மெட்ராஸில் உள்ள உயர் நீதி மன்றத்தில்

ஆர்டர் 29.10.2021 அன்று முன்பதிவு செய்யப்பட்டது

      ஆர்டர் 03.03.2022 அன்று வழங்கப்பட்டது

கோரம்

மாண்புமிகு திரு.நீதிபதி வி.பார்த்திபன்

2021 இன் CSNo.157 மற்றும்

OANos.242 of 2021 மற்றும்

A.Nos.1689, 1690, 2436, 2437, 2506, 2507, 2554 & 2555 of 2021

C.S.No.157 of 2021

1. Nirmala,

Wife of Late C.Sathyanarayanan

2. Sangeetha ,

Daughter of Late C.Sathyanarayanan

3. Sujatha,

Daughter of Late C.Sathyanarayanan

4. Indira Priyadharshini

Daughter of Late C.Sathyanarayanan

5. Estate of C.Sathyanarayanan

Rep. by its Intermeddlar

S.Nirmala    Wife of Late C.Sathyanarayanan

19-A, Rangabashyam Street,

Saidapet, Chennai – 600 015.     ..Plaintiffs

Vs.

1. Saraswathi,

Wife of M.A.Kanniah Reddiar

2. Sriram,

S/o Late. Jaganatha Reddiar

3. Kumar

S/o Late Jaganatha Reddiar

4. Padmavathi

D/o Late Jaganatha Reddiar

5. Devatha

D/o Late Jaganatha Reddiar

6. Banu Raj,

D/o Late P.Chakrapani Reddiar

7. Ponni

D/o Late.P.Chakrapani Reddiar             … Defendants .

Prayer:

22. For declaration that the plaintiffs and the defendants are bound by “Kudumba Yerpadu” viz., Family Arrangement dated 22.10.1982 executed by Late E.K.Pattabirama Reddiar and others;
23. For permanent injunction restraining the defendants,

their men, agents, servants or any other persons claiming through them from in any manner interfering with the plaintiffs’ right or entitlement to own, possess and enjoy the properties, more fully described in the schedule IV; more fully described in plaint schedule hereunder;

c)For partition and separate possession of the properties more fully described in Schedule III into 5 equal shares and allot 1/5th share to each of the plaintiff 1 and 4 and to the persons entitled to it in accordance with law;

1. For division of the properties devolved upon the Estate of Late C.Shyamalavalli as legal heir of C.Sathyanarayanan mentioned in Schedule V more fully described in the plaint schedule hereunder to be divided into metes and bounds and allocate 1/3rd share to the plaintiffs jointly as the legal heirs of Late C.Sathyanarayanan in accordance with their entitlement;
2. For a declaration that the properties settled, by Late

C.Shyamalavalli by way of Deed of Settlement dated

29.07.2004 and registered as Document No.6568 of 2004 in the

Office of the Sub Registrar, Saidapet, more fully described in Schedule V in favour of M/s.Ponni and Banu Raj, is illegal, invalid and non-est and consequently, the same shall not confer any legal rights in favour of M/s.Ponni and Banu Raj nor shall bind the plaintiffs in relationship to those properties mentioned therein;

(f) for a direction directing the defendants to render true and proper accounts of the income and expenditure including the sale proceeds received by the defendants on account of the sales effected and consideration received by them for the properties of Late E.K.Pattabirama Reddiar on a day to be fixed by this Court.

For Plaintiffs	:	Mr.R.Thiagarajan
For Defendants	:	Mr.P.J.Rishikesh for D1 Mr.C.Jagadish for D2 to D5 Mr.K.V.Ananthakrushnan for D7 D6- No appearance.

O.A.No.242 of 2021 and A. Nos.1689 & 1690 of 2021

1. Nirmala,

Wife of Late C.Sathyanarayanan

2. Sangeetha ,

Daughter of Late C.Sathyanarayanan

3. Sujatha,

Daughter of Late C.Sathyanarayanan

4. Indira Priyadharshini

Daughter of Late C.Sathyanarayanan

5. Estate of C.Sathyanarayanan Rep. by its Intermeddlar S.Nirmala Wife of Late C.Sathyanarayanan 19-A, Rangabashyam Street,
Saidapet, Chennai – 600 015. Vs. 1.  P.Saraswathi, Wife of M.A.Kanniah Reddiar 2.  J.Sriram, S/o Late. Jaganatha Reddiar 3.  J.Kumar S/o Late Jaganatha Reddiar 4.  J.Padmavathi D/o Late Jaganatha Reddiar 5.  J.Devatha D/o Late Jaganatha Reddiar 6.  Banu Raj, D/o Late P.Chakrapani Reddiar 7.  P.Ponni	..Applicants
D/o Late.P.Chakrapani Reddiar	… Respondents .

Prayer in O.A.No.242 of 2021

Application filed under Order XIV Rule 8 of O.S. read with Order XXXIX Rule 1 & 2 and r/w Section 94(e) of the C.P.C. to grant interim injunction restraining the respondents/ defendants their men, servants, agents or anyone claiming under them from in any manner interfering with the peaceful possession and enjoyment of the properties, pending suit.

Prayer in A.No.1689 of 2021

Application filed under Order XIV Rule 8 of O.S.Rules r/w Order XL Rule 1 CPC to appoint the 1st plaintiff S.Nirmala as Party Receiver in respect of the properties, pending suit.

Prayer in A.No.1690 of 2021

Application filed under Order XIV Rule 8 of O.S.Rules r/w Order II Rule 3 of CPC to grant permission to the plaintiffs to unite and combine the various cause of action in respect of various claims arising out of KUDUMBAYERPADU’ and Testamentary dispossession in one comprehensive suit thereby combining the cause of action, combining the claims n respect of those properties and properties owned and possessed by the plaintiffs as against the defendants in this Court.

For Applicants	:	Mr.R.Thiagarajan
For Respondents	:	Mr.P.J.Rishikesh for R1 Mr.C.Jagadish for R2 to R5

Mr.K.V.Ananthakrushnan for R7

R6- No appearance.

A.Nos.2436 & 2437 of 2021

P.Saraswathi,

Wife of M.A.Kanniah Reddiar          ..Applicant

vs.

1. Nirmala,

Wife of Late C.Sathyanarayanan

2. Sangeetha ,

Daughter of Late C.Sathyanarayanan

3. Sujatha,

Daughter of Late C.Sathyanarayanan

4. Indira Priyadharshini

Daughter of Late C.Sathyanarayanan

5. Estate of C.Sathyanarayanan

Rep. by its Intermeddlar

S.Nirmala

Wife of Late C.Sathyanarayanan     19-A, Rangabashyam Street,     Saidapet, Chennai – 600 015.

6. Banu Raj,

D/o Late P.Chakrapani Reddiar

7. Ponni

D/o Late.P.Chakrapani Reddiar

8. Sriram,

S/o Late. Jaganatha Reddiar

9. Kumar

S/o Late Jaganatha Reddiar

10. Padmavathi

D/o Late Jaganatha Reddiar

11. Devatha

D/o Late Jaganatha Reddiar            … Respondents .

Prayer in A.No.2436 of 2021

Application filed under Order XIV Rule 8 of O.S.Rules r/w Order VII Rule 11(a) and (d) and Section 151 of CPC, 1908 to reject the plaint in

C.S.No.157 of 2021

Prayer in A.No.2437 of 2021

Application filed under Order XIV Rule 8 of O.S.Rules r/w Order XXXIX Rule 4 and Section 151 of CPC, 1908 to vacate the interim order of injunction dated 17.04.2021 passed in O.A.No.242 of 2021 in C.S.No.157 of 2021.

For Applicant                     : Mr.P.J.Rishikesh

For Respondents                              : Mr.R.Thiagarajan

for R1 to R5             No appearance for R6             Mr.K.V.Ananthakrushnan

for R7

Mr.C.Jagadish for R8 to R11

A.Nos.2506 & 2507 of 2021

1. Sriram,

S/o Late. Jaganatha Reddiar

2. Kumar

S/o Late Jaganatha Reddiar

3. Padmavathi

D/o Late Jaganatha Reddiar

4. Devatha

D/o Late Jaganatha Reddiar         ..Applicants

-Vs-

1. Nirmala,

Wife of Late C.Sathyanarayanan

2. Sangeetha ,

Daughter of Late C.Sathyanarayanan

3. Sujatha,

Daughter of Late C.Sathyanarayanan

4. Indira Priyadharshini

Daughter of Late C.Sathyanarayanan

5. Estate of C.Sathyanarayanan

Rep. by its Intermeddlar

S.Nirmala

Wife of Late C.Sathyanarayanan     19-A, Rangabashyam Street,     Saidapet, Chennai – 600 015.

6. Saraswathi,

W/o M.A.Kanniah Reddiar

7. Banu Raj,

D/o Late P.Chakrapani Reddiar

8. Ponni

D/o Late.P.Chakrapani Reddiar       ..Respondents

Prayer in A.No.2506 of 2021

Application filed under Order XIV Rule 8 of O.S.Rules r/w Order XXXIX Rule 4 and Section 151 of CPC to  vacate the interim order of injunction dated 17.04.2021 passed in O.A.No.242 of 2021 in C.S.No.157 of 2021.

Prayer in A.No.2507 of 2021

Application filed under Order XIV Rule 8 of O.S.Rules r/w Order XXXIX Rule 11(a) and (d) and Section 151 of CPC to reject the plaint in c.S.No.157 of 2021.

For Applicant    : Mr.C.Jagadish

For Respondents                              : Mr.R.Thiagarajan

for R1 to R5

Mr.P.J.Rishikesh for R6

No appearance for R7             Mr.K.V.Ananthakrushnan

for R8

A.Nos.2554 & 2555 of 2021

Ponni,

W/o Pannagasayanan          ..Applicant

-Vs-

1. Nirmala,

Wife of Late C.Sathyanarayanan

2. Sangeetha ,

Daughter of Late C.Sathyanarayanan

3. Sujatha,

Daughter of Late C.Sathyanarayanan

4. Indira Priyadharshini

Daughter of Late C.Sathyanarayanan

5. Estate of C.Sathyanarayanan

Rep. by its Intermeddlar

S.Nirmala

Wife of Late C.Sathyanarayanan     19-A, Rangabashyam Street,     Saidapet, Chennai – 600 015.

6. Saraswathi,

W/o M.A.Kanniah Reddiar

7. Sriram,

S/o Late Jaganatha Reddiar

8. Kumar

S/o Late Jaganatha Reddiar

9. Padmavathi

D/o Late Jaganatha Reddiar

10. Devatha

D/o Late Jaganatha Reddiar

11. Banu Raj

D/o Late P.Chakrapani Reddiar       ..Respondents

Prayer in A.No.2554 of 2021

Application filed under Order XIV Rule 8 of O.S.Rules 1956  r/w section 10 of CPC to grant an order of stay of further proceedings in C.S.No.157 of 2021 under Section 10 of CPC. Prayer in A.No.2555 of 2021

Application filed under Order XIV Rule 8 of O.S.Rules 1956  r/w section 10 of CPC to grant an order of reject the plaint and dismiss the suit as not maintainable on the ground of limitation under Order 7 Rule 11(a) and (d) of CPC read with Order 15 Rule 3 of CPC.

For Applicant         : Mr.Mr.K.V.Ananthakrushnan

For Respondents    : Mr.R.Thiagarajan for R1 to R5   Mr.P.J.Rishikesh for R6

Mr.C.Jagadish for R7 to R10

No appearance for R11

 

 COMMON  ORDER

The suit has been filed for the following reliefs:

22. a) For declaration that the plaintiffs and the defendants are bound by “Kudumba Yerpadu” viz., Family Arrangement dated 22.10.1982 executed by Late E.K.Pattabirama Reddiar and others;

b)For permanent injunction restraining the defendants, their men, agents, servants or any other persons claiming through them from in any manner interfering with the plaintiffs’ right or entitlement to own, possess and enjoy the properties, more fully described in the schedule IV; more fully described in plaint schedule hereunder;

c)For partition and separate possession of the properties more fully described in Schedule III into 5 equal shares and allot 1/5th share to each of the plaintiff 1 and 4 and to the persons entitled to it in accordance with law;

d)For division of the properties devolved upon the Estate

of Late C.Shyamalavalli as legal heir of C.Sathyanarayanan mentioned in Schedule V more fully described in the plaint schedule hereunder to be divided into metes and bounds and allocate 1/3rd share to the plaintiffs jointly as the legal heirs of

Late C.Sathyanarayanan in accordance with their entitlement;

e) சொத்துக்கள் தாமதமாக தீர்த்துவைக்கப்பட்டன என்ற அறிவிப்புக்காக

செட்டில்மென்ட் பத்திரம் மூலம் சி.ஷியாமளவல்லி தேதியிட்டார்

29.07.2004 மற்றும் 2004 இன் ஆவண எண்.6568 இல் பதிவுசெய்யப்பட்டது

சைதாப்பேட்டை துணைப் பதிவாளர் அலுவலகம், M/s.பொன்னி மற்றும் பானு ராஜ் ஆகியோருக்கு ஆதரவாக அட்டவணை V இல் முழுமையாக விவரிக்கப்பட்டுள்ளது, இது சட்டவிரோதமானது, செல்லுபடியாகாதது மற்றும் சட்டப்பூர்வமற்றது. s.பொன்னி மற்றும் பானு ராஜ் அல்லது அதில் குறிப்பிடப்பட்டுள்ள சொத்துக்களுடன் தொடர்புடைய வாதிகளை பிணைக்கக்கூடாது;

(எஃப்) ஒரு நாளில் மறைந்த ஈ.கே.பட்டாபிராம ரெட்டியார் சொத்துக்களுக்காக பிரதிவாதிகள் பெற்ற விற்பனை மற்றும் பரிசீலனையின் மூலம் பிரதிவாதிகள் பெற்ற விற்பனை வருமானம் உட்பட வருமானம் மற்றும் செலவினங்களின் உண்மையான மற்றும் முறையான கணக்குகளை வழங்குமாறு பிரதிவாதிகளுக்கு வழிகாட்டுதல் இந்த நீதிமன்றத்தால் நிர்ணயிக்கப்படும்.

