Shobha Jolly vs Suraj S.J. Bahadur & Anr.
2013 Latest Caselaw 4712 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

               CS (OS) 1659 of 2012 & IA Nos. 10694-96 of 2012,
                          21959 of 2012, 4302 of 2013

                                       Reserved on: September 3, 2013
                                       Decision on: October 10, 2013

       SHOBHA JOLLY                                       ..... Plaintiff
                          Through:     Mr. T.K. Ganju, Senior Advocate
                                       with Mr. Indranil Ghosh,
                                       Mr. Divyanshu Goyal, Mr. Samiron
                                       Borkataky     &     Mr.       Biswajeet,
                                       Advocates

                          versus

       SURAJ S.J. BAHADUR & ANR                   ..... Defendants
                      Through: Mr. I.S. Alag, Mr. J.S. Lamba,
                               Mr. J.S. Bindra and Ms. Ishita
                               Chakraborty, Advocates for
                               Defendant No.1.
                               Mr. Vinay Sharma, Advocate
                               for Defendant No.2

        CORAM: JUSTICE S. MURALIDHAR

                                   JUDGMENT

10.10.2013

1. Before dealing with several applications filed by the parties which are being disposed of by the present order, the background facts require to be set out.

2. The Plaintiff is the daughter of Defendant No. 1 and the sister of Defendant No. 2. The Plaintiff claims to be the coparcener in the Hindu

undivided family (HUF) properties of Suraj S.J. Bahadur HUF. She states that Defendants 1 and 2 are also coparceners in the aforementioned HUF. She claims that she has a 1/3rd undivided right in the said HUF. The Plaintiff states that the aforementioned HUF was created from an earlier HUF, viz., Wing Commander Roopchand HUF. Wing Cdr Roopchand HUF was the father of the Defendant No. 1.

3. It is stated that the Wing Cdr Roopchand had a brother late Mr. Shakti S.J. Bahadur. The Plaintiff states that Defendant No. 1 filed a suit for partition against his brother late Mr. Shakti S. J. Bahadur being Suit No. 1893 of 1986 with respect to the movable and immovable properties forming part of the Wing Cdr Roopchand HUF properties. The list of properties on which Defendant No. 1 stated to have claimed his rights were:

a) Commercial property consisting of 13 shops and open space behind them on plot No. 50 at Pashamwala Bazar and Katra Jaimal Singh Crossing in Amritsar, Punjab.

b) Summer House with Guest House known as 'Alvely' situated in a compound of about 4.6 acres bearing Khasra Nos. 600 & 601, Dalhousie (H.P.).

c) Orchard measuring 25.6 acres and village quarters at village Jamalpur in Pathankot, Punjab.

d) Residential Family House and the plot of land on which it stands at 424-C, Defence Colony, New Delhi.

e) Moveable properties consisting of shares, fixed deposit, bank accounts etc. in New Delhi, Amritsar and Pathankot plus

income from the immovable and movable properties since 1985 with outstanding dues from earlier years.

4. It is further stated that upon the death of Mr. Shakti S. J. Bahadur, he was represented by his wife Mrs. Sanjukta Bahadur and his son Mr. Babbar S. J. Bahadur. His daughters Ms. Divya Jyoti Bahadur and Ms. Lalat Jyoti Bahadur were the Defendants 2 and 3 in the said suit. A compromise was entered into in the said suit. It was decreed on 29th January 2003 in terms of the said compromise. It is stated that in terms of the said compromise, the following properties devolved upon Suraj S. J. Bahadur HUF:

i. 50% of the (a) Commercial property consisting of 13 shops and open space behind them on plot No. 50 at Pashamwala Bazar and Katra Jaimal Singh Crossing in Amritsar, Punjab and (b) Summer House with Guest House known as 'Alvely' situated in a compound of about 4.6 acres bearing Khasra Nos. 600 & 601, Dalhousie (H.P.);

ii. The entire Orchard measuring 25.6 acres and village quarters at village Jamalpur in Pathankot, Punjab;

iii. The entire ground floor of the Built up Property bearing No. 424-C, Defence Colony, New Delhi along with the proportionate one third share of the plot of land; iv. The frond side part of the Ground Floor garage in property No. 424-C, Defence Colony, New Delhi which is divided into two equal parts;

v. One portion of the Driveway of the property No.424-C, Defence Colony, New Delhi;

vi. Rs. 7,00,000/- (Rupees Seven Lakhs Only) paid by the Sanjukta Bahadur HUF to Suraj S. J. Bahadur HUF as full and final settlement of the adjustment made by the parties. vii. 50 percent of the moveable assets consisting of (1) amount deposited in the Court of the Sub Judge Pathankot with the Bank of India and (2) Bank account in the name of Wing Commander Rup Chand in Central Bank of India, Hall Bazar, Amritsar."

