TARUN KUMAR vs AJAY KUMAR

$~52
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 15.01.2024
Judgment pronounced on: 01.04.2024
+ C.S. (OS) No. 186/1980
TARUN KUMAR ……….. Plaintiff
Through: Mr. Rajeev Saxena, Mr. Ishan Shehkar, Mr. Sourabh Raghav, Advs.

Versus

AJAY KUMAR ……Defendant
Through: Ms. Malavika R., Ms. Ekta Sharma, Ms. Purva Dua, Advs.
Ms. Neha Tandon Adv. for defendant No. 2.
Mr. Rajiv Bahl, Adv. for defendant No. 8

CORAM:
HON’BLE MR. JUSTICE JASMEET SINGH

J U D G M E N T

: JASMEET SINGH, J

I.A. No. 4643 of 2023
1. This is an application filed on behalf of defendant Nos. 3 and 4 under Order VII Rule 11 of CPC seeking rejection of plaint.
BREIF BACKGROUND
2. In the present plaint, the substantial prayers read as under:-
a) That a decree for declaration may be passed in favour of the Plaintiffs that the purported sale of properties detailed in paras 26 and 32 sold by the Defendants No. 1 to 4 are void and in any case do not bind the interest of the plaintiffs and a decree may also be passed declaring that the properties hereto shown in Schedules belong to H.U.F.
b) That it may be further declared that the Plaintiffs are not bound by the said illegal and void transactions and debts raised by Defendant No. 1 from Defendants No. 5 and 6.
c) That a decree for partition by metes and bounds of the Joint Hindu Family properties and separate possession be passed in favour of the plaintiffs and the plaintiffs may be given their share as per Mitakshara Hindu Law.
d) That a preliminary decree for rendition of accounts of the various businesses houses, concerns, properties as described and delineated in Schedules “A” and “B” attached above, may be granted in favour of the Plaintiffs and as against the Defendants.
3. As per plaintiffs, the plaintiffs and defendant Nos. 1 to 4 and their ancestors formed a Joint Hindu Family (“HUF”) being Vaish Aggarwals are governed by Mitakshara Hindu Law. At the time of the death of L. Khem Chand in the year 1943, the HUF owned and possessed various immovable properties and businesses in India. Various immovable properties were purchased by the HUF in the name of the said Joint Hindu Family Firm and/or in the individual name of the defendant nos. 1 to 4 out of the income and funds of the HUF.
4. In the present case, at the time of filing of the suit, plaintiff No. l was the minor son and plaintiff No. 2 was the minor daughter of defendant No. 1 and plaintiff No. 3. The plaintiff No. 3 has no interest adverse to the interests of her then minor children, plaintiffs No. 1 and 2. For the sake of convenience, the pedigree table of the HUF is extracted below:-

5. Defendants Nos. 1 to 4 have been carrying on various businesses in various trade names at various places in India and abroad, and some of the business names owned by the HUF were “Khem Chand Raj Kumar”, “Khem Chand Vijay Kumar”, “Shiv Chand Steel Rolling Mills”, “Steel Corporation of Punjab”, “Khem Chand Ajay Kumar”, “Malavika Machine Tools”, besides others.
6. After passing away of L. Khem Chand, Raj Kumar (defendant No. 2), being the eldest male member of the family became and acted as Manager and Karta of the HUF and had been maintaining all accounts of various incomes and funds belonging to the HUF.
7. Defendants No. 1 to 4 were stated to be in possession of all the books of accounts and other records of various businesses and they were misappropriating money, making false and fictitious entries in the Account Books, removing stocks, making secret sales and withdrawing money from the various businesses with a view to deprive the plaintiffs of their dues and legitimate shares in the HUF businesses and properties. Defendant Nos. 2 to 4 created assets in the name of their dependents and others from the income of the HUF.
8. In 1973, defendant No. 1 filed a suit at Jalandhar for partition and rendition of accounts against other defendants Nos. 2 to 4, which was registered as Suit No. 180 of 1973 (“1973 Suit”). The 1973 suit was later on disposed of on receipt of an amount of Rupees One lac and some property by defendant No. 1, who relinquished almost all business houses, property movable and immovable all over India.
