Kusum Lata v. Smt. Neeta Sharma and others), whereby application

Appellant :- Kusum Lata Respondent :- Smt. Neeta Sharma And 2 Others Counsel for Appellant :- Adarsh Bhushan,Raj Kumar Kesari Counsel for Respondent :- Krishna Mohan,Raj Narayan Tiwari Hon'ble Sandeep Jain,J.

1. By way of this instant appeal, the plaintiff-appellant has challenged the impugned order dated 18.07.2023 passed by the Civil Judge (Senior Division), Gautam Budh Nagar in Original Suit No. 602 of 2021 (Kusum Lata Vs. Smt. Neeta Sharma and others), whereby application 22A under Order 7 Rule 11 C.P.C. moved by the defendants, has been allowed and the plaint has been rejected.

2. Factual matrix in brief is that the plaintiff-appellant- Kusum Lata filed Original Suit No. 602 of 2021 against the defendant- respondents on the ground that the relations of defendant no. 1- Smt. Neeta Sharma was restrained with her husband- Sunil Kumar Sharma, as such Sunil Kumar Sharma remained in live-in relationship with her, since the month of December, 2015 and on 29.06.2016, she solemnized marriage with Sunil Kumar Sharma in a temple and since then, they resided as husband and wife. She further averred that during this relationship, she was assured by Sunil Kumar Sharma that he will obtain divorce from defendant no. 1 and then solemnize marriage with her, but unfortunately, Sunil Kumar Sharma died on 25.05.2021. It is the case of the plaintiff that prior to his death, Sunil Kumar Sharma had executed unregistered will on 26.04.2021 bequeathing his entire movable and immovable property on her. On the basis of the alleged will, the plaintiff has sought the following reliefs: A. She be declared the owner in possession of all the movable and immovable property of Sunil Kumar Sharma, on the basis of will dated 26.04.2021. B. By decree of permanent injunction, the defendant-respondents be restrained from dispossessing her, except in accordance with law, and further for restraining them from selling and mortgaging the property.

3. In the court below, the defendant no. 1- Smt. Neeta Sharma moved an application under Order 7 Rule 11 C.P.C. on the ground that the plaintiff is not a legally married wife of Sunil Kumar Sharma, who has forged and fabricated will dated 26.04.2021, which is unregistered and on the basis of this will, no right, title or interest has been created in favour of the plaintiff. It was further submitted that being the legally wedded wife of Sunil Kumar Sharma, she is the owner of his entire movable and immovable property. It was further submitted that the plaint is barred under Order 7 Rule 11 (a)(d) because it does not disclose a cause of action and further the relief is claimed in respect of an agricultural property, which could only be granted by revenue court.

4. Per contra, the plaintiff submitted her objections, in which she averred that she had solemnized marriage with Sunil Kumar Sharma on 29.06.2016 as per Hindu rights and rituals, because the relations of Sunil Kumar Sharma and defendant no. 1 were not cordial. The defendant no. 1 had filed a case of maintenance against Sunil Kumar Sharma in which he had been ordered to pay a maintenance of Rs. 30,000/- per month. Besides this, Sunil Kumar Sharma had also filed a divorce petition against defendant no. 1 numbering 1139 of 2018 before the Family Court, Gautam Budh Nagar. It was submitted that will dated 26.04.2021 was a valid will.

5. From perusal of the impugned order, it is evident that the court below has allowed application under Order 7 Rule 11 C.P.C. on the ground that since the plaintiff had sought relief of declaration regarding an agriculture property, which could only be granted by a revenue court, as such the suit regarding this relief was not maintainable. It was further concluded that the plaintiff has got no right, title or interest in the disputed property on the basis of a fraudulent will. The court below came to a conclusion that no cause of action has arisen to the plaintiff to file the suit. Clearly, the above conclusion reached by the court below is perverse and against settled law.

6. The Apex Court in the case of Church of Christ Charitable Trust & Educational Charitable Society Vs. Ponniamman Educational Trust reported in (2012) 8 SCC 706 has held that in order to consider Order 7 Rule 11 C.P.C., the court has to scrutinize the averments/pleas in the plaint. At this stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. If the allegations are vexatious and meritless and do not disclose a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code. The Apex Court in the case of Shaukathussain Mohammed Patel Khatunben Mohmmedbhai Polara reported in (2019) 10 SCC 226 has held that entirety of the plaint averments has to be taken into consideration. Rejection of plaint without considering the crucial aspects of the case, is not permissible. Vs.

7. From above law laid down by the Apex Court, it is clear that the written statement of the defendant and any document filed by the defendants, are not to be considered by the trial court while deciding the application under Order 7 Rule 11 C.P.C.. It is also clear that if after perusing the whole plaint, no cause of action is made out, only then can the plaint be rejected. It is also well settled that a plaint cannot be partly rejected.