5. It is stated that the proceeds received from the sale of the property (i) above as well as the properties in (ii) to (vii) above have remained in the said Suraj S. J. Bahadur HUF. The Plaintiff claims that no partition of the said properties has been effected till the date of filing of the suit. She claims to have become a coparcener in the said Suraj S. J. Bahadur HUF by virtue of the amendment to Section 6 of the Hindu Succession Act, 2005 ('HSA'). She claims that she, therefore, has an equal share with Defendants 1 and 2 in the said HUF properties. Plaintiff claims that although she reposed trust and faith in the Defendants she came to learn that they have been mismanaging the HUF properties n a manner detrimental to the interests of the Plaintiff. It is stated that although the properties at (i) above were sold, the Defendants refused to divulge the details of the proceeds received as a result of such sale.

6. The Plaintiff alleges that she has also been kept in dark about the sum of Rs. 7 lakhs paid to the Suraj S. J. Bahadur HUF by the Sanjukta Bahadur HUF from the sale proceeds of the properties at (i) above. The Plaintiff

states that she learnt that the Defendant No. 2 had invested the said sums in two properties at Greater Noida and also some other unknown properties in his individual name and not in the name of Suraj S. J. Bahadur HUF. The Defendants were, according to the Plaintiff, also proposing to dispose of the property being orchard measuring 25.6 acres in Pathankot, Punjab for which they held a meeting with one Mr. Sati Majithia.

7. The Plaintiff states that she recently come into possession of an Assessment Order dated 30th December 2011 passed by the Deputy Commissioner of Income Tax, Circle-1 (1), New Delhi in terms of which proceedings under Section 271 (1) (c) of the Income Tax Act, 1961 have been initiated against Defendant No. 2 for inaccurate particulars and for concealment of income. She states that the said order highlights the mismanagement of the affairs of the HUF by Defendant No. 2. It showed that he had deposited Rs. 23,34,400 as cash in his personal savings bank account which he claims to have received from Suraj S. J. Bahadur HUF on account of sale proceeds of timber and foliage by one Kashmira Singh. The Assessment Order noted that the agreement between HUF and Kashmira Singh was produced by Defendant No. 2 as an afterthought. She further points out that there is no authorisation by Defendant No. 1 as karta of HUF in favour of Defendant No. 2 for managing the affairs of the Suraj S. J. Bahadur HUF. The said HUF was also shown to have not filed its return of income for the assessment years 2006-07, 2007-08, 2008-09 and 2009-10 for which notice was issued to it under Section 142 (1) of the IT Act.

8. It is stated that the said statement of accounts for the savings bank

account of Defendant No. 2 showed abnormal deposits in February 2011 to the tune of over Rs. 57 lakhs of which Rs. 40 lakhs was in a single transaction. The Plaintiff avers that the said amounts belonged to the HUF and ought to have been deposited in the HUF bank account maintained at HDFC Bank, Greater Kailash-II, New Delhi.

9. In the above background, the Plaintiff filed the aforementioned suit seeking declaration of her 1/3rd share in the properties at 424-C, Defence Colony, New Delhi and Orchard measuring 25.6 acres and village quarters at Village Jamalpur in Pathankot, Punjab (hereafter the 'Orchard') and other properties forming part of the joint estate. She prays for a preliminary and final decree of the suit properties and a decree for permanent injunction restraining the Defendants, their agents, servants and employees etc., from selling, assigning and/or in any manner parting with possession or title of the said properties. The Plaintiff also seeks the relief of rendition of accounts, i.e., the bank account of the Suraj S. J. Bahadur HUF at HDFC Bank, Greater Kailash-II, New Delhi-48; proceeds received from sale of the Orchard; proceeds from the sale of 13 shops and open space at Pashamwala Bazaar and Katra Jaimal Singh Crossing in Amritsar; proceeds from the sale of roof rights in the aforementioned commercial properties at Amritsar; proceeds arising out of the perpetual lease in respect of Summer House with Guest House known as 'Alvely' situated in Dalhousie; details of Rs. 7 lakhs paid by Sanjukta Bahadur HUF to Suraj S. J. Bahadur; details of the 50% of the moveable assets and details of all other bank accounts, books of accounts and papers and investments made by Suraj S. J. Bahadur HUF.