2. The brief facts and the circumstances that led to the filing of the suit are stated hereunder. For the sake of clarity, the parties are referred to as per their description in the suit  as plaintiffs and defendants.
3. The schedule mentioned properties are the ancestral properties belonging to one Kanniah Reddiar who had five sons and one daughter. One of the sons was E.K.Pattabirama Reddiar and the present suit is in relation to the properties owned and inherited by the said  K.Pattabirama Reddiar. Apart from the present suit there are  other   pending litigations before this Court in respect of the properties of  E.K.Pattabirama Reddiar, but those matters, though referred to as part of the judicial discourse are not part of the present adjudication.
4. E.K.Pattabirama Reddiar was married to one Rajamanickammal and from the wedlock, they had a son by name

P.Chakrapani Reddiar and two daughters Ms.Lakshmikanthammal and

P.Saraswathi. Smt.Lakshmikanthammal, the first daughter of

E.K.Pattabirama Reddiar passed away as early as in the year 1943, leaving behind her surviving daughter Ms.Santhanalakshmi. The son,

Mr.P.Chakrapani Reddiar pre-deceased his father and died on 24.03.1979.

The said Chakrapani Reddiar was survived by his wife  Shyamalavalli

Ammal, and three children Mr.C.Sathyanarayanan, Ms.Banu Raj and Mrs.Ponni. On  04.03.2003, Mr.C.Sathyanarayanan also passed away and he was survived by his mother Shyamalavalli Ammal, wife Nirmala and children, S.Sangeetha, S.Sujatha and S.Indira Priyadharashini. In the present suit, the wife of Mr.C.Sathyanarayanan and his three children are the

plaintiffs.

5. Subsequently, the mother of C.Sathyanarayananan

Mrs.Shyamalavalli Ammal also passed away on 24.07.2018. The legal heirs of Lakshmikanthammal who died as early as in  1943 namely Santhanalakshmi, her surviving daughter died on 12.07.2010, leaving behind her children J.Sriram, J.Kumar, J.Padmavathi and J.Devatha, who are the defendants 2 to 5. The sister of Chakrapani Reddiar, P.Saraswathi is the 1^st defendant herein. The 6^th and 7^th defendants are the daughters of late Chakrapani Reddiar. The fight for partition  is between the legal heirs of late

C.Sathyanarayanan, son of Chakrapani Reddiar on one side  and the sister of Chakrapani Reddiar, the 1^st defendant herein (P.Saraswathi) and the legal heirs of the other sister Lakshmikanthammal(through Santhanalakshmi) and brother and sister of C.Sathyanarayanan, on the other. In short, the rival claim is between the family members of late C.Sathyanarayanan versus others from different branches of the family of E.K.Pattabirama Reddiar.

6. According to the plaintiffs, E.K.Pattabirama Reddiar acquired number of immovable properties in and around Chennai. He had originally executed a Will dated 12.11.1970 and the same was registered at Joint Sub

Registrar III, Saidapet, Madras District. However, the Will was subsequently revoked by another Will dated 05.03.1982 and registered as Document No.8 of 1982. According to the plaintiffs, the said Will also was subsequently, superseded by the  last Will and Testament dated 22.10.1982. On the very same day, according to the plaintiffs, Pattabirama Reddiar executed a Deed captioned as “Kudumba Yerpadu” (Ninaivu Kuripu). According to the plaint averments, E.K.Pattabirama Reddiar ensured that properties owned by him had been equitably distributed to all his legal heirs.

7. As far as the Will dated 05.03.1982 was concerned, late Shri.C.Sathyanarayanan, son of Chakrapani Reddiar and the grandson of

E.K.Pattabirama Reddiar was the named  Executor. In the capacity of the Executor of the Will, the  late C.Sathayanrayanan initiated proceedings for grant of probate before this Court in O.P.No.359 of 2002.  During the pendency of the probate proceedings , he passed away on 04.03.2003. After his demise, his legal heirs, Shyamalavalli i.e., his mother and the plaintiffs herein came on record and the  probate proceedings was converted into

Letters of Administration with the Will annexed. However, the validity of the Will dated 05.03.1982 was contested by the 1^st defendant  herein in O.P.No.359 of 2002 which led to the conversion of the  O.P. into T.O.S.No.1 of 2004.

8. The 1^st defendant herein, the daughter of E.K.Pattabirama Reddiar even before the initiation of the probate proceedings in 2002 had filed a Suit in C.S.No.252 of 1996 before this Court for partition of the properties belong to her father E.K.Pattabirama Reddiar. Although originally in the suit, all the legal heirs who had stakes in the partition suit, were not made parties, but subsequently, all of them came to be  made  parties, meaning that the parties who are before this Court in the present proceedings, are also parties in the above suit. The suit, though stated to be pending, but it has reached advanced stage and nearing completion.
9. The plaint averment would also refer to another suit filed in C.S.No.949 of 2004 by Mrs.C.Shyamalavalli, wife of Chakrapani Reddiar, in regard to a dissolution of partnership firm, M/s.Sathyanarayana Brick Works, with a consequential relief of claiming some share in LIC premium etc. There is one other suit filed by the 7^th defendant herein, daughter of P.Chakrapani Reddiar in C.S.No.476 of 2008 for partition and separate possession claiming 1/4^th share belonging to the estate of P.Chakrapani Reddiar. The claim of the 7^th defendant herein Mrs.Ponni was based on a Settlement Deed dated 29.07.2004 executed by her mother Shyamalavalli in her favour and also in favour of her son Banu Raj, 6^th defendant herein. The Settlement Deed dated 29.07.2004 was registered as Document No.6568 of 2004 at S.R.O. Joint Sub Registrar, Saidapet.
10. The 7^th defendant, after the institution of C.S.No.476 of 2008, which according to the plaintiffs is in a part heard stage, has now chosen to file O.P.No.164 of 2020 seeking to probate a Will left behind by her mother Shyamalavalli dated 11.08.2010, after her mother’s death on 24.07.2018.

The said Will being contested was converted into T.O.S.No.12 of 2021. According to the plaintiffs that the suits mentioned above are pending finalisation before this Court. Further the plaintiffs have explained in the plaint  as to the immediate provocation  for filing of the present suit by them, as under.

11. According to the plaintiffs, in the O.P.No.164 of 2020 converted as TOS.No.12 of 2021, the 7^th defendant herein, the petitioner therein has included several properties which originally belonged to E.K.Pattabirama

Reddiar and devolved on the late Sathyanarayanan by virtue of Kudumba Yerpadu dated 22.10.1982. Faced with the threat of divesting and extinguishment of their rights by the recent action of filing O.P.No.164 of 2020 (TOS.No.12/2021), the plaintiffs herein have been forced to file a comprehensive suit to protect  and preserve their proprietary rights in respect of the properties which are the subject matter of TOS.No.12/2021. It is also the case of the plaintiffs that E.K.Pattabirama Reddiar, while executing the Deed called Kudumba Yerpadu on 22.10.1982, has also left a Will on  the same day i.e., 22.10.1982 as a  confirmation of the Kudumba

Yerpadu arrangement. The plaintiffs have on their part  filed O.P. in Diary

No.63667/2020 seeking to probate the last Will and testament of

E.K.Pattabirama Reddiar dated 22.10.1982 and O.P. has still not been numbered, but pending before this Court.

12. According to the plaintiffs, the deed of Kudumba Yerpadu dated 22.10.1982, being binding on all the parties herein and being the foundational document under which the claim of partition could be sought by the parties herein,  the present suit has been filed by them.
13. In the plaint, it is averred that the document Kudumba Yerpadu dated 22.10.1982 and the Will dated 22.10.1982 had been subsequently,

unearthed by the plaintiffs when notice was issued on behalf of the 7^th defendant of C.S.No.476/2008 for its production. During  the course of the trial in C.S.No.476 of 2008, ‘Kudumba Yerpadu’ document came to be marked as Ex.P11. On finding of ‘Kudumba Yerpadu’ document along with the last Will and Testament of E.K.Pattabirama Reddiar dated 22.10.1982 and faced with the threat of interference with their rights to the properties which have already been  in their possession and enjoyment, the plaintiffs were constrained to file the present suit. As the ‘Kudumba Yerpadu’ dated 22.10.1982 is binding on all the stake holders, the declaratory relief has been prayed for.  The plaintiffs simultaneously have also initiated steps to probate the last Will and testament of E.K.Pattabirama Reddiar dated 22.10.1982, as stated above.

14. On behalf of the defendants, three applications have been filed

for rejection of plaint. Application No.2436/2021 is filed by the 1^st defendant and represented by her Advocate Mr.P.J.Rishikesh, Application No.2507/2021 is filed by defendants 2 to 5 represented by their counsel Mr.C.Jagadish, Application No.2555/2021 is filed by 7^th defendant represented by her counsel, K.V.Ananthakrushnan. There is another application filed by the 7^th defendant in A.No.2554/2021 to stay the proceedings under section 10 of C.P.C. The learned counsels representing the defendants have made elaborate submissions in the application for rejection of the plaint on the facts and grounds as set out hereunder.

15. Spearheading the attack, Mr.Rishikesh, the learned counsel forthe 1st defendant would submit that the suit has been premised entirely on one document namely ‘Kudumba Yerpadi’ dated 22.10.1982. According to him any document which creates, declares, assigns, limits or extinguishes any right to or in immovable property is compulsorily registerable in terms of Section 17(1)(b) of the Registration Act, 1908. He would refer to the

Section and the relevant sub clause which is reproduced  hereunder.

17. Documents of which registration is compulsory-

(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866 (XX of 1866), or the Indian Registration Act 1871 (VIII of 1871), or the Indian Registration Act, 1877 (III of 1877), or this Act came or comes into force, namely:-

(a)…..

(b) other non-testamentary instruments which purport operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.

16. Laying emphasis on this legal objection, the learned counsel would refer to ‘Kudumba Yerpadi’ dated 22.10.1982 wherein only one heir of E.K.Pattabirama Reddiar i.e., the lineage of Chakrapani Reddiar alone had partitioned amongst them and taken the entire properties belonging to

E.K.Pattabirama Reddiar, to the exclusion  of all other legal heirs of

E.K.Pattabirama Reddiar i.e., Smt.Lakshikanthammal and Smt.Saraswathi Ammal. Since the document (Kudumba Yerpadu) is the only basis on which the entire right is sought to be established by the plaintiffs, the same is compulsorily registerable as per the above reproduced section and its subclause. In the absence of registration of the foundational document that gave rise to the filing of the suit, the suit for declaration is not maintainable at all.

17. In the same breath, the learned counsel would also submit that the document in question will also not come within the exceptions carved out in Section 17(2), 17(2)(v) as extracted hereunder.

