Saroj Salkan vs Capt. Sanjeev Singh & Others
2008 Latest Caselaw 2105 Del

      *                  HIGH COURT OF DELHI : NEW DELHI

      +                        FAO (OS) No.239/2007

                               Reserved on :      25th September, 2008
      %                        Decided on:        28th November, 2008

      SAROJ SALKAN                               ...Appellant
                         Through     : Ms. Malavika Rajkotia , Adv.

                         Versus

      CAPT. SANJEEV SINGH & OTHERS           ....Respondents
                       Through   : Mr. G.V.Rao, Adv. with
                                   Mr. S.K.Nanda, Adv.
      Coram:

      HON'BLE MR. JUSTICE A.K. SIKRI
      HON'BLE MR. JUSTICE MANMOHAN SINGH

      1. Whether the Reporters of local papers may
         be allowed to see the judgment?

      2. To be referred to Reporter or not?

      3. Whether the judgment should be reported
         in the Digest?                                        Yes

      MANMOHAN SINGH, J.

1. This appeal has been filed against the order dated 8th May,

2007, passed by the learned Single Judge of this court in suit no.

683/2007 filed by the appellant for partition, rendition of

accounts and permanent injunction. By the impugned order the

appellant was directed to pay ad valorem court fee within four

weeks.

2. While passing the impugned order, the learned Single

Judge has observed that the appellant being out of possession of

the suit property would be liable to pay ad valorem court fee in

respect of the share claimed and supported her view relying upon

AIR 1991 Delhi 48. The appellants in the plaint seeking partition

of the properties asserted that she was deriving benefits and rent

from the property at Anand Niketan. However the admitted

position is the appellant is not in physical possession of the suit

properties. The appellant has affixed fixed court fee on the plaint

only on the basis of a claim of co-ownership and constructive

possession. She was directed to pay ad valorem court fee on her

share of the suit properties.

3. The appellant had valued the suit for the purposes of

jurisdiction for relief of partition at about Rs. 20 crores in para 48

of the plaint which is reproduced hereinbelow:-

"48. That the value of the suit for purpose of jurisdiction for the relief of partition is above 20 crores. The plaintiff is in possession of an undivided share in their suit properties and has been receiving cash compensation as her share. She is in constructive possession of the properties. The value of the plaintiff's share cannot be computed in terms of money since the share is to be ascertained as to whether it will be as co-parcener to the extent of ¼ in General Budh Singh HUF or whether it will be 1/3rd in the half share of General Budh Singh. Thus a fixed fee under Schedule-II Article 7 (ii) of Rs. 20/- is being affixed. The plaintiff undertakes to pay the Court fee as and when her share is computed."

4. The appellant claimed that property is in her constructive

possession, she is a co-owner and thus affixed a fixed court fee of

Rs.20/-. In support of submissions, the learned counsel has relied

upon para 23 and 25 of the plaint which reads as under:-

"23. The plaintiff and defendant no. 6 were treated as co-owners. They spent holidays at their parental home. Their nephews and nieces treated them as co-owners. They would regularly be given cash incomes as their share from the farm........... A major portion of income, according to her would be ploughed back into the farm for new tube wells, generators, threshing machines or tractor. However, despite the above reasons, in all fairness to her she openly acknowledged the rights of the plaintiff and her sister.

25. That the property at Anand Niketan had been rented out and rent was realized by all parties to the suit. The plaintiff and defendant no. 6 used to be given a cash compensation for their share in the Delhi house as well. Again, they never questioned the amount nor did they ask to see the lease deed to check the actual rental value".

5. The appellant states that she is the daughter of Late

Major Gen. Budh Singh who died intestate in 1988. The Late Gen.

Budh Singh had an HUF consisting of his son Anup Singh and

himself as coparceners. Upon the General's death and since he

did not partition the assets of the HUF and since he died

intestate in his lifetime the half share of Late Major Gen. Budh

Singh devolved upon his sons and two daughters. Upon the death

of Sh. Anup Singh his half share in the HUF devolved upon his

wife and his children, the respondents no. 1 to 5 as his legal

heirs. The appellant claims 1/3rd share in the half share of Late

Gen. Budh Singh in his HUF (i.e. 1/6th share in the property).

6. It is further stated that she is a co-owner of the HUF assets

for which she was receiving rent in the life-time of Sh. Anup Singh

and after his death in 1989 the wife of Sh. Anup Singh (Sneh

Lata). It is only after the death of Sneh Lata in June, 2004 that

the heirs of the said wife defaulted in paying the rents that were

due to the appellant herein. The parties did have talks for

settlement in February, 2005. The respondent acknowledged the

share of appellant herein and tried to effect the settlement by

way of partition. The said share of the suit property has been

acknowledged in e-mail dated 06.02.2005. The plaintiff thus

claims to be in constructive possession of the suit properties as

the respondents have acknowledged title of the appellant and

her sister and have acknowledged that their mother too had

acknowledged such title.

