Delhi High Court
Tarun Singh Saharan vs Meeta Singh & Ors. on 4 April, 2025
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 18th February 2025
Pronounced on: 4th April 2025
+ I.A. 5371/2024 in CS(OS) 252/2022
TARUN SINGH SAHARAN .....Plaintiff
Through: Mr. Mukesh Anand, Adv.
versus
MEETA SINGH & ORS.. .....Defendants
Through: Mr. Luqman S. Hasan, Mr.
Shubham Awasthi, Mr. Harsh Raj,
Ms. Priya Kaur, Advocates for D-
1 & 2.
Mr. Dilpreet Singh Gandhi,
Advocate for D-4.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
I.A. 5371/2024 (Under Order VII Rule 11 of CPC)
1. This application has been filed on behalf of defendant nos. 1 & 2
seeking rejection of plaint under Order VII Rule 11 of Code of Civil
Procedure 1908 (‘CPC‘) as being devoid of any cause of action.
2. The background facts of the matter are that plaintiff filed a suit for
partition of all the properties of late Sh. Gurbachan Singh Saharan
(‘deceased’). Plaintiff is the son; defendant no.1 is the widow and
defendant no.2 is the daughter of the deceased.
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3. The plaintiff claimed that he was looking after the entire family,
including the time when his father was unwell, however, he passed away
on 19th April 2021, leaving behind the above noted legal heirs. During
his lifetime, the deceased acquired various immovable and movable
properties which he left behind after his demise. The deceased also
acquired various movable and immovable assets in the name of a HUF
i.e. “Gurbachan Singh HUF” in which deceased, plaintiff and defendant
nos. 1 & 2 were members and deceased was the Karta.
4. It is stated by plaintiff that he had undergone a liver transplant to
benefit his father, and it was the wish of his father, that since he had
saved his life and donated him a liver, he would get 75% share in all
movable and immovable assets left by him, either in his name or in the
HUF, defendant no.2 would be entitled for 25% share in the properties
and defendant no.1 would have life interest in the residence at House
No.29, Surya Niketan, Delhi-110092. As per him, it was further agreed,
that plaintiff will be under obligation to take care and maintain his
mother i.e. defendant no.1. In this regard, on 6th July 2021, an Oral
Family Settlement had been arrived at between plaintiff, defendant no.1
and defendant no.2, post demise of late Sh. Gurbachan Singh Saharan.
5. Plaintiff claims that defendant no.3 started living with defendant
no.2 and started interfering with the affairs of the family. Defendant no.1
started creating distance from plaintiff and in the month of August-
September 2021, placed three bodyguards, who had restrained the
plaintiff from going to the floor of defendant nos.1 and 2.
6. After plaintiff was threatened by defendant nos.2 and 3, through
the said bodyguards, he filed a complaint on 13th September 2021 before
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the SHO, PS Anand Vihar. Thereafter, in October 2021, another police
complaint was filed by plaintiff, when he claimed assault by the
bodyguards of defendants.
7. Discord between plaintiff and defendants increased and FIR
No.14/2022, P.S. Anand Vihar under sections 354/354A/354B/506/509
of the Indian Penal Code 1860 (‘IPC‘) was registered by the defendants
against the plaintiff. Plaintiff filed an anticipatory bail application before
ASJ Karkardooma Courts and during the hearing, the IO showed the
Will dated 20th May 2013 of the deceased father, on the basis of which,
plaintiff has been denied his rights and share in the estate of his late
father.
8. On this basis, plaintiff has sought a decree of partition in respect
of all the other parties, a decree of declaration for declaring the Will
dated 20th May 2013 as null and void, a declaration in favour of plaintiff
declaring his 75% share in the movable and immovable assets as agreed
under the Oral Family Settlement dated 6th July 2021 and a decree of
permanent injunction against defendants from alienating the properties
and other attendant reliefs.
