Suresh Kapoor vs Shashi Krishan Lal Khanna & Ors
2014 Latest Caselaw 5032 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Pronounced on: 10th October, 2014

+      IA No.14898/2011 in CS(OS) 236/2010
       SURESH KAPOOR                                            ..... Plaintiff
                   Through:              Mr. Virender Goswami, Advocate &
                                         Mr. Shubham Agarwal, Advocate

                               versus

       SHASHI KRISHAN LAL KHANNA & ORS         ..... Defendants
                    Through  Mr. Sangram Patnaik, Advocate &
                             Mr. Vishal Kumar Pandey, Advocate
                             for D-1.
                             Mr. Jiwan Pal Singh, Advocate for
                             D-4 to 8.

       CORAM:
       HON'BLE MR. JUSTICE G.P. MITTAL


G.P. MITTAL,J.

IA No.14898/2011 (Order VII Rule 11 CPC) by Defendant no.1

1. By this application under Order VII Rule 11(c) and (d) of the Code of

Civil Procedure, 1908 (CPC) read with Section 7 (iv) (b) of the Court

Fees Act, 1870 question of valuation of the suit for the purpose of

court fee is raised by Defendant no.1.

2. The Plaintiff claims 1/9th share in the suit property which was owned

by Late Mrs. Gullo Devi Malhotra, maternal grandmother of the

Plaintiff. In the application it is stated that the Plaintiff admittedly is

not in possession of the suit property, therefore, he is required to pay

the court fee on the market value of his share in the suit property for

seeking the relief of partition. It is also stated that the suit property

consists of a built-up house on land measuring 725 sq. yds., which is

valued at Rs.50 crores. The suit being undervalued is liable to be

dismissed.

3. Before adverting to the facts of the instant case, it would be essential

to take note of the statutory provisions which govern valuation of the

suit for the purpose of court fee. As per Section 7 (iv) (b) of the Court

Fees Act, 1870 (the Act) any suit to enforce right to share in any

property on the ground that it is a joint family property, the court fee is

payable according to the amount at which the relief sought is valued in

the plaint or memorandum of appeal. At the same time, as per Section

7 (v) (e) of the Act, in a suit for possession of house or garden, the suit

has to be valued for the purpose of court fee according to the market

value of the house or garden. As per Article 17 (vi) Schedule II of the

Act, in every suit where it is not possible to estimate at a money value

the subject matter in dispute and which is not otherwise provided by

the Act, fixed court fee is payable.

4. As per Section 9 of the Suit Valuation Act, 1887 when the subject

matter of suits, other than the suits mentioned in the Court Fees Act,

1870, Section 7, paragraphs v and vi, and paragraph x, clause (d), is

such that in the opinion of the High Court it does not admit of being

satisfactorily valued, the High Court may with the previous sanction

of the State Government, direct that suits of that class shall, for the

purposes of the Court-fees Act be treated as if their subject-matter

were of such value as the High Court thinks fit to specify in this

behalf.

5. In Chapter III 'Valuation of Suits', Rule 8 has been framed by the

Delhi High Court for valuation of the suits for partition of immovable

properties. It reads as under:-

"8. Suits for partition of property--

Court-fee--(a) As determined by the Court-fees Act, 1870.

Value--

(b) For the purposes of the Suits Valuation Act, 1887 and the Punjab Courts Act, 1918 the value of the whole of the property as determined by Sections 3, 8 and 9 of the Suits Valuation Act, 1887."