(2) Nothing in clauses (b) and (c) of sub-section

(1) applies to –

… …

(v) any document other than the documents

specified in sub-section (1-A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

18. According to the learned counsel, a reading of the above exception to the section and its sub clauses demonstrate that a document not itself creating, declaring, extinguishing any rights etc., but merely records the rights already created or extinguished etc.  such document alone is not compulsorily registrable under Rule 17(2)(v). From the plain and bare reading of ‘Kudumba Yerpadu’ dated 22.10.1982, it is very clear without a shred of doubt that the said document creates rights in favour of C.Sathyanarayanan and his legal heirs and extinguishes, limits the rights of the others, the defendants herein and therefore, it cannot  said to be a document falling within the exception to Rule 17(1). On this ground alone, the plaint is liable to be rejected.
19. According to the learned counsel, in short, the registration is no option but compulsory, if the terms of Family Arrangement are reduced into writing as held by the Courts as per Section 17(1) of the Registration Act,1908. At the same time, if the document does not create or extinguish any right, but it only records the right already created or extinguished in respect of the immovable property, it would fall within the exception to Section 17(1) and such document is not compulsorily registerable.
20. The learned counsel in this regard would also refer to another crucial provision in the Registration Act, 1908 namely Section 49. The section defines the effect of non-registration of document required to be registered. According to the learned counsel, an unregistered document cannot produce any effect on the rights in immovable property and it cannot be received as evidence of transaction which affecting such immovable property. When such is the position in law in terms of the statutory provisions as contained in the Registration Act,1908 the laying of the suit, claiming their right wholly on the basis of the unregistered document (kudumba Yerpadu) dated 22.10.1982 and seeking declaration on that premise is thoroughly misconceived and in such circumstances, the suit is liable  to be rejected, as not maintainable in law.
21. The learned counsel would submit that the suit even otherwise, is hopelessly time barred, as the basis of the  declaratory relief prayed for, is the Kudumba Yerpadu dated 22.10.1982 and the suit has been filed in 2021, after a period of 38 years. According to the learned counsel, Article 58 of the Limitation Act, 1963, could be directly pressed into service in the present claim of the plaintiffs.  As per Article 58, the suit  of the present nature is to be filed within 3 years, when such right to sue accrued to the

parties. According to the plaintiffs, filing of O.P.No.164 of 2020 by the 7^th defendant and the conversion of the same as TOS.No.12 of 2021 was the provocation for filing the suit and therefore, the suit is stated to be well within the limitation period. But the facts herein do not support the case of the plaintiffs as according to the learned counsel, the document (Kudumpa Yerpadu) was marked as Ex.P11 in C.S.No.476/2008. The document was in possession of the plaintiffs and notice was given on behalf of the plaintiff therein, the 7^th defendant herein to produce the document and on production of the same by the plaintiffs, it was marked in the chief examination on 01.10.2015. Even  assuming that the plaintiffs were totally unaware of the existence of the document till that time, they became aware as on 01.10.2015 when the document was marked in the above said suit proceedings.

22. The learned counsel would further submit that the 1^st plaintiff herein filed a proof affidavit in C.S.No.476 of 2008, in which, she was arrayed as 1^st defendant where she has specifically referred to ‘Kudumba Yerpadu’ dated 22.10.1982. The said affidavit was dated 11.01.2015. Therefore, the 1^st plaintiff had clear knowledge of the existence of the document in January 2015 itself, if not earlier. Going by their own statement, the plaintiffs ought to have approached this Court in 2018 itself but the suit has been filed only after the limitation period in 2020 or 2021. Looking from  whichever factual perspective, the suit has to be dismissed on the ground of limitation. The so called explanation necessitating the filing of the suit as a consequence to the filing of O.P.No.164 of 2020 by the 7^th defendant and conversion of the same into TOS.No.12 of 2021 has absolutely no nexus at all and such plea  has been taken to get around the limitation aspect. This is more so, when already a partition suit was filed way back in 1996 in C.S.No.252 of 1996 and all the parties herein are also the parties therein and the suit has reached the advanced stage and nearing conclusion.
23. The learned counsel would also submit that there is no cause of action disclosed in the entire plaint. According to him, already a partition suit is pending before this Court filed as early as in the year 1996 in C.S.No.252/1996 and when the suit is likely to be disposed of shortly, the present suit has been vexatiously filed by the plaintiffs herein without any specific cause of action and with a malicious intention to unsettle any possible adverse outcome in the suit and to keep the dispute alive for serving their own ends. The learned counsel would assert that the averments as contained in the plaint regarding pendency of other two suits and the O.P. filed by the 7^th defendant  have no bearing at all on the rights and claim of the parties in C.S.No.252 of 1996. The present  claim on the basis of ‘Kudumba Yerpadu’ dated 22.10.1982 is a clever invention to prolong the litigations as between the parties and  be benefited by its pendency.
24. The learned counsel also submitted that all the properties which are sought to be partitioned in the present suit are the very same subject matter in C.S.No.252 of 1996. The said suit is nearing completion and the cross examination of P.W.1 Saraswathi was also completed. In the said circumstances, the present suit has been laid for a vexatious purpose and clear abuse of process of the The present suit, therefore, suffers from two basic infirmities in law. One, it is vexatious and another, it amounts to re-litigation. On both grounds, the suit is liable to be thrown out.
25. The learned counsel  also submitted on facts that the so called’Kudumba Yerpadu’ dated 22.10.1982 and the Will dated 22.10.1982 are documents prepared under suspicious circumstances. It was a fact that E.K.Pattabirama Reddiar had suffered stroke and was found to be incompetent to execute any document in March 1982 itself.  Moreover, the document dated 22.10.1982 were just 7 days prior to the death of the said E.K.Pattabirama Reddiar. In any event, according to the learned counsel, the suit is otherwise, not maintainable on the legal grounds as stated above.

26.The learned counsel also submitted that there are two other grounds  which can also be taken into consideration for dismissing the suit. Firstly, the plaint suffers from suppression of material facts. According to the learned counsel, certain orders passed by the learned Judge of this Court earlier had not been disclosed in the plaint. Secondly, the Suit has been undervalued and liable to be rejected on that ground also.

27. The learned counsel would then proceed to refer to two decisions in his support. 1976(3) SCC 119 (Kale and others vs. Deputy Director of Consolidation and others). He would particularly draw the attention of this Court to paragraph Nos. 9 and 10 which are extracted hereunder.
28. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:

“The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend.”

The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain .and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury’s Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:

“A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.

The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term “family arrangement” is applied.

Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements.”

10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

“(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

• The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
• The family arrangement may be even oral in which case no registration is necessary;
• It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
• The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
• Even if bona fide disputes, present or possible,which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”
  28. The above decision of the Hon’ble Supreme Court explicated what is family arrangement and how it should be reduced in a concretised form. The Court has clearly held that registration is necessary if terms of the family arrangement are reduced into writing. This principle is in consonance with the provisions of the Registration Act, 1908, as aforementioned.
  29. The learned counsel would then refer to 2021 SCC Online SC

847 (Korukonda Chalapathi Rao and another vs. Korukonda Annapurna Sampath Kumar) and would particularly draw the attention of this Court to paragraph No.36 which is extracted hereunder.

36.As far as Section 49(1)(c) of the Registration Act is concerned, it provides for the other consequence of a compulsorily registrable document not being so registered. That is, under Section 49(1)(a), a compulsorily registrable document, which is not registered, cannot produce any effect on the rights in immovable property by way of creation, declaration, assignment, limiting or extinguishment. Section 49(1)(c) in effect, reinforces and safeguards against the dilution of the mandate of Section 49(1)(a). Thus, it prevents an unregistered document being used ‘as’ evidence of the transaction, which ‘affects’ immovable property. If the Khararunama by itself, does not ‘affect’ immovable property, as already explained, being a record of the alleged past transaction, though relating to immovable property, there would be no breach of Section 49(1)(c), as it is not being used as evidence of a transaction effecting such property. However, being let in evidence, being different from being used as evidence of the transaction is pertinent [See Muruga Mudallar(supra)]. Thus, the transaction or the past transactions cannot be proved by using the Khararunama as evidence of the transaction. That is, it is to be noted that, merely admitting the Khararunama containing record of the alleged past transaction, is not to be, however, understood as meaning that if those past transactions require registration, then, the mere admission, in evidence of the Khararunama and the receipt would produce any legal effect on the immovable properties in question.

30. The above ruling of the Court is to the effect that unregistered document cannot produce any effect on the rights in immovable property by way of creation, declaration etc. in terms of Section 49 of the Registration Act. According to the learned counsel, the above ruling would have to be applied squarely to the foundational document relied on by the plaintiffs  as the basis for their  declaratory relief sought in the suit. The learned counsel would therefore, sum up that the suit is liable to be rejected on several legal grounds as contended above.
31. C.Jagadish, the learned counsel representing defendants 2 to 5 herein also filed an application as mentioned above to reject the plaint. The learned counsel, while making his submission has also reiterated and focussed his argument on the alleged ‘Kudumba Yerpadu’ which is unregistered, unstamped and inadmissible in  evidence. He has also drawn the attention of this Court to Section 17(1)(b) of the Registration Act, 1908.

According to the learned counsel, the recitals in the said document declare and extinguish the  rights of parties in present and future and therefore, compulsorily registerable.

32. In this connection, the learned counsel has specifically drawn the attention of this Court to the contents of the family arrangement. By referring to the contents in the document in detail, the learned counsel impressed upon this Court that the division of the properties was in present and E.K.Pattabirama Reddiar was shown as head of the family till that date of the alleged ‘Kudumba Yerpadu’ (22.10.1982). According to the learned counsel, though the document was styled as ‘Ninaivu Kurippu‘, the same did not disclose the date on which there was any partition at all among the parties, earlier to the so called ‘Kudumpa Yerpadu’.
33. The learned counsel further submitted that the prayer for declaration that ‘Kudumba Yerpadu’ dated 22.10.1982 is binding on all the parties is also not maintainable for the simple reason that the defendants are not parties to the alleged family arrangement and as such, there cannot be any declaration that it is binding on them.
34. The learned counsel has also strongly contended on the aspect of limitation and has also referred to the fact of ‘Kudumba Yerpadu’ document dated 22.10.1982 being marked as Ex.P11 in C.S.No.476/2008 as early as in the year 2015. The learned counsel also referred to the fact that the said E.K.Pattabirama Reddiar was not in sound and disposing state of mind at the time of the so called  ‘Kudumba Yerpadu‘ and the Will  dated 22.10.1982 that were stated to be executed. According to the learned counsel, the plaintiffs herein who have not been co-operating in the earlier completion of the suit in C.S.No.252/1996, have come forward with the present suit with oblique motive and for achieving extraneous purpose in prolonging the litigation amidst the parties.
35. The learned counsel would then proceed to refer to a few decisions in his support as under:

(i) 2020 (7) SCC 366(Dahiben vs Arvindbhai Kalyanji Bhanusali in Civil Appeal No.9519 of 2019). This Court’s attention has been drawn to paragraphs 23, 24 and 30 which are extracted hereunder.

23.We have heard the learned counsel for the parties, perused the plaint and documents filed therewith, as also the written submissions filed on behalf of the parties.

23.1.We will first briefly touch upon the law applicable for deciding an application under Order 7 Rule 11 CPC, which reads 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)where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;

(c)where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;

(d)where the suit appears from the statement in the plaint to be barred by any law;

• where it is not filed in duplicate;
• where the plaintiff fails to comply with the provisions of Rule 9:

Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.”

(emphasis supplied)

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. In Azhar Hussainv. 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 a 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.”

• 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. ….
• 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.
• Order 7 Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under:

“14.Production of document on which plaintiff sues or relies.—(1)Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

• Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
• A document which ought to be produced in court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.
• Nothing in this Rule shall apply to document produced for the cross-examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.”

(emphasis supplied)

23. 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 adverted to, or taken into consideration. [Sopan Sukhdeo Sable v. Charity

Commr., (2004) 3 SCC 137]

23. 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.”

• 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] .

• 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.
• 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] .

• 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.

24. “Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.

24.1. In Swamy                                      Atmananda v. Sri                                   Ramakrishna

Tapovanam [Swamy             Atmananda v. Sri                                 Ramakrishna

Tapovanam, (2005) 10 SCC 51] this Court held : (SCC p. 60, para 24)

“24. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded.”

(emphasis supplied) 24.2. In T.Arivandandam v. T.V.Satyapal [T.Arivandand am v. T.V. Satyapal, (1977) 4 SCC 467] this Court held that while considering an application under Order 7 Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : (SCC p. 470, para 5)

“5. … 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 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing.…”

(emphasis supplied)

24.3. Subsequently, in ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.

24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri     Rama Chandra Murthy v. Syed

Jalal [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602] held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.

… …

30. The present suit filed by the plaintiffs is clearly an abuse of the process of the court, and bereft of any merit. The trial court has rightly exercised the power under Order 7 Rule 11 CPC, by allowing the application filed by Respondents 2 and 3, which was affirmed [Dahiben v. Arvindbhai Kalyanji Bhanusali, 2016 SCC OnLine Guj 10017] by the High Court.

In the above decision, the Hon’ble Surpeme Court has dealt with the law applicable for deciding the application under Order 7 Rule 11 C.P.C. After referring to several case laws on the subject matter, the Hon’ble Supreme Court held that every facet of  Order VII Rule 11 CPC needs to be satisfied by the plaintiffs, failing which, the Courts are empowered to terminate the civil action as being vexatious and without cause of action. As a matter of fact, the Court has also commented on the clever drafting of the plaint which may create illusion of a cause of action and the Court must be vigilant against such crafty drafting. Finally, the Hon’ble Supreme Court has held that the suit filed therein was  an abuse of process of the Court and upheld  the trial Court’s order in rejecting the suit under Order VII Rule 11 CPC.

1. Civil Appeal Nos. 5819 – 5822 of 2019 (Rajendra Bajoria vs. Hemant Kumar Jalan).This Court’s attention has been drawn to the following observation in paragraph No.17 by the Hon’ble Supreme Court.
2. It could thus be seen that the court has to find out as to whether in the background of the facts, the relief, as claimed in the plaint, can be granted to the plaintiff. It has been held that if the court finds that none of the reliefs sought in the plain can be granted to the plaintiff under the law, the question then arises is as to whether such a suit is to be allowed to continue and go for trial. This Court answered the said question by holding that such a suit should be thrown out at the threshold. This Court, therefore, upheld the order passed by the trial court of rejecting the suit and that of the appellate court, thereby affirming the decision of the trial court. This Court set aside the order passed by the High Court, wherein the High Court had set aside the concurrent orders of the trial court and the appellate court and had restored and remanded the suit for trial to the trial court.