10. While directing summons to be issued in the suit on 30th May 2012, this Court passed an interim order directing the parties to maintain status quo with respect to title and possession of the suit properties mentioned in Schedule A of the plaint detailed at pages 27-28 of the paper book. Notices were also issued in IA 10695 of 2012 under Order XL Rule 1 CPC for appointment of the Receiver and IA 10696 of 2012 under Order II Rule 2(3) CPC whereby the Plaintiff sought leave to file a suit for any other relief that she may have been found entitled to during the pendency of the suit.

11. Defendant No. 2 filed a written statement on 17th November 2012 and Defendant No. 1 on 16th November 2012. The Defendant No. 1 also filed IA 21959 of 2012 under Section 3 of the Limitation Act, 1963 (LA) praying that the suit be dismissed on the ground of limitation.

12. The Plaintiff has also filed IA 4302 of 2013 under Order XXVI Rule 10A CPC for reference of the documents mentioned in para 2 of the application to the Forensic Science Laboratory (FSL), Rohini for determining their genuineness. These documents are:

a. Memorandum of Settlement dated 31.03.2004 alleging an Oral Partition of Suraj S.J. Bahadur HUF.

         b.    Letter dated 05.04.2004.

         c.    Arbitral Award dated 08.07.2009.

13. This Court has heard the submissions of Mr. T.K. Ganju, learned Senior counsel appearing for the Plaintiff and Mr. I.S. Alag, learned counsel

appearing for Defendant No. 1 and Mr. Vinay Sharma, learned counsel for Defendant No. 2.

14. The first issue that requires to be dealt with is whether the interim injunction granted by the Court on 30th May 2012 should be confirmed. The other issues are whether a Receiver should be appointed for the suit properties; whether the Plaintiff should be permitted to pray for other reliefs as she may be entitled to during the pendency of the suit; whether the suit is barred by limitation and whether the aforementioned documents are required to be referred to the FSL for examination.

15. On the issue of continuation of interim injunction, this Court has to first determine whether the Plaintiff has a prima facie case in her favour for grant of such injunction and whether the balance of convenience is in favour of making the interim injunction granted absolute during the pendency of the suit.

16. One of the points urged by the learned counsel for the Defendants is that the suit has been undervalued for the purposes of court fee jurisdiction. In para 26 of the plaint, it is stated that the value of the suit for the purposes of pecuniary jurisdiction is estimated at approximately Rs. 3 crores. However, for the reliefs of partition and rendition of accounts and injunction, the suit is valued at Rs. 200 each. However, court fee has been paid only for the relief of partition being a fixed court fee of Rs. 40; for rendition of accounts for which a fixed court fee of Rs. 160 has been paid and relief of injunction for which another Rs. 40 has been paid.

17. Since the suit was filed prior to the coming into force of the Court Fees (Amendment) Act as applicable at present in Delhi, it was governed by the statute that was prevalent prior to the said development, i.e., Court Fees Act, 1870 ('Act').

18. In a partition suit, the averments in the plaint as regards the Plaintiff being in possession, either constructive or physical, of the property in question of which partition has been sought is a critical element. The legal position in terms of the unamended Act is that where the Plaintiff in a partition suit avers that the Plaintiff is in actual or constructive possession jointly with the other coparceners of the other suit property, then such Plaintiff will have to pay a fixed court fee and not an ad valorem court fee. On the other hand, if there is no such averment as to the Plaintiff being in actual or constructive possession, and the narration shows that there has been an ouster of the Plaintiff from the suit properties then the Plaintiff will not be entitled to pay a lesser court fee, i.e., not a fixed court fee but ad valorem court fee at 4% on the market value of the share claimed by the Plaintiff.

19. In Neelavathi v. N. Natarajan AIR 1980 SC 691, the Supreme Court was dealing with to a similar provision i.e. Section 37 of the Tamil Nadu Court Fees and Suit Valuation Act insofar as it related to partition suits. The Court explained the legal position in para 8 as under (AIR @ p.694-95)

"8...It will be seen that the court fee is payable under Section 37(1) if the plaintiff is 'excluded" from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of

the Joint Family, and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the Mitakshara coparcenary property, acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided, 'joint family property'; though not in the strict sense of the term. 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 Section 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."

