September 23, 2018:
The married daughter once moves to her matrimonial home after marriage cannot claim that contrary to the customs she is keeping possession of the suit property owned by her mother, ruled the High Court.
Delhi High Court Bench was hearing an application under Order 7 Rule 11 of the CPC in a immovable Property Partition Suit. The plaintiff and defendants no.2 & 3 were brother and sisters whereas the defendant no.1 was the mother of the parties, who had since expired. The suit is for partition was filed by a married sister, married in the year 1976.
The Property is a Built up Plot in Karol Bagh area of New Delhi in the name of the Mother of Plaintiff.
The plaintiff's claim for her right terming it to be an ancestral property per Section 6 of the Hindu Succession (Amendment) Act, 2005 was objected to as 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. Also that per Section 14 of the Hindu Succession Act the defendant No.1 Mother became an absolute owner of the entire property.
On this Justice Yogesh Khanna remarked-
''It is, even otherwise, a settled position of law after passing of the Hindu Succession Act, 1956, the traditional concept of “ancestral property” has undergone a change. If a person after 1956 inherits a property from his paternal ancestors, the said property shall not be HUF property in his hands but shall be taken to be a self-acquired property of the person who inherits the same.''
On the issue of her claim of having symbolic possession of Mother's Property, bench ordered-
''Thus merely by assertion of possession the Plaintiff cannot avoid payment of Court fee in a suit for partition. The married daughter once moves to her matrimonial home after marriage cannot claim that contrary to the customs she is keeping possession of the suit property owned by her mother.''
But the issue dealt with by the Bench was that the advalorem court fees has not been paid by the Daughter.
Bench found that even though she had Valued the property at Rs. 5.93 Crore, she was neither in physical nor symbolic possession of the property, she being married since 1976 and is residing in her matrimonial home. She was hence asked to pay advalorem Court fee on the relief of declaration/partition with a consequential relief.
While making these observations, Bench further observed-
''A meaningful reading of averments in the plaint shows the plaintiff admits her ouster by the defendants and the ouster is premised on the plaintiff right, title or interest in the property being denied, the plaintiff has to pay advalorem Court fee. In para no.14 D of the plaint she has averred the defendant no.2 was conducting commercial business of tuition centre at the suit property. 41. Clever nature of pleadings in the plaint which is of ambiguous nature will not save the plaintiff from her liability to pay Court fee if the exclusion from possession is being established from the pleadings. 42. All the above facts, clearly establishes complete ouster of the plaintiff from the suit property. Moreover as per Section 8 of the Suit Valuation Act, 1887, the value of the suit for the purpose of jurisdiction and Court fee has to be same. The plaintiff has not paid ad-valorem Court fee on the relief of partition on her share. The plaintiff is liable to pay the same.''
Married Daughter Can't Claim Continuous Possession of Her Mothers' Property, It is Contrary to the Customs,... by Latest Laws Team on Scribd
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