Col.(Retd) Anil Kumar Bansal & ... vs Shri R.K. Bansal & Others
2012 Latest Caselaw 6458 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) 387/2007

                                Date of Decision: 5th November, 2012

IN THE MATTER OF:
COL.(RETD) ANIL KUMAR BANSAL & ANOTHER                  ..... Plaintiffs
                      Through: Mr. D.S. Vohra, Advocate

                   versus

SHRI R.K. BANSAL & OTHERS                             ..... Defendants
                      Through: Mr. T.C. Chaudhary, Advocate for
                      LRs of D-1 & D-3.
                      Mr. S.C. Rana, Advocate for D-2.
                      Ms. Kusum Sanehi, Advocate for D-5.
                      Mr.A.K. Sharma, Advocate for D-4,9,11,12 & 18.
                      Mr. K.K. Bhalla, Advocate with Mr. S.K. Kalia,
                      Advocate for D-14 to D-17.
                      Mr. Anil Sapra, Senior Advocate with Mr. Rahul
                      Kumar and Mr. S. Sharma, Advocates for D-19.


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

I.A. No. 8753/2010 (by the defendant No.19 u/O VII R 11 CPC)

1. The present application has been filed by the defendant

No.19, praying inter alia that the suit for partition, declaration and

injunction instituted by the plaintiffs against the defendants be

rejected on the ground that insufficient court fees has been affixed

on the plaint.

2. Mr. Anil Sapra, Senior Advocate appearing for the

applicant/defendant No.19 states that a bare perusal of the

averments made in the plaint reveals that the plaintiffs are neither

in actual and physical possession, nor are they in symbolic

possession of the suit properties bearing No.24 and 27, Sri Ram

Road, Civil Lines, Delhi, and therefore, under the provisions of the

Court Fees Act, 1870, they are liable to pay ad valorem court fees

on the shares claimed by them in the suit premises, which should

be assessed on their market value. He further states that as per

the assessment made by the plaintiffs in para 26 of the plaint, they

have valued the relief of partition at `15 crores and assuming

without admitting the said valuation to be correct, the plaintiffs are

liable to pay the ad valorem court fees on the aforesaid value of the

shares claimed by them in the suit premises for the relief of

partition and possession thereof. In support of the aforesaid

submission, learned counsel for the defendant No.19 relies on the

decision in the case of Smt. Prakash Wati vs. Smt. Dayawanti and

Anrs. reported as AIR 1991 Delhi 48.

3. A reply in opposition to this application has been filed by the

plaintiffs, wherein the averments made in the application have been

denied and they have asserted that the suit properties have been

correctly valued and they have paid the requisite court fees on the

plaint, as per law. Learned counsel for the plaintiffs submits that

even if the court fees that has been affixed on the plaint is found to

be deficient, the plaintiffs may be permitted to pay the requisite

court fees as per their shares, only after the suit is finally decided.

It is further argued by learned counsel that the plaintiffs are entitled

to value the suit as they may deem appropriate, which valuation

would have to be treated as final and conclusive and the said

valuation of the suit properties cannot be interfered with either by

the Court or by the defendants. In support of the aforesaid

submission, he relies on the following decisions:-

(i) Neelavathi and Ors. vs. N. Natarajan and Ors. reported as AIR 1980 SC 691.

(ii) Kesho Mahton and Ors. vs. Ayodhya Mahton and Ors.

reported as AIR 1983 Patna 67.

(iii) Jagannath Amin vs. Seetharama (dead) by LRs and Ors.

reported as JT 2006 (10) SC 397

4. The Court has heard the arguments addressed by the

counsels for the parties in the light of the averments that have been

made by the plaintiffs in the plaint. For the purpose of deciding the

question of court fees that is payable by the plaintiffs, it is

necessary to examine the averments made in the plaint. The reliefs

that have been claimed by the plaintiffs in the present suit, are as

below:-

"(a) A preliminary decree for partition may be passed in respect of suit properties No.24 and 27, Sri Ram Road, Civil Lines, Delhi and possession be given to them of their share and a local commissioner be appointed for that purpose and in case partition is not feasible, then they may be sold and proceed of the sale be divided amongst them as per the law.

(b) A decree of mandatory injunction be passed against Defendants No.4 and 12 to furnish all the details of title deeds of all the family properties, jewellery, the details of fixed deposits in banks, cash, R.B.I. Bonds, bank balance(s), other investments and benami properties left by Shri Uttam Prakash Bansal, Smt. Kusum Lata etc. etc.