According to the learned counsel, the above observation would have to be squarely applied to the case on hand  for rejecting the suit. According to him, none of the reliefs as sought in the plaint is capable of being granted in consonance with the law. Therefore, the suit is liable to be rejected at the very threshold.

• 2018 (15) SCC 130( Sita ram Bhama v. Ramvatar Bhama). This Court’s attention has been drawn to paragraph Nos.11 to 13, extracted hereunder:

11. Pertaining to family settlement, a memorandum of family settlement and its necessity of registration, the law has been settled by this Court. It is sufficient to refer to the judgment of this Court in Kale and others vs. Deputy Director of Consolidation and others, (1976) 3   SCC  119. The propositions   with   regard to family settlement, its registration were laid down by this Court in paragraphs 10 ad 11: registration were laid down by this Court in paragraphs 10 an d 11:

“10.In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

(1)The family settlement must be a bonafide one so as to resolve family disputes and rival claims   by   a   fair   and   equitable   division   or allotment   of   properties   between   the   various members of the family;

• The said settlement must be voluntary a nd should not   be   induced   by   fraud,   coercion   or undue influence;
• The family arrangement may be even oral in which case no registration is necessary;
• It is   well   settled   that   registration would   be   necessary   only   if   the   terms   of   the family   arrangement   are   reduced   into  

Here also, a distinction should be made betweena document containing the terms and recitals of a   family   arrangement   made  under   the   document and a mere memorandum prepared after the famil

y arrangement   had   already   been   made   either   for the purpose of the record or for information of the   court   for   making   necessary   mutation.   In such   a   case   the   memorandum   itself   does   not create   or   extinguish   any   rights   in   immovable properties   and   therefore   does   not   fall   within the   mischief   of   Section   17(2)   of   the Registration   Act   and   is,   therefore,   not compulsorily registrable;

• The members   who   may   be  parties   to   the family   arrangement   must   have   some    antecedent title, claim or interest even a possible claim in   the   property   which   is   acknowledged   by   the parties to the settlement. Even if one of the parties   to   the   settlement   has   no   title   but under   the   arrangement   the   other   party

relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole   owner,  then   the   antecedent  title   must   be assumed   and   the   family   arrangement   will   be upheld   and   the   courts   will   find  no   difficulty in giving assent to the same;

• Even if   bona   fide   disputes,   present   or possible,   which   may   not   involve   legal   claims are  settled  by   a   bona   fide   family   arrangement which   is   fair   and   equitable   the   family

arrangement is final and binding on the parties to the settlement.

11. The principles indicated above have been clearly enunciated  and  adroitly adumbrated in a long course  of decisions  of  this  Court as also those   of   the   Privy   Council   and   other   High Courts,  which we  shall  discuss  ”
12. We are,   thus,   in   full   agreement   with  the  view  view taken   by the  trial  court  as well  as the High  Court that  the document dated   09.1994   was   compulsorily   registrable.   The   document  also   being   not stamped   could   not   have   been   accepted   in evidence   and   order   of   trial   court   allowing   the   application under Order XII Rule 3 CPC and the reasons given by the tria l court   in  allowing   the   application     of   the   defendant  holding the document as inadmissible cannot be faulted.
13. There is   only   one   aspect   of   the   matter   which   needs consideration,   e.,   whether   the   document   dated   09.09.1994 which   was   inadmissible   in   evidence   could   have   been   used  for any   collateral   purpose.   In   a   suit   for   partition,   an unregistered   document   can   be   relied   upon   for   collateral purpose   i.e.severancy of   title,   nature   of   possession of various shares but not for the primary purpose i.e. division of joint properteis by metes and bounds. Further, an unstamped instrument is not admissible in evidence even for collateral purpose, until   the   same   is impounded.Atwo judge Bench judgment  of  this  Court in Yellapu Uma Maheswari and anothervs. Buddha Jag adheeswararao and others, (2015) 16 SCC 787, isappropriate.

In the above case also admissibility of documentsExt. B21 date d 05.06.1975 a deed of memorandum and Ext. B22 dated   04.06.1975   being   an   agreement   between   one   late Mahalakshamma,   respondent   No.1plaintiff   and   appellant No.1defendant   came   for   consideration.   Objection   was   taken regarding   admissibility   which   was   upheld   both   by   the   High Court  and  trial  court. Matter  was taken up  by this Court. In the above case, this Court held that the  nomenclature  given to the   document   is   not   decisive   factor   but   the   nature   and substance   of   the   transaction   has   to   be   determined   with reference   to   the   terms   of   the   documents.   This   Court   after considering  both the documents, B21 and B22 held  that they require  registration. In  paragraph 15 following was held:

“15. It is well settled that the nomenclature given   to   the   document   is   not   decisive   factor but the nature and substance of the transaction has   to   be   determined  with   reference   to   the terms   of   the   documents   and   that   the admissibility   of   a   document   is   entirely dependent   upon   the   recitals   contained   in   that document but not on the basis of the pleadings set up by the party who seeks to introduce the document   in   question.   A   thorough   reading   of both   Exts.   B21   and   B22   makes   it   very   clear that   there   is   relinquishment   of   right   in respect   of   immovable   property   through   a document   which   is   compulsorily   registrable document and if the same is not registered, it becomes   an   inadmissible   document   as   envisaged under   Section   49   of   the   Registration   Act. Hence,   Exts.   B21   and   B22 are  the  documents  which squarely  fall within the ambit  of  Section 17(1)(b) of  the Registration Act and hence are compulsorily  registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. we are of the considered opinion that Exts.   B21   and   B22   are   not   admissible   in evidence   for   the   purpose   of   proving   primary purpose of partition.”

The above decision is in regard to the registration of document. The Hon’ble Supreme Court was dealing with the case of family settlement and the registration of the same. As a matter of fact, in paragraph No.11 as above, the Hon’ble Supreme Court has reiterated the principles evolved in the judgment reported in 1976(3) SCC 119 (Kale and others vs. Deputy Director of Consolidation and others) relied on by the learned counsel

Mr.Rishikesh, who appeared for the first defendant.

iv) 2015(16) SCC 787(Yellapu Uma Maheswari v. Buddha Jagadheeswara Rao). The learned counsel would refer to paragraph

Nos.11, 11.1, 11.2 & 13 to 17 which are extracted hereunder.

11. Now the issue that falls for consideration is:
12. Whether the Courts below were right in holding that Exhibits B21 and B22 are not admissible in evidence as they are compulsorily registerable documents?

11.2. Whether Exhibits B-21 and 22 are admissible in evidence for collateral purpose?

… …

13.Section 17 (1) (b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered u/s 17 of the Act.

14. . Coming to the facts on hand, the defendant No.1 wanted to mark Exhibits B21 and B22, according to her, these two documents are Agreement and a Memorandum which were unregistered and unstamped documents and do not require registration. We have seen Exhibits B21 and B22 which are placed before us. Exhibit B22, dated 04/06/1975 as per the recitals, an Agreement between the plaintiff/respondent No.1, defendant No.1/appellant No.1 and late MahaLakshmamma. Clause 1 of the Agreement speaks about relinquishment of rights of Mahalakshmamma in favour of plaintiff/respondent No. 1 and defendant No.1/appellant No. 1 and Clause 4 specifies that the life estate of Mahalakshamama is devolved upon the plaintiff/respondent No.1 and the defendant No.1/appellant No.1 equally. It is further specified that the stock amount of Rs 50,000/- in the shop was given to Mahalakashamma and left over amount will be divided between plaintiff/respondent No.1 and defendant No.1/appellant No.1 and further it was agreed upon that Mahalakahamma was entitled to reside in the house where she was residing. She was at liberty to reside in the house of the plaintiff/respondent No. 1 and the plaintiff/respondent No.1 and the defendant No.1/appellant No.1 shall not raise any dispute over this. Coming to Exhibit B21, date 05/06/1975 which is an agreement between Mahalakashmma, plaintiff/respondent No.1 and defendant No.1/appellant No.1 wherein at Clauses 4 to 6 the recitals pertain to relinquishment of shares between the parties to the agreement. It is stated in the Memorandum, Ext. B 22, that each of them having partitioned the properties by good and bad qualities, have been enjoying the respective properties that fell to their shares, in proof thereof, the Deed of Memorandum is executed. Taking us through the recitals of these two documents, the learned senior counsel tried to impress upon this Court particularly through the last few lines from Exhibit B-21, that these documents are only evidencing the past transaction of partition that has taken place but through these documents no rights in immovable property have accrued to the parties as envisaged under Sec. 17 of the Registration Act and which makes these documents out of the purview of Section 49 of the Registration Act.
15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable document and if the same is not registered, becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of section 17 (i) (b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B 21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition.
16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance.
17. Accordingly, Civil Appeal is partly allowed holding that Exhibits B-21 and B-22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy.

In the above matter, the Hon’ble Supreme Court has succinctly held that the nomenclature given to the document is not the decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents  and that the admissibility of a document is entirely dependent  upon the recitals contained in the document but on the basis of the pleadings set up by the party who seeks to introduce the document in question.  On that basis, the Court found that the documents questioned therein were to be compulsorily registerable and therefore, the same became inadmissible document as envisaged under Section 49 of the Registration Act. However, the Court held that those documents can be relied upon for the purpose of collateral purpose, subject to proof and relevancy.  The learned counsel would therefore, submit that the present  suit is not at all maintainable in law and hence, to be rejected.

36. K.V.Ananthakrushnan, the learned counsel appearing for the 7th defendant, apart from reiterating the grounds already submitted by the other two counsels, would submit that in the suit for partition, the plaintiffs and the defendants who are bound by the pleadings taken in the earlier proceedings are estopped from projecting new contradictory pleas.  The learned counsel has taken exception to the description of  5th plaintiff  as estate of C.Sathyanarayanan, represented by its inter meddler S.Nirmala, his wife who has no legal status to be a party in the suit. According to him, the late C.Sathyanarayanan did not execute any Will and hence, suing on behalf of the estate of C.Sathyanarayanan represented by the 1st plaintiff is barred under Indian Succession Act.
37. According to the learned counsel, the present suit has been laid

with a malicious intent to fill up the lacunae in the earlier suit C.S.No.252 of 1996. It is a vexatious attempt by the plaintiffs herein to keep the dispute alive among the parties, as any long delay preventing  resolution could be beneficial to the plaintiffs.  while the earlier suit is almost nearing completion, the present suit has been filed as a measure of prolonging the dispute among the parties in order to reap unfair and undue advantage in the process. The learned counsel also strongly urged to dismiss the suit on the ground of limitation as the Kudumpa Yerpadu dated 22.10.1982 actually, had come within the knowledge of the plaintiffs in January 2015 itself. The suit is also not maintainable on the ground of misjoinder of causes of action. According to the learned counsel, the relief as prayed for, one  claiming on the basis of ‘Kudumba Yerpadu’ dated 22.10.1982 and the other declaration of Settlement Deed dated 29.07.2004 as illegal and invalid, are completely different reliefs, therefore, not maintainable under Order VI Rule 7 of CPC.

38. The learned counsel would then proceed to rely on 2010(2)

Supreme Court 726 (Oswal Fats and Oils Limited vs. Additional Commissioner (Admnistration), Bareilly Division Bareilly). He would refer to  paragraph No.15 of the judgment which is extracted herein below:

15. It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person. In one of the earliest decisions on the subject i.e., – R. v. Kensington Income Tax Commissioner (1917) 1 KB 486, Viscount Reading, Chief Justice of the Divisional Court observed:

“Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the applicant was not candid and did not fairly state the facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant’s affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that this Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.”

The above decision was relied on  for the principal reason that the plaintiffs herein have not disclosed the fact that TOS.No.1/2004 has been dismissed recently on 11.02.2021. The learned counsel would submit that in view of the observation made by the Hon’ble Supreme Court as above, the plaintiffs are to be denied the relief on the ground of suppression of material fact. The plaintiffs have cleverly concealed the fact of the dismissal of T.O.S.No.1 of 2004 in the present proceedings for furthering their ends. As held by the Hon’ble Supreme in such cases, the courts have not only have the right but duty to deny relief on that premise.

