IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.09.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE B.RAJENDRAN O.S.A.Nos.253 and 255 of 2010 O.S.A.Nos.253 and 255 of 2010: C.M.Dhinakaran @ Suresh ... Appellant in both the appeals vs. S.Annapoorna ... Respondent in both the appeals Original Side Appeals are filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the common order dated 17.09.2009 made in Application Nos.676 of 2004 and 3923 of 2006 in C.S.No.422 of 2001 on the file of this Court. For Appellant : Mr.D.Krishnan For Respondent : Mrs.Chitra Sampath COMMON JUDGMENT R.BANUMATHI,J O.S.A.No.253 of 2010 is preferred against the order in A.No.676 of 2004 dismissing the application filed under Order 7, Rule 11(d) C.P.C. O.S.A.No.255 of 2010 is preferred against the order dismissing the application A.No.3923 of 2006 and refusing to hand over the keys to the Appellant-1st Defendant. 2. Appellant and Respondent are son and daughter of late Sundararaj and Chandra Sundararaj. Chandra Sundararaj has filed the suit C.S.No.422 of 2001. During the pendency of the suit, Plaintiff- Chandra Sundararaj died and by the orders of the Court in A.No.75 of 2005 dated 21.03.2006, Respondent-Annapoorna was transposed as 2nd Plaintiff. 3. Case of late 1st Plaintiff-Chandra Sundararaj is that her https://hcservices.ecourts.gov.in/hcservices/ husband Sundararaj was carrying on business as Sole proprietor under the name and style of M/s.Chemi Plant Fabrication. Sundararaj was allotted "B" schedule property - Plot No.57-B, Ambattur Industrial Estate by Small Industries Development Corporation (SIDCO). Sundararaj had also purchased necessary plant and machinery with the aid from SIDCO and installed the same at No.57-B, SIDCO Industrial Estate. "A" schedule property - flat at Anna Nagar bearing No.327/5 was purchased from Tamil Nadu Housing Board in the name of Appellant. Case of late 1st Plaintiff-Chandra Sundararaj is that she had sold her jewels at Nathan's jewellery and paid the initial deposit of Rs.30,000/- and subsequent instalments for "A" schedule flat was paid from the business of M/s.Chemi Plant Fabrication. An extent of 9200 sq. ft. was purchased in the name of late 1st Plaintiff-Chandra Sundararaj out of the funds provided by her father. The said property was sold for the purpose of discharging the loan to SIDCO and other loans. From out of the balance money, the property in "D" schedule – Plot No.13, Sri Sabari Nagar, Vadaperumbakkam was purchased. "C" schedule – Plot No.177, Naduvakkarai village was also purchased from out of the income from M/s.Chemi Plant Fabrication. After the death of Sundararaj, a family arrangement was entered into in June 1994. On the basis of the said family arrangement, late 1st Plaintiff-Chandra Sundararaj gave an affidavit to SIDCO and based on which Appellant got transfer of "B" schedule property in his name. A settlement deed was executed infavour of late 1st Plaintiff by the Appellant on 03.06.1994 in respect of "D" schedule property – Plot No.13, Sri Sabari Nagar, Vadaperumbakkam. Alleging that Appellant- 1st Defendant had not performed his obligations under the family arrangement, late 1st Plaintiff-Chandra Sundararaj has filed the suit for the reliefs - (i) declaration that the alleged family arrangement got signed by the 1st Defendant in June 1994 is void ab-initio and non-est; (ii) partition of suit properties into three equal shares and to allot 1/3rd share to the Plaintiff. 4. Appellant-Defendant resisted the suit by filing elaborate Written Statement. 5. A.No.676 of 2004 was filed under Order 7, Rule 11(d) C.P.C. read with Order XIV, Rule 8 of O.S. Rules to reject the plaint. Appellant sought for rejection of plaint on the grounds - (i) Regarding the prayer for declaration that the family arrangement as null and void, Appellant contended that the family arrangement was not registered and therefore the unregistered document is barred under Indian Stamp Act and Indian Registration Act; (ii) Case of Plaintiff is that "A" schedule flat was purchased by late 1st Plaintiff in the name of Appellant from out of her funds and the said claim is barred under Benami Transactions (Prohibition) Act, 1988; (iii) "B" schedule was sold by SIDCO infavour of Appellant by a registered sale deed dated 02.03.1995 and the plaint allegations is that the transfer was obtained by him under coercion, threat and undue influence and while so, the suit filed in April 2001 is barred https://hcservices.ecourts.gov.in/hcservices/ under Articles 58 and 59 of Limitation Act; (iv) in respect of "D" schedule property, a settlement deed dated 03.06.1994 was executed infavour of late 1st Plaintiff and while so, the same cannot be treated as family property and there is no cause of action for partition of "D" schedule property; (v) "C" schedule was alleged to have been purchased by late 1st Plaintiff and while so, there is no cause for the suit for partition in respect of "C" schedule property. 