Ms. Uma Ghate vs Mr. Umesh Phalpher
2016 Latest Caselaw 7183 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Decided on : 01.12.2016

+      CS (OS) 579/2016

       MS. UMA GHATE                                       ..... Plaintiff
                    Through:            Ms.Manmeet Arora, Mr.Tarang
                                        Gupta and Mr.Devashish Chauhan,
                                        Advocates
                           versus

       MR. UMESH PHALPHER                         ..... Defendant
                    Through: Mr.Hrishipal Barvah, Advocate

       CORAM:
       HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

1. The present suit has been filed by the sister of the defendant seeking

partition of the estate of their late mother Ms.Kamal Phalpher. In the plaint

it is submitted that the plaintiff and defendant are Class I legal heirs of their

late mother. Their father died on 23.04.1991 and the mother expired on

09.09.2016 leaving behind the properties (movable and immovable) as

enumerated in para 5 of the plaint. It is submitted that the mother of the

plaintiff used to reside on the ground floor of the property bearing number

185, Jor Bagh, New Delhi (hereinafter referred to as "Jor Bagh Property")

CS (OS) No.579/2016 Page 1.

before her demise and the plaintiff grew up in this house and resided with

her mother till her marriage on 04.03.1990. After that although she had

been living in her matrimonial home in Mumbai yet she used to regularly

visit Jor Bagh property with her husband and daughter and was extremely

close to her mother. Her mother was running her own kitchen during the

period 1987-2015 and defendant was not providing any assistance to her. In

December, 2015 she developed viral fever and doctors suspected typhoid.

Plaintiff came to Delhi to take care of her mother. She however, went into

coma by 12.01.2016 and had to undergo brain surgery on 13.01.2016 and

could not recover from her illness and ultimately expired on 09.09.2016.

She had executed a Will dated 07.09.2011 whereby she had bequeathed the

Jor Bagh property equally between the plaintiff and the defendant and also

divided her remaining estate equitably between the parties and she was

informed of the said Will by her mother during her illness. The defendant,

however, did not accept the said Will and disputed its execution vide legal

notice dated 23.09.2016 and e-mail dated 26.09.2016. Subsequently, vide a

legal notice and e-mail he had alleged that their mother had executed a Will

dated 20.12.2015 which is disputed by the plaintiff on the ground that

mother being extremely unwell in the third week of December, 2015 and not

CS (OS) No.579/2016 Page 2.

being in sound and disposing state of mind during that period and could not

have executed the said Will. The plaintiff has filed the suit for partition

claiming intestate succession for the reason that the defendant has denied the

Will dated 07.09.2011.

2. On the date, this suit was listed for hearing before this court the

defendant was present on caveat. He contended that the suit is not

maintainable. His contention is two-fold:-

(a) that the plaintiff has admitted the execution of the Will dated

07.09.2011 by the deceased and hence cannot file a suit for partition on the

basis of intestate succession and the option of election can be exercised only

under the circumstances provided under Sections 180 to 186 of Indian

Succession Act. The reliance is placed on the findings of Mani Mani & Ors.

V. Mani Joshua 1969 (1) SCC 828

(b) that the suit is liable to be rejected since the plaintiff has not paid

the sufficient court fee. An ad valorem court fee is required to be paid since

she is not in possession of the property for which partition has been sought

and in para 31 and 33 she has pleaded a clear case of ouster by the

defendant. Reliance is placed on the finding of this court in various cases

Smt.Prakash Wati vs. Smt.Dayawati AIR 1991 Delhi 48, Nisheet Bhalla &

CS (OS) No.579/2016 Page 3.

Ors. Vs. Malind Raj Bhalla and Ors. AIR 2007 Del 60, Col. (Retd) Anil

Kumar Bansal & Anr. Vs. R.K.Bansal & Ors 2013 (133) DRJ 257 and

Suresh Kapoor vs. Shashi Krishnan Lal Khanna (2015) 216 DLT 273.

3. Defendant has also furnished with the leave of the court his written

submissions. Plaintiff did not wish to file any reply to the written

submission and rest its case on pleadings.

