Delhi High Court
Smt. Suman Swarup & Ors. vs Smt. Manjula Varma & Anr on 28 July, 2009
Author: S.L.Bhayana
HIGH COURT OF DELHI: NEW DELHI
IA NO. 2531/2009 IN CS (OS) No.2359 /2007
Date of Decision: July 28 , 2009
SMT. SUMAN SWARUP & ORS. ... PLAINTIFFS
Through: Mr.Akshaya Makhija, Advocate
Versus
SMT. MANJULA VARMA & ANR.. .... DEFENDANTS
Through: Mr.G.S. Narula, Advocate for D-1 & 2.
CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the digest or not?
S.L. BHAYANA, J.
This order shall dispose of IA No.2531/09, which
seeks rejection of the plaint filed by the Defendants under Order
VII Rule 11 of the CPC. The applicants have sought rejection of the
plaint on the ground that court fees has not been properly paid as
the value of the suit property is not less than few crores and,
therefore, the same is liable to be dismissed as same do not also
disclose any valid and subsisting cause of action .
2. Instant Suit No.2359/07 for partition is filed by the
plaintiffs in respect of house bearing No. C-35, Inderpuri, New
Delhi-12. It is the case of plaintiff that Smt. Mithesh Kumari Saxena
was the owner of the property. She passed away on 13th Feb 2006,
leaving behind a duly registered will dated 30th Dec. 2003
registered as document no.6747 in Addl. Book No.3, Vol.No.4 PP
114-117. The said will mandated that the property was to be sold
pg. 1 of 4
and the sale proceeds were to be distributed in the following
manner:
1. Smt Suman Swarup (Plaintiff No.1) to get 1/3rd share.
2. Smt Ranjana Lakhtaika (Plaintiff no.2) was to get 1/3rd
share.
3. Of the remaining 1/3rd share 66% of the 1/3rd share
was to go to Smt Manjula Verma (D-1) and the balance
34% of the 1/3rd was to go to Ms. Radhika Verma
(Petitioners and Defendant No.1 are real sisters and
Defendant No. 2 is daughter of Defendant No.1).
3. Further it is the case of the Non-applicants plaintiffs
that objections to the plaint are frivolous. when they contacted the
defendants they have not responded to the request of the plaintiff.
Defendant reside in rear portion of the suit property whereas
plaintiff occupied one room each on the front portion of the suit
property and in the joint possession of drawing room as indicated
in the site plan.
4. As far as this application for rejection of plaint is
concerned it is a matter of record that both parties have admitted
will dated 30th Dec 2003 of late Smt. Mithesh Kumari Saxena. It is
well settled that the rejection of the plaint takes away the right of
the plaintiff to continue with the suit, it is a serious issue as it kills
the cause of action of the plaintiff and therefore cannot be ordered
so lightly without sufficient grounds. As far as cause of action is
concerned it definitely occurred as parties have not been able to
divide the suit property as per shares allotted to them by virtue of
pg. 2 of 4
the will even after 6 yrs. of the testator's death. Plaint as well as
the written statement mention about the incident of 15/11/2007
regarding the police complaint also. Cause of action is a set of
facts sufficiently to justify a right to sue requires to be pleaded
and proved, before the court takes a decision on it, it requires
proper adjudication.
5. For considering whether the plaint discloses any
cause of action or not it is well settled that written statement need
not be taken into consideration at this stage. For the said purpose the
averments made in the plaint in their entirety must be held to be correct.
[See: Saleem Bai v. State of Maharashtra, AIR 2003 SC 759 SC
and, Liver Pool & London Vs. M.V. Sea Success I & Anr., (2004) 9
SCC 512]
6. On the objection of possession, it is a matter of record
that the defendants have been residing in the rear portion of the
suit property and Plaintiff no.1 and Plaintiff no.2 are in occupation
of the front portion comprising of one room, etc as per as the site
plan annexed with the plaint. It is admitted by the non-applicants
that Plaintiff no.2 is resident of Canada, which is also evident from
the memo of parties but is also well settled proposition of law that
possession of one in law is possession of all unless from the
averments in the plaint a clear case of ouster is made out. This
view is supported by the D.B. Judgment of this court in Saroj
Salkan Vs. Capt. Sanjeev Singh & Ors., 155(2008) DLT 300(DB):
"It is settled law that in a suit for partition, the court fees
to be paid if joint possession is pleaded by the plaintiff
pg. 3 of 4
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 p
leaded that the plaintiff was in constructive possession."
7. I have gone through the will and the other documents on
record. All the parties have been given share in the suit property.
If the partition would take, it would be in the interest of both the
parties. Prima facie, cause of action arose in favour of the plaintiff
and therefore at this stage the application under Order VII Rule 11
C.P.C. is unfounded.
8. As far as objection with regard to valuation and
payment of court fees is concerned, the plaintiffs have valued the
suit properly at Rs. 70,00,000/- and have claimed 1/3rd share each
in the ancestral property. The court fees have to be paid on the
said 1/3rd share of which possession is sought, the plaintiffs are
not in possession of the whole share of the property. In these
circumstances, the plaint cannot be rejected.
9. The application being devoid of any merit is
therefore, accordingly dismissed.
S.L. BHAYANA, J.
July 28, 2009
pg. 4 of 4