(c) A decree of declaration be passed to the effect that sub division of property No.24, Sri Ram Road, Civil Lines, Delhi and transfer of property No.27, Sri Ram Road, Civil Lines, Delhi to Gulab Devi Charitable Trust was illegal, malafide, void and done for extraneous purpose by Shri Uttam Prakash Bansal. That the recent transfer of Gulab Devi Charitable Trust by inducting Shri Anil Sarin, Shri Ashok Sarin and their associates as trustees in place of Shri Ram Dev, Shri Nand Kishore and Shri Arjun Dev, the remaining trustees, for the purpose of transferring of property No.27, Sri Ram Road, Civil Lines, Delhi was illegal malafide, void and it continues to be the property of the plaintiffs and defendants No.1 to 3.

(d) A decree of declaration be passed to the effect that Defendants No.4 to 18 are not the children/relations of Shri Uttam Prakash Bansal but they are the sons and daughters of Shri Mahi Lal and Smt. Kusum Lata and are not legally entitled to get properties and assets left by Shri Uttam Prakash Bansal and instead the plaintiffs with defendants No.1 to 3 being his sons and daughter are entitled to inherit the family properties and assets left by Shri Uttam Prakash Bansal.

(e) A decree of permanent injunction be passed against Defendants No.4 to 19 that they will not deal with properties Nos.24 and 27, Sri Ram Road, Civil Lines, Delhi or transfer them in any manner and alter their present status, give permission to third parties, outsiders and receive rents from the tenants etc.

(f) A decree of accounts be passed ordering Defendants No.4 to 19 to render accounts of all the money received by them by way of rents,

profits/sale proceeds, if any etc. from the properties Nos.24 and 27, Sri Ram Road, Civil Lines, Delhi from time to time during and thereafter on the death of Shri Uttam Prakash Bansal including Rs.3.5 crores received by them.

(g) The Court may further, in its judicial inherent powers, order for initiation of criminal proceedings due to purgery committed by Shri Ram Dev, Defendant No.4 and Shri Arjun Dev, Defendant No.12."

5. In para 26 of the plaint, the plaintiffs have claimed that the

approximate value of the suit properties, for the purpose of

jurisdiction, is `15 crores and they have paid the court fee of

`20,000/- thereon. The said para is reproduced hereinbelow for

ready reference:-

"26. That the value of the suit for the purpose of court fee and jurisdiction is :

(a) For the relief of partition of properties.

           Jurisdiction value                     Rs.15 crores
           Court fee paid                         Rs.20,000/-

The plaintiffs will pay court fee per their share as determined under Order 7 Rule 2 CPC.

(b) For the relief of permanent injunction.

           Jurisdiction value                   Rs.200/-
           Court fee paid                       Rs.20/-

(c) For the relief of mandatory injunction.

           Jurisdiction value                   Rs.200/-
           Court fee paid                       Rs.20/-

     (d)   For the relief of declaration.
           Jurisdiction value                   Rs.200/-
           Court fee paid                       Rs.20/-

(e) For the relief of mandatory injunction (d).

           Jurisdiction value                   Rs.200/-
           Court fee paid                       Rs.20/-

     (f)   For rendition of account.
           Jurisdiction value                   Rs.200/-
           Court fee paid                       Rs.20/-

The plaintiffs will pay further court fee per their share as determined after the accounts are determined."

6. In paras 11 and 12 of the plaint, the plaintiffs have stated as

below:-

"11. After his move to 24, Sri Ram Road, Civil Lines, Delhi in the year 1961, Shri Uttam Prakash Bansal had allotted one bed room with attached bath room to each of his four sons, plaintiff No.1 and defendants No.1 to 3 and his daughter, plaintiff No.2 on the first floor of the family/ancestral property which was occupied by him with his children. Even though two of his sons had joined the Army and the other two had left for foreign countries and his daughter was married, they continued to hold their respective accommodation under lock and key, where they kept their luggage, belongings and non-essential stores in the said property till the death of their father Shri Uttam Prakash Bansal in August 2000. They all stayed with their father whenever they visited Delhi which was very often; especially his two sons in the Army while on their two months annual leave every year from their places of postings and operational areas and on their transfer to Army Headquarters at New Delhi etc. and also his daughter whose husband was also an Army officer. His two sons in foreign lands also visited Delhi with their families and stayed with him on a number of occasions. .......