20. A perusal of the plaint shows that in para 21 it has been averred as under:

"21. That, without prejudice to the above averments, it is pertinent to mention herein that the Plaintiff is also in joint and constructive possession of the Scheduled HUF properties as the Plaintiffs rights to a share and the character of the said properties being HUF properties have been assured and never been disputed by the Defendants."

21. In paras 19 and 20 of the plaint it has been averred as under:

"19. That in view of the above the Plaintiff herein has been constantly requesting the Defendants to partition the Suraj S. J. Bahadur HUF

and provide the Plaintiff here 1/3rd Coparcenary interest. That it is also pertinent to mention herein that every time the Plaintiff herein has requested the Defendants for partition of the HUF properties, the Defendants once again without denying the Plaintiff her rights in the HUF properties, have in one way or the other either evaded or totally rubbished the said request of the Plaintiff.

20. That further the Plaintiff herein frequently and regularly visits the HUF property being House No. 424-C, Defence Colony, New Delhi where the Defendants to this suit also reside."

22. It cannot be said that the Plaintiff has pleaded a clear ouster from the suit property. In Sudershan Kumar Seth v. Pawan Kumar Seth 124 (2005) DLT 305, it was observed as under (DLT, p. 310):

"14. It is settled that in order to decide as to what relief has been claimed by the plaintiff, the whole of the plaint has to be read. From the perusal of the plaint if it can be inferred that the plaintiff is in possession of the any of properties to be partitioned, then the court fees shall be 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 but if the conclusion is that the plaintiff is not in possession of any part of the properties then the plaintiff has to pay Court fees under Section 7(iv)(b) of the Court fees act i.e. on the value of plaintiff's share."

23. On the facts of that case, it was held that the Plaintiff in that case was liable to pay the court fee under Section 7(iv) (b) of the Act, on the value of his fixed share and not under Article 17(6) of Schedule II of the Act. Likewise in Sushma Tehlan Dalal v. Shivraj Singh Tehlan 2011 (123) DRJ 91, it was held as under:

"11. The following legal proposition of law emerges from the above- referred decisions:

(i) In order to ascertain whether the suit has been property valued for the purpose of Court fee or not, only the averments made in the plaint have to be seen, without reference to the plea taken by the Defendants;

(ii) If the plaintiff claims to be in joint possession of the suit property, he has to pay a fixed Court fee in terms of Article 17(vi) of Court- fees Act.

(iii) If the averments made in the plaint show that the plaintiff has been completely ousted from possession and is not in possession of any part of the suit property, he is required to claim possession and also pay ad valorem Court fee on the market value of his share in the suit property."

24. A similar approach has been adopted in Harjit Kaur v. Jagdeep Singh 2005 RLR 23 and Anu v. Suresh Verma [decision dated 12th July 2011 in CS (OS) 2546 of 2010]. Turning to the case on hand, it is not possible to conclude from a reading of the aforementioned paras of the plaint that the Plaintiff has failed to plead constructive possession of the suit properties or that the averments show her clear ouster from the suit properties. The Plaintiff is, therefore, justified in seeking to pay court fees under Article 17(6) of Schedule II to the Act and not in accordance with the Section 7(iv)

(b) of the Act. The issue is accordingly decided in favour of the Plaintiff.

25. The next issue is whether the suit is barred by limitation. The case of the Defendants is that an Oral Family Settlement ('OFS') took place on 31st March 2004 which was prior to the amendment to the HSA in 2005 and this was within the knowledge of the Plaintiff. It is contended that the suit has

been filed eight years after the said OFS and, therefore, barred by limitation. It is also contended that the Plaintiff has failed to challenge the OFS and therefore cannot question the steps taken pursuant to the OFS. It is stated that the properties at 424-C, Defence Colony and the Orchard are in fact the self acquired properties of late Wing Cdr Roopchand and after the OFS it became the exclusive properties of Defendant No. 1. According to the Defendants, the said properties were mistakenly shown as HUF properties for the purposes of income-tax. Counsel for the Defendants referred to the actual clauses of the OFS to urge that the reference to such properties as HUF properties of Suraj S. J. Bahadur HUF is only for a limited purpose and in fact as a result of the OFS, the properties have now become the exclusive properties of Defendant No. 1.

