RAJINDER KUMAR KAPUR Vs. MADAN MOHAN LAL KAPUR

JUDGEMENT

(1.) This is an application under Order VII Rule 11 CPC filed by Defendant No. 1 seeking rejection of the plaint on two grounds - that the suit lacks cause of action and that the suit is time barred.

(2.) Late Shri Kundan Lal Kapur had three sons and four daughters. The Plaintiff is one of the grandsons of deceased Shri Kundal Lal Kapur. The three sons of the deceased are Late Shri Shiv Kumar Kapur, Mr. B. C. Kapur and Mr. M. M. L. Kapur - Defendant No.1. Shri Kundan Lal Kapur passed away on 14th September, 1971. Mrs. Vidhya Wati, - wife of Late Shri Kundan Lal Kapur died on 26th June, 1978. The Plaintiff is the son of Late Shri Shiv Kumar Kapur, who passed away on 6th January, 1984.

(3.) The Plaintiff being one of the grandsons, seeks partition and possession of the property bearing No. J-38, Rajouri Garden, New Delhi (hereinafter the "suit property"). The suit property is in occupation and possession of Defendant No.1. It was mutated in favour of Defendant No.1 after execution of three General Power of Attorneys ("GPAs"), which were given in favour of Defendant No.1's wife namely Smt. Kamla Kapur. Thereafter, Smt. Kamla Kapur executed a relinquishment deed on 19th August, 1979 in favour of her husband - M.M.L Kapur - Defendant No.1 herein. This relinquishment deed was executed on the strength of GPAs, which were executed by all the daughters and sons of late Shri Kundan Lal Kapur. The GPAs and relinquishment deed have been placed on record. Since then, Defendant No.1 has got the property mutated in his own name and has been in exclusive enjoyment and possession of the suit property. On the basis of the relinquishment deed and GPAs executed by all his siblings, Defendant No.1 claims that the suit itself is not maintainable as the Plaintiff's father during his lifetime had given up all the rights in the suit property. Accordingly, the case of Defendant No.1 is that the suit has been filed more than 36 years after the registration of the relinquishment deed in favour of Defendant No.1 and that the said relinquishment deed had been executed after proper deliberations were held with all the family members. The Plaintiff's father had executed a GPA in favour of his Bhabhi, which was thereafter relinquished in favour of Defendant no.1, during his lifetime itself, he had no right in the suit property. Thus the suit itself is not maintainable and no trial would be required.