8. It is evident from the plaint averments that the plaintiff has claimed ownership of the disputed property on the basis of unregistered will dated 26.04.2021 of Sunil Kumar Sharma. Even if plaintiff is not the legally wedded wife of Sunil Kumar Kumar, still a will could have been executed by Sunil Kumar Sharma in her favour. The validity of the will is to be examined by the trial court, in accordance with law, and it cannot be rejected at this stage by holding that the will is forged and fabricated. It is also clear that only on the basis that a will is a registered document, it cannot be presumed that it has been validly executed. Similarly, even if a will is unregistered, even then, it can be proved to be legally executed. The trial court has out rightly rejected the will, by holding, that since it is unregistered, it cannot be relied upon and on the basis of the will, the plaintiff has got no right, title, interest in the disputed property and as such, she has got no cause of action to institute the suit and claim the desired reliefs.

9. The trial court has also come to the conclusion that the relief of declaration and permanent injunction regarding agricultural property could only be granted by the revenue court, as such on this ground also, it was held that the suit is barred under Order 7 Rule 11(d) C.P.C.. This reasoning of the trial court is fallacious and it also proves, that the trial court has not perused the alleged will. The will itself mentions that all residential, commercial and agricultural property of Sunil Kumar Sharma has been bequeathed to the plaintiff. The plaintiff in the plaint schedule has given description of eight movable and immovable properties and only one immovable property is an agricultural land situated in Village Mohammadpur, Tehsil Khurja, District Bulandshahar. Only on the basis of this sole agricultral land, the whole suit of the plaintiff has been deemed to be barred under Order 7 Rule 11(d) C.P.C.

10. In view of the above discussion, it appears that the trial court has passed a perverse order which is unsustainable in law and consequently the appeal deserves to be allowed. Accordingly, the appeal is allowed. Consequently, the impugned order dated 18.07.2023 is set aside. The application of the defendants under Order 7 Rule 11 C.P.C. is rejected.

11. The Original Suit No. 602 of 2021 (Kusum Lata Vs. Smt. Neeta Sharma and others) is restored. The trial court is directed to decide the suit on merits, in accordance with law.

12. Office is directed to return the original trial court record, if received. Costs easy.

13. The trial court is at liberty to decide the original suit on merits, in accordance with law, without being influenced by any observation made in this order, while deciding this appeal. Order Date :- 12.8.2025 A. V. Singh AJAY VIKRAM SINGH High Court of Judicature at Allahabad

Appellant :- Kusum Lata Respondent :- Smt. Neeta Sharma And 2 Others Counsel for Appellant :- Adarsh Bhushan,Raj Kumar Kesari Counsel for Respondent :- Krishna Mohan,Raj Narayan Tiwari Hon'ble Sandeep Jain,J.

1. By way of this instant appeal, the plaintiff-appellant has challenged the impugned order dated 18.07.2023 passed by the Civil Judge (Senior Division), Gautam Budh Nagar in Original Suit No. 602 of 2021 (Kusum Lata Vs. Smt. Neeta Sharma and others), whereby application 22A under Order 7 Rule 11 C.P.C. moved by the defendants, has been allowed and the plaint has been rejected.

2. Factual matrix in brief is that the plaintiff-appellant- Kusum Lata filed Original Suit No. 602 of 2021 against the defendant- respondents on the ground that the relations of defendant no. 1- Smt. Neeta Sharma was restrained with her husband- Sunil Kumar Sharma, as such Sunil Kumar Sharma remained in live-in relationship with her, since the month of December, 2015 and on 29.06.2016, she solemnized marriage with Sunil Kumar Sharma in a temple and since then, they resided as husband and wife. She further averred that during this relationship, she was assured by Sunil Kumar Sharma that he will obtain divorce from defendant no. 1 and then solemnize marriage with her, but unfortunately, Sunil Kumar Sharma died on 25.05.2021. It is the case of the plaintiff that prior to his death, Sunil Kumar Sharma had executed unregistered will on 26.04.2021 bequeathing his entire movable and immovable property on her. On the basis of the alleged will, the plaintiff has sought the following reliefs: A. She be declared the owner in possession of all the movable and immovable property of Sunil Kumar Sharma, on the basis of will dated 26.04.2021. B. By decree of permanent injunction, the defendant-respondents be restrained from dispossessing her, except in accordance with law, and further for restraining them from selling and mortgaging the property.

3. In the court below, the defendant no. 1- Smt. Neeta Sharma moved an application under Order 7 Rule 11 C.P.C. on the ground that the plaintiff is not a legally married wife of Sunil Kumar Sharma, who has forged and fabricated will dated 26.04.2021, which is unregistered and on the basis of this will, no right, title or interest has been created in favour of the plaintiff. It was further submitted that being the legally wedded wife of Sunil Kumar Sharma, she is the owner of his entire movable and immovable property. It was further submitted that the plaint is barred under Order 7 Rule 11 (a)(d) because it does not disclose a cause of action and further the relief is claimed in respect of an agricultural property, which could only be granted by revenue court.

