Shri Maharaj I.S.Wahi vs Smt. Renuka Wahi
2009 Latest Caselaw 4769 Del

     *            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                       Date of Reserve: November 10, 2009
                                                          Date of Order: November 23, 2009

+ IA 8602 of 2009 in CS(OS) 714 of 2009
%                                                                     23.11.2009
       Shri Maharaj I.S. Wahi                                 ...Plaintiffs
       Through: Mr. V.K. Makhija, Sr. Advocate with Ms. Vandana Bhatia, Advocates

         Versus

         Smt. Renuka Wahi                                        ...Defendants
         Through: Mr. K.C. Bajaj with Mr. D.R. Bhatia, Advocates


         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment? No.

2.       To be referred to the reporter or not?                                      Yes.

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


         ORDER

1. By this order, I shall dispose of an application under Order 7 Rule 11 of CPC

preferred by the defendant for dismissal of the suit filed by plaintiff inter alia on the

following grounds:

(i). The suit was not properly valued for the purpose of court fee and jurisdiction;

(ii). The suit was barred by limitation;

(iii). The suit was barred under Section 185 of Delhi Land Reforms Act; and

(iv). It was barred by Section 34 of Specific Relief Act.

2. The facts relevant for the purpose of deciding present application are that the

plaintiff is seeking a declaration that the property i.e. a farm house at N-15, Sainik Farm

ad measuring 20 bighas and 10 biswas standing in the name of his wife was actually his

property and he was absolute owner of the farm house. He alleged that the farm house

was purchased in the name of his wife out of the funds provided by him and the

CS(OS) 714 of 2009 Shri Maharaj I.S. Wahi v. Smt. Renuka Wahi Page 1 Of 5 construction made in the farm house of two residential units in the year 1987 was also

funded by him. He was in occupation of one of the residential units and his wife was in

occupation of the second residential unit because of differences between the two. It was

a mutual understanding between him and his wife that the property will be treated as

owned by him, though it stood in the name of defendant i.e. his wife. He submits that a

dispute cropped up regarding his title in view of false claims made by defendant that he

(plaintiff) had nothing to do with the property and, therefore, he was compelled to file the

present suit for declaring him as absolute owner of the property in question. According to

plaintiff cause of action arose about three weeks before filing of the present suit when

defendant started claiming herself to be the owner of property whereas she was only a

Benamindar. Plaintiff valued the suit at Rs.22 lac for purpose of declaration and

Rs.10,000/- for the purpose of injunction.

3. On the issue of limitation, it is stand of the applicant/ defendant that the sale deed

of property was registered in the name of defendant in 1980 and ever since the

defendant's wife has been shown as registered owner. The present suit was filed after

29 years in April 2009 and was, therefore, hopelessly time-barred.

4. The issue of limitation in this case is a mixed question of law and facts. While

considering an application under Order 7 Rule 11 CPC, the Court has to consider only

the averments made in the plaint and defence of the defendant has not to be considered.

Prior to 1982 when Benami Transaction Act came into force. Benami transactions were

not prohibited. Even under the Act, an exception was made under Section 3(2) and the

law provided that a person could purchase property in the name of his wife and

unmarried daughter. Although it is presumed that purchase of any such property is for

the benefit of wife and daughter, however, this presumption is rebuttable and the person

could, by evidence prove that the property was purchased actually for his own benefit

CS(OS) 714 of 2009 Shri Maharaj I.S. Wahi v. Smt. Renuka Wahi Page 2 Of 5 and not for the benefit of his wife and daughter. Thus, the period of limitation would not

start from the date of purchase of the Benami property but it would start from the date

when his rights in the Benami property were disputed and denied. Thus, the question of

limitation cannot be decided without evidence and the suit cannot be dismissed on the

ground that it was barred by limitation.