26. In the first place, the Court would like to observe that the question whether the suit is barred by limitation would, in the facts and circumstances of the present case, be a mixed question of law and fact. Whether in fact the Plaintiff was aware of the OFS at the time when it was executed and whether that fact was communicated to her soon after the OFS was executed or any time thereafter would be a matter of evidence. The stand of the Plaintiff in her reply to IA 21959 of 2012 is that she was not aware of any such OFS. On the other hand, she relies on a letter purportedly written by her to her father on 12th January 2012 asking him to confirm whether in terms of the amendment to the HSA, she is an equal coparcener with her brother (Defendant No. 2) in the Suraj S. J. Bahadur HUF and on which Defendant No. 1 is stated to have made an endorsement confirming that she was an equal coparcener with Defendant No. 2, i.e., her brother,

Mr. Uday Bahadur. The above letter is, of course, disputed by the Defendants. Therefore, it would be entirely a matter of evidence as to the date on which the Plaintiff can be said to have known of the OFS and whether therefore the relief sought by her by way of partition is barred by limitation. The Court is also of the view that the question whether the OFS, if it is found to be genuine, was required to be registered for the purposes of Section 4 HUF would hinge upon the genuineness of the documents that has been questioned by the Plaintiff in her application (IA 4302 of 2013).

27. Apart from questioning the Memorandum of OFS dated 31st March 2004, the Plaintiff has also questioned the genuineness of the letter dated 5th April 2004 purportedly written to her by Defendant No. 1 informing her of the OFS and enclosing a copy thereof as well as an arbitral Award dated 8th July 2009 of the sole Arbitrator who purportedly adjudicated the disputes between Defendant No. 1 and the Plaintiff. Therefore, this issue cannot be possibly decided at this stage.

28. On the question of interim relief, the Court is of the view that the Plaintiff has made out a prima facie case for making absolute the interim order passed subject to the further conditions that the Defendants will (a) maintain full accounts of all expenditure and income in the HUF account as well as in the personal account of Defendant No. 2 (b) file complete statement of bank accounts of Defendant No. 2 and Defendant No. 1 (c) file copies of the income-tax returns if any filed by the HUF (d) file up to date statements of bank accounts of the HUF every three months and (e) to otherwise maintain status quo as regards title and possession of the movable

and immovable properties that remain with Defendant Nos. 1 and 2 and the Suraj S. J. Bahadur HUF. The Court is satisfied that the balance of convenience in continuing the interim order is in favour of the Plaintiff.

29. Accordingly, the following directions are issued:

(i) The interim orders passed by this Court on 30th May 2012 is made absolute subject to the conditions as detailed in para 28 above. IA 10694 of 2012 is accordingly disposed of.

(ii) The Plaintiff is granted leave to claim any other relief she may have found entitled to during the pendency of the suit. IA 10696 of 2012 is disposed of.

(iii) IA 10695 of 2012 is disposed of by directing that Defendants 1 and 2 shall jointly act as Receiver of the Court for the movable and immovable properties in possession of either or both of them and/or Suraj S. J. Bahadur HUF which forms subject matter of the suit and to the extent mentioned in Schedule A to the plaint and render complete accounts as and when required to do so by the Court.

(iv) IA 21959 of 2012 filed under Section 3 LA is disposed of by holding that since the question of limitation is a mixed question of law and fact this issue will be framed as a preliminary issue and will be examined after the conclusion of the recording of evidence at the time of final disposal of the suit.

(v) IA 4302 of 2013 is disposed of by the following directions:

(a) The Defendants will produce the originals of documents mentioned in para 2 of the application within two weeks. After allowing inspection of the said originals by learned counsel for the Plaintiff, and after retaining photocopies thereof, the Registrar (Original) will send the three documents in a sealed cover to the Director, FSL, Rohini through a Special Messenger within three weeks thereafter. The Director FSL will then assign the task of examination of those documents to a handwriting expert.

(b) The Registrar will also send to the Director FSL specimen handwriting signatures of Defendants 1 and 2 and the Plaintiff as found in original in the pleadings for comparison. The handwriting expert will give an opinion on whether the signatures in the aforementioned documents of Defendants 1 and 2 tallies with their signatures in the OFS.

(c) The FSL will other opine whether the OFS was written and signed on the date mentioned in the OFS, i.e., 31st March 2004 or on some other date.

(d) Photocopies of all documents being sent to the FSL be retained on the file before sending the original documents in a sealed cover.

(e) The report of the handwriting expert be submitted to the Director FSL within a period of eight weeks from the date of the receipt of the original documents and the Director, FSL, Rohini will in turn send it in a sealed cover to the Registrar through a Special Messenger within a further period of two weeks thereafter.

30. The matter be placed before the Court for directions on 20th February

2014 after receipt of the report from the Director, FSL, Rohini.

S. MURALIDHAR, J.

OCTOBER 10, 2013 akg