Suman Madan & Anr vs Satender Prakash Lamba & Ors.
2012 Latest Caselaw 2590 Del

$~7
*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+      CS(OS) 1883/2008


       SUMAN MADAN & ANR               ..... Plaintiff
                    Through Mr. N. S.Dalal with Mr. Devesh
                             Pratap Singh, Advs.

                       versus


       SATENDER PRAKASH LAMBA & ORS          ..... Defendant
                   Through Mr. Raghu Tandon with
                            Mr. Rohit Singh, Adv. for D-1
                            Mr. Swetank Shantanu with
                            Mr. Chinmay Kumar, Adv. for
                            D-2.


       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR


                       ORDER

% 20.04.2012

IA No. 3640/2011 (filed by the defendant no.2 under Section 6 of the Court fees Act) & IA No. 12871/2011 filed by defendant no.1 under Order 7 Rule 11 of CPC)

1. This order shall dispose of the two abovesaid separate

applications filed by the defendant nos. 1 and 2.

2. The common plea raised by both the defendants in these

applications is that the plaintiffs have not properly valued the suit for

purposes of court fees and jurisdiction and appropriate court fees

has not been paid after proper valuation of the suit. The defendants

have also raised a plea that the plaintiffs have also not separately

valued each and every property in respect of which the partition has

been sought and have illegally valued the properties in a composite

manner.

3. Arguing the present applications, learned counsel for the

defendant No. 1 and 2 submits that it is a settled legal position that

the question of court fees is required to be considered in the light of

the allegations made by the plaintiffs in the plaint. Counsel further

submits that the plaintiffs have filed the present partition suit and

for rendition of accounts in respect of five properties which as per the

plaintiffs are joint family properties in which the plaintiffs have

claimed their legitimate share. Counsel further submits that it is an

admitted case of the plaintiffs that they are not in possession of any

of these properties and this fact is evident from a bare perusal of the

averments made by the plaintiffs in paras 6 to 11 of the plaint.

Counsel further submits that it would be manifest that the plaintiffs

have been excluded from all these properties and due to such

exclusion or ouster of the plaintiffs from the said properties, it was

incumbent upon the plaintiffs to have paid the court fees after

having given valuation of their share in the five properties. Counsel

further submits that there is a difference between the legal

possession of a co-sharer and the exclusion of such co-sharer from

the joint possession. The contention raised by the counsel for

defendant no. 1 and 2 is that every co-owner even if not in actual

and physical possession of the joint family properties is deemed to

be in the legal possession of the same and in such a case it would

be not difficult as fixed court fees is to be paid, but where in a case

on the averments made in the plaint, it can be seen that not only the

fact that the plaintiffs are not in actual and physical possession of

such properties but their ouster or exclusion from such joint

properties can be easily made out, then in such a case ad-valorem

court fees is payable by the plaintiffs on their share in the properties

with a further claim for possession as a consequential relief. In

support of their arguments, counsel for the defendant no. 1 and 2

has placed reliance on the judgment of the Apex Court in Neelavathi

Vs. N. Natgarajan, AIR 1980 SC 691 and the judgment of this court in

the case of Sushma Tehlan Dalal Vs. Shivraj Singh Tehlan & Ors.

CS(OS) No. 2642/2008.

4. Opposing the present applications, Mr. N.S. Dalal, learned

counsel for the plaintiffs submits that so far as separate valuation of

individual properties is concerned, the plaintiffs would seek to

amend the present plaint to properly value the individual properties.

So far the rejection of the plaint as claimed by the defendant no. 1

and 2 for not paying the ad-valorem court fees in terms of Section

7(iv)(b) of the Court Fees Act is concerned, counsel submits that

both the judgments cited by the counsel for the defendants proves

the case of the plaintiffs. The substance of the argument of the

counsel for the plaintiffs is that the plaintiffs nowhere in the present

plaint have claimed ouster or exclusion as has been misconstrued

by the counsel for the defendant no. 1 and 2. Counsel submits that

the plaintiffs being the daughters have legal right to claim their

share in all the joint family properties left by their deceased father

and from the mere fact that the plaintiffs are not in actual and

physical possession of these joint family properties, no inference

can be drawn that they stand excluded or ousted from the said

joint family properties. Counsel further submits that just because

the plaintiffs have expressed their apprehension that the defendants

may usurp their share in the joint family properties, the same

cannot be construed as if the plaintiffs have admitted their

exclusion or ouster from the joint family properties.