9. It is further stated that in the matter of the alleged partition as well as the earlier dealings which took place between the aforesaid members of family, the interest of the plaintiffs were grossly neglected. The said alleged partition was, even if it did take place was unequal, unfair and unconscionable. Neither the said partition nor any dealings between the said parties could bind or could in any manner prejudicially affect the interest of minor plaintiffs. It is further stated that HUF continues to subsist and plaintiffs are entitled to relief of partition, declaration and rendition of accounts.
10. Till December 1971, the plaintiffs and Defendant No. 1 were living together jointly in the ancestral house at Amravati, Tanda Road, Jalandhar, with the other members of the HUF at Jalandhar, when they shifted to Delhi.
11. Defendant No. 1 out of the ancestral funds purchased land at village Bakauli in the year 1962 and later on with the ancestral funds purchased a Factory Shed at 12/1, Mathura Road, Faridabad.
12. Defendant no. 1 took heavy loans from the Bank of India, East of Kailash, New Delhi (defendant no. 5), under the name and style of M/s Khem Chand Ajay Kumar. The said firm has been shown as Partnership or Hindu Joint Family firm or sole proprietary firm by defendant no. 1, while in fact it has been a Hindu Joint Family firm assessed as such by the Income Tax Department.
13. Defendant No. 1 though ostensibly was living with his family in the house in Delhi at B-64, Defence Colony, D-174, Defence Colony and then at S-110, Greater Kailash, New Delhi, yet defendant No. 1 spent most of his life outside and used to stay at hotels in Delhi, and at other places in the company of girls. When Bank of India, defendant No. 5, stopped giving further financial accommodation to defendant No. 1, he took further loan of about Rs. 1 lakh from another Bank, i.e. Indian Bank, Neelam Chowk, Faridabad (defendant No. 6), and started another venture at the same premises i.e. Shed at 12/1, Mathura Road, Faridabad, under the name and style of Malavika Machine Tools. He illegally sold away the following properties without any legal necessity or without any benefit to the joint family:
(a) Land at Village Bakauli, Tehsil Delhi State, measuring 34 Bighas 5 Biswas: Sold to Smt. Kamal Chopra (Defendant No. 7).
(b) Property bearing Municipal No. B.VIII-215, at Tanda
Road, Jullundur City: Sold to Kishori Lal & Bros., through its Partner, Shri Kishori Lal (Defendant No. 8).
14. Defendant No. 1 also took loans from the Bank of India (defendant No. 5), Indian Bank (defendant No. 6), and others. He spent the entire sale proceeds from the said properties and the amount borrowed from defendant Nos. 5 and 6 on gambling, drinking, races and engaging in sexual relations outside of marriage. The purchasers, defendant Nos. 7 and 8, have always been aware that the said properties are HUF properties and were sold by defendant No. 1 without any legal necessity. The alleged sales of the aforesaid properties in favour of defendant Nos. 7 and 8 by defendant No. 1 do not bind the interest of the plaintiffs as the same was without any legal necessity and for immoral purposes.
15. Defendant Nos. 1 to 4, without any legal necessity, without consideration and/or for immoral purposes, alienated the following joint family properties:
(i) House at Mussoorie sold to Mrs. Heera, wife of Shri Ram Kumar Gupta, Defendant No. 9.
(ii) Building consisting of shops and houses, near Old Octroi Post at Tanda Road, Jullundur, sold to Defendant No. 10, Mrs. Tek Chand.
16. All these alienations are liable to be declared null and void and, in any case, not binding upon the plaintiffs. The purchasers of these properties are relations of defendant Nos. 1 to 4 and they have always been aware of the fact that the properties are HUF properties and that they purchased the said properties for paltry amount. They are also aware that the sales by defendant Nos. 1 to 4 are without any legal necessity. The alienation of properties detailed above being without legal necessity, without consideration and for immoral purposes are not binding upon the plaintiffs and are liable to be set aside and declared as null and void.
