Delhi High Court
Sarabjit Prakash & Anr. vs Udyajit Prakash & Ors. on 20 October, 2011
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : 20.10.2011
+ FAO (OS) No.719 of 2010
SARABJIT PRAKASH & ANR. ...APPELLANTS
Through: Mr. Manu Nayar, Advocate.
Versus
UDYAJIT PRAKASH & ORS. ...RESPONDENTS
Through: Mr. Kishan Rawat, Mr. Mohit Mudgal
& Mr. Rajan Narain, Advocates for
Respondent No.1.
Respondents 2 to 5 proceeded ex parte
today.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE RAJIV SHAKDHER
1. Whether the Reporters of local papers
may be allowed to see the judgment? NO
2. To be referred to Reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
SANJAY KISHAN KAUL, J. (Oral)
CM No.23291/2010 (for condonation of 25 days delay in filing) &
CM No.23293/2010 (for condonation of 9 days delay in refiling)
1. Despite last opportunity granted no reply has been filed by respondent
No.1. Respondents 2 to 5 are already served but have chosen not to
appear.
__________________________________________________________________________________________
2. In view of the averments made in the applications sufficient cause has
been shown for condonation of delay and the applications are
accordingly allowed subject to payment of costs of `5,000.00 to
respondent No.1.
+ FAO (OS) No.719/2010
3. Respondents 2 to 5 have chosen not to appear despite service and are,
thus, proceeded ex parte.
4. Admit.
5. Learned counsel for respondent No.1 accepts notice.
6. At request of learned counsels for the parties, the appeal is taken up
for final disposal.
7. The parties are brothers and sisters. The appellants and respondent
No.1 are the brothers while respondents 2 to 5 are the sisters. The
controversy primarily relates to property bearing No.33, Sunder
Nagar, New Delhi of which the recorded owner was late Shrimati Raj
Mohini who passed away on 20.4.1988. The appellants filed a suit for
partition, rendition of accounts and damages in the year 2000 qua the
suit property. The appellants pleaded that the deceased at the time of
death was possessed of both movable and immovable properties
which included the suit property. It was alleged that the property was
a joint family property and the appellants as class-I legal heirs were
entitled to share in the property.
__________________________________________________________________________________________
8. The plaint goes on to state that the appellants had been demanding
partition since soon after the death of their deceased mother but
respondent No.1 sought to propound a Will of the deceased dated
18.7.1987 and filed Probate Case No.383/1988 in terms whereof
respondent No.1 claimed to be the sole beneficiary of the immovable
property. This probate petition was not decided till 23.9.2000 when
the prayer made by respondent No.1 for grant of the probate of the
Will was rejected and the probate petition was dismissed on merits.
We are informed that an appeal has been filed against that order but
no stay has been granted. The property consists of the ground and the
first floors. The first floor has been rented out while respondent No.1
is residing in the ground floor. In paragraph 7 of the plaint there is an
averment that the rent is being received by respondent No.1 alone to
the exclusion of the appellants. In paragraph 8 of the plaint also there
is an averment that respondent No.1 is in physical possession of the
suit property and thus has deprived the appellants of the enjoyment of
the suit property. In paragraph 9 of the plaint it is stated that the
appellants are the co-owners and are in legal and joint possession of
the suit property. Paragraph 11 of the plaint is the suit valuation
paragraph where the relief of partition has been valued at
`1,50,00,000.00 on which fixed court fee has been paid. The
appellants have undertaken to pay additional court fee on the relief of
__________________________________________________________________________________________
rendition of accounts and damages, found due and payable, after final
adjudication of the present suit.
9. The suit has been contested by respondents 1 to 4 by filing their
written statements, which are almost identical. In a nutshell, the plea
is that the suit property is not a joint family property but was
exclusively owned by late Shrimati Raj Mohini who by leaving
behind the Will dated 18.7.1987 bequeathed the suit property in
favour of respondent No.1 alone. It is not disputed that all the parties
are class-I legal heirs of the deceased but the claim of the appellants is
sought to be ousted on the plea of the Will propounded by respondent
No.1.
10. It appears that on the basis of the aforesaid pleadings, the learned
single Judge vide order dated 28.11.2008 while referring to
paragraphs 7 & 8 of the plaint containing an averment that respondent
No.1 was in physical and actual possession observed that the
appellants were admittedly ousted from the possession and would
have to pay ad valorem court fee especially as they had prayed for
possession also. The matter was thereafter listed on 29.1.2009 when
more time was sought to pay the court fee and the final opportunity
was granted on 17.2.2009, the matter being adjourned to 13.4.2009.
Admittedly, no ad valorem court fee was paid but IA No.5066/2009
was filed seeking recall of the orders dated 29.1.2009 and 17.2.2009
predicated on the plea that as per the legal advice obtained, they are
__________________________________________________________________________________________
not liable to pay ad valorem court fee and deemed to be in
constructive possession of their undivided share in the property. This
plea was sought to be supported by the fact that the first floor of the
property was with the tenant and the factum of respondent No.1
receiving the rent alone did not disentitle them to claim possession as
well as rent in respect of the first floor. The factum of the probate
petition being dismissed was also relied upon.