4. The learned counsel for the plaintiff has argued that since the

defendant has disputed the Will dated 07.09.2011, the only option open to

the plaintiff is to file her case as if their mother had died intestate. It is

urged that the provision of Section 180 is not applicable to intestate

succession and is not applicable on the facts of this case. The plaintiff has

placed reliance on cases of Vikram Singh & Anr. Vs. Ajit Inder Singh 210

(2010) DELHI LAW TIMES 145 (DB), Parma Nand Ahuja vs. Satya Deo

Ahuja & Ors. AIR 1973 Delhi 1990. It is also argued that the findings in the

case of Mani Mani (supra) are not applicable on the facts of this case and

the proposition of law in the said case is given on different set of facts and

situations and circumstances.

5. It is further argued that the plaintiff is not liable to pay ad valorem

court fee because she is in constructive joint possession of the undivided

CS (OS) No.579/2016 Page 4.

share in the suit property and she has continued to be in constructive

possession of her undivided share in the said property and at no stage she

was ousted of the property. The reliance is placed on the findings in the

cases Krishna Gupta & Anr. Vs. Rajinder Nath & Co. HUF & Ors 198

(2013) Delhi Law times 85, Jagannnatha Amin vs. Seetharama & Ors.

(2007) 1 SCC 694.

6. I have given due consideration to the arguments of learned counsels

for the parties.

7. The first objection of the defendant is that the suit is barred under

Section 180 of the Indian Succession Act because the plaintiff cannot choose

to file the suit as if the mother had died intestate while she has herself

averred in the plaint that the mother had executed a Will dated 07.09.2011.

8. It is a settled proposition of law that while considering an objection

relating to the maintainability of a suit, the court has to consider only and

only the averments in the plaint and decide whether in view of the disclosed

facts and contentions in the plaint, suit is maintainable. Admittedly, the

plaintiff in her suit has alleged that their mother had executed a Will dated

07.09.2011. She has also contended that she sent a scanned copy of the Will

through e-mail dated 12.09.2016 which was not replied by the defendant.

CS (OS) No.579/2016 Page 5.

The defendant instead, issued a legal notice dated 23.09.2016 wherein he

denied the execution of the Will dated 07.09.2011. He also sent an e-mail

dated 26.09.2016 wherein he had disputed the execution of the Will. It was

in these circumstances that the plaintiff, despite the existence of the Will has

been forced to file the present case under section 8 of Indian Succession Act.

It is argued by learned counsel for the defendant that in view of Section 180

of the Indian Succession Act she cannot exercise this option and cannot

negate the Will dated 07.09.2011. Upon this, learned counsel for the

plaintiff has submitted that this provision of law has no application on the

facts of this case.

9. Section 180 of the Indian Succession Act is reproduced as under:

180. Circumstances in which election takes place.--Where a person, by his will professes to dispose of some thing which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefit which may have been provided for him by the Will.

10. In support of his argument, learned counsel for the defendant has

relied on the proposition of law propounded in Mani Mani's case (supra).

Facts in that case were that X bequeathed A, B, C properties to X, Y, Z in

1935. He made two further Wills in January, 1943 and April, 1943. He

CS (OS) No.579/2016 Page 6.

executed a third and last will in May, 1943 and made mention in it of the

two settlements and the two previous Wills and declared that the last Will

would be final and operative. In the last Will, the properties C and part of

property A were left to Y and there was no mention in the Will of the

properties B which had been settled on Y in the 1935 Will. In that case Y

had contended that B properties settled on him in 1935 vested in him and the

properties settled on him in the last will of 1943 were independent and

separate from B properties which was not subject matter of the last Will. On

the other hand, X and Z contended that Y having accepted the benefit under

the last will by taking the properties bequeathed to him had exercised his

right of election to take properties under the Will and was precluded from

asserting any right on B properties given to him under 1935 Will. While the

trial court had dismissed Y's suit laying claim to B properties settled on him

in 1935, the High Court decided in favour of Y. The Supreme Court,

however, set aside the order of High Court and upheld the order the Trial

Court and held that on construing the last Will, even though the testator

omitted to include in the last Will the properties which had been given by

him to Y in 1935 Will, but the testator had intended to included B properties

in the Will of May 1943, by which he made bequest to X and Z. Y was thus

CS (OS) No.579/2016 Page 7.

put to election and could not claim properties B if he wished to take the

benefit under Will of May 1943. It was under these circumstances, when the

Will has been acted upon that the Court said the principle of election

applies. The facts of that case are entirely different and no parallel can be

drawn. The principle which is set out in this case is that once a right of

election is exercised in respect of a benefit accrued under a Will, then a

person is precluded to claim benefit over any of the property the beneficiary

was holding under any other previous arrangement and which the testator

omitted to mention in the said Will. When a Will has been acted upon, it

was only then that the rule of election under Section 180 of Indian

Succession Act applies.