17. On demand by the plaintiffs to treat the said alienations as null and void and by plaintiff No. 1 to partition all the HUF properties and businesses, the defendants Nos. 1 to 4 allege that the properties and businesses were partitioned by means of documents dated 25th March 1954, 25th March 1957 and 19th June 1961, and the decision of the 1973 suit, filed by defendant No. 1. It is further stated by the plaintiffs that the decision and earlier dealings are collusive, unfair, unconscionable, unequal and detrimental to the interest of the minor plaintiffs and as such not binding upon the plaintiffs.
18. With a view to protect the interest of the minor plaintiffs in the properties in suit and also in view of the circumstances mentioned above, partition of the HUF properties would be in the interest and for the benefit of the minor plaintiffs.
19. The plaintiffs, thus, claim partition of all the properties belonging to the HUF including the properties which have been purchased by defendants Nos. 7 to 10 with the knowledge that the said Joint Family properties were alienated without any legal necessity, without consideration and for immoral purposes. The defendants have failed to treat the alienations as null and void and have refused to partition the properties and hence the present suit seeking partition, declaration and rendition of accounts of various properties (both movable and immovable) owned by the HUF.
20. It is further stated that no share was given to the plaintiffs from their share of income from business and rent income, etc. The plaintiffs never participated in the business or in the collection of rents, etc. Further, plaintiffs are in actual physical possession of a portion of the HUF property at 12/1, Mathura Road, Faridabad.
21. The plaintiff Nos. 1 and 2 were minors and were living with maternal grandfather, who lived at Delhi, and were studying in Cambridge School, Srinivaspuri, and it was not be possible for them to file the suit anywhere else without disrupting their studies.
22. All books and particulars regarding the properties, businesses etc. are in the possession of the defendant Nos. 1 to 4 and as such the plaintiffs are unable to ascertain the exact amount which will be found due by them on this account. The plaintiffs however estimate that a sum of about Rs. 1 crore will be found due to them from defendant Nos. 1 to 4 after rendition of accounts.
23. The share of plaintiff Nos. 1 to 3 in the HUF properties is 3/16, besides right of maintenance and provision for the marriages of plaintiff Nos. 1 and 2.
24. Notice was issued to all the defendants and thereafter written statements were filed on behalf of the defendants including defendant Nos. 3 and 4.
25. It is now at this stage i.e. after 43 years, the present application under Order VII Rule 11 of CPC seeking rejection of plaint has been filed when the plaintiff’s evidence had been recorded and the defendant’s evidence is underway.
SUBMISSIONS
(On behalf of the Defendant Nos. 3 and 4)
26. In support of her application, Ms. Rajkotia, learned counsel for the defendant Nos. 3 and 4 firstly took an objection to the present suit as it seeks to re-open a partition suit of 1973 which was settled by a consent decree under Order XXIII Rule 1 of CPC. Thus, by virtue of Order XXIII Rule 3A of CPC, no fresh suit is maintainable. Furthermore, an application under Order XXIII Rule 1 culminating out of a settlement was filed in Jalandhar, therefore if at all, the reopening has to be in Jalandhar. The plaintiffs have tried to avoid the same by filing in Delhi. Reliance is placed on M/s Sree Surya Developers and Promoters vs. N. Sailesh Prasad and Ors., (2022) 5 SCC 736 and University of Agricultural Sciences vs Saroj Gupta, (2021) 16 SCC 768.
27. She further draws my attention to para 19 of the plaint, wherein plaintiff’s claim that defendant no. 1 his father bought 2 properties in Delhi from his share in ancestral property that he had received in a partition that happened in 1961.The consequences of the above facts in the plaint are that:-
i. the partition happened in 1961 when the plaintiff was only conceived,
ii. the 1973 suit was disposed of in 1974 by his father, when he was a minor and it was with knowledge of his mother who is a lawyer and they were together as a family at that time.
iii. in para 34, the plaintiff seeks to set aside settled estates of 1954, 1957, 1961 and 1974 by making a bald statement of unfairness. Learned counsel states that if there had been a registered partition in 1974 and not by decree of court, this present application would not have been maintainable, however the fact is that all the previous partitions culminated in the suit of 1974 which the defendant settled in Courts at Jalandhar, thus the jurisdiction to challenge or reopen that compromise can only be maintained in Jalandhar. The plaintiff himself acknowledges in the present plaint that the suit of 1973 was compromised, thus Order XXIII Rule 3 of CPC becomes operational and the present suit is barred under Order XXIII Rule 3A since the question of that compromise cannot be challenged unless there is an allegation of fraud. In addition, it can only be maintained in the same court, if at all.