39. All the three counsels who appeared for the defendants have vehemently urged that it is a clear case for rejection of the plaint and the suit and would therefore, implore this Court to dismiss the suit as not maintainable in terms of Order VII Rule 11(a) & (d) CPC.
40. R.Thiagarajan, the learned counsel who appeared for the plaintiffs, resisted the multiple contentions raised on behalf of the defendants, as to the rejection of the plaint and would make the following submissions.
41. Apart from reiterating the facts as narrated in the plaint, thelearned counsel would clarify and answer each of the legal contentions raised towards rejection of the plaint.
42. As regards, the first contention raised on behalf of the defendants that  ‘Kudumba Yerpadu’ document dated 22.10.1982 was not registered and therefore, no declaration could be sought on that basis, the learned counsel’s answer is that  the document is only ‘Ninaivu Kurippu’ (record of facts) of the partition which had already taken place among the parties. According to the learned counsel ‘Kudumba Yerpadu’ dated 22.10.1982 was only a sequel to the recognition of the parties rights and their understanding  already in place  and that  therefore, the same not required to be registered for it to become valid in the eye of law. Such document is held to be not compulsorily registerable as it comes within the exception to Section 17  Clauses (b) and (c) of sub-clause(1) of the

Registration Act, 1908.

43. According to him, there were certain discrepancies crept in theearlier Will dated 05.03.1982 which necessitated and led to the preparation of the family arrangement and the subsequent last Will and testament dated 22.10.1982. The family arrangement (Kudumba Yerpadu) was only record of the respective properties enjoyed by the parties and the division of the same among themselves. In such event, the document squarely falls within the exception as contemplated under section 17(2)(v) of the Registration Act, 1908. The learned counsel emphasised the fact that the ‘Kudumba Yerpadu’ was not at all creating or declaring or assigning or limiting  any right, title or interest to the immovable properties and therefore,  the arguments advanced that the declaratory relief  cannot be asked for, on the basis of the unregistered document is liable to be rejected as being without any merit.
44. In regard to the pressing of the limitation ground for rejection of the plaint, the learned counsel would submit that it is necessary to appreciate the nature of the prayer for declaration as sought in the plaint.

According to him, the period of three years as provided under Article 58 of the Limitation Act would begin to run when the right to sue accrues to the parties. According to him, the plaintiffs faced threat and intimidation of wrongful interference and the invasion of their right as a consequence of O.P.No.164/2020 (TOS.No.12/2021) filed by the 7th defendant herein. Faced with imminent threat of interference of the possessory and proprietary rights, the right to sue accrued to the plaintiffs. Therefore, the contention in this regard as to the application of Article 58 is misconceived and the same is without any merits.

45. In this connection, the learned counsel would also refer to Section 34 of the Specific Relief Act. According to him, there is no limitation prescribed for seeking declaration in terms of Section 34 which is extracted hereunder.
46. Discretion of Court as to declaration of status or right: Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such 2 character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

PROVIDED that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

For seeking declaration of status or right, there could be no limitation as no such bar is contemplated in the relevant provision. Even otherwise, as the right to sue has accrued to the plaintiffs only in 2020 & 2021, the contention on the aspect of limitation is liable to be rejected, having no legal legs to stand on.

46. With regard to the contentions that no cause of action has been disclosed in the plaint and the suit is vexatious and abuse of process of the

Court, the learned counsel would submit that a comprehensive suit became necessary in view of the earlier  fragmentary suits filed by the parties as stated in the plaint namely C.S.Nos.252/1996, 949/2004 and 476/2008. According to the learned counsel, the present suit covers all the properties and this is the substantive suit which would establish the  rights and claims of the  parties before this Court. Therefore, it cannot be stated that the present suit is an  abuse of process of the Court.

47. On the other hand, the defendants were responsible for provoking the plaintiffs to approach this Court in the present suit, by filing of O.P.No.164/2020 converted as TOS.No.12/2021 by the 7th defendant, seeking to probate the Will of late Chakrapani Reddiar’s wife, Shyamalvalli dated 11.08.2010. Since the properties belonging to the plaintiffs had been shown as subject properties in TOS.No.12/2021, a fresh cause of action has arisen and therefore, it became necessary for the plaintiffs to come up with the present suit.
48. As far as the undervaluation of the suit and payment of improper

court fee, the learned counsel would submit that as per Order XLIX Rule 3, certain provisions of CPC are not applicable to the Chartered High Court. According to him, the Court fee had been paid in terms of the  exemption granted in the said provision of CPC.

49. In respect of non-disclosure of cause of action, the learned counsel sought to make a subtle distinction between the plea that there was no cause of action for the suit and the plea that the plaint does not disclose a cause of action. According to the learned counsel, the legal objection of the defendant appears to be against non-disclosure of cause of action in the plaint. In the latter case, it is the duty of the court to decide the question before issuing summons. According to the learned counsel, the averments in the plaint alone is to be looked into first  and whether there is actual cause of action can always to be gathered at a later stage, after the production of materials. Therefore, the suit as such cannot be thrown out at the threshold without examining various materials that may be relied on by the plaintiffs in furtherance of their suit prayer.
50. The learned counsel would therefore sum up that if all theaverments in the plaint are to be read cumulatively in conjunction with the plaint documents filed, the present suit will not fall within the ambit of Order VII Rule 11(a) or (d). In which case, the applications filed by the defendants seeking rejection of the plaint are liable to be dismissed due to non-fulfilment of the legal requirements of the above provisions of the C.P.C.
51. The learned counsel then proceeded to rely on a few decisions more specifically in support of his various contentions, apart from placing reliance upon plethora of judgments filed in two
52. Anjali Devi Thappa and ors. vs. Sandhya Debi Thapa, (AIR 2004 Gau 145).

The above case is referred to, to  contend that in a title suit, there is no bar of limitation in terms of Article 58 of the Limitation Act.

1. Kamala and others vs. K.T. Eshwara Sa and others, (2008(12) SCC 661).

According to the learned counsel, the above decision held that  for invoking Order VII Rule 1 CPC, no amount of evidence can be looked into. The averments in the plaint alone are to be looked into. Moreover, the aspect of limitation being a mixed question of fact and law, and the principles of  res judicata and allied objections are the issues to be looked into at the time of trial. Such issues therefore, are always triable after production of materials by the rival parties and  this Court cannot at this stage, presume several factors against the plaintiffs and reject the plaint and the suit.

• As far as the cause of action is concerned, the learned counsel would refer to the decision in Liverpool and London S.P. & I Association Ltd., (2004(9) SCC 512). The Court has held that the cause of action is bundle of facts which are to be pleaded and proved for the purpose of obtaining the relief claimed in the suit.

52. According to the learned counsel, the plaint cannot be dissected into parts for the purpose of deciding an application under Order VII Rule

11 CPC. The entire pleadings needed to be taken into consideration and a piece meal approach for rejection of the plaint, cannot be adopted. In this regard, the learned counsel would also refer to a decision of the Hon’ble Supreme Court reported in Shakti Bhog Food Industries Ltd. vs. Central Bank of India and ors., (AIR 2020 SC 2721).

53. One other objection raised by the defendants was that the suit is liable to be dismissed for non-compliance with Order XXXIX Rule 3 CPC. After obtaining injunction mandatory notice with copies of Application and plaint had not been served. This objection was refuted by the learned counsel for the plaintiffs contending that the provision had been complied with and the proof had also been filed before this Court.
54. The learned counsel has also filed two compilation of decisions as answers to various objections raised on behalf of the defendants. The summary of the legal principles enunciated in the decisions relied upon by the counsel for the plaintiffs is found reflected in the written arguments filed on their  It contains as many as 30 decisions touching upon the invocation of Order VII Rule 11, 11a,  (rejection of plaint & no cause of action),  Rule 11(d) (barred by law), the application of Article 58 of Limitation Act, Section 8 of Hindu Succession Act, on the scope of probate proceedings which cannot decide title dispute,  non-registration, unstamping of documents and its legal effect and the power of probate Court  for grant of injunction etc. The judgments relied upon by the learned counsel would be referred to and its relevance to the present adjudication will be discussed in the later part of the order.
55. Heard the learned counsels appearing for the respective parties, perused the pleadings, materials placed on record and the case laws cited.
56. As a matter of fact, the core issue that arise for consideration of this Court is in relation to the aspect of the validity of the document, ‘Kudumba Yerpadu’ dated 22.10.1982. Being an unregistered document whether the relief of declaration could entirely be successfully premised on such document by the plaintiffs or not? As a corollary to such consideration and alternatively whether the same document (Kudumba Yerpadu dated

22.10.1982), could attract a bar under of Article 58 of the Limitation Act, 1963 or not in the facts and the circumstances of the case?

57. Further, from the entirety of the averments in the plaint and the plaint documents, any cause of action could be deducible at all, attracting Order VII Rule 11(a) CPC is another issue that is placed for examination of this Court. This apart, the overarching consideration of this Court is whether the suit is filed for a vexatious purpose and reasons amounting to relitigation in the face of the pending partition suit among the parties in C.S.No.252 of 1996 or not? These are the cardinal issues for consideration of this Court hereunder, as to the merits and the demerits of  the applications for rejection of plaint.
58. All the three applications filed on behalf of the defendants for rejection of the plaint have raised objections interalia as to the maintainability of the suit, principally on the ground that the document, namely ‘Kudumba Yerpadu’ dated 22.10.1982 which is sought to be declared as binding on the parties by the plaintiffs, is an unregistered document and the suit which is entirely premised on such document is not maintainable. According to the defendants, section 17(1)(b) and 49(1)(c) of the Registration Act, 1908 are directly attracted and as such the relief edified on the sole basis of the document cannot be counteranced in law . Further, the same document being of the year 1982, Article 58 of the Limitation Act, 1963 is also attracted and the suit is hopelessly time barred, as the same has been filed after a period of 38 years.  In this regard, a further reference has also been made to the knowledge of the plaintiffs of the document namely ‘Kudumba Yerpadu’ dated 22.10.1982,  when the said document was marked as Ex.P11 in the suit proceedings (C.S.No.476/2005) on 01.10.2015. Even if the date of knowledge is to be calculated from that date in terms of Article 58 of the Limitation Act,  the suit ought to have been filed in the year, 2018

itself.

59. Apart from the contention that the suit is barred by law,additionally, contentions/objections have been raised on behalf of the defendants as to the absence of cause of action in the suit for the relief prayed for. The filing of the suit also amounted to abuse of process of law, as being vexatious, a devious  attempt to re-litigate the issues which are already pending qua parties in C.S.No.252 of 1996. The above objections need to be dealt with one after the other in order to give a final  finding as to the acceptance of the plaint and the consequent  maintainability of the suit as well.
60. In regard to the first objection that unregistered document namely ‘Kudumba Yerpadu’ dated 22.10.1982 cannot validly give rise to a declaratory relief, the rival contentions of the parties have been referred to supra, by this Court. According to Mr.R.Thiagarajan, the learned counsel for the plaintiffs, Section 17(2)(v)  alone will be attracted in this case, as ‘Kudumba Yerpadu’ dated 22.10.1982 did not create, declare, assign or limit, extinguish any right, title or interest, in immovable property.  According to him, the document was in the nature of ‘Ninaivu Kurippu’ record of partition already effected among the parties. As such, the document is not compulsorily registerable in terms of the exception carved out in the Section itself. On the other hand, on behalf of the defendants, it is strongly contended by all the counsels that the said document did create, declare, assign, limit or extinguish any right title or interest,whether vested or contingent to or in immovable property.  The counsels therefore submitted that section 17(1)(b) is squarely attracted in this case with reference to the contents of the document in question.
61. As a matter of fact, the counsels representing the defendants have drawn a specific attention of this Court to the contents of the document, ‘Kudumba Yerpadu’ dated 22.10.1982. From the entirety of the contents, it could be clearly deduced without any pale of doubt that it did create, declare, assign, limit or extinguish, right, title or interest, vested or contingent in  immovable property which was the subject matter of the document. As rightly contended by Mr.C.Jagadish, the learned counsel for the defendants 2 to 5 that the division of properties as contemplated therein was in present. The document also mentioned about payment of money to defendants 6 and 7 from the estate of E.K.Pattabirama Reddiar in present. Although the document has been styled as ‘Ninaivu Kuripu’, but the contents of the same did not support such description. On the other hand, the document for the first time created or extinguished etc. the rights of parties and to the exclusion of several of the legal heirs of E.K.Pattabirama Reddiar. Therefore, to contend that the document is not compulsorily registerable  and could be admitted as a primary evidence in terms of Section 17(2)(v)  is not bolstered by the contents of the document.
62. The Courts have held that mere description of document cannot be the basis on which the document could be understood in legal parlance. It is the substance and the true nature and character of the document that has to be gone into, in order to give a finding as to whether the document is compulsorily registerable or not. As far as the present case is concerned, the document in question from its bare contents exfacie cannot  escape from the fact that it is compulsorily registrable and section 17(1)(b) is squarely attracted.
63. Now coming to the related contention whether such document could be the basis for seeking declaration by the plaintiffs or not? This Court is in agreement with the collective submission made on behalf of the defendants that there cannot be any prayer for declaration on the basis of an unregistered document and that at best, it can be used only for any collateral purpose, as held by the Courts. Further, it is an admitted fact that the defendants are not signatories to the ‘Kudumba Yerpadu’ dated 22.10.1982 and as such, it cannot be declared to be binding on them by this Court.
64. Any ‘Kudumba Yerpadu’ (family arrangement) pre-supposes consent of parties to the arrangement,  the stakeholders in the division of properties. In the absence of consent,  ‘Kudumba Yerpadu’ cannot be declared as binding on the parties who are not signatories to the family arrangement.  ‘Kudumba Yerpadu’ is not a Will which can be enforced on the basis of the testator’s wish as recorded in the Will. On the other hand,  a legal pre-requisite of a valid family arrangement is the consent of the parties. Therefore, there cannot be a declaration declaring “kudumba Yerpadu’ dated 22.10.1982 is binding on the non-consenting parties, the defendants herein and the declaration sought for by the plaintiffs is therefore, thoroughly misconceived.
65. As far as the contention regarding limitation aspect is concerned, the learned counsel for the plaintiffs has placed heavy reliance on the expression used in Article 58 of the Limitation Act. According to the learned counsel, the right to sue first  accrued only when the 7th defendant filed O.P.No.164/2020 and the conversion of the same as TOS.No.12 of 2021. According to the learned counsel, filing of the O.P. was the starting point of threat to the possessory and proprietary rights of the plaintiffs and therefore, the plaintiffs were impelled and compelled to file the present comprehensive suit to protect their rights to their properties. This contention, though strongly advocated by the learned counsel, but if the facts and the issues that are connected with the lis between the parties herein are incisively examined, this Court has to inevitably reject the contention as the same is nothing but a  bogey trumped up for overcoming the law of limitation.
66. A strong case has been advanced on behalf of the plaintiffs that the point of trigger was the filing of O.P.No.164/2020 seeking to probate the Will dated 11.08.2010 executed by the mother of the 7th defendant. The O.P. was resisted and therefore, the same was converted into