6. Late 1st Plaintiff-Chandra Sundararaj resisted the application by filing an elaborate counter-statement stating that "A" schedule property was purchased in the name of Appellant for the benefit of the family and therefore, application of Benami Transactions (Prohibition) Act, 1988 does not arise. In respect of "B" schedule property, it was averred that only in 1998 it became known that Appellant is not going to honour the obligations under the family arrangement and thereafter, late 1st Plaintiff sent a letter dated 23.09.1998 from Thiruvarur detailing dishonesty of Appellant- Defendant and therefore, the suit in respect of "B" schedule is not barred under law of limitation. In respect of "C" and "D" schedule properties, the counter elaborates as to how the same were purchased and supported by a cause of action. 7. Upon consideration of rival contentions and after extracting the judgment in (2004) 9 SCC 512 [Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I and another], learned Judge held that only the averments in the plaint will have be taken into account and Defendant's claim by way of Written Statement cannot be taken note of. Pointing out that the family arrangement was not an enforceable document in the eye of law, learned Judge held that there was no prayer to set aside the same and therefore the Limitation Act is not attracted. 8. Before we go into the factual aspects, it is necessary to refer to the well settled principles of Order 7, Rule 11 C.P.C. In (2003) 1 SCC 557 [Saleem Bhai v. State of Maharashtra], the Supreme Court held that with reference to Order 7, Rule 11 of the Code only the plaint averments are the relevant facts which need to be looked into for deciding an application. The trial Court can exercise the power at any stage of the suit – before registering the plaint or after issuing summons to the Defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7, Rule 11 of C.P.C., the averments in the plaint are germane and the pleas taken by the Defendant in the written statement would be wholly irrelevant at that stage. The real object of Order 7, Rule 11 C.P.C. is to keep out of Courts irresponsible law suits. 9. Observing that the averments in the plaint has to be read as a whole to find out whether clause (d) of Rule 11 of Order 7 was applicable, in (2004) 3 SCC 137 [Sopan Sukhdeo Sable and others v. https://hcservices.ecourts.gov.in/hcservices/ Assistant Charity Commissioner and others], the Supreme Court held as under:- "14. In Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of order 7 was applicable. 15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities." The same principle was reiterated in (2005) 7 SCC 510 [Popat and Kotecha Property v. State Bank of India Staff Association]. 10. In respect of first prayer – declaration that the family arrangement executed in June 1994 is void ab-initio, Mr.D.Krishnan, learned counsel appearing for Appellant has contended that the said family arrangement is an unregistered document which deals with immovable property of more than Rs.100/- and the suit based on an unregistered and unstamped document is liable to be rejected under Order 7, Rule 11(d) C.P.C. It was further contended that plaint paragraph (40) states that the family arrangement document is totally void and unenforceable both in law and on facts and while so, Court cannot consider the said document of family arrangement and cannot pass a decree in respect of the document. Learned counsel for Appellant would further contend that the plaint averments makes it clear that Court cannot consider the family arrangement which is not admissible in evidence. 11. Mrs.Chitra Sampath, learned counsel appearing for Respondent has submitted that the entire plaint will have to be taken into consideration and not dissected sentences from some of the paragraphs could be made out. Learned counsel would further submit that in the plaint, Plaintiff has clearly alleged that her signature was taken in the family arrangement by coercion and the family arrangement has to https://hcservices.ecourts.gov.in/hcservices/ be examined only in the light of the plaint averments and the plaint cannot be rejected based on the allegations made in the Written Statement or the averments made in the application to reject the plaint. 