except at the time of issuance of notice.
c) The plaintiffs themselves have filed a police complaint of illegal grabbing and construction as regards the suit property with the Deputy Commissioner of Police against Sh. Vivek Goel and the other defendants wherein nowhere is it stated that Sh. Vivek Goel is a lunatic or a mentally retarded person nor is it mentioned in the said complaint that the Trust was created because of unsoundness of the mind of Sh. Vivek Goel. On the other hand, the plaintiffs sought punishment for Sh. Vivek Goel by raising various allegations against him, which behavior of the plaintiff Nos. 1 and 2 who are claiming to be the trustees of plaintiff No. 3 and brothers-in-law of late Mrs. Uma Goel and were aware of the ins and ous of the family, seems to be contrary to what can be expected from persons who are entrusted with the well being of a mentally hampered nephew. d) The main reason for purporting the document as a Trust Deed is that the Trust was created for the benefit of Sh. Vivek Goel in lieu of the claim that he is mentally unsound, but no medical history or any document has been produced by the plaintiffs as regards the mental health of Sh. Vivek Goel.
37. In view of the averment made in the written statement and in the application under Order XXXIX Rule 4, prima facie, this court agrees with the submissions of the defendants and in view of the same, the plaintiffs have failed to make any prima facie case for grant of an injunction for the following reasons:
a) From a bare reading of Section 5 of the Indian Trust Act, it is doubtful whether the suit filed by the plaintiff is maintainable considering that the document purported to be a Trust Deed is unregistered.
b) There is also uncertainty as to whether the document is a Trust Deed or is a Trust created by a Will and in fact, whether the said document is even a validly executed document and not a forged and fabricated one. That it is a Trust created by a Will is a claim which is under doubt and one which has not been successfully proved by the plaintiffs as of now and in such circumstances, no prima facie case seems to have been made out.
c) There is further doubt as regards the plaintiffs'' averments that the said document is a Will as if the same is a Will, the plaintiffs ought to have mentioned so in the legal notice. Further, it is difficult to believe the plaintiffs'' assertion as regards the mental health of Sh. Vivek Goel as no such thing was mentioned or even hinted at in the legal notice. Further, the plaintiffs'' conduct indicates to the contrary, i.e. it is unclear as to why the plaintiffs would file a criminal complaint against a person who they not only claim to be of unsound mind but a person who is a beneficiary of the Trust of which the plaintiffs claim to be trustees.
38. The balance of convenience clearly lies in favour of the defendant and against the plaintiffs as defendant Nos. 1 to 4 have purchased the suit property for valuable consideration and therefore, they have a right to renovate the same and they are also entitled to get built the authorised construction thereon in accordance with law. Therefore, I.A. No. 14363/2009 under Order XXXIX Rule 4 is allowed and the ex parte ad interim injunction granted on 3rd August, 2009 is vacated. As a result, I.A. No. 9715/2009 is disposed of.
39. As far as the rejection of the plaint is concerned I agree with the learned Counsel for the plaintiffs that while considering the application, this court has to read the entire plaint. In view of the averments made in therein, the plaint cannot be rejected as the said averments made in the plaint are yet to be tested at the time of trial.
40. In the case of
12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants.
41. Therefore, the defendants? application under Order VII Rule 11 is rejected. I.A. No. 14362/2009 is disposed of accordingly.
I.A. No. 12540/2009 (under Order VI Rule 17)
42. Let the reply to this application be filed within 4 weeks and rejoinder, if any, be filed within 2 weeks thereafter. List this application on 16th March, 2010 for consideration.