TOS.No.12/2021. It is implausible that initiation of the probate proceedings in respect of the Will dated 11.08.2010  executed by the mother of the 7th defendant (Smt.Shymalavalli) after her demise on 24.07.2018 was said to be the provocation for the plaintiffs to approach this Court in 2020. The probate  proceedings do not decide the title qua parties or it can said to cause any threat to their possessory or proprietary rights as claimed by the plaintiffs. Moreover, the contest in the said proceedings, can only be with reference to the limited scope and ambit of the testamentary disposition therein. It cannot obviously take within its sweep the partition of the property of E.K.Pattabirama Reddiar.  In any event, when  O.P.No.164/2020 has been converted into TOS.No.12/2021, it will be separately tried on the basis of the rival contention of the parties in the proceedings. But  by stretch of legal standards, the said proceedings can said to  be the basis for filing of the present suit by the plaintiffs.

67. When already a partition suit C.S.No.252 of 1996 is pending on the file of this Court, where all the parties herein are the parties therein in respect of all the properties of the late E.K.Pattabirama Reddiar, the so called threat of infringement of their property rights as claimed by the plaintiffs does not cut ice with this Court, at all.  In fact, it was contended on behalf of the 1st defendant that all the properties which are mentioned in the schedule in this suit,  are the subject matter of the said partition  suit which has reached the final stage of its conclusion. When already the suit for partition qua parties is nearing finalisation  and the rights and claims of the parties are soon to be determined and declared by this Court, the filing of the present suit by the plaintiffs and calling it a comprehensive suit on the stated pleas is nothing but a vile attempt to contrive a justification for laying the suit. As rightly contended by the learned counsel representing the defendants, in the face of the pending partition suit nearing completion  in C.S.No.252/1996, the present suit filed by the plaintiffs is an unpretentious attempt to protract the dispute among the parties and to be benefited by the pendency of litigation before this Court.
68. Now reverting to the issue of the application of Article 58 of the Limitation Act, 1963, this Court has no hesitation to hold that filing of O.P.No.164/2020 and conversion of the same as TOS.No.12/2011  is not  a valid legal plea or reason for the plaintiffs to take advantage of the expression as used in Article 58, viz., “when the right to sue first accrues”. Such plea is an artifice to be discountenanced outrightly. While holding as such, this Court has to examine, the other limb of submission of the plaintiffs that document “Kudumba Yerpadu” was not within their knowledge and the period of limitation as prescribed under Article 58 would have no application herein. On this aspect, the date of the document, ‘Kudumba Yerpadu’, if it is to be taken into consideration, i.e., 22.10.1982 the suit is liable to be rejected, without any hesitation, as being hopelessly and outrageously time barred. However, giving the benefit of doubt to the plaintiffs that they being unaware of the ‘Kudumba Yerpadu’ and unearthed the document only at a later time, the facts as disclosed by the parties needed to be looked into.
69. The document, ‘Kudumba Yerpadu’ dated 22.10.1982 was marked in one other suit pending in C.S.No.476/2008  as Ex.P11 through the 7th defendant herein who was the plaintiff in the suit. It is a matter of

record that notice was given to the 1st plaintiff to produce ‘KudumbaYerpadu’ dated 22.10.1982 during trial of C.S.No.476/2008. Thereafter,  it was  produced on behalf  of the plaintiffs and the same was marked as Ex.P11. It is also on record that the 1st plaintiff herein has referred to about  ‘Kudumba Yerpadu’ in her proof affidavit dated 10.01.2015 filed in the above said suit proceedings. Subsequently, the document was stated to be marked as Ex.P11 in October, 2015.

70. The above facts are part of the court records that indisputablydemonstrate that the plaintiffs had clear knowledge of the document ‘Kudumba Yerpadu’ in 2015 itself, even assuming in their favour that they were blishfully ignorant of its existence from 1982 to 2015. Even if the year 2015 is taken into consideration for the purpose of calculation of the limitation, the suit ought to have  been filed in 2018 itself. Having failed to file the suit within the period of  limitation, the reasons for filing of  the suit in 2020-2021 namely filing of O.P.No.164/2020 and the conversion of the same as TOS.No.12/2021 is a crafty  attempt to create an illusory and a deceptive cause of action , betrayed by hard facts. This Court in this regard is not inclined to delve deeper so as to give a finding whether the plaintiffs who had in their possession of Kudumpa Yerpadu document  all along could be  stated to have knowledge from the day one or not? as any such finding herein, may have its impact in the pending suits. However, going by the court records as stated above, this Court has to come to an inexorable conclusion that the suit ought to have been atleast filed in 2018 and filing of the suit in 2020 is hit by limitation in terms of Article 58 of the Limitation Act, 1963. On this ground alone the suit is liable to be rejected.
71. Now turning the attention of this Court on the aspect whether any genuine cause of action is disclosed  in  the plaint or in the suit or not, this Court has to inevitably examine the averments in the plaint and the documents filed in support of the plaint. As far as this issue is concerned, the most crucial and the clinching factor is the pendency of the partition suit in C.S.No.252/1996. It is not disputed by the plaintiffs that all the parties herein are the parties in the said partition suit and the properties mentioned in the schedule herein are the subject matter of properties in that suit. When the partition suit is pending qua parties and the trial of the suit is nearing completion,  coming up with the present suit for a declaration on the basis of a document styled as  ‘Kudumba Yerpadu’ dated 22.10.1982 is nothing but a malicious attempt by the plaintiffs   herein to unsettle any outcome in the partition suit against their interests.
72. The rights claimed under ‘Kudumba Yerpadu’ dated 22.10.1982 can  always be part of the contest in the pending partition suit in C.S.No.252 of 1996, for which,  no separate suit is required to be filed. The plaint contain myriad  facts ostensibly to create a kind of a mirage that some properties had not been part of the said partition suit and hence, the present comprehensive suit has become necessary. This Court on critical appreciation of the averments relating to the filing of C.S.Nos.476 of 2018, C.S.No.949/2004 and reference to the Will dated 22.10.1982 which is now sought to be probated, having come out uncluttered, finds the averment may not be  germane to the causes of action specifically set up in the plaint.  The pending litigations, though found mentioned in the plaint rightly, lest the plaintiffs may be faulted for suppression of material information, nonetheless the proceedings before this Court in respect of the above matters do not touch upon the kernel of the ‘lis’ qua parties herein, except the pending suit in C.S.No.252/1996
73. This Court, as a matter of fact, on learning about the subsequent

Will dated 22.10.1982, which is sought to be probated in

O.P.D.No.63667/2020, filed on 23.09.2020 has dismissed T.O.S.No.1/2004 on 11.02.2021 in respect of the original registered Will dated 05.03.1982.

74. In fact, arguments are advanced on behalf of the defendants that the fact of dismissal of T.O.S.No.1/2004 dated 11.02.2021 was not averred in the plaint and the plaint was to be rejected on the basis of suppression of the material fact. From the reading of the entire plaint containing plethora of facts and if they are woven around with a view to demystify, what  could be deduced is that the plaintiffs are attempting to present a hodgepodge case before this Court and side tract its attention from considering the aspect of legitimate cause of action being available at all to the plaintiffs in laying the present suit. As rightly contended by Mr.K.V.Ananthakrushnan, the learned counsel for the 7^th defendant, the plaintiffs have come up with a ploy presenting clutter of facts in the plaint to create an illusory ‘lis’ and persuade this Court to hold that the suit is maintainable. This Court is not to be taken in by such subterfuge averments made for achieving a collateral purpose.
75. As a corollary to the above conclusion, the next facet ofsubmission made on behalf of the defendants is that the present suit is vexatious and abuse of process of the law. This Court is in agreement with the said submission as could be gathered from the above judicial discourse. In the absence of  a genuine or  valid cause of action, the present suit is nothing but vexatious and also amounted to abusing the  process of the  As a matter of fact, in consideration of the entirety of the background to the lis qua parties, particularly,  filing of partition suit in C.S.No.252 of 1996, this Court cannot come to any other conclusion except to hold that the present suit lacks in bonafides and the plaintiffs’ intention is not towards advancing their rights but for achieving  a collateral purpose for serving their own  ends.
76. On behalf of the plaintiffs the learned counsel has referred to the commentary contained in Mulla’s Edition in regard to the Application of Order VII Rule 11 of the Code of Civil Procedure, which is extracted herein:

Perusal of O VII, rule 11 shows that the plaint can be rejected only if it appears from the statement in the plaint to be barred by any law. Even if the expression of the statement in the plaint is given a liberal meaning, documents filed with the plaint may be looked into but nothing more. The court must give a meaningful reading to the plaint and if it is manifestly vexatious or meritless in the sense of not disclosing a clear right to suit, the court may exercise its power O VII, rule 11 of the CPC. However, in a case where the validity of a particular document itself is under challenge, the same cannot be considered and decided in an application under O VII, rule 11.01.2015.

On an application filed under O VII, rule 11, the civil court can only see the pleadings in the plaint and not anything else including written statement.

It has been held by the Supreme Court that an application for rejection of the plaint can be decided by the court on the basis of averments made in the plaint and filing of written statement by contesting defendant is not necessary. Where in a case the trial court directed the defendant to file written statement without deciding the application under O VII, rule 11 it was held to be procedural irregularity and the case was remanded for decidint the application under O VII, rule 11.01.2015.

For the purpose of deciding an application under this Rule, it is only the facts pleaded in the plaint which are to be taken into account and if on the basis of those facts within any of the infirmities enumerated in rule 11 of O VII, then alone the plaint is liable to be rejected.

It has been held that section 446 of the companies Act, 1956 gets attracted to suits which are commenced and pending non the date of a winding up order “against the company”. Therefore, the courts below were found incorrect in law by the Supreme Court where application moved under O VII, rule 11 was allowed holding that prior leave of the company court ought to have been obtained before instituting such suit.

The Supreme Court of India held that it is

well settled that for the purposes of the provisions of O VII rule 11, the entirety of the averment sin the plaint has to be taken into account.

While considering an application under O VII rule 11 CPC, the court has to examine whether the averments in the plaint and the pleas taken by the defendant in the written statement are irrelevant.

The pleas that are ought to be raised in written statements cannot be raised in application under O VII rule 11, respondents – defendants are permitted to raise pleas in written statement, if it is not already filed. Once such pleas are raised, trial court would frame appropriate issues and decide matters in accordance with law.