6. The learned counsel for the applicant/Defendant no.1 has relied upon

the following judgments:-

(i) Meenakshi Gupta v. Naveen Mahajan, 149 (2008) DLT 746,

(ii) Nisheet Bhalla & Ors. v. Malind Raj Bhalla & Ors., AIR 2007

Delhi 60,

(iii) Sarabjit Prakash & Anr. v. Udyajit Prakash & Ors., 172 (2010)

DLT 707,

(iv) Mohan Babar & Anr. v. Kedar Nath Babar & Ors., 2009 (113)

DRJ 530,

(v) Harjit Kaur & Ors. v. Jagdeep Singh Rikhy, 116 (2005) DLT

392,

(vi) Smt. Rani Devi v. Ashok Kumar Nagi, 76 (1998) DLT 279,

(vii) Ms. Ranjana Arora v. Satish Kumar Arora, 80 (199) DLT 537,

and

(viii) Mohd. Alam & Etc. V. Gopal Singh & Ors., AIR 1987 Patna

to urge that where the Plaintiff is not in joint possession of any portion

of the suit property or is not in constructive possession ad valorem

court fees is payable on the value of the share in the suit property

which is claimed by the Plaintiff.

7. On the other hand, the learned counsel for the Plaintiff has relied upon

the following judgments:-

(i) Neelavathi & Ors. v. N. Natarajan & Ors., (1980) 2 SCC 247,

(ii) Sushma Tehlan Dalal v. Shivraj Singh Tehlan, 2011 (123) DRJ

91,

(iii) V.S.K. Sood v. Vir Surinder Beri & Ors., MANU/DE/2934/2013,

and

(iv) Jagannath Amin v. Seetharama (dead) by LRS and Ors., (2007)

1 SCC 694,

to contend that in case of co-owners, possession of one in law is

possession of all unless ouster or exclusion is proved. In such cases, it

is urged, the Plaintiff is entitled to pay a fixed court fee.

8. Although, the proposition of law is well settled as to how the suit has

to be valued for the purpose of court fee in a suit claiming share in

respect of joint Hindu family property, yet on facts disputes are galore

inundating this court with the applications under Order VII Rule 11,

CPC for rejection of the Plaint on the ground that the Plaintiff being

out of possession, the suit has not been correctly valued for the

purpose of court fee.

9. First of all, I shall refer to the judgment in Neelavathi & Ors. relied

upon by the learned counsel for the Plaintiff, which has been referred

to and relied upon in a number of judgments of Delhi High Court,

which have been relied upon by the learned counsel for Defendant

no.1.

10. A three Judge Bench of the Supreme Court in Neelavathi & Ors.

referring to S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm.

Ramanathan Chettiar, AIR 1958 SC 245, reiterated that the question of

Court Fee must be considered in the light of allegations made in the

plaint and its decision cannot be influenced either by the pleas in the

written statement or by final decision of the suit on merits. It was

further laid down that the mere plea by the Plaintiff that the Defendant

were not rendering accounts of the income from property will not

amount to dispossession or exclusion of possession of the property in

respect of which share is being sought by the Plaintiff/Plaintiffs. Para

6 of the report is extracted hereunder:-

"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 [AIR 1958 SC 245 : 1958 SCR 1021, 1031-32 : 1958 SCJ 407] . The plaint in para 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 para 8 the plaintiffs stated that on the death of Muthukumaraswamy Gounder his 1/3rd 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 para 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 para 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 para 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 para 13, it is claimed that each of the plaintiffs as co-owners 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 para 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 para 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".

11. Relying on Sathappa Chettiar and Neelavathi, a learned Single Judge

of this Court in Sushma Tehlan Dalal v. Shivraj Singh Tehlan, 2011

(123) DRJ 91, culled out the following proposition of law:-

"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."

12. There is consensus of judicial opinion that for the purpose of

determining the valuation of the suit for the purposes of court fee and

jurisdiction, only the averments made in the plaint have to be taken

into consideration. Similarly, if the Plaintiff is in constructive

possession or ouster cannot be inferred from the averments made in

the plaint, the Plaintiff would be well within his right to value the suit

at Rs.200/- for the purpose of court fee and pay a fix court fees

thereon.

13. In Meenakshi Gupta, relied upon by the learned counsel for Defendant

no.1, the Plaintiff had been turned out of her house by the Defendant,

relying on Prakash Wati v. Smt. Dayawanti, AIR 1999 Delhi 48, a

learned Single Judge of the Court held that the Plaintiff had been

excluded from the joint possession of the suit property to which she

was entitled. Hence, ad valorem court fees is required to be paid.