9. Counsel for defendants submitted that plaintiff had no cause of
action considering that firstly, the Will dated 20th May 2013 was duly
registered and therefore, there will be a presumption of the validity of the
Will; and secondly, that the plaint has a mere allegation of fraud, which
is insufficient under Order VI Rule 4 of CPC since plaintiff was
obligated to give full particulars. On the latter submission, counsel for
defendants relied upon decision in Mayar (H.K.) Ltd. & Ors. v Owners
& Parties, Vessel M.V. Fortune Express & Ors. (2006) 3 SCC 100 and
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Bishundeo Narain & Anr. v Seogeni Rai & Anr. 1951 SCC 447
(Constitution Bench). He therefore, contended that in the absence of
specific pleadings and being faced with a registered Will, there was no
cause of action which would accrue in favour of plaintiff.
10. Counsel for plaintiff countered by submitting that firstly, the plaint
had substantial averments that the Will was forged and fabricated;
secondly, the provisions of Order VI Rule 4 of CPC will not apply since
they have not claimed misrepresentation, fraud, breach of trust, wilful
default or undue influence and therefore, there was no real necessity of
giving particulars; thirdly, that the plaint has to be seen in its totality and
not in an isolated manner; fourthly, that the validity of the Will cannot
be assessed merely by registration, but the contesting parties are entitled
to raise an allegation that it was executed in suspicious circumstances;
and fifthly, there was no probate of the Will which had been sought by
the defendants till date. For this, he relies upon the following judgments:
a. Mohammad Khalil Khan & Ors. v Mahbub Ali Mian &
Ors.1948 SCC OnLine PC 44 (Privy Counsel) (paras 46,
51, 61-63) on the issue that the phrase ’cause of action’
means every fact, that will be necessary for plaintiff to
prove, in order to assert his right.
b. Rani Punrnima Debi & Anr. v Kumar Khagendra
Narayan Deb & Anr. 1961 SCC OnLine SC 89 (paras 17,
23, 24) on the issue that the High Court was not right in
relying mainly on the registration, to hold that all suspicions
relating to Will had been dispelled. Relevant extracts are as
under:
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“17. Let us now turn to the registration of the will,
for it is on the registration that the High Court has
relied strongly to dispel whatever it also considered
suspicious in this case. The contention of Mr Desai
on behalf of the appellants in this connection is that
registration may be an added circumstance in favour
of the genuineness of the will and may be taken into
account in considering whether suspicious
circumstances had been dispelled, but the High
Court was not right on the facts of this case in
relying mainly on the registration to hold that all
suspicions relating to this unnatural will had been
dispelled. There is no doubt that this will was
registered on January 27, 1944 and there is an
endorsement on the will to the effect that the testator
had admitted the execution of it. It will therefore be
necessary to examine the circumstances more
closely than the High Court seems to have done in
this case. It appears that an application was made
by the mukhtar-i-am of the testator (and not by the
testator himself) on January 16, 1944 before the
Sub-Registrar for registration of the will on
commission. The Sub-Registrar himself did not go to
execute the commission but sent a clerk of his named
Arabali, though the reason given in the application
for the issue of commission viz. respectability was
not justified in law and no commission should have
been issued at all. This Clerk was apparently a
resident of the same area in which the testator was
living and knew him from before. It is a matter
worthy of note in the circumstances of this case that
the person who went to inquire from the testator
whether he had executed the will was not the Sub-
Registrar himself who would be a more responsible
officer than his clerk. Anyhow, the evidence of the
clerk is that he found the testator quite hale and
hearty. The testator came out from the inner
apartment to the verandah of the house and admitted
the execution of the will. Thereafter the testatorSignature Not Verified
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signed at the bottom of the will in token of his having
admitted the genuineness of the will and Dehiram
Bora identified the testator. Thereafter Arabali took
the document to the office of the Sub-Registrar and it
was registered. It is on this registration that the
High Court has relied very strongly for dispelling
the suspicion arising in this case.
…
23. There is no doubt that if a will has been
registered, that is a circumstance which may, having
regard to the circumstances, prove its genuineness.