77. As far as the above submissions is concerned, this Court cannot have any quarrel with commentary nor can have any difference of opinion in the matter of settled principle in the application of Order VII Rule 11 CPC. However, the cast iron facts as demonstrated before this Court from the array of averments as contained in the plaint and as borne out from the plaint documents would clinchingly favour the defendants herein for invoking Order VII Rule 11(a) and (d) CPC.  In fact, as referred to above by the learned counsel for the plaintiffs himself (1977 (4) SCC 467 (P.Arivanandam vs. P.V.Satyappa), the suit, if it is manifestly vexatious and meritless, in the sense not disclosing clear right to sue, the court may exercise its power under Order VII Rule 11 of CPC. The present suit exactly fit into the above observance framework, warranting exercise of its power under Order VII Rule 11 of CPC.
78. In fact, as a desperate plea, it was submitted on behalf of the plaintiffs that the aspect of limitation is a mixed question of fact and law. Such hackneyed and trite contention may hold good with reference to the general proposition of law on the application of limitation. However, when this Court holds that the suit is hit by the limitation on the basis of unimpeachable facts and the  materials without  even a modicum of doubt, it need not relegate the matter to the trial, as such course would only benefit the parties who seek to take unjust and ignoble advantage by reason of long pending litigation. Such course of action on the above specious plea would invariably affect the rights of the  defendants who would be forced to  stand the trial without  triable issues and the resultant  protracted litigation. When the facts are starring at the Court, supported by documents, this Court has to pronounce its finding in unmistakable terms. On such consideration, this Court once again reiterate that this suit is hit by the law of  limitation and no amount of general pleading on that aspect would save the suit  from being rejected under Order VII Rule 11(d) CPC also.
79. One other contention has been raised by the learned counsel for the plaintiffs that as per Section 34 of the Specific Relief Act no limitation is prescribed for declaratory reliefs. The scope and the purpose of the Section is completely different and cannot be pitchforked in this lis. A mere declaration of a status or right of a person is different from declaration of property rights to the exclusion of the rights of the other co-sharers. In any event, the Specific Relief Act cannot have any application, when the plaint is tested on the touch stone of Order VII Rule XI of CPC read with the provisions of the Limitation Act, 1963.
80. There are other grounds raised particularly, by Mr.K.V.Ananthakrushnan, learned counsel for the 7^th defendant about suppression of material facts in regard to the non-mentioning of certain orders passed by the learned Judge of this Court. The Counsel for other defendants also raised objection, regarding undervaluation of the suit and not complying with Order XXXIX Rule 3 CPC and sought dismissal of the suit on those grounds. This Court is not inclined to go into those controversies for the reasons that on more substantive grounds this Court is inclined to allow the applications for rejection of the plaint and the consequent dismissal of the suit.
81. As stated above, on behalf of the plaintiffs, two compilation of decisions have been filed. Each one of the decision is referred to hereunder for the sake of records.
82. The learned counsel for the plaintiffs have circulated twocompilations containing as many as 34 judgments.  In the written arguments filed on behalf of the plaintiffs, however, only six judgments have been specifically referred to, touching upon various legal principles on the  subject matter of consideration of this Court. But the other decisions have been included in the tail end of the written arguments as summary of citations  that included the above six decisions as well. The total number of decisions that  are covered under the summary of citations are thirty in number, relied upon for seven purposes as indicated therein.
83. Since specific references have been drawn to the decisions strongly supporting the case of the plaintiffs against the maintainability of the applications for rejection of the plaint, the said decisions are dealt with hereunder first.

(i) AIR (2004) Guw 145 (Anjali Debi Thapa Vs. Sandhya Debi

Thapa)

According to the learned counsel that was a case  of family settlement sought to be challenged and in that context, the High Court has held that declaration of title and permanent injunction is not barred by law of limitation. It was the case where the High Court was dealing with the issue of limitation at the Second Appeal stage. The High Court found that both the Courts below, on a  clear finding of fact on the basis of the evidence and other materials made available, held the plea of limitation not sustainable. The High Court decision was rendered in the context where the finding of fact was recorded by both the courts below  from the averments and the materials available therein. The High Court at the second appeal stage rightly held, it cannot disturb the finding of facts by both the Courts below and on that account, no substantial question of law could said to have arisen in the appeal. The Court therefore, did not lay down any proposition on the subject for this court to be persuaded by the decision.

(ii) 2008(12) SCC 661 (Kamala and others vs. KT Eshwara Sa and others)

In the above case, the Hon’ble Supreme Court, no doubt has held

that no amount of evidence can be looked into or the Courts to consider any evidence or enter into a disputed question of fact of law at the initial stage and it should be relegated to the trial. But in the same decision, the Court has held that in the event of the jurisdiction is  found to be barred by any law, the subject matter thereof, the application for rejection of plaint should be entertained. As a matter of fact, the Hon’ble Supreme Court has succinctly observed as  “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 law”.

As far as the case on hand is concerned, both the contingencies as referred to above can be aptly applied. No disclosure of cause of action could be found in the plaint  and even if there is some cause of action that could be inferred, the same is barred by law. The Supreme Court however, has in the judgment referred to in its own earlier decision reported in (1978) 1 SCR 742 (T.Arivandandam v. T.V.Satyapal and Anr.) and reproduced  its own observation as under.

5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently 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 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever 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 10, CPC. 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, (Cr. 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.

Each case, however, must be considered on its own facts.

Taking cue from the above observation, the plaintiffs herein cannot be allowed to misuse the mercies of the law by filing the present suit. No amount of case laws can save the plaint from its rejection on consideration of the cast iron  facts culled out from the averments in the plaint itself.

iii) (2004) 9 SCC 512 (Liverpool & London S.P. & I Association

Ltd. v. M.V.Sea Success I and Another)

The decision has been relied upon to highlight the legal position that cause of action is a bundle of facts which are to be pleaded and proved for the purpose of obtaining the relief claimed in the suit.  While observing as above, the Court has also reasoned as under.

128. As by reason of an order passed under Order 7, Rule 11 of the Code of civil Procedure, the rights conferred upon the parties are determined one way or the other, stricto sensu it would not be an interlocutory order but having regard to its traits and trappings would be a preliminary judgment.
129. It is true that in Shah Babulal Khimji (supra) it is stated that an order rejecting the plaint would be appealable but does not expressly state that an order refusing to reject would not be appealable. Therein this Court gave 15 instances where an order would be appealable which are only illustrative in nature.
130. Such observations have to be understood havingregard to the concept of finality which are of three types:

• a final judgment
• a preliminary judgment and
• intermediary or interlocutory judgment.

131. In our opinion the order refusing to reject the plaint falls in the category of a preliminary judgment and is covered by the second category carved out by this Court.
132. It is trite that a party should not be unnecessarily harassed in a suit. An order refusing to reject a plaint will finally determine his right in terms of Order 7 Rule 11 of the Code of civil Procedure.
133. The idea underlying Order 7 Rule 11A is that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of a suit. Having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of civil Procedure, the Courts would interpret the provisions in such a manner so as to save expenses, achieve expedition, avoid the court’s resources being used up on cases which will serve no useful purpose. A litigation which in the opinion of the court is doomed to fail would not further be allowed to be used as a device to harass a litigant.

Precisely in consideration of the observation in paragraph Nos. 132 and

133, this Court is more than inclined to allow the applications filed by the defendants for rejection of the plaint.

(iv) AIR 2020 SC 721 (Shakthi Bhog Food Industres Ltd. Vs. The Central Bank of India and Ors.)

According to the learned counsel, the decision has ruled that plaint cannot be rejected according to the whims and fancies of the defendants, if the same would otherwise declared valid, tenable, plausible cause of action. Although the judgment of the Hon’ble Supreme Court over turned  the verdict of the Courts below including that of the High Court and held that rejection of the plaint was erroneous and unsustainable, but as stated by the Supreme Court itself,  the conclusion was on the basis of the fact situations therein.

As a  matter of fact, before dealing with the facts of that case, the Supreme Court re-produced the settled legal position on the  subject matter as  laid down in its earlier decision in the matter of Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174 and in para 7 and the same  is extracted hereunder.

7. The plaint can be rejected Under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power Under Order 7 Rule 11, Code of Civil Procedure can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power Under Order 7 Rule 11 Code of Civil Procedure. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated Under Order 7 Rule 11 Code of Civil Procedure to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the Defendant are wholly immaterial while considering the prayer of the Defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power Under Order 7 Rule 11 Code of Civil Procedure can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.

In line with the above legal principle, this Court finds on the basis of the averments in the plaint that the present suit is manifestly vexatious and meritless and any further entertainment of the suit,  would only lead to harassment of the defendants on one hand and the other, long pendency of the dispute would enure to unfair and unjust advantage to the plaintiffs.

(v)  1977 (4) SCC 467 ( P.Arivanandam v. P.V.Satyappa)

The reliance placed on the above decision by the learned counsel appears to be strange and incomprehensible. As a matter of fact, the Hon’ble Supreme Court has made caustic remarks against the advocate and the parties for their gross abuse of the process of the Court for resorting to litigation repeatedly and unrepentantly. The Court held that the suit pending before the trial Court is a flagrant misuse of the mercies of  law in receiving the plaints. It may have been referred to, to emphasize the subtle legal point that Courts while reading the plaint ought not be guided by formal appreciation but on the meaningful appreciation of the plaint averments.

The conclusion herein to reject the plaint is premised on proper understanding of the averments as contained in the plaint, as the Court is conscious that the finding herein is not on a prima facie consideration but amounted to final judgment  terminating the cause of action for entertaining the suit.

(vi) AIR 1998  Raj 103 (Sukhpal Singh vs. State of Rajasthan and others)

The above decision of the High Court highlights the legal position that  challenge to the validity of the document cannot be considered and decided in an application under Order 7 Rule 11, CPC.

The High Court in exercise of its writ jurisdiction has made a fleeting statement in the  tail end  of the order as above. Such  statement can never be taken into consideration as a “ratio decidendi” and be persuaded. As a matter of fact, in that case, the writ petition was filed against the decision of the Board of Revenue and while disposing of the same, a casual, not so serious observation was made by the Court.

84. The above decisions apart, the learned counsel has also drawn reference to 24 odd decisions in respect of various legal principles / ruling laid down by the Courts. As per the summary of citations incorporated in the written arguments, the purposes that have been indicated while referring to the decisions are broadly classified as under:

(1) Power of probate Court to grant injunction:

(i) AIR 1949 Mad 45 (Namagiri Ammal Vs. T. Subbarao)

The above is the case relating to injunction suit wherein the Court has held that in probate proceedings there is no question of any property dispute and hence, the application for injunction is not sustainable.

(ii) AIR 1996 Mad 318 (In Re: PD.Rajan and others)

This is also a case where an application was filed for injunction originally granted and subsequently vacated in respect of probate proceedings.

(iii) 2008 (4) SCC 300 (Krishna Kumar Birla Vs. Rajendra Singh Lodha and others)

This is a case where the Court was dealing with what is caveatable interest relate to the probate proceedings.

(iv) 1990 (1) LW 27 (Vyjayanthimala Bali Vs. Rattan Chaman

Bali)

The above decision has been cited that in probate proceedings, the Court cannot determine the question of title. The Court appears to have further held that an error in the valuation of the suit at the time of the filing of the petition could be subsequently rectified.

85. The Court is unable to countenance the relevance of the above four decisions on the finding to be rendered in the present applications seeking to reject the plaint. The Court is unable to comprehend as to why these decisions have been part of the summary  citations, when this Court is called upon to decide only the applications seeking the rejection of plaint. In any event, the above decisions had been rendered within the factual framework available therein and there cannot be a source of judicial inspiration. Even otherwise,  decisions relating to probate proceedings have no nexus to the consideration of this Court in the present proceedings.
86. As regards the non-registration of document namely the ‘Kudumba Yerpadu’ dated 22.10.1982, the following citations have been stated to be relied upon.

(i) (1976) 3 SCC 119 (Kale Vs. Director of Consolidation and others)

The Hon’ble Supreme Court has found in that case that family settlement was legally valid and binding on all the parties as the same was merely in the nature of a memorandum meant for the information to the Court. The Court held that the Doctrine of estoppel would apply against the parties and held that even if the family arrangement was not registered, it could be used for collateral purpose namely showing the nature and character of the possession  of the parties. This Court cannot have any quarrel with the proposition but the facts are completely different in this case and the findings herein is on the basis of the contents of the ‘Kudumba Yerpadu’ and the reliance placed on the Hon’ble Supreme Court decision is of no avail to the plaintiffs.

(ii) 2015 (16) SCC 787 (Yellapu Uma Maheshwari and others Vs.

Buddha Jagadheeswararao and others)

The Hon’ble Supreme Court was dealing with the case where the Courts below found that two exhibits marked in the trial prima facie, are not evidencing the past transaction, but prima facie disclose partition and relinquishment of rights by one of the parties. The trial Court as well as the High Court in that context held that both the documents require  stamp duty under the Indian Stamp Act, 1899 and registration under Registration Act, 1908. Finally, the Hon’ble Supreme Court held that exhibits which were the subject matter of challenge were admissible in evidence for collateral purpose, subject to payment of stamp duty. This Court once again finds that the reliance placed by the learned counsel on the said decision as a matter of fact support the case of the defendants herein.

(iii) 2018 AIR SC 3057 (Sita Ram Bhama Vs. Ramvatar Bhama)

The above decision is to highlight the legal principle that the nomenclature given to the document is not the decisive factor but the nature and substance of the transaction has to be determined with reference to  the terms of the  document and the admissibility of the document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the parties.

As discussed in the decision, this Court has been appraised of the contents of the documents in question herein and factually has come to the conclusion that the document is compulsorily registrable in terms of Section 17(1)(b) of the Registration Act, 1908.

(iv) 2019 (6) SCC 409 (Thulasidhara and another Vs.

Narayanappa and others)

This is a case where it has been held that the unregistered document of family settlement would operate as estoppel against all the members who have  affixed their signature and it can be used as corroborative evidence. In this case, this Court is not concerned with the corroborative value or the evidential value of the document. It is concerned with the very validity of the document itself, as the  prayer for declaration is founded on such document which cannot be countenanced in law.