4. Per contra, the plaintiff submitted her objections, in which she averred that she had solemnized marriage with Sunil Kumar Sharma on 29.06.2016 as per Hindu rights and rituals, because the relations of Sunil Kumar Sharma and defendant no. 1 were not cordial. The defendant no. 1 had filed a case of maintenance against Sunil Kumar Sharma in which he had been ordered to pay a maintenance of Rs. 30,000/- per month. Besides this, Sunil Kumar Sharma had also filed a divorce petition against defendant no. 1 numbering 1139 of 2018 before the Family Court, Gautam Budh Nagar. It was submitted that will dated 26.04.2021 was a valid will.

5. From perusal of the impugned order, it is evident that the court below has allowed application under Order 7 Rule 11 C.P.C. on the ground that since the plaintiff had sought relief of declaration regarding an agriculture property, which could only be granted by a revenue court, as such the suit regarding this relief was not maintainable. It was further concluded that the plaintiff has got no right, title or interest in the disputed property on the basis of a fraudulent will. The court below came to a conclusion that no cause of action has arisen to the plaintiff to file the suit. Clearly, the above conclusion reached by the court below is perverse and against settled law.

6. The Apex Court in the case of Church of Christ Charitable Trust & Educational Charitable Society Vs. Ponniamman Educational Trust reported in (2012) 8 SCC 706 has held that in order to consider Order 7 Rule 11 C.P.C., the court has to scrutinize the averments/pleas in the plaint. At this stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. If the allegations are vexatious and meritless and do not disclose a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code. The Apex Court in the case of Shaukathussain Mohammed Patel Khatunben Mohmmedbhai Polara reported in (2019) 10 SCC 226 has held that entirety of the plaint averments has to be taken into consideration. Rejection of plaint without considering the crucial aspects of the case, is not permissible. Vs.

7. From above law laid down by the Apex Court, it is clear that the written statement of the defendant and any document filed by the defendants, are not to be considered by the trial court while deciding the application under Order 7 Rule 11 C.P.C.. It is also clear that if after perusing the whole plaint, no cause of action is made out, only then can the plaint be rejected. It is also well settled that a plaint cannot be partly rejected.

8. It is evident from the plaint averments that the plaintiff has claimed ownership of the disputed property on the basis of unregistered will dated 26.04.2021 of Sunil Kumar Sharma. Even if plaintiff is not the legally wedded wife of Sunil Kumar Kumar, still a will could have been executed by Sunil Kumar Sharma in her favour. The validity of the will is to be examined by the trial court, in accordance with law, and it cannot be rejected at this stage by holding that the will is forged and fabricated. It is also clear that only on the basis that a will is a registered document, it cannot be presumed that it has been validly executed. Similarly, even if a will is unregistered, even then, it can be proved to be legally executed. The trial court has out rightly rejected the will, by holding, that since it is unregistered, it cannot be relied upon and on the basis of the will, the plaintiff has got no right, title, interest in the disputed property and as such, she has got no cause of action to institute the suit and claim the desired reliefs.

9. The trial court has also come to the conclusion that the relief of declaration and permanent injunction regarding agricultural property could only be granted by the revenue court, as such on this ground also, it was held that the suit is barred under Order 7 Rule 11(d) C.P.C.. This reasoning of the trial court is fallacious and it also proves, that the trial court has not perused the alleged will. The will itself mentions that all residential, commercial and agricultural property of Sunil Kumar Sharma has been bequeathed to the plaintiff. The plaintiff in the plaint schedule has given description of eight movable and immovable properties and only one immovable property is an agricultural land situated in Village Mohammadpur, Tehsil Khurja, District Bulandshahar. Only on the basis of this sole agricultral land, the whole suit of the plaintiff has been deemed to be barred under Order 7 Rule 11(d) C.P.C.

10. In view of the above discussion, it appears that the trial court has passed a perverse order which is unsustainable in law and consequently the appeal deserves to be allowed. Accordingly, the appeal is allowed. Consequently, the impugned order dated 18.07.2023 is set aside. The application of the defendants under Order 7 Rule 11 C.P.C. is rejected.

11. The Original Suit No. 602 of 2021 (Kusum Lata Vs. Smt. Neeta Sharma and others) is restored. The trial court is directed to decide the suit on merits, in accordance with law.

12. Office is directed to return the original trial court record, if received. Costs easy.

13. The trial court is at liberty to decide the original suit on merits, in accordance with law, without being influenced by any observation made in this order, while deciding this appeal. Order Date :- 12.8.2025 A. V. Singh AJAY VIKRAM SINGH High Court of Judicature at Allahabad