12. The contention of Appellant has to be examined in the light of the plaint averments. The questions (i) whether the family arrangement created rights or just only it recognises the existing rights; (ii) whether the family arrangement was obtained by fraud and coercion are to be examined in the light of the pleadings. Merits of Plaintiff's case cannot be rejected based on the averments raised in the Written Statement. Plaint paragraph (39) sets out various grounds as to why the family arrangement is not a valid one. Plaint also sets out the averments as to how the Appellant failed to perform his part of obligations arising under the family arrangement. Going by the plaint averments, it cannot be said that the plaint based on the family arrangement is barred under Order 7, Rule 11 (d) C.P.C. Appellant cannot take advantage of the allegations in the plaint that family arrangement is void and unenforceable. There cannot be any compartmentalisation or segregation of the plaint averments. Plaint averments have to be read as a whole to ascertain to its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. 13. As regards "A" schedule property – flat in Anna Nagar, learned counsel for Appellant has submitted that in paragraphs (14) and (18), late 1st Plaintiff has alleged that 'A" schedule was purchased in the name of Appellant from Tamil Nadu Housing Board on 03.11.1994 and the same was purchased from out of the funds of the late 1st Plaintiff-Chandra Sundararaj. It was submitted that the averment that late 1st Plaintiff purchased "A" schedule property in the name of Appellant-Defendant is barred under Benami Transactions (Prohibition) Act, 1988 and that no suit would lie on the said plaint averments and hence the plaint is to be rejected under Order 7, Rule 11 (d) C.P.C. In the plaint, late 1st Plaintiff has averred that "A" schedule flat in Anna Nagar was purchased in the interest of the family. In the plaint, late 1st Plaintiff has further alleged that the sale deed infavour of Appellant was for the benefit of the family. Whether the Appellant actually held the property as a trust for the family and whether the Plaintiff's claim over “A” schedule property is hit by the provisions of Benami Transactions (Prohibition) Act, 1988 remain to be seen only during the trial. Going by the plaint averments, "A" schedule flat was purchased in the interest of the family, Appellant is not right in contending that the suit is barred in respect of "A" schedule property. 14. Insofar as "B" schedule property – Plot No.57-B, Ambattur Industrial Estate purchased from SIDCO, Appellant seeks rejection of plaint on the ground that the sale deed by SIDCO is dated 02.03.1995. Onbehalf of Appellant, it was contended that late 1st Plaintiff has https://hcservices.ecourts.gov.in/hcservices/ alleged that the consent affidavit was obtained under coercion and threat and while so, the suit ought to have been filed within three years from the date of sale deed [02.03.1995] and the present suit filed in April 2001 is barred under Articles 58 & 59 of Limitation Act. It was further submitted that without setting aside the sale deed executed by SIDCO infavour of Appellant, plaint is to be rejected on the ground that the suit is barred by limitation. 15. Taking us through the plaint, learned counsel for Respondent has submitted that late 1st Plaintiff has clearly averred that consent affidavit was taken under threat and coercion and only in 1998, she came to know that Appellant was trying to enjoy the fruits of the family arrangement, but was not willing to perform his duties and thereby rendering the consideration for the family arrangement non- existent and thereafter the suit was filed in April 2001 and therefore, the suit in respect of "B" schedule is not barred under Articles 58 & 59 of Limitation Act. 16. Ofcourse the sale deed infavour of Appellant for "B" schedule property is dated 02.03.1995 and the suit was filed in April 2001. In a catena of decisions, the Supreme Court has held that plaint under Order 7, Rule 11 (d) C.P.C. cannot be rejected on the ground that it is barred by limitation. The question of limitation is a mixed question of law and fact. In (2006) 5 SCC 662 [Balasaria Construction (P) Ltd. v. Hanuman Seva Trust], the Supreme Court considered the question whether words "..... barred by law ....." in Rule 11 (d) would also include bar by the law of limitation. Referring to various judgments and conflict of views, the Supreme Court formulated the question "whether the words 'barred by law' under Order 7, Rule 11 (d) C.P.C. would also include the ground that it is barred by the law of limitation". Keeping in view the importance of the question and conflict of opinion, Supreme Court referred the matter to a larger Bench. 