5. The suit also cannot be dismissed on the ground that it was barred under Delhi

Land Reforms Act. The present suit is for declaration that the property standing in the

name of the wife was a Benami in her name and she was not the real owner and the

plaintiff was actually the real owner. The suit does not call for any matter concerning

revenue authorities nor are the Bhumidari rights sought by plaintiff. Only those suits

which are covered under the Schedule of Delhi Land Reforms Act, in respect of an

agricultural land, cannot be filed in civil courts. However, all other kinds of suits can be

filed in civil courts. The suit for declaration regarding Benami transaction is not covered

under Delhi Land Reforms Act. I, therefore, consider that the suit filed by plaintiff cannot

fail because of Delhi Land Reforms Act.

6. It is submitted by counsel for defendant that the plaintiff himself has filed the

valuation report valuing the property at Rs.6,68,53,950/- and he has filed the suit for

declaration that the property worth Rs.6,68,52,950/- should be declared to be owned by

him and not owned by the recorded owner i.e. his wife. However, the plaintiff has valued

the suit for the purpose of declaration only at Rs.22 lac.

7. I consider that on the count of Court fee and valuation the defendant has raised a

valid objection. Where a person seeks relief from the Court in respect of a property worth

Rs.6,68,52,950/-, he cannot value the suit at Rs.22 lac, as the value of the suit has to be

on the basis of relief sought . While seeking declaration of being the owner of a property

CS(OS) 714 of 2009 Shri Maharaj I.S. Wahi v. Smt. Renuka Wahi Page 3 Of 5 worth more than Rs.6 crore, the plaintiff could not have valued the suit at Rs.22 lac.

Normally the value given by plaintiff is accepted by the Court in all such cases, where the

correct value of the relief sought cannot be assessed. However, where the correct value

of the relief is apparent from the documents filed by plaintiff, the Court cannot allow

plaintiff to value the suit at substantially low value. In the present case, plaintiff has filed

documents showing value of the property of which he is seeking ownership at

Rs.6,68,52,950/-. It is settled law that where a relief in respect of an immovable property,

the market value of the property is the proper value. Plaintiff cannot be allowed to value

the suit differently from the market value of the property on the ground that he was in

possession of one part of the property at with the consent of the defendant who was the

recorded owner of the property. I, therefore, consider that the suit has not been properly

valued by plaintiff and it has to be valued in accordance with the market value of the

property which according to plaintiff's own documents is Rs.6,68,52,950/-. The plaintiff,

therefore, is given an opportunity to affix court fee on this amount within 30 days from

today failing which the suit was liable to be dismissed.

8. The other ground taken by defendant is that the relief sought by plaintiff viz.

declaration done without possession. The suit was not maintainable since he had not

sought possession of the agricultural land forming part of a farm house. In absence of

consequential relief of possession, the suit of plaintiff for mere declaration was not

maintainable.

9. I consider that the facts and circumstances of the present case do not warrant

dismissal of the suit on above ground. The plaintiff is admittedly in possession of one of

the flats built in the farm house, the other flat is in possession of defendant and the rest

is agricultural land. The possession of agricultural land has to go by the title. Since

plaintiff and defendant both are in occupation of one flat each, non seeking of relief of

CS(OS) 714 of 2009 Shri Maharaj I.S. Wahi v. Smt. Renuka Wahi Page 4 Of 5 possession of farm land would not make this suit not maintainable because in case the

Court finds that the plaintiff was the real owner then defendant being the wife of plaintiff

would be considered as residing in the second flat and plaintiff would be treated as

owner in possession. The correspondence relied upon by defendant also shows that

husband and wife had been sharing expenses and husband had been paying expenses

on account of water, electricity etc. I, therefore, consider that the suit cannot be

dismissed on the ground that the relief of possession has not been sought by the

plaintiff.

10. In view of my foregoing discussion, plaintiff is given opportunity to pay the court

fee on the market value of the property of which he is seeking ownership within 30 days

from today.

The application stands disposed of with above order.

CS(OS) 714 of 2009

List on 22nd January 2010.

November 23, 2009                                     SHIV NARAYAN DHINGRA J.
rd




CS(OS) 714 of 2009     Shri Maharaj I.S. Wahi v. Smt. Renuka Wahi          Page 5 Of 5