28. In a partition suit every party is a plaintiff. By supporting the plaintiff, Ajay Kumar (defendant No. 1) too is a plaintiff who in collusion with his son is trying to reopen something that he in his full mind had accepted in 1973. The same is barred by law of limitation.
29. She further submits that the plaintiff is trying to confuse the issue of Mitakshara law which prior to 1956 was only by survivorship and thus led to fluctuating shares with male heirs. However post 1956, the rule of survivorship goes and his best case is a claim only against his father. It is settled law that in the case of a joint family, children will be entitled only to a share in their parent’s property. Reliance is placed on Revanasiddappa v. Mallikarjun, (2023) 10 SCC 1 and the relevant para reads as under:-
“30.1. Children cloaked with legitimacy under Section 16(3) of the HSA, 1956 are to be considered legitimate for the purpose of partition within the branch of the father. They cannot claim partition in the larger coparcenary, but once the larger coparcenary is partitioned — notionally or actually, and the property comes in the hands of the father, all his children — legitimate per se or legitimate by reason of Section 16(3), have the same right in partition of this property in the hands of the father…….”
30. She further draws my attention to the order passed by this court on 26.05.1983 wherein it was observed that the crux of this suit is maintenance and otherwise it seems to have no merit. Thus, even the maintenance claim is at best against his own father and cannot be against his uncles, cousins and extended family whose joint status was disrupted and properties also divided. Thus there is no cause of action that the plaintiffs have against defendant Nos. 3 and 4 and now their heirs.
(On behalf of the Plaintiffs)
31. To refute learned counsel for the defendant Nos. 3 and 4’s submissions, Mr Saxena, learned Counsel for the plaintiffs submits that the present application is only premised on the allegation of the suit being barred under Order XXIII Rule 3A CPC, alleging a consent decree under Order 23 Rule 1 of CPC having been passed between the defendant Nos. 1 to 4.
32. Admittedly, a suit for partition was filed by the defendant No.1 in the year 1973 against his brothers, which was withdrawn for some pittance from his brothers and no decree had been passed by any Court much less at Jalandhar.
33. Learned Counsel relies upon the order dated 16.12.1983 passed by the Hon’ble Division Bench in which the rights of the plaintiffs to challenge alleged partition effected on the basis of a Release Deed dated 09.08.1974 were upheld.
34. The abovesaid order passed by the Division Bench was challenged before the Hon’ble Supreme Court by way of filing SLP (C) No. 6444,5661 of 1984 which was dismissed vide order dated 26.11.1984. Thus, the order passed by the Hon’ble Division Bench dated 16.12.1983, attained finality and is binding upon the parties.
35. It is submitted that the evidence of the plaintiffs had been concluded on 19.08.2018. Whereafter, the defendant No.1 was proceeded ex parte, when though the defendant No. 2 was to be examined, however, on the request of the applicant, defendant No.3 was cross examined first. The said witness however, expired on 11.02.2022 and since then no evidence had taken place on account of the defendants filing one application after another to delay the matter, wherein, only the applicant and defendant No. 2 are left to be examined.
36. He further argues that this Hon’ble Court had framed issues on 23.9.1983, in respect of alleged partitions and whether or not the plaintiffs can reopen the said partitions and in that regard the onus to prove is upon both the parties. Further, this court has also framed the issue with regard to the territorial jurisdiction. The relevant issues reads as under:-
“6. What is the legal effect of partition suit instituted by Ajay Kumar (defendant No. 1, against defendants 2to 4 in the Civil Court at Jullundur City in 1973 and its withdrawal on 8th August, 1974 in terms of alleged compromise.