17. Balasaria Construction case was referred to by the Supreme Court in (2007) 14 SCC 183 [C.Natrajan v. Ashim Bai] wherein the Respondent filed application under Order 7, Rule 11 (d) C.P.C. praying for rejection of the plaint on the premise that the suit was barred by limitation. The trial Court dismissed the application on the ground that the question of limitation is a mixed question of fact and law to be considered during the trial by framing the issue suitably. The High Court set aside the order of the trial Court stating that the period of limitation, as per Article 58 of the Limitation Act, 1963 expired in 1997 itself and also holding that Article 65 of the Act had no application and the Supreme Court allowed the appeal holding that the suit cannot be dismissed as barred by limitation without proper pleading, framing of issue of limitation and taking evidence. https://hcservices.ecourts.gov.in/hcservices/ 18. Going by the plaint averments, in 1998 differences arose between the parties and that late 1st Plaintiff-Chandra Sundararaj learnt that Appellant is not going to honour his obligations under the family arrangement. Plaint averments refer to the conduct of the Appellant from 1998 and in paragraph (82) of the plaint, 1st Plaintiff has alleged that Plaintiff and her son and daughter are entitled to equal share in "B" schedule property. Question of limitation is a mixed question of law and fact and the same could be considered. Whether the suit filed in April 2001 is within the period of limitation could be examined only at the time of trial when parties adduce oral and documentary evidence. On the mere plaint averments, plaint cannot be rejected on the premise that the claim is barred by limitation. 19. Insofar as "C" schedule property, Appellant-Defendant seeks for rejection of plaint on the ground that plaint does not disclose a cause of action in respect of "C" schedule property. Plaint contains the averment as to how "C" schedule was purchased from the portion of the sale proceeds of Besant Nagar property and therefore, it cannot be contended that the claim in respect of "C" schedule is without any cause of action. 20. Insofar as "D" schedule property, settlement deed was executed infavour of late 1st Plaintiff-Chandra Sundararaj. Appellant-Defendant seeks rejection of plaint in respect of "D" schedule property contending that the property was settled infavour of late 1st Plaintiff by a settlement deed dated 03.06.1994 and while so, the same is not available for partition and the family members cannot claim 1/3rd share each in "D" schedule property and therefore, there is no cause of action for partition of "D" schedule property and the plaint has to be rejected under Order 7, Rule 11(a) C.P.C. 21. In the plaint, late 1st Plaintiff has alleged that the family arrangement was not acted upon and when the Plaintiff has sought for declaration that the family arrangement is null and void, the said settlement deed infavour of late 1st Plaintiff is part of the alleged family arrangement. Whether the property settled infavour of late 1st Plaintiff is available for partition or not will have to be examined in the light of the plaint averments and not in the light of the allegations made in the Written Statement. Placing reliance upon (2004) 9 SCC 512 [Liverpool & London S.P. & I Association Ltd. v. M.V.Sea success I and another], learned Judge held that the averments in the plaint will alone have to be taken into account and Court cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action or any triable issue. Court cannot probe into the facts on the basis of the controversy raised in the counter. We do not find any reason to interfere with the order of the learned Judge dismissing the application A.No.676 of 2004. https://hcservices.ecourts.gov.in/hcservices/ 22. O.S.A.No.255 of 2010: A.No.3923 of 2006 was filed under Order 39, Rule 4 C.P.C. read with Order XIV, Rule 8 of Original Side Rules to direct the Registry to hand over the keys to the Appellant in respect of "A" schedule property. 