But the mere fact that a will is registered will not by
itself be sufficient to dispel all suspicion regarding it
where suspicion exists, without submitting the
evidence of registration to a close examination. If
the evidence as to registration on a close
examination reveals that the registration was made
in such a manner that it was brought home to the
testator that the document of which he was admitting
execution was a will disposing of his property and
thereafter he admitted its execution and signed it in
token thereof, the registration will dispel the doubt
as to the genuineness of the will. But if the evidence
as to registration shows that it was done in a
perfunctory manner, that the officer registering the
will did not read it over to the testator or did not
bring home to him that he was admitting the
execution of a will or did not satisfy himself in some
other way (as, for example, by seeing the testator
reading the will) that the testator knew that it was a
will the execution of which he was admitting, the
fact that the will was registered would not be of
much value. It is not unknown that registration may
take place without the executant really knowing
what he was registering. Law reports are full of
cases in which registered wills have not been acted
upon : (see, for example, Vellasamay Servai v. L.
Sivaraman Servai [(1930) ILR 8 Ran 179]
, Surendra Nath Lahiri v. Jnanendra NathSignature Not Verified
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Lahiri [AIR 1932 Cal 574] and Girji Datt
Singh v. Gangotri Datt Singh [AIR 1955 SC 346] .
Therefore, the mere fact of registration may not by
itself be enough to dispel all suspicion that may
attach to the execution and attestation of a will;
though the fact that there has been registration
would be an important circumstance in favour of the
will being genuine if the evidence as to registration
establishes that the testator admitted the execution
of the will after knowing that it was a will the
execution of which he was admitting.
…
24. The question therefore is whether in the
circumstances of the present case the evidence as to
registration discloses that the testator knew that he
was admitting the execution of a will when he is said
to have put down his signature at the bottom of the
will in the presence of Arabali. We have scrutinized
that evidence carefully and we must say that the
evidence falls short of satisfying us in the
circumstances of this case that the testator knew that
the document the execution of which he was
admitting before Arabali and at the bottom of which
he signed was his will. Therefore we are left with the
bald fact of registration which in our opinion is
insufficient in the circumstances of this case to
dispel the suspicious circumstances which we have
enumerated above. We are therefore not satisfied
about the due execution and attestation of this will
by the testator and hold that the propounder has
been unable to dispel the suspicious circumstances
which surround the execution and attestation of this
will. In the circumstances, no letters of
administration in favour of the respondent can be
granted on the basis of it.”
(emphasis added)
c. Sopan Sukhdeo Sable & Ors. v Asstt. Charity Commr. &
Ors. (2004) 3 SCC 137 on the issue that in assessing
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rejection under Order VII Rule 11 of CPC, no particular
plea is to be considered but averments in the plaint as a
whole have to be seen.
d. Mayar (H.K.) Ltd. & Ors. v Owners & Parties, Vessel M.V.
Fortune Express & Ors. (2006) 3 SCC 100 (paras 11 &
12), that Order VII Rule 11 of CPC would be considered on
a meaningful and not formal reading of the plaint.
e. Dhani Ram (Died) through LRs & Ors. v Shiv Singh 2023
SCC OnLine SC 1263 (paras 9, 18 and 21) where the
Supreme Court has affirmed the Trial Court’s finding that
registration of Will, will not be sufficient to prove its
validity.
“9. The Trial Court rightly opined that mere
registration of the Will would not be sufficient to
prove its validity, as its lawful execution necessarily
had to be proved in accordance with Section 68 of
the Indian Evidence Act, 1872 (for brevity, ‘the
Evidence Act‘), and Section 63 of the Indian
Succession Act, 1925 (for brevity, ‘the Succession
Act‘). Thereupon, the Trial Court found that the
evidence of the attesting witnesses to the Will, viz.,
Lok Nath Attri (DW-2) and Chaman Lal (PW-4),
was contradictory as they did not speak to the same
effect. In these circumstances, the Trial Court held
that valid execution of the Will was not proved.
…
18. In this regard, it would be apt to note the
essential requirements in law to prove a Will.