……
13. (a) Has this court territorial jurisdiction to try this suit.”
37. It is further argued that the plaintiffs are entitled to and are still being paid the maintenance as fixed by this Hon’ble Court from out of the HUF funds by the defendant No. 2, and for that matter not only the existence of HUF has been proved beyond doubt by the Hon’ble Court but the entitlement of the Plaintiff qua their right, title, interest, claim and share too has prima facie been established and as such the said right cannot in any way be curtailed.
ANALYSIS AND FINDINGS
38. I have heard the rival submissions advanced by the learned counsel for the parties and perused the materials on record.
39. The law is well settled with regard to deciding an application under Order VII Rule 11 of CPC. The Hon’ble Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366 has summarized the law and the relevant extract reads as under:-
“23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823] this Court held that the whole purpose of conferment of powers under this provision is to ensure that 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.”
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] , read in conjunction with the documents relied upon, or whether the suit is barred by any law.
……… …..…. …….. ……
23.10. 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]
23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139)
“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”
23.12. In Hardesh Ores (P) Ltd. v. Hede& Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman [D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941] .
……… …..…. …….. ……
23.14. The power under Order 7 Rule 11 CPC may be exercised by the court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557] . The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain case [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823]..……………….”
40. From the above cited judgement, it is clear that while deciding an application under Order VII Rule 11 of CPC, it is only the plaint and the averments made therein are to be considered. The Court is required to see whether the plaint discloses a cause of action or the suit is barred by any law and if the plaint falls under any of the categories given under Order VII Rule 11 then the plaint is liable to be rejected.
41. Learned counsel for the defendant Nos. 3 and 4 submits that the suit is not maintainable as it is barred by Order XXIII Rule 3A of CPC and the plaintiffs cannot reopen the suit after the consent decree is passed.
42. Admittedly, the defendant No. 1 filed a suit for partition and rendition of accounts against the defendant Nos. 2 to 4. During the pendency of the suit, defendant No. 1 moved an application under Order XXIII Rule 1 of CPC seeking withdrawal of the suit on the ground that suit had been filed through some misunderstanding and after going through various documents, defendant No. 1 was satisfied with the partition happened earlier. The relevant portion of the said application reads as under:-
“2.That the aforesaid suit has filed by the Plaintiff on account of some misunderstanding and misappropriation and wrong appreciation of the facts. The Plaintiff has now gone through the certain documents which have been referred to by the Defendants in their respective written statements and copies of which have been filed in the court. After going through these documents and the relevant account books and other enquiries made from other sources the Plaintiff is completely and absolutely satisfied and admits without reservation that the Joint Hindu Family of M/s Khem Chand Raj Kumar was duly disrupted partially in the year 1954 and completely in March, 1967 when a family settlement arrangement was arrived at and made by which Sh. Raj Kumar, the Defendant No.1 had separated himself from the rest of the members of the erstwhile Joint Hindu Family viz the Plaintiff and the Defendants 2 and 3 and that since then Sh. Raj Kumar had no concern or interest with the said erstwhile Joint Hindu Family of M/s Khem Chand Raj Kumar and since then that he has been in exclusive possession of the property allotted to him in the said family settlement which have been mentioned in the deed of settlement dated 26.3.57. The Plaintiff also admits that various release deeds and documents were executed in March, 1957 in presence of the said family settlement. The Plaintiff further admits that there was a further partition between the Plaintiff No. 1 and the Defendants 2 & 3 dated 19th June, 1961 and deeds of release family settlements were executed between the Plaintiff and Defendants 2 & 3 and since then the Plaintiff is separate from the Defendants 2 & 3. The factum and validity of the deeds, referred to in the written statements of Defendants is admitted.
In view of the above facts it is prayed that the Plaintiff be allowed to withdraw the suit but the Plaintiff be not burdened with costs.”
