Raj Ahuja vs Maj General Satish Mediratta ...
2012 Latest Caselaw 5578 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                      CS(OS) 2882/2011
RAJ AHUJA                                               ..... Plaintiff
                                Through:   Ms. Vaishalee Mehra,
                                           Advocate.
                       versus
MAJ GENERAL SATISH MEDIRATTA (RETD)
& ANR                                  ..... Defendants
                 Through: Mr. Harish Malhotra, Sr.
                          Advocate with Mr. Rajender
                          Agarwal, Advocate for D-1.
%                               Date of Decision : September 17, 2012
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
                                JUDGMENT

: REVA KHETRAPAL, J.

IA No.177/2012 (under Order VII Rule 11 CPC filed by the Defendant No.1)

1. This is an application under Order VII Rule 11(b) and (d) filed by the Defendant No.1 seeking rejection of the plaint on the ground that proper Court fee has not been affixed and the suit is barred by limitation.

2. The essential facts are not in dispute. The parties to the present suit are the children of Late Lt. Col. H.C. Mediratta, who passed away on 21.02.1986. His immovable property being a residential house bearing No.17, Block A-11, Vasant Vihar, admeasuring 600 sq. yards devolved in equal shares on his four children, i.e., the Plaintiff, the Defendant No.1, the Defendant No.2 and late Shri Munish Mediratta.

The youngest child Munish Mediratta died on 27.07.1996 and his two children Michael and Michelle, though given away in adoption in his lifetime, are arrayed as Defendant Nos.3 and 4. Thus, the Plaintiff, the Defendant No.1 and the Defendant No.2 are each owners of one-third share in this property.

3. The Plaintiff is a Non-Resident Indian and has been living in USA since her marriage in 1960. The Defendant No.1 was in the Army. In the year 2002 prior to his retirement, the First Floor of the property was constructed so that he could live in the same on his retirement in 2003. Since then, the Defendant No.1, in his capacity as co-owner, resides there along with his family. The Ground Floor of the suit property has always been let out. The Defendant No.2 Smt. Kusum is also a Non-Resident Indian and resides in Switzerland since 1976 with her family.

4. It is the Plaintiff's case that as co-owner of the suit property she is in legal possession of the suit property. The Plaintiff has averred in the plaint that she and her family reside at the suit property whenever in Delhi; and that as co-owner of the suit property, she is entitled to pay fixed Court fees in terms of Article 17(vi) of Schedule II of the Court Fees Act, 1870, which has been affixed by her on the plaint.

5. The Defendants have filed a written statement contesting the case of the Plaintiff on the ground that after the death of Late Lt. Col. H.C. Mediratta, the Plaintiff, the Defendant No.2 and Munish Mediratta decided to relinquish their shares in favour of Defendant No.1 and accordingly the Plaintiff, being a resident of USA, executed a Power of Attorney at California in favour of Mrs. Bina Mediratta,

wife of Defendant No.1, authorizing Mrs. Bina Mediratta to execute a Relinquishment Deed in respect of the Plaintiff's share in the suit property in favour of Defendant No.1. On the basis of the said Power of Attorney, a Relinquishment Deed was registered in favour of the Defendant No.1 by the Plaintiff acting through her Power of Attorney Mrs. Bina Mediratta. The said Relinquishment Deed was registered before the Sub-Registrar on 22.04.1987 as Document No.3395, Additional Book No.1, Volume 5801 on pages 131-132.

6. In the written statement filed by him, the Defendant No.1 asserts that after having become absolute owner of the suit property, he built upon the First Floor of the said property out of his own funds where he has been living with his family, while the Ground Floor was let out by him to tenants from time to time and he (the Defendant No.1) had been receiving rent as an absolute owner thereof. As such, the Plaintiff has no right, title or interest in the suit property.

7. Needless to state that the aforesaid facts are rebutted by the Plaintiff in her replication. According to the Plaintiff, she never executed a Power of Attorney in favour of wife of the Defendant No.1, nor she ever had any intention of relinquishing her rights in the suit property in favour of Defendant No.1. According to her, the Defendant No.1 has been allowed to receive rent for the Ground Floor of the suit property and the First Floor has been built out of the rent received from the tenants of the Ground Floor. It is denied by her that the Defendant No.1 is the absolute owner of the suit property and it is specifically pleaded that she is the co-owner of the suit property and in possession of the same through defendant No.1.