Section 68 of the Evidence Act reads as under:
“68. Proof of execution of document required
by law to be attested. – If a document is
required by law to be attested, it shall not be
used as evidence until one attesting witness atSignature Not Verified
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least has been called for the purpose of proving
its execution, if there be an attesting witness
alive, and subject to the process of the Court
and capable of giving evidence:
Provided that it shall not be necessary to call
an attesting witness in proof of the execution of
any document, not being a Will, which has been
registered in accordance with the provisions of
the Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom it
purports to have been executed is specifically
denied.”
…
21. It is well settled that mere registration would not
sanctify a document by attaching to it an
irrebuttable presumption of genuineness. The
observations of this Court in Rani Purnima
Debi v. Kumar Khagendra Narayan Deb, which
were referred to by the Himachal Pradesh High
Court, are of guidance in this regard and are worthy
of extraction. These observations read as under:
“There is no doubt that if a Will has been
registered, that is a circumstance which may,
having regard to the circumstances, prove its
genuineness. But the mere fact that a Will is
registered will not by itself be sufficient to dispel
all suspicion regarding it where suspicion exists,
without submitting the evidence of registration to
a close examination. If the evidence as to
registration on a close examination reveals that
the registration was made in such a manner that it
was brought home to the testator that the
document of which he was admitting execution
was a Will disposing of his property and
thereafter he admitted its execution and signed it
in token thereof, the registration will dispel the
doubt as to the genuineness of the Will. But if the
evidence as to registration shows that it was done
in a perfunctory manner, that the officerSignature Not Verified
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registering the Will did not read it over to the
testator or did not bring home to him that he was
admitting the execution of a Will or did not satisfy
himself in some other way (as, for example, by
seeing the testator reading the Will) that the
testator knew that it was a Will the execution of
which he was admitting, the fact that the Will was
registered would not be of much value. It is not
unknown that registration may take place without
the executant really knowing what he was
registering. Law reports are full of cases in which
registered Wills have not been acted upon ………
Therefore, the mere fact of registration may not
by itself be enough to dispel all suspicion that may
attach to the execution and attestation of a Will;
though the fact that there has been registration
would be an important circumstance in favour of
the Will being genuine if the evidence as to
registration establishes that the testator admitted
the execution of the Will after knowing that it was
a Will the execution of which he was admitting.”
(emphasis added)
f. Geetha & Ors. v Nanjundaswamy & Ors. 2023 SCC
OnLine SC 1407 (paras 2 and 6) where Order VII Rule 11
was dismissed on the basis that plaint is to be read
meaningfully and as a whole, taking it to be true.
“2. In this appeal, we are called upon to decide two
questions. The first relates to the true and correct
application of the principle underlying the ‘rejection
of plaints’ under Order VII Rule 11, Civil Procedure
Code, 1908, to the facts of the case. The second
question relates to the legality of rejection of a
plaint in part. For the reasons to follow, we have
held that the High Court has committed an error in
passing the order impugned, on both counts. First,Signature Not Verified
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by misapplying the well-established principles
informing Order VII Rule 11 of the CPC, and
second, by rejecting the plaint in part, which is
again contrary to the law on the subject. We have,
therefore, allowed the appeal and dismissed the
application under Order VII Rule 11, CPC. We will
first indicate the necessary facts.
…
6. Before considering the legality of the approach
adopted by the High Court, it is necessary to
consider Order VII Rule 11, CPC and the precedents
on the subject. The relevant principles have been
succinctly explained in a recent decision of this
Court in Dahiben v. Arvindbhai Kalyanji Bhanusali
(2020) 7 SCC 366, as follows:
“23.2. The remedy under Order 7 Rule 11 is an
independent and special remedy, wherein the
court is empowered to summarily dismiss a suit
at the threshold, without proceeding to record
evidence, and conducting a trial, on the basis of
the evidence adduced, if it is satisfied that the
action should be terminated on any of the
grounds contained in this provision.
23.3. The underlying object of Order 7 Rule
11(a) is that if in a suit, no cause of action is
disclosed, or the suit is barred by limitation
under Rule 11(d), the court would not permit
the plaintiff to unnecessarily protract the
proceedings in the suit. In such a case, it would
be necessary to put an end to the sham
litigation, so that further judicial time is not
wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi [Azhar
Hussain v. Rajiv Gandhi, 1986 Supp SCC 315.