43. Vide Order dated 08.08.1974, Trial Court at Jalandhar passed the following order:-
“In view of the statement of Ajay Kumar Plaintiff. The suit is dismissed as withdrawn leaving the parties to bear their own costs Here it may be clarified that the stamp auditor in the course of his inspection recorded a note on the file to the effect. That on the plaint of the suit court fee stamp worth Rs.7196/- was required to be affixed. This note was recorded by the stamp auditor.
On the ground that approximate amount which the Plaintiff thought would be due to him after the rendition of the amount had been mentioned in the plaint as Rupees five lacs. The note obviously misconceived. It is a question of common knowledge that in the first instance the Plaintiff is not called upon to pay court fee on the amount which according to his rendition of the accounts would be due. In suit for rendition of accounts Plaintiff is called upon to pay court fee on the amount which at the time of final judgment is found to be due to him from the Defendants.
In these circumstances the note of the Stamp Auditor is requested to be ignored.
File be consigned to the record room.”
44. The Hon’ble Supreme Court in Rama Narang v. Ramesh Narang, (2006) 11 SCC 114 and more particularly in paragraph 23 has observed as under:-
“23. ……… A compromise decree is as much a decree as a decree passed on adjudication. It is not as has been wrongly held by the Calcutta High Court in Nisha Kanto Roy Chowdhury [AIR 1948 Cal 294: 49 Cri LJ 567] merely an agreement between the parties. In passing the decree by consent, the court adds its mandate to the consent. A consent decree is composed of both a command and a contract. The Bombay High Court’s view in Bajranglal Gangadhar Khemka [AIR 1950 Bom 336: 52 Bom LR 363] correctly represents the law that a consent decree is a contract with the imprimatur of the court. “Imprimatur” means “authorised” or “approved”. In other words by passing a decree in terms of a consent order the court authorises and approves the course of action consented to. Moreover, the provisions of Order 23 Rule 3 of the Code of Civil Procedure require the court to pass a decree in accordance with the consent terms only when it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement.”
45. Perusing the order dated 08.08.1974, it is evident that the order passed only says that the suit is dismissed as withdrawn under Order XXIII Rule 1 of CPC. In terms of Order XXIII Rule 3, there is no satisfaction recorded by the trial court that the suit is decreed on the basis of a lawful agreement or comprise arrived between the parties. There is no decree passed under Order XXIII Rule 3 of CPC, therefore, it cannot be said that a consent decree was passed in 1973 suit and in the absence of the same, the bar of Order XXIII Rule 3A of CPC will not operate. Hence, the present suit cannot be said to be barred by law on this ground.
46. Reliance placed on M/s Sree Surya Developers and Promoters (supra) is misconceived as in this particular case, there was no dispute with regard to the compromise decree passed by the learned trial court on the basis of the compromise deed dated 30.12.2015 arrived between the parties therein whereas in the 1973 suit, there is no compromise decree passed by the learned Trial Court at Jalandhar.
47. Further, reliance on University of Agricultural Sciences (supra) is also not helpful as the case relates to the same plaintiff i.e. the plaintiff who had filed the earlier suit had also filed the subsequent suit. The plaintiffs in the present case and in 1973 suit are different.
48. A meaningful reading of the plaint shows that the case of the plaintiffs is that the alleged partition, if it did take place was unfair, unequal and unconscionable. The interest of the plaintiffs was grossly neglected. Hence, the plaintiff averred that no share had been given to them from the income of the HUF properties and businesses.
49. Also, the plaintiffs being the minors and coparcener have a right in the assets of the HUF properties and the same have been settled without plaintiffs being a party. If the averments in its entirety are taken to be correct, then the plaintiffs will be having their own share from the HUF properties and this can only be adjudicated after trial.
50. The Division Bench of this Court vide order dated 16.12.1983 and has observed as under:-
“…….Prime facie he is entitled to challenging the partition effected as the release deed which is the only registered document on the record executed by the defendants on 09th August, 1974, or the earlier deeds referred to in it and affirmed by Ajay Kumar therein do not refer to Tarun Kumar or his share due to him as a coparcener. Mr. Bawa is right when he urges that Tarun Kumar’s right to have the partition re-opened depends upon proof that it was unfair or unjust or detrimental to the interests of the plaintiffs. As held by the Learned Single Judge those questions are to be decided on evidence to be produced by the parties. ……..”