7. In reply to the show-cause notice, the respondent nos. 1 to

5 have stated that the property no. C-38, Anand Niketan was

transferred in the name of Kr. Anup Singh in 1970 within his own

life time. The appellant and the respondent no. 6 were aware of

the same. The perpetual sub-lease deed was executed in his

name on 3.4.1970 between Delhi Administration and Kr. Anup

Singh. It was further alleged that the premises in Anand Niketan

was rented out but it is denied that appellant and respondent no.

6 were ever given any cash or other compensation from the

rental proceeds of the house. The said respondent nos. 1 to 5

also denied constructive possession of the property by appellant

and respondent nos. 6.

8. The learned counsel for the appellant has strongly relied

upon the recent judgment reported in Jagannath Amin v.

Seetharama,(2007) 1 SCC 694 in which the Apex Court made the

following observations :

"9.........The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been 'excluded' from joint possession to which they are entitled in law. The averments in the plaint that the plaintiffs could not remain in joint possession as they were not given any income from the joint family property would not amount to their exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiffs had been excluded from possession."

9. In Prakash Wati vs. Dayawanti and Ors. (AIR 1991

Delhi 48), it has been laid down that keeping in view the peculiar

facts of the case that where the plaintiff claims to be in joint

possession of the property of which partition is sought, the

plaintiff is to pay only fixed court fee as per Article 17 (vi) in

Schedule II. It is settled law that the question of court fee must

be considered in the light of the allegations made in the plaint

and its decision cannot be influenced either by the pleas in the

written statement or by the final decision of the suit on merits. It

was held that the general principle of law is that in the case or co-

owners the possession of one is in law the possession of all unless

ouster or exclusion is proved.

10. As regards the case of Prakash Wati (supra) is concerned,

it is not applicable in the facts of present case as no rent was ever

paid by the defendant.

11. The Apex Court in the case of Neelavathi v. N. Natarajan,

(1980) 2 SCC 247, made the following observations in para 6

which is reproduced as under :-

"6..........It is settled law that the question of court fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and token as a whole vide S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Ram Ar. Rm. Ramanathan Chettiar (1958) S.C.R. 1021 at pp. 1031 32......The plea in para 12 which was relied on by the High Court states that the Defendants 1 to 6 failed to give the plaintiffs their share of the income and the plaintiffs could not remain in joint possession. The plea that they were not given their due share would not amount to dispossession. Reading the plaint at its worst against the plaintiffs, all that could be discerned is that as the plaintiffs were not given their share of the income, they could not remain in joint possession. The statement that they are not being paid their income, would not

amount to having been excluded from possession. The averment in the plaint cannot be understood as stating that the plaintiffs were not in possession........."

12. In view of the averment in the plaint that property at

Anand Niketan has been rented out and rent was realized by all

parties to the suit and the plaintiff and defendant no.6 used to be

given a cash compensation for their share in the said house, the

plaintiff has claimed constructive possession.

13. It is settled law that in a suit for partition, the court

fees to be paid if joint possession is pleaded by the plaintiff on

the basis that he is the co-owner of the property sought to be

partitioned, fixed court fees would be payable under Article

17(vi) of Schedule II of the Court Fees Act presuming the joint

possession of the plaintiff even if the plaintiff is not in actual

possession. It is because of the reason that in the case of co-

owners, the possession of one is in law possession of all, unless

from the averments in the plaint read as a whole, a clear case of

ouster is made and in that situation the plaintiff is liable to pay

ad-valorem court fees on the market value of this share as

provided under Section 7(iv)(b) of the Court Fees Act

notwithstanding the fact that it is also pleaded that the plaintiff

was in constructive possession.

14. In view of the averment made in the plaint as well as

e-mail dated 06.02.2005, prima facie, the plaintiff who claims to

be in joint possession of the property of which partition is

sought, we find that the appellant has been excluded from joint

possession to which she is entitled in law and has to pay only

fixed court as per Article 17 (vi) in Schedule II.

15. We have also noticed that when the impugned order

was passed, no written statement was filed on record. At this

stage, even otherwise, we have to see the statements made in

the plaint. Therefore, at this stage order of payment of court fee

is unsustainable. However, we may clarify that at the time of

framing of issues specific issue in this behalf can be framed and

decided in accordance with law.

16. Appeal is allowed. Impugned order is hereby set

aside.

No costs.

MANMOHAN SINGH, J.

A.K. SIKRI, J.

November 28 , 2008 sa