Followed in Manvendrasinhji Ranjitsinhji
Jadeja v. Vijaykunverba, 1998 SCC OnLine
Guj 281 : (1998) 2 GLH 823] this Court held
that the whole purpose of conferment of powers
under this provision is to ensure that aSignature Not Verified
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litigation which is meaningless, and bound to
prove abortive, should not be permitted to
waste judicial time of the court, in the following
words : (SCC p. 324, para 12)
“12. … The whole purpose of conferment of
such powers is to ensure that a litigation
which is meaningless, and bound to prove
abortive should not be permitted to occupy
the time of the court, and exercise the mind
of the respondent. The sword of Damocles
need not be kept hanging over his head
unnecessarily without point or purpose.
Even in an ordinary civil litigation, the
court readily exercises the power to reject a
plaint, if it does not disclose any cause of
action.”
23.5. The power conferred on the court to
terminate a civil action is, however, a drastic
one, and the conditions enumerated in Order 7
Rule 11 are required to be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on
the court to determine whether the plaint
discloses a cause of action by scrutinising the
averments in the plaint [Liverpool & London
S.P. & I Assn. Ltd. v. M.V. Sea Success
I, (2004) 9 SCC 512], read in conjunction with
the documents relied upon, or whether the suit
is barred by any law.
…
23.9. In exercise of power under this provision,
the court would determine if the assertions
made in the plaint are contrary to statutory
law, or judicial dicta, for deciding whether a
case for rejecting the plaint at the threshold is
made out.
23.10. At this stage, the pleas taken by the
defendant in the written statement and
application for rejection of the plaint on the
merits, would be irrelevant, and cannot be
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adverted to, or taken into
consideration. [Sopan Sukhdeo
Sable v. Charity Commr., (2004) 3 SCC 137]
23.11. The test for exercising the power under
Order 7 Rule 11 is that if the averments made
in the plaint are taken in entirety, in
conjunction with the documents relied upon,
would the same result in a decree being passed.
This test was laid down in Liverpool & London
S.P. & I Assn. Ltd. v. M.V. Sea Success I
[Liverpool & London S.P. & I Assn.
Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512]
which reads as : (SCC p. 562, para 139)
“139. Whether a plaint discloses a cause of
action or not is essentially a question of
fact. But whether it does or does not must
be found out from reading the plaint itself.
For the said purpose, the averments made
in the plaint in their entirety must be held to
be correct. The test is as to whether if the
averments made in the plaint are taken to
be correct in their entirety, a decree would
be passed.”
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co.
[Hardesh Ores (P) Ltd. v. Hede & Co., (2007)
5 SCC 614] the Court further held that it is not
permissible to cull out a sentence or a passage,
and to read it in isolation. It is the substance,
and not merely the form, which has to be
looked into. The plaint has to be construed as it
stands, without addition or subtraction of
words. If the allegations in the plaint prima
facie show a cause of action, the court cannot
embark upon an enquiry whether the
allegations are true in fact. D.
Ramachandran v. R.V. Janakiraman [D.
Ramachandran v. R.V. Janakiraman, (1999) 3
SCC 267; See also Vijay Pratap Singh v. Dukh
Haran Nath Singh, AIR 1962 SC 941].
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23.13. If on a meaningful reading of the plaint,
it is found that the suit is manifestly vexatious
and without any merit, and does not disclose a
right to sue, the court would be justified in
exercising the power under Order 7 Rule
11 CPC.
23.14. The power under Order 7 Rule
11 CPC may be exercised by the court at any
stage of the suit, either before registering the
plaint, or after issuing summons to the
defendant, or before conclusion of the trial, as
held by this Court in the judgment of Saleem
Bhai v. State of Maharashtra [Saleem
Bhai v. State of Maharashtra, (2003) 1 SCC
557]. The plea that once issues are framed, the
matter must necessarily go to trial was repelled
by this Court in Azhar Hussain case [Azhar
Hussain v. Rajiv Gandhi, 1986 Supp SCC 315.