14. In Nisheet Bhalla, the learned Single Judge relying on Prakash Wati

reiterated that in order to decide the question of court fee, the

averments made in the plaint are to be seen and decision cannot be

influenced either by pleas in the written statement or by final decision

of the suit. It was held that to continue to be in joint possession in

law, it is not necessary that the Plaintiff should be in actual possession

of whole or part of the property. The law presumes joint possession of

a co-owner unless he is excluded from such possession.

15. The learned Single Judge culled out para 7 of the plaint in the

judgment and observed that there is unambiguous ouster or exclusion

from possession in the suit property and the facts situation being akin

to Prakash wati, the Plaintiff will be required to pay court fee on the

market value of his share. It would be expedient to extract para 7 of

the plaint in that suit which led the learned Single Judge to held that

the Plaintiff was ousted from possession:-

" .. That though the Plaintiffs are co-owners and in joint possession of the aforesaid property along with the defendants, the defendants have been enjoying the rights in the said property and the defendants have not paid any amount realized by them from the tenants and/or for their occupation of the premises, to the Plaintiffs till date though the Plaintiffs and the defendants became co- owners of the property since May, 1993, i.e. after the death of late Smt. Swadesh Kumari Bhalla...."

16. In Sarabjit Prakash & Anr. v. Udyajit Prakash & Ors., 172 (2010)

DLT 707, another learned Single Judge on the basis of averments in

the plaint that the Defendant was in physical and actual possession of

the property and it deprived the Plaintiff from actual enjoyment and

had also claimed damages, led the learned Single Judge to hold that

the Plaintiff was required to pay ad valorem court fees as he was

neither in actual nor in constructive possession.

17. In Harjit Kaur & Ors. v. Jagdeep Singh Rikhy, 116 (2005) DLT 392,

in para 22 of the plaint averments were made about the cause of action

and the learned Single Judge held the Plaintiff to be not in constructive

possession as under:-

"... In paragraph 22 it has been pleaded that "the cause of action is a continuing one and since the defendant Nos.1 to 4 are in actual occupation of the same, it is the submission of the Plaintiffs that they have no right to continue in possession exclusively to the exclusion of the Plaintiffs and every heirs and the only course open to the parties as to partition the property be metes and bounds and if not possible by sale of property....."

18. Similarly, in Smt. Rani Devi v. Ashok Kumar Nagi & Anr., 76 (1998)

DLT 279 on the basis of the averments made in the plaint that

Defendant no.1 is in actual possession and enjoyment of the first floor

and whole of the second and third floor and symbolic possession of

the property on the ground floor through tenant, only Defendant no.1

was recovering rent from all the tenants, it was held that the Plaintiff

was not in possession of any part of the suit property and is liable to

pay ad valorem court fees.

19. In Saroj Salkan v. Captain Sanjeev Singh & Ors., 155 (2008) DLT 300

(DB), the appellant claimed herself to be in constructive possession

being co-owner of the property and affixed a court fee of Rs.20/-.

20. On the basis of the averments made in paras 23 and 25 of the plaint,

the Court stated that the ouster can be inferred from the averments

made in paras 23 and 25 of the plaint and held that the appellant had

been rightly directed to pay the ad valorem court fees. The averments

in the plaint were extracted in para 4 of the judgment and conclusion

given in para 14, which are extracted as under:-

"4. The appellant claimed that property is in her constructive possession, she is a co-owner and thus affixed a fixed court fee of Rs. 20/-. In support of submissions, the learned counsel has relied upon para 23 and 25 of the plaint which reads as under:

23. The plaintiff and defendant No. 6 were treated as co- owners. They spent holidays at their parental home. Their nephews and nieces treated them as co-owners. They would regularly be given cash incomes as their share from the farm....