12. That after the death of Shri Uttam Prakash Bansal in August, 2000, the family of Shri Mahi Lal and Smt. Kusum Lata, who were living separately at 24, Sri Ram Road, Civil Lines, Delhi, in the absence of the plaintiffs and Defendants No.1 to 3 illegally took over the entire accommodation of Shri Uttam Prakash Bansal and

impounded all their belongings thinking that the entire property had been gifted to them, prior to his death, by Shri Uttam Prakash Bansal. They prevented their entry in the said accommodation by posting security guards and by making false and fabricated police reports. They are yet to account for the belongings of the plaintiffs and defendants No. 1 to 3 that are still there."

7. Once there is a complete ouster of a joint owner from

possessory management of or any other direct involvement in the

affairs of immovable properties, it would be necessary for such a

person to pay the requisite ad valorem court fees. In the case

entitled Sudershan Kumar Seth vs. Pawan Kumar Seth & Ors.,

reported as 124 (2005) DLT 305, it was held that it is settled law

that in order to decide as to what relief has been claimed by the

plaintiff, the entire plaint has to be read and only on perusal thereof

can it be inferred that the plaintiff is in possession of any of the

properties to be partitioned, and if so, then the court fees is payable

under Article 17(6) of Schedule II of the Court Fees Act, i.e., fixed

court fees at the time of institution of the suit. However, if the

conclusion is contrary thereto, then the plaintiff has to pay the court

fees under Section 7(iv)(b) of the Court Fees Act, i.e., on the value

of the plaintiff‟s share. (Ref.: Jamila Khatoon vs. Saidul Nisa, AIR

1999 Delhi 48, Smt. Prakash Wati vs. Smt. Daywanti, AIR 1999

Delhi 48, Ms. Ranjana Arora vs. Satish Kumar Arora, 80(1999)

DLT 357, Harjit Kaur & Ors. vs. Jagdeep Singh Rikhy, 2004 VII

AD (Delhi) 567, Rajiv Oberoi & Ors. vs. Santosh Kumar Oberoi &

Ors. 2005 (80) DRJ 120) & Smt. Sonu Jain vs. Shri Rohit Garg &

Ors., 128 (2006) DLT 633).

8. In the case of Prakash Wati (supra), taking into consideration

the reliefs claimed in the plaint by the plaintiff therein and the fact

that she was not in possession of the properties, the court had held

as below :

"4. Counsel for the plaintiff has made reference to Jagdish Pershad v. Joti Pershad, 1975 Rajdhani Law Reporter 203, wherein it has been laid down that keeping in view of 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. There is no dispute about this proposition of law. Counsel for the plaintiff has then placed reliance on Neelavathi and others v. N. Natarajan and others, AIR 1980 SC 691, wherein the Supreme Court has laid down that 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. It was held that the general principle of law is that in the case of co-owners the possession of one is in law the possession all unless ouster or exclusion is proved. I think these observations of the Supreme Court go against the case of the plaintiff because in the present case reading of the whole of the plaint makes it clear that the plaintiff is alleging ouster from possession and thus, the plaintiff has to pay ad valorem court-fee on the value of her share. I order accordingly. The deficiency in the Court-fee be made up within ten days and the suit be listed for further proceedings on August, 22, 1990, in „Short Matters‟."

9. The court fees that is required to be paid by the plaintiffs,

for seeking the relief of partition of the suit properties by metes and

bounds, has to be examined in the context of Section 7 of the Court

Fees Act, 1870 which prescribes computation of fees payable in

suits. The relevant extract of Section 7 is reproduced hereinbelow:-

"7. Computation of fees payable in certain suits:- The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:-

......

(iv) In suits-

.....

to enforce a right to share in joint family property - (b) to enforce the right to share in any property on the ground that it is joint family property;

.....

according to the amount at which the relief sought is valued in the plaint or memorandum of appeal."

10. Further, Section 8 of the Suits Valuation Act, 1887 stipulates

that in suits other than those referred to in the Court Fees Act,

Section 7, paragraphs V, VI, IX and X, clause (d), court fees is

payable ad valorem, the value as determinable for the computation

of court fees and the value for purpose of jurisdiction shall be the

same.