(v) 2020 (9) SCC 706 (Ravinder Kaur Grewal and others Vs.

Manjit Kaur and others)

Here again, the Hon’ble Supreme Court  found that the document in question was merely a memorandum of settlement that did not require registration. The finding of the Court was that all the family members were parties to the Memorandum of Settlement.

The decision rendered exclusively on the factual matrix of that case and  cannot therefore, stated to be laying down any law.

(vi) 2021 (5) CTC 81 (Ripudaman Singh Vs. Tikka Maheshwar

Chand)

In this case also, the Hon’ble Supreme Court has held that when the parties entered into compromise before the Civil Court, it was only a preexisting right to the property which was the subject matter of settlement and therefore, the decision was rendered in that context. The provisions of compulsorily registration was said to be not applicable in that case.

87. The following decisions have been cited and relied upon on the aspect of rejection of plaint under Order VII Rule 11(a) – No cause of action.

(i) AIR 1996 Ori 163 (Orissa Mining Corporation Ltd., Vs.

Klockner and Company and others)

That was the case where the High Court was dealing with a Civil Revision Petition filed against the trial Court’s decision holding that the suit was a bar under Order VII Rule 11(d), on appreciation of part of cause of action and not whole cause of action. In that context, the High Court overturned  the order passed by the subordinate court. How this case could be stated to have any relevance at all is not to the understanding of this Court.  Moreover, the case law  has been cited under the caption rejection of plaint under Order 7 Rule 11(a) CPC – no cause of action, but consideration there was Order 7 Rule 11(d).

(ii) 2006 (3) SCC 100 (Mayar (H.K.) Ltd., and others Vs. Owners and Parties, Vessel M.V.Fortune Express and others).

That was the case where the Court was dealing with the decision by the Subordinate Court rejecting the plaint on the basis of the allegation made by the defendant in the written statement. Trite the ruling of the Court that rejection of the plaint could be done only on the basis of the entirety of the averments in the plaint only. In this case, the conclusion of this Court is on the basis of the materials as disclosed by the plaintiffs and highlighted on behalf of the defendants only with reference to the entirety of the averments in the plaint.

(iii) AIR 2007 KER 123 (Anil Kumar Vs. Vijayalakshmi and others)

That was the case relating to jurisdiction  aspect in  terms of Section 9-A introduced in the CPC in the State of Maharastra. Section 9-A deals with objection relating to jurisdiction and such issue to be decided by the Court as  preliminary issue. The court was dealing with the scope of that section. This Court does not think that the ruling in that case would have any application at all  in the present case.

(iv) 2019(7) SC 158 (Madhav Prasad Aggarwal and another Vs. Axis Bank Limited and another)

That was the case where the Hon’ble Supreme Court was dealing with the issue whether the plaint could be rejected in respect of one of the defendants, if the plaint otherwise survives by the other defendants or property.  In that context, the Hon’ble Supreme Court has held that Order 7 Rule 11(d) CPC will have no application and the suit must proceed to trial. This is also the case where the the Court has dealt with Order 7 Rule 11(d) but the case law has been included for the purpose in relation to Order 7

Rule 11(a)  CPC erroneously. In any event, in this case,the decision to reject the plaint is not on the basis of consideration of any piece meal cause of action. The rejection of the plaint is on its whole  and in its entirety.

(v) 2020 (6) CTC 245 (M.Venkatesan Vs. SBI Cards and Payments Services Pvt. Ltd.)

The learned Judge of this Court rendered his decision in the factual context  that while rejecting the plaint under Order 7 Rule 11 no notice given to the aggrieved parties and also on the basis of the fact that on the same issue, criminal case was made out in terms of certain provisions of IPC.

This Court, after going through the judgment, is more perplexed than impressed as such irrelevant decisions have been cited and relied upon on behalf of the plaintiffs  for the purpose of bolstering their case.

88. The following decisions have been cited and relied upon on the aspect of rejection of plaint under Order VII Rule 11(d) – Barred by law.

(i) 2007 (10) SC 59 (Ram Prakash Gupta Vs. Rajiv Kumar Gupta

and others)

The Hon’ble Supreme Court in that case, found fault with the approach of the Court below while rejecting the plaint at the belated stage on the filing of written statement, framing of issues and cross examination. In that case factually, the Hon’ble Supreme Court found that the approach of the court below in appreciating certain averments in isolation, ignoring the other averments in the plaint for the purpose of holding that the plaint as not maintainable. It is needless to mention that the ruling based on such facts has no application to the present consideration of this Court.

(ii) 2007(14) SCC 183 (C.Natarajan Vs. Ashim Bai and others)

This was the case where the Hon’ble Supreme Court has held that limitation  would not commence unless there is a clear and unequivocal threat to the right claimed by person. The observation was made by the court entirely on the basis of the facts in that case. In this case, this Court has come to the conclusion that  the so called threat to the rights of the plaintiffs to the property on account of filing of O.P.No.164/2020 converted as

T.O.S.No.12/2021 is a bogey  and a mirage. The plaintiffs case herein  for provocation and filing of the suit is entirely premised on falsehood on consideration of  the entire materials and the averments placed on record.

(iii) 2018 (14) SCC 187 (Hareendran and others Vs. Sukumaran and others)

That was the case regarding the redemption of mortgage where there was a factual finding that the plaint had disclosed that there was redemption of mortgage and in that context, the Hon’ble  Supreme Court has ruled that the Court below could not have decided the factum of redemption and its legality as a preliminary issue.

(iv) 2019(4) SCC 367 (Pawan Kumar Vs. Babulal and others)

That was the case where the Hon’ble Supreme Court was seized of the controversy relating to a disputed question of fact and in that context, it was held that in such situation, the Court cannot entertain an application under Order 7 Rule 11 CPC.

(v) 2019(10) SCC 226 (Shaukathussain Mohammed Patel Vs. Khatunben Mohammedbhai Polara) and 2019 (13) SCC 372 (Urvashiben and another Vs. Krishnakant Manuprasad Trivedi)

In these cases, the trite principle is once again reiterated that plaint is liable to be rejected only with reference to the averments stated in the plaint and the overall merits and demerits of the case could be adjudicated only in the trial.

(vi) 2020 (12) SCC 809 (Vaish Aggarwal Panchayat Vs. Inder Kumar & others)

That was the case where the Hon’ble Supreme Court while dealing with the challenge found that the issue was to be decided therein was a mixed question of fact and law and required examination not only of the plaint averments but also other evidence. Such question, therefore, cannot be decided at the preliminary stage. The Court, ultimately found that the decision of the Court  below was not in order, therefore, set aside on the basis of the factual consideration of that case.

(vii) 2021 2 LW 642 (L.Rathanchand Sharma Vs. Vinayaka Exports and Imports and others)

Here again, the learned Judge of this Court dealt with the case where trial Court was found to have travelled beyond the statement found in the plaint and decided the contentious issue without trial. The learned Judge in that context has held that the rejection of the plaint for specific performance suit at a pre-trial stage was not valid and the first appeal was allowed.

89. Apart from the above decisions on the rejection of plaint with reference to Rule 11(a) and Rule 11(d), three other decisions have been cited and relied upon. One with reference to the application of Article 58 of the Limitation Act, 1963  and the other two decisions, with reference to Section 8 of the Hindu Succession Act. As far as the application of Article

58, AIR 2004 Guw 145 (cited supra) was relied upon which had already been referred to and discussed.

90. As regards the reference to Section 8(d) of the Hindu Succession

Act, the following decisions have been relied on.

(i)1986 (3) SCC 567 (Commissioner of Wealth Tax, Kanpur and others Vs. Chander Sen and others) &

(ii)AIR 2006 Kant 68 (Radhamma and others Vs.

HN.Muddukrishna and others).

The former decision relating to assessment of income tax and the application of Section 8 of the Hindu Succession Act. What is the  relevance of the case to the present  adjudication  is beyond the comprehension of this Court. As far as the latter decision is concerned, the same is also with reference to the joint family property and the application of Hindu Law and Indian Succession Act. This Court is unable to appreciate the relevance of the decisions to the present adjudicatory framework  with reference to the unquestionable facts emerging from the plaintiffs’ case itself, forming solid basis for conclusion of this Court.

91. Almost all the case laws relied upon with reference to the summary of citations, contained in the written submission dated 01.11.2021 reiterate the settled legal principles on the subject matter of consideration of this Court. But the principles have been applied on the entirety of the factual matrix of those cases. Not one case law could be stated to qualify for its application in respect of the facts and circumstances of the case on hand.
92. A cornucopia of decisions and mountain of references appear to be an attempt to deflect the core consideration of this Court on the lis qua parties. It is also an attempt to obfuscate and swerve  the judicial discourse by  saddling this Court with decisions galore having no precedential value.
93. Ultimately, application of those decisions depend on the facts and circumstances of each case. As far as this case is concerned, this Court does not see even a remote plausibility or scope for applying the above case laws.

When there are clear unquestionable materials and facts made available in support of the applications for rejection of the plaint, on the demonstrated grounds, merely pressing into service the case laws laying down  the general principles would amount to applying square pegs of legal principles in the round holes of facts. When this Court finds that the suit itself is not maintainable on the basis of the established facts and materials, a surfeit of decisions cited on behalf of the plaintiffs has failed to impress upon this Court and save the cause for the plaintiffs,  to over come the strong challenges by the defendants herein, as to the maintainability of the plaint and the suit.

94. During the time when orders were reserved in the application on behalf of the plaintiffs, it was brought to the knowledge of this Court, the death of the 1st defendant. A memo was filed to that effect informing the death of the party on 11.12.2021 and a request was made to record the death of the first defendant and to direct the defendants to furnish the details of the first defendant for taking necessary steps to implead her legal heirs.
95. The memo was filed on 17.12.2021. In response to the memo, a counter memo was filed on behalf of the first defendant indicating the names of the legal heirs of the first defendant. On behalf of the 7^th defendant another counter memo was filed dated 20.12.2021 stating that in terms of Order 22 Rule 6 of CPC, the proceedings will not abate on the death of the party to the dispute, after the matter was heard and reserved for orders. The learned counsel has extracted the provision as under in the memo.
96. No abatement by reason of death after hearing – Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.
97. In any event, the memo filed on behalf of the plaintiffs has not pleaded or contended that the proceedings in the applications stood abated on the death of the 1st defendant. Nonetheless, the above development has been recorded as a matter of fact.
98. For all the above said reasons, the plaint is liable to be rejected and consequently, the suit is to be held not maintainable in law for the following legal infirmities.

(i)No declaratory relief could be sought on the basis of an unregistered document namely ‘kudumba Yerpadu’ dated 22.10.1982. The said document as a matter of fact creates, declares, assigns, limit or extinguishes in present and future right, title and interest qua parties to the immovable properties and hence, the  same is compulsorily registrable in terms  of Section 17(1)(b) of the Registration Act,1908.

• The Deed of Kudumba Yerpadu dated 22.10.1982, being the foundational document, the prayer of declaratory relief on that basis is clearly hit by the law of limitation, as the suit has been filed after a period of 38 years.
• Even assuming that the plaintiffs had no knowledge of the existence of “Kudumba Yerpadu” dated 22.10.1982 earlier, they had come to know of its existence indisputably in the year 2015, as demonstrated by the Court record itself. In which event, the suit ought to have been filed within a period of 3 years in 2018 in terms of Article 58 of the Limitation Act, 1963. The suit was admittedly filed in 2020 or 2021 and therefore, the law of limitation, in any case, is attracted and the suit to be held as not maintainable.

(iv)The claim of plaintiffs that the right to sue accrued first to them in terms of the language used in Article 58 in 2020 after filing of O.P.No.164/2020 converted as TOS.No.12/2021 is found by this Court as sham and pretense. Hence, the suit is barred by the law of limitation, in any event.

• This Court also finds from the above prolix judicial discourse, the plaint does not disclose any genuine or legitimate cause of action for laying the partition suit and therefore, the suit is liable to be dismissed on this ground as well.
• The suit is also liable to be dismissed as being vexatious andabuse of process of the law, for more than one reason as discussed supra. (vii) Any one of the above grounds is equally valid enough to reject the plaint, as well as the suit. Therefore, the plaint and the suit is rejected and dismissed in terms of Order VII Rule 11(a) and (d) CPC.

98. In view of the rejection of the plaint and the dismissal of the suit, Application No.2554 of 2021 filed seeking to stay all further proceedings in C.S.No.157 of 2021 has become redundant and is closed.
99. No costs. Consequently, connected applications are closed.

03.03.2022

vsi/mrm

பேசுவது/பேசாமல் இருப்பது

இணையம்: ஆம்/இல்லை

அட்டவணை: ஆம்/இல்லை

வி.பார்த்திபன், ஜே.

எதிராக

டெலிவரிக்கு முந்தைய ஆர்டர்

CSNo.157 of 2021 மற்றும் OANos.242 of 2021 மற்றும் A.Nos.1689, 1690, 2436, 2437, 2506, 2507, 2554 & 2021 இன் 2555

03.03.2022