8. By way of the present application, the Defendant No.1 contends that in the garb of the present suit the Plaintiff seeks to challenge the Relinquishment Deed dated 22.04.1987 executed by her through her Attorney in favour of Defendant No.1, which challenge has otherwise become barred by time. The Defendant No.1 further contends that the Plaintiff has wrongly alleged in the plaint that she is in legal possession of the suit property. Since the Plaintiff is not in physical possession of any portion of the suit property, the suit for partition filed by her cannot be entertained unless ad valorem Court fees is paid by her on her share in the property. It is submitted that the Plaintiff has valued her share in the suit property at ` 50 Crores and, therefore, unless she pays Court fees on the aforesaid amount, the suit is liable to be rejected for want of proper Court fees.

9. Reply to the application has been filed by the Plaintiff submitting that Defendant No.1 admits in para 4 of his application that the Plaintiff is his sister and on the death of their father an undivided share in the property devolved upon the Plaintiff, the defendants No.1 and 2 and late Sh. Munish Mediratta. Therefore, as per the plaint, the Plaintiff and Defendant No.1 are both owners of the suit property as the law presumes joint possession. 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 the Plaintiff should be getting a share or some income from the property.

10. The counsel for both the parties have been heard. During the course of oral submissions, the learned senior counsel for the

Defendant No.1 referred to and relied upon his written statement and the replication of the Plaintiff to urge that the Plaintiff had relinquished her share in the suit property by a Relinquishment Deed executed through a Power of Attorney. Per Contra, the counsel for the Plaintiff submitted that apart from her plea that Defendant No.1 has based his case on a fabricated document, it is the Plaintiff's submission that the application of the Defendant No.1 under Order VII Rule 11 must be tested on the anvil of the averments made in the plaint. If the submissions in the plaint admit of ouster and exclusion from the suit property, the Plaintiff would have to pay ad valorem Court fee on the plaint. If, however, as in the present case, there has been no ouster or exclusion, the Court fees payable would be fixed. Para 5 of the plaint was adverted to, which reads as under:-

"5. The Plaintiff is a Non-Resident Indian and has been living in USA since her marriage in 1960. Defendant No.1 was in the army, in the year 2002 prior to his retirement First Floor of the property was constructed so that he could live in the same on his retirement in 2003. Since then defendant No.1 in his capacity as co-owner, resides there along with his family consisting of wife and two daughters occupied this floor of the suit property. The Ground Floor of the suit property has always been let-out. Defendant No.2, Kusum is also a Non-Resident Indian and resides in Switzerland since 1976, with her family. The plaintiff is in legal possession of the suit property. She and her family reside at the suit property whenever in Delhi."

11. It is trite that in order to decide an application under Order VII Rule 11 CPC only the averments made in the plaint are to be examined without reference to the defence set up in the written statement, as the provisions of Order VII Rule 11 CPC are in the nature of demurrer. The Plaintiff in the plaint seeks partition on the ground that she is one of the co-owners of the property and by fiction of law is deemed to be in joint possession of the property along with other co-owners. The Plaintiff has also stated that she and her family reside at the suit property whenever in Delhi. She also states that the Defendant No.1 has been allowed to receive the rent of the Ground Floor by the other co-owners in view of the expenditure incurred by him on account of the construction of the First Floor of the suit property. The Plaintiff nowhere pleads or admits ouster from the suit property. These being the averments in the plaint, the principles to be followed in order to decide the question whether the fixed or ad valorem Court fees should be paid in the instant case can be culled out from the judgment of the Hon'ble Supreme Court in Neelavathi and Others vs. N. Natarajan and Others, AIR 1980 SC 691. In the said case, the High Court accepted the contention raised by the Defendants and held that the Plaintiffs were liable to pay ad valorem Court fees as the Plaintiffs could not remain in joint possession and were not in joint possession on the date of the suit. Reversing the judgment of the High Court, the Hon'ble Supreme Court laid down the law as under:-

"6. On reading of the plaint as a whole, we are unable to agree with the view taken by the High Court. 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. Rm. Ar. Rm. Ramanathan Chettiar 1958 SCR 1021 at pp.1031-32. The plaint in paragraph 5 states that Muthukumaraswamy Gounder died intestate and undivided and Muthukumaraswamy's father Vanavaraya Gounder was managing all the ancestral joint family property as the head of the Hindu undivided joint family till his death. In paragraph 8 the plaintiffs stated that on the death of Muthukumaraswamy Gounder his 1/3 rd share in the joint family properties devolved upon his sons and daughters. It further alleged that the plaintiffs were in joint possession of the properties along with Vanavaraya Gounder and his other sons. In paragraph 9, it is stated that each of the plaintiffs is entitled to a share in the suit properties as heirs of the late Muthukumaraswamy Gounder and also as heirs of the late Vanavaraya Gounder. In paragraph 11, it is stated that since the death of Vanavaraya Gounder defendants 1 to 6 are receiving the income from the properties and are liable to account to the plaintiffs. In paragraph 12, it is stated that since the death of Vanavaraya Gounder defendants 1 to 6 failed to give the plaintiffs their share of income and the plaintiffs could not remain in joint possession. Therefore the plaintiffs demanded partition and the defendants 1 to 6 were evading. Again in paragraph 13, it is claimed that each of the plaintiffs as co-owner is in joint