11. The plaintiff has relied on the case Parmanand Ahuja (supra) . The

brief facts in that case were that the appellant Parmanand Ahuja instituted as

suit against his two step brothers, a step sister and step mother for partition

of his share in the business and properties etc. belonging to his deceased

father. In that suit, the appellant had stated that his father had executed a

Will 16.10.1956 but he had chosen to put his claim of 1/5th share in the

property under the law of inheritance and did not claim the benefits under

the Will. the Court framed the following issue:

CS (OS) No.579/2016                                                      Page 8.
                "Para 11.

               xxxxxx            xxxxxx               xxxxxx

5. Whether the suit on bases of Hindu Law or Hindu Succession Act is not maintainable because of the allegation that the deceased left a will?

12. The Single Judge however dismissed the suit on Issue no.5 holding

that Section 8 of Hindu Succession Act would apply to a male Hindu who

dies without leaving a valid Will and where there is a valid Will, the

property cannot devolve under Section 8 of Hindu Succession Act. The

Division Bench in that case set aside the findings of the court and held that,

the appellant was entitled in law to confine his claim on the basis of Hindu

Succession Act. The proposition of law propounded in this case is that even

if there is a will the plaintiff can choose to confine his relief under Section 8

of Hindu Succession Act.

13. The plaintiff has also relied on the Division Bench's judgment of this

court in Vikram Singh's case (supra). In Vikram Singh's case (supra) one

Sh.Gurcharan Singh died in June, 1968 leaving behind his wife

Ms.K.Gurcharan Singh, son Col.Inderjeet Singh and daughter Anant

Verinder Singh as legal heirs. Mother inherited 2/3rd share and two siblings

1/3rd each. On the demise of their mother on 09.01.2001, two siblings

CS (OS) No.579/2016 Page 9.

executed a Memorandum of Family Settlement on 09.04.2001

acknowledging each having half share in the property. The partition of the

property was sought and late Col.Inderjeet Singh sought an interim

injunction against his sister from alienating the suit property apprehending

that she was trying to sell the same. In that case, the defense was taken that

Kartar Gurcharan Kaur had executed a will dated 15.06.1990, however, the

court found that the two siblings have expressly recorded in the deed of

family settlement that Ms.Anant Verinder Singh gives up her claim under

the Will. The plea taken on behalf of Ms.Anant Verinder Singh is that if

owner of the property makes a bequest the legal heirs by consent cannot

alter the bequest. The court held as under:

34. The later argument overlooks that there exists in law a doctrine of election. It means that if two or more rights are available to a party on the same subject, it would be open to a party to elect which one right it would like to avail of. Upon the death of a person if there is a bequest by way of a Will, the legal heirs can elect whether to proceed to inherit the estate of the deceased as per the Will or inherit the estate as legal heirs and successor-in-interest of the deceased. ......

14. The findings in the above two cases are on the facts which are more

akin to the facts of this case. Thus the plaintiff is within its right to choose

to come for partition under Hindu Succession Act instead of claiming her

CS (OS) No.579/2016 Page 10.

rights under the Will dated 07.09.2011. The suit therefore, is maintainable.

15. The second argument of the defendant is that the plaintiff is liable to

pay the ad valorem court fee on the value of Rs.50,00,00,000/- at which she

has valued the suit on the ground that in para 31 and 33 she has pleaded

ouster from the property by defendant.

Learned counsel for the plaintiff argues that Para 31 and 33 of the

plaint cannot be read in isolation and whole of the plaint is to be considered

by court before reaching to any conclusion and urges that even in para 31

and 33 the plaintiff has not pleaded ouster/exclusion.

16. Section 7 of the Court Fees Act deals with the computation of fees

payable in suits. The relevant portion of Section 7 is reproduced herebelow:

"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.

CS (OS) No.579/2016 Page 11.