Followed in Manvendrasinhji Ranjitsinhji
Jadeja v. Vijaykunverba, 1998 SCC OnLine
Guj 281 : (1998) 2 GLH 823].
23.15. The provision of Order 7 Rule 11 is
mandatory in nature. It states that the plaint
“shall” be rejected if any of the grounds
specified in clauses (a) to (e) are made out. If
the court finds that the plaint does not disclose
a cause of action, or that the suit is barred by
any law, the court has no option, but to reject
the plaint.”
7. In simple terms, the true test is first to read the
plaint meaningfully and as a whole, taking it to be
true. Upon such reading, if the plaint discloses a
cause of action, then the application under
Order VII Rule 11 of the CPC must fail. To put it
negatively, where it does not disclose a cause of
action, the plaint shall be rejected.”
(emphasis added)
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g. Eldeco Housing & Industries Ltd. v Ashok Vidyarthi &
Ors. 2023 SCC OnLine SC 1612 (Paras 17 to 19) on the
issue of principles attracted under Order VII Rule 11 of
CPC.
“17. In Kamala v. K. T. Eshwara Sa (2008) 12 SCC
661, this Court opined that for invoking clause (d) of
Order VII Rule 11 CPC, only the averments in the
plaint would be relevant. For this purpose, there
cannot be any addition or substraction. No amount
of evidence can be looked into. The issue on merits
of the matter would not be within the realm of the
Court at that stage. The Court at that stage would
not consider any evidence or enter a disputed
question of fact of law. Relevant paragraphs thereof
are extracted below:
“21. Order 7 Rule 11(d) of the Code has
limited application. It must be shown that the
suit is barred under any law. Such a
conclusion must be drawn from the
averments made in the plaint. Different
clauses in Order 7 Rule 11, in our opinion,
should not be mixed up. Whereas in a given
case, an application for rejection of the
plaint may be filed on more than one ground
specified in various sub-clauses thereof, a
clear finding to that effect must be arrived
at. What would be relevant for invoking
clause (d) of Order 7 Rule 11 of the Code are
the averments made in the plaint. For that
purpose, there cannot be any addition or
subtraction. Absence of jurisdiction on the
part of a court can be invoked at different
stages and under different provisions of the
Code. Order 7 Rule 11 of the Code is one,
Order 14 Rule 2 is another.
22. For the purpose of invoking Order 7 Rule
11(d) of the Code, no amount of evidence
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can be looked into. The issues on merit of the
matter which may arise between the parties
would not be within the realm of the court at
that stage. All issues shall not be the subject-
matter of an order under the said provision.
23. The principles of res judicata, when
attracted, would bar another suit in view of
Section 12 of the Code. The question
involving a mixed question of law and fact
which may require not only examination of
the plaint but also other evidence and the
order passed in the earlier suit may be taken
up either as a preliminary issue or at the
final hearing, but, the said question cannot
be determined at that stage.
24. It is one thing to say that the averments
made in the plaint on their face discloses no
cause of action, but it is another thing to say
that although the same discloses a cause of
action, the same is barred by a law.
25. The decisions rendered by this Court as
also by various High Courts are not uniform
in this behalf. But, then the broad principle
which can be culled out therefrom is that the
court at that stage would not consider any
evidence or enter into a disputed question of
fact or law. In the event, the jurisdiction of
the court is found to be barred by any law,
meaning thereby, the subject-matter thereof,
the application for rejection of plaint should
be entertained.”
(emphasis added)
h. Neelmani Singh v Tikka Brijinder Singh Bedi & Ors.
2023:DHC:2619 where the issue was similar, in that Will
executed was alleged to be forged and fabricated and Court
stated that it was a matter of trial and cannot be decided at
the stage of an application under Order VII Rule 11 of CPC.