possession of the suit properties, and this action is laid to convert the joint possession into separate possession so far as the shares of the plaintiffs are concerned. Throughout the plaint, the plaintiffs have asserted that they are in joint possession. We are unable to agree with the High Court that recitals in all the paragraphs is merely a formal statement repeating the statutory language. The plea in paragraph 12 which was relied on by the High Court states that the defendants 1 to 6 failed to give the plaintiffs their share of the income and the plaintiffs could not remain in joint possession. The plea that they were not given their due share would not amount to dispossession. Reading the plaint at its worst against the plaintiffs, all that could be discerned is that as the plaintiffs were not given their share of the income, they could not remain in joint possession. The statement that they are not being paid their income, would not amount to having been excluded from possession. The averment in the plaint cannot be understood as stating that the plaintiffs were not in possession. In fact, the defendants understood the plaint as stating that the plaintiffs are in joint possession of the suit properties. In paragraph 18 of the written statement the defendants pleaded that the plaintiffs have framed the suit as though they are in joint possession and enjoyment of the suit properties. Asserting that the plaintiffs were out of possession, the defendants stated: "While it is so, the allegation that they are in joint possession of the suit properties, is not correct."

7. ......................................................

8. ..........................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. 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 plaintiffs could be called upon to pay court fee under Sec. 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled in law. The averments in the plaint that the plaintiffs could not remain in joint possession as they were not given any income from the joint family property would not amount to their exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiffs had been excluded from possession."

12. In Durga Parmar(Dr.) & Ors. vs. V.K. Verma & Ors., 2004 VII AD (DELHI) 452, a learned Single Judge of this Court while dismissing an application under Order VII Rule 11 of the Code of Civil Procedure on similar grounds reiterated the law as follows:-

"The law is well-settled that the valuation of a suit for the purposes of Court-fee depends upon the prayers made in the plaint and in partition

suits where immovable property sought to be partitioned is with the tenants, the co-owners are deemed to be in constructive possession. In such cases, they cannot be, prima facie, held to be out of possession of the property and cannot be made to pay Court-fee on the value of the share being claimed by them. The judgment of the Apex Court in Chief Inspector of Stamps vs. Indu Prabha Vachaspati (Smt.) and Ors., reported in (1998) 9 SCC 157, is a direct authority on this question."

13. The reliance placed by the Defendant No.1 on Harjit Kaur & Ors. vs. Jagdeep Singh Rikhy,116 (2005) DLT 392 and Smt. Rani Devi Vs. Ashok Kumar Negi and Anr., AIR 1999 Delhi 109 to argue that the Plaintiff should pay Court fees on ad valorem basis is misconceived. The observations of the Court in both the said cases were based on the assertions made in the plaint in those cases where exclusive possession of the defendants was admitted in the plaint. No analogy can be drawn between the said cases and the present suit where the Plaintiff claims to be in constructive possession of the suit property, and further asserts that she and her family reside in the suit property whenever in Delhi.

14. On a consideration of the aforesaid factual and legal position, I am unable to agree with the contention of the learned counsel for the Defendant No.1 that the plaint is liable to be rejected on the ground that adequate Court fees has not been paid.

15. As regards the plea of the Defendant No.1 that the plaint is liable to be rejected on the ground of being barred by limitation, the same was not pressed at the time of hearing. Even otherwise, in my

considered opinion, the Defendant No.1 has failed to show how the plaint is barred by limitation. It is trite that Order VII Rule 11(d) envisages rejection of the plaint only where the statements as made in the plaint without any doubt or dispute show that the suit is barred by any law in force. After scrutinizing the plaint, I am unable to find any such averment made in the plaint as would show that the suit was barred by limitation in the sense that the suit was filed beyond the period prescribed in the Limitation Act, 1963. The present is thus not a case where the suit from the statements made in the plaint can be said to be barred by law of limitation. Disputed questions in relation to the issue of limitation cannot be gone into at this stage as held by the Hon'ble Supreme Court in the case of Popat and Kotecha Property vs. State Bank of India Staff Association, (2005) 7 SCC

510.

16. In view of the aforesaid, there is no merit in the present application, which is accordingly dismissed leaving the parties to bear their own costs.

CS(OS) 2882/2011 List before the Joint Registrar on 18.10.2012 for further proceedings.

REVA KHETRAPAL JUDGE September 17, 2012 km