5. I have heard learned counsel for the parties at

considerable length and gone through the records.

6. The present suit for partition and rendition of accounts

has been filed by the plaintiffs who claim themselves to be the

daughters of late Shri Suraj Prakash Lamba, who had died on

31.10.2003. The mother of the plaintiffs Smt. Swarn Rani Lamba

had also died on 9.11.2003. The deceased late Shri Suraj Prakash

Lamba left behind his wife, two sons and three daughters and after

the death of his wife, two sons and three daughters are the only

surviving legal heirs left behind. As per the plaintiffs, the deceased

was the owner of five properties as detailed in para 3 of the plaint.

In para 6 of the plaint the plaintiffs have averred that after the

death of late Shri Suraj Prakash Lamba all the said properties

devolved upon the legal heirs left by him as detailed in para 2 of

the plaint. The plaintiffs have further averred that being the

daughters of the deceased Shri Suraj Prakash Lamba and Smt.

Swarn Rani Lamba, they have inherited and succeeded to the estate

left by their deceased parents. The plaintiffs have also claimed that

they are in joint possession of the said properties along with the

defendants. The plaintiffs have expressed their apprehension that the

defendants want to usurp the entire properties including the share of

the plaintiffs by illegally selling and disposing off the same. The

plaintiffs have also averred that the defendants have been avoiding

to give their due share in the joint family properties despite repeated

demands and admissions made by them.

7. This court on a bare reading of the averments made in

paras 6 to 11 of the plaint does not find that the plaintiffs have

claimed their ouster or exclusion from the joint family properties.

It is a settled legal position that the allegations made in the plaint

are to be read as a whole and the question of the court fees is to be

considered in the light of the averments made in the plaint. It is also

a settled legal position that in the joint family properties every co-

sharer is in legal possession although may not be in actual or physical

possession of the same. It is only in a case where on perusal of the

averments made in the plaint it can be seen that the plaintiffs

themselves have claimed ouster or exclusion and in such a case the

plaintiff would be required to pay ad-valorem court fees on the value

of his/her share. To find out as to whether the plaintiffs have been

ousted or excluded from their share in the joint family property, one

has to again fall back on the averments made by the plaintiff in the

plaint. From the averments made in the plaint if in unambiguous

terms the plaintiffs admit their ouster or exclusion from the joint

family properties, then in such a case alone the plaintiffs would be

required to pay the ad-valorem court fees and not otherwise. The

aforesaid legal position is clearly emerged from the judgment of the

Apex Court in Neelavathi's case (Supra) where in the following para

it was held as under:

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 taken as a whole vide S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Ram Ar. Rm. Ramanathan Chettiar [1958]1SCR1021 .

Relying on the above judgment , this court in Nisheet Bhalla & Ors.

vs. Malind Raj AIR 2007 Delhi 60 held as under:

" 9. Following principles can be culled out from the aforesaid judgment :

(a) in order to decide the question of Court-fee, averments made in the plaint are to be seen and decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits; (b) 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; and (c) 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. It is also not necessary that he should be getting a share or some income from the property so long as his right to a share and his 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."

8. In the above case of Nisheet Bhalla(supra), this court

found ouster of the plaintiff in the suit property based on an

averment made by the plaintiff in the application moved under Order

39 Rule 1 & 2 of CPC, wherein the plaintiff had averred that the

joint family property is in use and occupation of the defendants

and they are enjoying the income being received from the said

properties. With the said averments made in the application filed

under Order 39 Rule 1 and 2 of CPC, the court came to the

conclusion that with such an averment, the plaintiffs therein clearly

admitted their ouster or exclusion from the suit property. The court

further held that clever nature of pleading in the plaint which is of

ambiguous nature would not save the day for the plaintiffs. The facts

of the present case are clearly distinguishable as in the present case

this court does not find that the plaintiffs have claimed their ouster

or exclusion from the joint family property. A mere fact that the

plaintiffs feel threatened from the defendants that they may usurp

their share by selling off the same would not mean that the plaintiffs

have admitted their ouster or exclusion from their share in the joint

family properties.

9. In the light of the above discussion, this court does not find

any merit in the present applications and the same are accordingly

dismissed. The plaintiffs are now directed to give proper valuation of

each individual property and not a composite valuation of the

properties as has been incorrectly done by the plaintiffs presently.

10. It is ordered accordingly.

                                           KAILASH GAMBHIR, J

APRIL        20, 2012
mg