YOGESH KHANNA, J.

IA No.4817/2017

1. This application is under Order 7 Rule 11 of the CPC. The plaintiff and defendants no.2 & 3 are brother and sisters whereas the defendant no.1 was the mother of the parties, who has since expired. This suit is for partition filed by married sister, married in the year 1976.

2. Before going to her claim in the instant application, it would be appropriate to state few facts:

(a) it is alleged one Joginder Nath Kapur, the grandfather of the plaintiff was allotted a plot in the year 1956 in lieu of the properties left there as he migrated from Pakistan. The said plot was sold by the father of the plaintiff in the year 1972 and out of those sale proceeds, he has purchased ½ of the property bearing No.12/19, Western Extension Area, Karol Bagh, New Delhi in the name of his wife i.e. mother of the parties – defendant No.1;

(b) thereafter, in the year 1981, the father also purchased remaining ½ portion in the name of his wife – defendant No.1 – the mother of parties;

(c) it is alleged the use and right in the subject property was only for the benefit of her all children and though it was purchased by the father in the name of his wife-defendant no.1 but it was an exclusive property of the father.

3. The application under Order 7 Rule 11 of the CPC is filed by the defendants alleging interalia a bare reading of the plaint would reveal the plaintiff has no case and the suit needs to be dismissed. The defendant alleges:

(i) prior to filing this suit a public notice in Nav Bharat Times dated 08.11.2014 was got published by the plaintiff claiming the property to be joint and ancestral one;

(ii) the plaintiff claims her right in this ancestral property per Section 6 of the Hindu Succession (Amendment) Act, 2005 and she cannot claim such right since her father was not alive on the date of the amendment, as is held in Prakash vs. Phulavati (2016) 2 SCC 36;

(iii) further it is alleged the suit is barred by Section 3 of the Benami Transaction Act;

(iv) per Section 14 of the Hindu Succession Act the defendant No.1 became an absolute owner of the entire property and;

(v) the suit is beyond limitation as the suit for declaration ought to have been filed by Late J.N. Kapoor within his lifetime or within 3 years after his death to claim the subject property belong to him;

(vi) the advalorem court fees has not been paid; hence the plaint is liable to the rejected.

4. In support of his contention (i) and (ii) the defendant refers to paras 3 and 5 of the plaint :

“3. That in 1956, Sh. Chiranjeet Lai Kapur, father of Sh. Joginder Nath Kapur, was allotted a plot of land admeasuring 200 sq. yards, bearing No. 18/17, West Patel Nagar, New Delhi- 110008, by the Government of India under the extant law and the rehabilitation and compensatory scheme of Rehabilitation Ministry, Government of India, in lieu of various properties, ancestral and self-acquired, and various businesses he had left behind in Pakistan. Sh. Chiranjeet Lai Kapur started running a business of educational tuition institute from the said property and also started living in the said property with his wife, Smt.Parvati Kapur, his son, Sh. Joginder Nath Kapur and Smt. Gargi Kapur, Defendant No. 1 herein.

5. That with the consent of his brothers and his mother, Sh. Joginder Nath Kapur sold the said property and from the proceeds thereof, purchased 1/2 share of the property admeasuring 556 sq. yards bearing No. 12/19, Western Extension Area, Karol Bagh, New Delhi - 110005 vide Agreement to Sell dated 07.09.1981, in the name of his wife. Defendant No 1 herein. Sh. Joginder Nath Kapur also got executed an Irrevocable General Power of Attorney in his own name. The said General Power of Attorney in the name of Sh. Joginder Nath Kapur stands incorporated by reference in the Agreement to Sell dated 07.09.1981, and is part of the title documents of the Suit Property. The said document also manifests the intention of Sh. Joginder Nath Kapur to be de facto in control of the