A major portion of income, according to her would be ploughed back into the farm for new tube wells, generators, threshing machines or tractor. However, despite the above reasons, in all fairness to her she openly acknowledged the rights of the plaintiff and her sister.

25. That the property at Anand Niketan had been rented out and rent was realized by all parties to the suit. The plaintiff and defendant No. 6 used to be given a cash compensation for their share in the Delhi house as well. Again, they never questioned the amount nor did they ask to see the lease deed to check the actual rental value.

x x x x x x x x x

14. In view of the averment made in the plaint as well as e-mail dated 06.02.2005, prima facie, the plaintiff who

claims to be in joint possession of the property of which partition is sought, we find that the appellant has been excluded from joint possession to which she is entitled in law and has to pay only fixed court as per Article 17(vi) in Schedule II."

21. Now it is the time to turn to the facts of the instant case. As per the

averments made in the plaint, property was owned by Late Shri

Beliram Malhotra who died on 14.05.1973. After his death Late Mrs.

Gullo Devi Malhotra, his widow and his children Mr. Harbans Lal

Malhotra, husband of Defendant no.6 and father of Defendants no.7

and 8 and Late Mrs. Kamla Kapoor, mother of the Plaintiff and Late

Mrs. Bimla Devi, mother of Defendants no.1, 2 and 3 inherited the suit

property.

22. The Plaintiff has alleged that Late Mrs. Bimla Devi, who was the

mother of Defendants no.1,2 and 3 was a resident of Delhi, who

volunteered to look after the property and collected rent and was to

deposit the same in Mrs. Gullo Devi's bank account and give

periodical accounts to Late Mr. Harbans Lal Malhotra and also to the

mother of the Plaintiff. The Plaintiff has further alleged that Late Mrs.

Bimla Devi, mother of Defendants no.1 to 3 has never given any

account to Late Mrs. Gullo Devi Malhotra rather she was instrumental

in closing the bank account. It is averred that Mrs. Bimla Devi fell ill

and was bedridden and father of Defendants no.1 to 3 expressed regret

that he had not been able to devote time to accounts due to ill health of

his wife Mrs. Bimla Devi. Smt. Gullo Devi Malhotra died in the year

1999 whereas Mrs. Bimla Devi and Kamla Kapoor expired in the year

2004 and 2005 respectively.

23. In para 15 of the plaint, it is urged that Plaintiff met Defendant no.1 in

New Delhi number of times and requested him to give accounts of the

property but that was not done.

24. Thus, the Plaintiff has admitted that neither he nor his mother Kamla

Kapoor were in physical possession of the suit property; the other

legal heirs of Mrs. Gullo Devi Malhotra except Mrs. Bimla Devi and

her sons, were never in possession and they never realised any rent

from the property. It is also stated that Mrs. Bimla Devi never

rendered any account either to the Plaintiff or even to Mrs. Gullo Devi

Malhotra rather the bank account of Mrs. Gullo Devi Malhotra, in

which the rent was to be deposited was closed by Late Mrs. Bimla

Devi.

25. Thus, for decades after the death of Late Shri Beliram Malhotra in the

year 1973, it was Late Mrs. Bimla Devi and her children who were in

possession of the property or who were letting out the property and

were keeping rental income to themselves.

26. Thus, although the Plaintiff claims to be in constructive possession of

the suit property, being co-owner but on the basis of the law laid down

in catena of judgments as stated earlier ouster and exclusion from

possession can safely and certainly be inferred from the plaint and

therefore, the Plaintiff is not entitled to pay fixed court fee rather he is

under obligation to pay ad valorem court fees on the market value of

his share.

27. The application is accordingly allowed with direction to the Plaintiff

to specify the value of his share in the suit property and pay ad

valorem court fees within eight weeks from the date of this order.

28. List before the Joint Registrar for reporting compliance on 22nd

December, 2014.

(G.P. MITTAL) JUDGE OCTOBER 10, 2014 vk