11. Thus, Section 7(iv)(b) of the Act prescribes the court fees at

which the relief sought is valued in the plaint and under Section 8

of the Suits Valuation Act 1987, the plaintiff is required to value the

suit for the purpose of court fee and jurisdiction identically except

for the exceptions provided for under Section 7 of the Court Fee

Act, 1870.

12. A bare reading of the entire plaint reveals that the plaintiffs

have not made any submission to the effect that they were in actual

physical possession or even in symbolic possession of any part of

the suit premises bearing No. 24 and 27, Sri Ram Road, Civil Lines,

Delhi, at the time of instituting the suit. On the contrary, a perusal

of paras 11 and 12 of the plaint reveals that the plaintiffs have

themselves clearly admitted that they used to keep their luggage,

belongings and other non-essential stores in the premises No.24,

Sri Ram Road, Civil Lines, Delhi, till the date of demise of their

father, Shri Uttam Prakash Bansal, in August, 2000 and upon his

demise, the family of Shri Mahi Lal and Smt. Kusum Lata had

illegally taken over the entire accommodation and they had

impounded all their belongings and further, that they had prevented

the entry of the plaintiffs and the defendants No.1 to 3 in the said

premises.

13. As regards premises No.27, Sri Ram Road, Civil Lines, Delhi,

it has been averred in para 17 of the plaint that in the year 1990,

the deceased, Shri Uttam Prakash Bansal had made a trust called

„Gulab Devi Charitable Trust‟ and in the year 1995, he had

transferred the property to the trust. Though there were some old

tenants residing therein and cases of eviction were going on, the

trustees had got the entire building demolished from the MCD to rid

the same of old tenants and the plot was lying vacant. A bare

perusal of the aforesaid paras reveals that there is no averment

therein to the effect that the plaintiffs or for that matter, the

defendants No.1 to 3 were in actual physical possession or even

symbolic possession of the aforesaid premises, at the time of

instituting the present suit. Nor do they claim any direct

involvement in managing the affairs of the suit premises. Instead,

the plaintiffs have specifically admitted their exclusion from

possession.

14. There can be no quarrel with the contention of the counsel for

the plaintiffs that the fixation of the value of the suit is in the sole

discretion of the plaintiffs and the valuation of the suit as assessed

by the plaintiffs will have to be taken as correct. However, once

the plaintiffs have exercised such a discretion, they are under an

obligation to pay the court fees in accordance with the provisions of

the Court Fees Act, 1870 and the Schedule enclosed therewith.

15. When the plaintiffs have themselves chosen to value the suit

for the purposes of court fees and jurisdiction at Rs.15.00 crores,

then they are required to deposit the ad valorem court fees on the

basis of their own valuation. In such circumstances, the decisions

relied upon by the learned counsel for the plaintiffs, as mentioned

in para 3 above, cannot be of any assistance to the plaintiffs for the

reason that for the purposes of deciding the present application,

defendant No.19 has chosen not to question the valuation given by

the plaintiffs in the suit, but is only calling upon them to deposit the

court fees on the basis of the very same valuation, without

prejudice to the argument that the suit valuation is arbitrary or

unreasonable.

16. It is clear that upon a bare reading the entire plaint as a

whole and in particular, paras 11, 12 and 26 thereof, the plaintiffs

have not been able to establish the fact that at the time of

institution of the suit, they were in possession of any portion of the

suit premises, either actual or physical or symbolic, for claiming a

right to pay any amount less than the ad valorem court fees on the

value of their shares, as has been done by them. Rather, the

plaintiffs have admitted their exclusion from the joint possession of

the suit premises.

17. In view of the aforesaid facts and circumstances, this Court is

of the opinion that the plaintiffs are required to pay ad valorem

court fees on the value of their shares, for seeking the relief of

partition and possession of their separate shares in the suit

premises.

18. In the facts and circumstances of the case, the present

application is allowed. As the provisions of Order VII, Rule 11 (b)

require that an opportunity be afforded to the plaintiffs to supply

the requisite stamp paper, they are directed to deposit the ad

valorem court fees on the value of their shares as claimed in the

suit premises after adjusting the amount that has already been paid

by them. The deficiency in the court fees shall be made good by the

plaintiffs within a period of two weeks, failing which the court shall

be compelled to dismiss the suit.

19. List on 10th December, 2012, in the category of „directions‟,

for reporting compliance of this order.

                                                     (HIMA KOHLI)
NOVEMBER 5, 2012                                        JUDGE
rkb/sk/mk