23. Sale deed dated 03.11.1994 in respect of "A" schedule property-Flat No.5, Thirumangalam, Anna Nagar, Chennai was obtained infavour of Appellant from Tamil Nadu Housing Board. Appellant and his mother [late 1st Plaintiff] was living in the said flat till 1998. Thereafter, some misunderstanding arose between the Appellant's wife and the Respondent, 1st Plaintiff continued to live in the said Flat and Appellant was living in a rented house. Both Appellant and Respondent used to visit the Plaintiff. 24. After the death of the Plaintiff, the Respondent locked the flat. Respondent had filed O.A.No.239 of 2005 seeking an interim injunction on the premise that she is in possession and enjoyment of "A" schedule property and that she has to perform pooja for her mother on every Amavasai and also to perform first annual death ceremony in the said flat and that Appellant is trying to usurp possession from the Respondent. By the order dated 03.03.2005. By the order dated 21.03.2006, the learned single Judge vacated the interim injunction granted infavour of Respondent and allowed A.No.866 of 2006. While allowing A.No.866 of 2006, learned Judge directed the Respondent to return the keys of the flat on or before 18.04.2006. Subsequently, on being mentioned, the order dated 21.03.2006 has been modified to the effect that Respondent is to deposit the key into this Court within a period of two weeks i.e. on or before 05.04.2006 and the same shall be kept in Court deposit until further orders. 25. Appellant has filed A.No.3923 of 2006 seeking direction to the Registry to hand over the keys to him stating that the mediation held between them failed and that the trial of the suit alone could decide and whether Respondent is entitled to any share in "A" schedule flat. Till such time, the Appellant is entitled to keep the possession of "A" schedule flat. 26. Resisting the application, Respondent has filed counter stating that their mother and Appellant applied for allotment of Housing Board flat in the year 1983 and the mother decided to take up allotment of "A" schedule property in the name of Appellant which was their family dwelling house and the same not meant for exclusive use of the Appellant. It was further averred that though "A" schedule standing in the name of Appellant by virtue of allotment in his name in 1983, the property actually belonged to the mother and that she was occupying it till her death in her own right and Appellant cannot seek possession of the flat from the Respondent and the Appellant is https://hcservices.ecourts.gov.in/hcservices/ not entitled to the key deposited into the Court. 27. Learned Judge held that since no counter claim for recovery of possession has been made by the Appellant, the question of handing over key to the Appellant may not arise. Pointing out that unless the issues in the suit are decided, the key need not be given to the Appellant, learned Judge dismissed the application. 28. Learned counsel for Appellant has contended that "A" schedule property was allotted to the Appellant in the year 1983 by the Tamil Nadu Housing Board and the same was sold to him by a sale deed dated 03.11.1994 and Appellant is the owner of the flat and therefore, Appellant is entitled to return of the keys. It was further submitted that the learned judge did not keep in view that the sale deed dated 03.11.1994 stands in the name of Appellant. 29. "A" schedule property is a residential flat in Anna Nagar, Chennai. Admittedly, it was allotted to the Appellant in the year 1983 by Tamil Nadu Housing Board and on payment of instalments, the property was sold to the Appellant by a sale deed dated 03.11.1994. We have gone through the order of allotment infavour of Appellant and also the sale deed dated 03.11.1994 filed in the typed set of papers. According to Appellant even in the family arrangement in 1994, "A" schedule was not the subject matter for partition. 30. Late 1st Plaintiff-Chandra Sundararaj claimed that she paid the initial amount of Rs.30,000/- for purchase of "A" schedule property and that the property was purchased in the name of Appellant for the benefit of the whole family and therefore, the same is available for partition. The question whether Appellant is the absolute owner of "A" schedule property or whether the purchase was intended for the benefit of the whole family has to be resolved only in the suit. It was stated that the flat is kept under lock without any maintenance. Onbehalf of Appellant it was submitted that "A" schedule property being a flat, it needs continuous maintenance. No useful purpose