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i. Neena Kapoor & Ors. v Vishnu Khanna 2024:DHC:1306
DB where the Court relied on Geetha (supra) highlighting
that the plaint is to be read as a whole to disclose cause of
action. The relevant paragraphs are extracted as under:
“10. Principles relating to applications preferred
under Order VII Rule 11(a) of CPC are clear and
transparent. It is a settled position of law that that
the true test is whether the plaint, when read as a
whole, discloses a cause of action. This test was
recently reiterated by the Hon’ble Supreme Court in
para 7 of Geetha, D/o Late Krishna v.
Nanjundaswamy, 2023 SCC OnLine SC 1407, which
is extracted below:
“7. In simple terms, the true test is first to
read the plaint meaningfully and as a whole,
taking it to be true. Upon such reading, if the
plaint discloses a cause of action, then the
application under Order VII Rule 11 of the
CPC must fail. To put it negatively, where it
does not disclose a cause of action the plaint,
the plaint shall be rejected.”
11. Furthermore, pursuant to an application under
Order VII Rule 11 of the CPC, a plaint cannot be
rejected in part. This principle has been explained
by the Hon’ble Supreme Court in Madhav Prasad
Aggarwal v. Axis Bank Ltd., (2019) 7 SCC 158, in
the following paragraph:
“12. Indubitably, the plaint can and must be
rejected in exercise of powers under Order 7
Rule 11(d) CPC on account of non-
compliance with mandatory requirements or
being replete with any institutional
deficiency at the time of presentation of the
plaint, ascribable to clauses (a) to (f) of Rule
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11 of Order 7 CPC. In other words, the
plaint as presented must proceed as a whole
or can be rejected as a whole but not in part.
In that sense, the relief claimed by
Respondent 1 in the notice of motion(s)
which commended to the High Court, is
clearly a jurisdictional error. The fact that
one or some of the reliefs claimed against
Respondent 1 in the suit concerned is barred
by Section 34 of the 2002 Act or otherwise,
such objection can be raised by invoking
other remedies including under Order 6 Rule
16 CPC at the appropriate stage. That can
be considered by the Court on its own merits
and in accordance with law. Although, the
High Court has examined those matters in
the impugned judgment the same, in our
opinion, should stand effaced and we order
accordingly.”
(emphasis added)
Analysis
11. For the purposes of assessing the plea of defendants under Order
VII Rule 11 of CPC, of the plaint being devoid of a cause of action, it
would be imperative to first assess and examine the plaint itself.
12. Relying on the decision of the Supreme Court in Geetha (supra),
where it is stated in para 7 (as extracted above), that the plaint would
have to be read meaningfully and as a whole, the defendants effectively
submits, that in view of the registered Will, the plaintiff will have no
cause of action, as also that he has not given necessary particulars
relating to the plea of fraud, misrepresentation, use of coercion and
undue influence.
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13. Firstly, by simplicitor raising an issue, and propounding a
registered Will, in itself, will not divest the plaintiff for a cause of action.
It is normal for suits to be filed seeking a declaration that the Will
propounded by the defendants should be declared null and void, or non-
est and unenforceable, being forged and fabricated or otherwise,
executed under undue influence or under suspicious circumstances.
14. The plaintiff is right in relying upon the decision in Dhani Ram
(supra) where the Court noted in para 9 [as extracted above in para 10
(e)] that the Trial Court had correctly opined that mere registration of the
Will would not be sufficient to prove its validity. The appellate court was
inclined to overlook the discrepancies in the evidence and reverse the
findings of the Trial Court. However, the High Court, being the second
appellate court, had also opined that it was enough to entertain some
suspicion and mere registration of the Will would not suffice, to dispel
the suspicious circumstances. The very execution of the Will was not
proved in terms of Section 68 of the Evidence Act 1872 and Section 63
of the Succession Act 1925. The Supreme Court goes ahead and
examines the evidence and found that the propounder of the Will, had
failed to prove the execution of the Will. In Dhani Ram (supra), the
Court relied upon its previous observations in Rani Purnima Debi
(supra).
15. A perusal of the plaint would show that plaintiff has set out a
sequence of events which as per him, led to the discord between the
plaintiff on one hand and the defendants on the other, which amplified as
time went by, to the extent that there were bodyguards placed by the
mother and the sister, defendant nos. 1 and 2, respectively, in order to
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prevent access of plaintiff. Thereafter, counter FIRs were also registered
and the plaintiff was forced to seek anticipatory bail, during which
proceeding, he came to know of the said Will.
