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TMI Blog2022 (10) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... and they have been filed along with the plaint. It has clearly been averred that late Shri Surinder Singh Chowdhary, as the karta of the HUF, purchased the suit property from the funds of the HUF. The suit property was purchased for a consideration of Rs.5,40,000/- vide sale deed dated 18th August, 1992, soon after a sum of Rs.19.90 lacs was received by the HUF from the sale of HUDCO Bonds. It has also been specifically pleaded that the late Shri Surinder Singh Chowdhary, being the karta of the HUF was holding the suit property on behalf of HUF for the benefit of all the coparceners. Along with the plaint, the plaintiff has also filed TDS certificates issued by the tenant in the suit property in favour of the HUF. The plaintiff has made the necessary averments in the plaint and filed documents along with the plaint in support of his case that the suit property was purchased from the funds of the HUF. Further, the plaintiff has also pleaded that the suit property was held by the father of the parties in his capacity as the karta for the benefit of the coparceners. The plaintiff has made the necessary averments in the plaint so as to fall within the exception provided under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed. 4. Subsequently, the present application under Order VII Rule 11 of the CPC, was filed on behalf of the defendant no.1. Notice in the application was issued on 11th May, 2017 and reply has been filed by the plaintiff. 5. The pleadings in the plaint insofar as are relevant for deciding of the present application are set out below: i. Plaintiff is the son of late Shri Surinder Singh Chowdhary and late Smt. Punit Kaur. The Defendants are the elder sisters of the plaintiff. ii. Shri Surinder Singh Chowdhary expired on 3rd November, 2013 and subsequently, Smt. Punit Kaur expired on 5th February, 2014 leaving behind plaintiff and the defendants as the sole surviving legal heirs. iii. Late Shri Surinder Singh Chowdhary was the Karta of Surinder Singh Chowdhary HUF (hereinafter HUF ), which owned shares in one M/s Anjala Exhibitors Private Limited. The said shares were sold in the year 1988 and the proceeds thereof were invested in HUDCO Tax Saving Bonds. iv. The aforesaid bonds were subsequently redeemed on 21st June, 1991 and amounts thereof were received in the account of the HUF. v. The plaintiff along with the plaint has filed letter dated 20th Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gust, 1992 was filed by the defendant no.1 along with the present application. ii. No challenge has been made on behalf of the plaintiff to the sale deed dated 18th August, 1992. Nothing can be pleaded which is contrary to the contents of the registered sale deed. iii. The lease deeds dated 1st May, 2001 and 15th November, 2004 in respect of the suit property filed along with the plaint also do not show that the owner of the property was the HUF. As is evident from the aforesaid lease deeds, the suit property was a self-acquired property of late Shri Surinder Singh Chowdhary and was let out by him in his individual capacity to various tenants. iv. No documents have been filed along with the plaint to establish that the suit property is an HUF property. The Will of the late father of the parties clearly states that the aforesaid property was a self-acquired property and therefore, the same has been validly bequeathed to the defendants no.1 and 2 equally. No reliance can be placed on the TDS certificates filed by the plaintiff to contend that the suit property was an HUF property. v. There are no averments in the plaint to bring the plaint within the exceptions pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nLine 241 b. Pawan kumar v. Babulal 2019 (4) SCC 367 c. Neeru Dhir and Ors. v. Kamal Kishore Dhir and Ors. 2020 SCC OnLine Del 2506 OBSERVATIONS AND FINDINGS 8. I have heard the counsels for the parties. 9. It is a settled position of law that in order to decide an application under Order VII Rule 11 of the CPC, reference has to be made only to the averments made in the plaint and the documents filed along with the plaint. 10. From the documents filed along with the plaint, including the receipts in respect of HUDCO Tax Saving Bonds, Income Tax Assessment orders as well as the PAN card of the HUF, there cannot be any dispute with regard to existence of the HUF. Existence of the HUF has also been admitted in the Will dated 15th May, 2007 executed by the father of the parties. 11. Senior counsel for the defendant no.1 submits that there is a discrepancy in the name of the HUF occurring in various documents. However, in my view, that would not make any difference to the fact that an HUF by the name of Shri Surinder Singh Chowdhary HUF was in existence. 12. Since, both the parties have placed extensive reliance on Section 4 of the Benami Transaction ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. 15. The aforesaid judgment was followed by a Division Bench of this Court in Neeru Dhir (supra) wherein this Court has held that the plaint ought not to be rejected under Order VII Rule 11 of the CPC outrightly on the ground that the plea taken by the plaintiffs is barred under Section 4(3) of the unamended Benami Act. 16. The same Division Bench in Sukruti Dugal (supra) has held that at the stage of deciding an application under Order VII Rule 11 of the CPC, the Court has to assume that all averments made in the plaint are true and the entire plaint must be read as a whole to determine whether it discloses any cause of action. The opinion of the Court that the plaintiff may not ultimately succeed in the suit, cannot be the basis for rejecting the plaint. Relevant observations are set out as under: 12. As can be seen from the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. At this stage, it may be relevant to set out the relevant pleadings in the plaint in respect of the suit property being an HUF property. The relevant portions are set out below: 5. That Late S. Surinder Singh Chowdhary was the Karta of the Chowdhary Surinder Singh Chowdhary (HUF). The said HUF owned shares in one M/s Anjala Exhibitors Pvt. Ltd. which ran and operated the famous 'Payal Cinema' in Naraina, New Delhi. 6. That the HUF sold its shares in M/s Anjala Exhibitors Pvt. Ltd. in the year 1988 and the proceeds thereof were invested in HUDCO Tax Saving Bonds for the purposes of saving capital gains tax. These Bonds were ultimately redeemed for a sum of Rs. 19.90 lacs on 21.06.1991 and the proceeds of the redemption were taken in the account of the HUF. The receipts dated 16.06.1988 and 21.06.1988 evidencing the above investments in the name of the HUF are annexed with the Plaint along with a letter dated 20.06.1991 issued by the Assistance Finance Officer, HUDCO confirming the redemption of the said funds in the name of the HUF. The Plaintiff has also filed along with the Plaint, and Income Tax Assessment orders which show that the funds of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tested in a trial. 21. Now I shall deal with the judgments relied upon by the defendant no.1. 22. Senior counsel for the defendant no.1 has placed reliance on the judgment of the Supreme Court in Raghwendra Sharan Singh (supra) in support of her contention that if the original sale deed was in the name of late Shri Surinder Singh Chowdhary and the plaintiff believed that the said property was purchased from the funds of the HUF, the plaintiff should have challenged the aforesaid sale deed. In the case before the Supreme Court, there was a gift deed in favour of the defendant, which was not challenged by the plaintiff. The plaintiff therein filed a suit seeking declaration that the gift deed executed in favour of the defendant therein was a sham transaction and therefore, the title never passed to the defendant therein. The Supreme Court allowed the application under Order VII Rule 11 of the CPC filed on behalf of the defendant no.1 on the ground that the plaintiff did not pray for any declaration to set aside the gift deed and the said prayer was not made on account of clever drafting as had such a prayer been made, the same would have been time barred. 23. The aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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