51. The abovesaid order was challenged before the Hon’ble Supreme Court by filing SLP (C) No. 6444, 5661 of 1984 which was dismissed vide order dated 26.11.1984. Hence the findings recorded by the Division Bench have attained finality.
52. Learned counsel for the defendant Nos. 3 and 4 has further argued that the claim of the plaintiffs can best be against their father i.e. defendant No. 1 and no relief can be claimed against defendant Nos. 3 and 4.
53. It is stated in the plaint that the defendant No. 1 to 4 have alienated the HUF properties i.e. House at Mussoorie and Building at Tanda Road, Jalandhar without any legal necessity, without consideration and/or for immoral purposes to defendant Nos. 9 and 10 respectively. In this regard, plaintiff has sought that the sale deed with respect to the above properties be declared null and void. The Hon’ble Supreme Court in Arshnoor Singh v. Harpal Kaur, (2020) 14 SCC 436 has observed the sale of the coparcenary property must be for the legal necessity and for the benefit of the estate and this onus to prove is on the alienee. The relevant extract reads as under:-
“8.1. It is settled law that the power of a karta to sell coparcenary property is subject to certain restrictions viz. the sale should be for legal necessity or for the benefit of the estate. [Vijay A. Mittal v. Kulwant Rai, (2019) 3 SCC 520 : (2019) 2 SCC (Civ) 176; Mulla on Hindu Law (22nd Edn.), p. 372.] The onus for establishing the existence of legal necessity is on the alienee. In Rani v. Santa Bala Debnath [Rani v. Santa Bala Debnath, (1970) 3 SCC 722] , this Court held that: (SCC p. 725, para 10)
“10. Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjudging whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular instance must be considered. Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity.”
54. There is no quarrel with regard to the proposition laid down in the Revanasiddappa (supra). Assuming for the sake of argument that the relief as sought can only be against the defendant No. 1 and not against the defendant No. 3 and 4, the same would lead to an anomalous situation. In the present case, the plaintiffs are seeking setting aside of the sale deeds of the properties which are stated to be HUF properties and are jointly sold by defendant Nos. 1 to 4. In case the suit is to be decreed in favour of the plaintiffs, the sale deeds will have to be declared null and void, and therefore, the plaintiffs will also be entitled to have share in that property. The said declaration cannot be given in their (defendant No. 3 and 4) absence as the shares of defendant no. 3 and 4 would be affected.
55. With regard to this Court having territorial jurisdiction, it is stated in the plaint that out of ancestral funds defendant No. l purchased land at village Bakauli in the year 1962 and later on with the ancestral funds, defendant No. 1 purchased a factory shed at 12/1, Mathura Road, Faridabad. It is also stated that the land at village Bakauli, Tehsil Delhi had been sold to defendant No. 7 without any legal necessity. Further, defendant No. 1 had taken loans from the Bank of India, East of Kailash, New Delhi (defendant No. 5) in the name of M/s Khem Chand Ajay Kumar which firm has been shown as Hindu Joint Family Firm. It is also stated that Defendant No. 2, 3, 4, 5, 7 and 8 work for gain at Delhi and plaintiff Nos. 1 and 2 being minors are living with maternal grandfather, who lives at Delhi. Hence there are material averments with regard to this court having territorial jurisdiction and part of the cause of action has arisen within the territorial jurisdiction of this court.
CONCLUSION
56. For the reasons noted above, I find no merit in the application and is accordingly dismissed.
57. It is made clear that the observations made above are only for the purpose of deciding this application and will not come in the way while finally deciding the suit.
C.S. (OS) No. 186/1980
58. List for further proceedings on 09.07.2024 before Joint Registrar.

JASMEET SINGH, J
APRIL 01st, 2024/(MSQ)

C.S.(OS) No. 186/1980 Page 25 of 25