16. It is stated inter alia in paras 21, 25 and 30 of the plaint, that the
said Will was forged and fabricated; the sale deeds in respect of certain
properties were absolutely illegal, invalid, void and sham documents and
did not create any interest. The question would be whether these
averments would amount to sufficient particulars as for Order VI Rule 4
of CPC. In this regard, the reliance of the defendants on Bishnudeo
Narain & Anr. v Seogeni Rai & Anr. 1951 SCC OnLine SC 34 has to
be assessed. The Constitution Bench in para 22 of the said decision
stated as under:
“22. We turn next to the questions of undue influence
and coercion. Now it is to be observed that these
have not been separately pleaded. It is true they may
overlap in part in some cases but they are separate
and separable categories in law and must be
separately pleaded. It is also to be observed that no
proper particulars have been furnished. Now if there
is one rule which is better established than any
other, it is that in cases of fraud, undue influence
and coercion, the parties pleading it must set forth
full particulars and the case can only be decided on
the particulars as laid. There can be no departure
from them in evidence. General allegations are
insufficient even to amount to an averment of fraud
of which any court ought to take notice however
strong the language in which they are couched may
be, and the same applies to undue influence and
coercion. See Order 6 Rule 4, Civil Procedure
Code.”
(emphasis added)
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17. However, in Mayar (H.K.) Ltd. (supra), it is stated in para 12
(extracted below), specifically excepting out cases where pleadings
relied on in regard to misrepresentation, wilful default, influence, or of
the same nature, from situations where material facts are required to be
stated:
“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.”
(emphasis added)
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18. The Court cannot shut its eyes to the fact that some particulars
have been pleaded by the plaintiff and that it would not be for this Court
to assess merits of the matter, while adjudicating the application under
Order VII Rule 11 of CPC at this stage. For this, decision of Supreme
Court in Kamala v K.T. Eshwara SA & Ors. (2008) 12 SCC 661, which
was also cited in Eldeco Housing & Industries Ltd. v Ashok Vidyarthi
& Ors. 2023 SCC OnLine SC 1612 (supra), is relied upon, in particular
para 22, which is extracted as under:
“22. For the purpose of invoking Order 7 Rule 11(d)
of the Code, no amount of evidence can be looked
into. The issues on merit of the matter which may
arise between the parties would not be within the
realm of the court at that stage. All issues shall not
be the subject-matter of an order under the said
provision.”
(emphasis added)
19. On reading of the plaint as a whole, it cannot be said that no cause
of action accrues in favour of the plaintiff. Having been faced with the
Will propounded by the defendants during the anticipatory bail
proceedings, the plaintiff has gone on to categorically state that the Will
is forged and fabricated. The registration of the Will, as noted above,
does not give an inviolable right to the defendants in their favour and
deplete the plaintiff of any right to object to the authenticity of the Will.
To this day, defendants have not filed any probate petition in respect of
the Will and therefore, authenticity of the Will, if any, has not been
assessed by any court. It would therefore, be in this suit that the same
will be assessed, basis the evidence led by the parties, considering that
the plaintiff has sought a declaration that the Will is forged and
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fabricated and is invalid, null and void. Otherwise, the validity of the
Will may be assessed in a probate proceeding, if the defendants choose
to initiate it. Once the Will stands proved, the case set up by plaintiff (of
an oral settlement), will collapse.
Conclusion
20. The claim of plaintiff is that by virtue of the purported Will
executed by the deceased father; the plaintiff had been completely
divested of all the estate of the father. The averments in the plaint are
naturally denied by the defendants in the written statement. However, all
these matters will be an issue of trial and the Court, at this stage, is not
inclined to reject the plaint under Order VII Rule 11 of CPC.
21. Accordingly, for the reasons stated above, the application is
dismissed.
(ANISH DAYAL)
JUDGE
APRIL 4, 2025/SM/na
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