17. Section 8 of Suits Valuation Act, 1887 prescribes that in all the suits

other than those referred to in Section 7 paragraphs (v), (vi), (ix) and (x)

clause (d) of Court Fees Act, the court fee is payable ad valorem i.e. on the

value, determined for the purpose of jurisdiction

18. The scheme for computation of court fee payable in the suits covered

by several sub sections of Section 7 was considered by five judges in S. Rm.

Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar, AIR

1958 SC 245. The court observed as follows:

"If the scheme laid down for the computation of fees payable in suits covered by the several sub-sections of section 7 is considered, it would be clear that in respect of suits falling under sub-section (iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court-fees. The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property. The basis of the claim is that the property in respect of which a share is claimed is joint family property. In other words, it is property in which the plaintiff has an undivided share.

What the plaintiff purports to do by making a claim for partition is to ask the court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the conversion of the plaintiff's alleged undivided share in the joint family property into his separate share cannot be easily valued in

CS (OS) No.579/2016 Page 12.

terms of rupees with any precision or definiteness. That is why legislature has left it to the option of the plaintiff to value his claim for the payment of court-fees. It really means that in suits falling under section 7(iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the court in computing the court-fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to consider whether, under the provisions of this section, the plaintiff has been given an absolute right or option to place any valuation whatever on his relief."

19. This judgment was followed in Commercial Aviation and Travel

Company vs. Vimla Pannalal AIR 1988 SC 1636. In these cases the court

took the view that since the conversion of the plaintiff's undivided share in

the joint family property into his separate share cannot be easily valued in

terms of rupees with precision and definiteness and since the court itself is

unable to determine the correct value of the relief, it cannot direct the

plaintiff to correct the valuation as Order 7 Rule 11 (b) contemplates correct

valuation and not approximate correct valuation and as such correct

valuation of the relief has to be done by the court and if the same cannot be

done, order 7 Rule 11 (b) will not be applicable.

20. It is well settled proposition in law that in a suit for partition where a

joint possession is pleaded by the plaintiff on the basis that he/she is a co-

owner in law, then the court fee payable under Article 17 (vi) of Schedule

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II of the Court Fee Act on the presumption of joint possession of the

plaintiff even if she/he is not in actual possession. This court in Nisheet

Bhalla's case (supra) after considering the findings in the case Neelavathi

vs. N.Natarajan AIR 1980 SC 691, Master Kunal v. Harsh Dev

Shinghari, AIR 2003 Delhi 441, Prakash Wati's case (supra) and Supreme

Court judgment in Kamleshwar Kishore Singh vs. Paras Nath Singh AIR

2002 SC 233 culled out the following principles:

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.

10. Relying upon this judgment, this Court in Master Kunal (AIR 2003 Delhi 441) (supra) held that proper Court-fee had been paid. That was also a suit for partition and rendition of accounts and plaintiff has pleaded joint ownership and joint possession.

11. On the other hand in Smt. Prakash Wati's case (AIR 1991 Delhi 48) (supra), this Court considered the effect of

CS (OS) No.579/2016 Page 14.

the aforesaid Supreme Court judgment and came to the conclusion that since in the said case from the consideration of the pleadings in the plaint it was clear that plaintiff was never in physical possession of any portion of the property, ad valorem Court-fee was to be paid. It would be apposite to reproduce para 4 of the said judgment, which makes the following reading:

"Counsel for the plaintiff has made reference to Jagdish Pershad v. Jyoti Preshad 1975 Rajdhani LR 203, wherein it has been laid down that keeping in view 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 plaintiffs is to pay 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 , 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 of 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."

21. While considering the liability of the plaintiff to pay court fee,

the courts are to consider only the averments made in the plaint. Its

truthfulness or falsity is not the question which required to be gone

CS (OS) No.579/2016 Page 15.

into at all. All the contentions of plaint have to be taken as gospel

truth. This court in Jagdish Pershad v. Jyoti Preshad 1975 Rajdhani

LR 203, had observed as under:

"As already noted above for determining the court-fees payable on the plaint only the allegations of the plaint are to be taken into consideration. The court is not required to examine the truthfulness of the said allegation. ....

xxxxx xxxxx xxxxx There is a catena of authorities in support to the proposition that in a suit for partition of joint family property by metes and bounds when the plaintiff alleges to be in possession, either actual or constructive, of a portion of that property, the Court-fee payable is as prescribed by Article 17 (vi) of Schedule II of the Act as in such a suit what is sought is a change in the mode of enjoyment of the property and not to enforce a right to title of his share in the property. In such a case the relief is merely for change of joint enjoyment of the property into separate enjoyment and as such the suit is incapable of valuation."