11. The appellants relied upon the observations of the Supreme Court in
Neelavathi & Ors. Vs. N. Natarajan & Ors. AIR 1980 SC 691, which
have been reproduced in the impugned order and are relevant in the
present appeal and, thus, reproduced as under:
"The general principle of law is that the case of coowners, the
possession of one is in law possession in all, unless ouster
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 plaintiff could be called upon to pay court fee under
Section 37(1) of the Act on the ground that they had been
excluded from joint possession, it is necessary that on a reading
of the plaint that they had been excluded from joint possession to
which they are entitled to in law. The averments in the plaint
that the plaintiff could not remain in joint possession as he was
not given any income from the joint family property would not
amount to his exclusion from possession. We are unable to read
into the plaint a clear and specific admissions that the plaintiff
had been excluded from possession."
12. The aforesaid view is followed in Jagannath Amin Vs. Seetharama
(Dead) By Lrs. & Ors. (2007) 1 SCC 694.
__________________________________________________________________________________________
13. In terms of the impugned order dated 14.9.2010 this application has
been rejected giving four (4) weeks' time to the appellants to pay
court fees failing which the plaint would be liable to be rejected under
Order 7 Rule 11 of the Code of Civil Procedure, 1908.
14. The impugned order is also predicated on the factum of the first floor
of the said property being on rent and the rent being received by
respondent No.1 alone and the ground floor of the property being
enjoyed exclusively by respondent No.1.
15. Learned counsel for the appellants, once again, before us has adopted
the same argument as urged before the learned single Judge that the
possession of respondent No.1 of the ground floor must be held to be
a constructive possession on behalf of all and the mere receipt of rent
by respondent No.1 alone would not, in any manner, affect such
constructive possession. Learned counsel further states that in
paragraphs 7 & 8 of the plaint relied upon in the impunged order
ought not to be read in isolation but have to be read with paragraph 9
of the plaint where there is a categorical averment that the appellants
are co-owners and in legal and joint possession of the suit property.
16. Learned counsel for respondent No.1, on the other hand, has adopted
the reasoning of the impugned order to contend that once the
appellants are ousted they must pay the ad valorem court fee. He
further submits that the appellants were given opportunities to pay the
deficient court fee but failed to avail of the same. In fact, the
__________________________________________________________________________________________
appellants at that stage sought time to pay the court fee twice but
failed to deposit the court fee.
17. We have to examine the controversy in question. In so far as the plea
of the appellants earlier seeking time to pay the court fee is
concerned, the same cannot, in our considered view, prejudice the
appellants from raising the plea in law which is permissible. We
would, thus, have to examine on merits whether the appellants are
required to pay ad valorem court fee or not.
18. The legal position is not in doubt and if one may say so there is really
an agreement on the general principle that in case of ownership the
possession of one is possession of all unless ousterer/exclusion is
proved. It is not necessary that a co-owner should be in actual and
physical possession of the whole or part of the property or that he
should be getting a share of income from the property so long as his
right to share and the nature of the property is not disputed.
19. In this behalf the plaint has to be read as a whole. If the present plaint
is seen, a conjoint reading of paragraphs 7 to 10 shows that what is
pleaded by the appellants is that there is a tenant on the first floor
while respondent No.1 resides on the ground floor of the property and
the property is jointly owned and there is constructive possession of
the appellants.
20. We may note that the factum of the appellants being class-I legal heirs
and entitlement to property has not even been questioned but
__________________________________________________________________________________________
respondent No.1 seeks to exclude the appellants solely on the basis of
the Will propounded of their late mother who was the owner. The
probate proceedings dragged on for almost twelve (12) years before
the probate petition was dismissed on 23.9.2000. The appeal is
pending without any stay. Thus, as on date there is no valid Will
propounded by respondent No.1.
21. We are, thus, of the considered view that the plaint be read as a whole
which clearly shows that the appellants claim constructive possession
being the legal heirs of late Shrimati Raj Mohini. In fact, in
paragraph 5 of the plaint the plea raised is of Shrimati Raj Mohini
passing away intestate and the factum of respondent No.1 seeking to
propound a forged and fabricated Will the probate of which was
dismissed.
22. We do not think that the judgement of the learned single Judge of this
Court in Prakash Wati Vs. Dayawati & Ors. 42 (1990) DLT 421
relied upon by learned counsel for respondent No.1 will come to his
aid when such constructive possession is pleaded arising from the
demise of the owner of the property when all parties are class-I legal
heirs. The fact that the appellants have not been given their due share
in the property or in the rent will not make any difference.
23. The appeal is accordingly allowed and the impugned order dated
14.9.2000 is set aside with a direction that the suit will proceed to trial
on merits.
__________________________________________________________________________________________
24. In the given facts of the case, the parties are left to bear their own
costs.
CM No.23290/2010 (Stay)
25. In view of the disposal of the appeal, no directions are called for on
this application and the same stands disposed of.
SANJAY KISHAN KAUL, J.
OCTOBER 20, 2011 RAJIV SHAKDHER, J.
b'nesh
__________________________________________________________________________________________