22. In the case of Saroj Salkan vs. Cap Sanjeev Singh & Ors. 155 (2008)

DLT 300, a Division Bench of this Court had held that :-

"13. It is settled law that in a suit for partition, the court fees to be paid if joint possession is pleaded by the plaintiff on the basis that he is the co-owner of the property sought to be partitioned, fixed court fees would be payable under Article 17(vi) of Schedule II of the Court Fees Act presuming the joint possession of the plaintiff even if the plaintiff is not in actual possession. It is because of the reason that in the case of co-owners, the possession of one is in law possession of all, unless from the averments in the plaint read as a whole, a clear case of ouster is made and in that situation the plaintiff is liable to pay ad- valorem court

CS (OS) No.579/2016 Page 16.

fees on the market value of this share as provided under Section 7(iv)(b) of the Court Fees Act notwithstanding the fact that it is also pleaded that the plaintiff was in constructive possession."

(Emphasis added)

23. The settled law is that in a joined property possession of one is

possession of all in law even if the person is not in actual possession unless

the exclusion or ouster is pleaded. So the question is, does the averments in

the plaint when read as a whole shows that the plaintiff has pleaded

ouster/exclusion from the joint possession of the property. The defendant has

submitted that para 31 and 33 of the plaint clearly show that the plaintiff has

claimed complete exclusion from the suit properties. Para 31 and 33 are

reproduced as under:

31. That concerned from this appalling behaviour of the Defendant, the Plaintiff met the Defendant and asked for her rightful share in the aforesaid properties and partition of the suit properties by metes and bounds. To the utter shock of the Plaintiff, the Defendant refused to acknowledge her request, insulted her and told her to never visit the Suit Properties ever again. The Plaintiff is not in possession of any documents of the Suit Properties except for Jor Bagh property as mentioned hereinabove. The Defendant represented to the Plaintiff that he intends to sell some of the Suit Properties and not give the share of the Plaintiff from the sale proceeds.

33. That the Plaintiff has come to know that the Defendant is seeking to exclude the Plaintiff from her rightful

CS (OS) No.579/2016 Page 17.

inheritance and is making efforts to exclusively sell and/or create third party interest in the Suit Properties. Incalculable injury will be occasioned to the Plaintiff and the litigation will get protracted if the Defendant, by holding himself to be the owner of the Suit Property, illegally disposes off the Suit Property(s) to a third party; or in any manner does or initiates any act or makes any representation or issues letter with respect to the Suit Property(s) by holding himself to be the owner of the Suit Property(s) to any third parties, including the statutory authorities, tenants etc. Accordingly the Plaintiff is entitled to a decree of permanent injunction thereby restraining the Defendant, his agents and representatives from selling, assigning, alienating, creating third party interest or in any other way transferring or parting with possession of share of Plaintiff in the Suit Properties to any third person. The Plaintiff is also entitled to a decree of permanent injunction thereby restraining the Defendant, his agents and representatives from holding himself out as a sole owner of the estate of Late Ms. Kamal Phalpher or doing any act, deed, matter or thing as an owner of the estate of Late Ms. Kamal Phalpher and from making representation(s), issuing any letter(s) in relation to the estate of Late Ms. Kamal Phalpher, to any third person to any third parties, including the statutory authorities, tenants etc. The Plaintiff further apprehends that the Defendant might fudge the true accounts of rental income being received by the Defendant from the Vadodara Property to the detriment of the Plaintiff and deny her rightful share in the said rental income.

Accordingly, the Plaintiff is also entitled to a decree of mandatory injunction in favour of the Plaintiff and against the Defendant directing the Defendant to pay to the Plaintiff her share of monthly rental income received by the Defendant from the Vadodara Property and produce the true accounts of the rental income being received by the Defendant by leasing the entire Vadodara Property. The Plaintiff also apprehends that the Defendant may create third party interests in the Vadodara Property thereby

CS (OS) No.579/2016 Page 18.

defeating the rights of the Plaintiff in the Vadodara Property. Incalculable injury will be occasioned to the Plaintiff and the litigation will get protracted if the Defendant, by holding himself to be the owner of the Vadodara Property, illegally disposes off the Vadodara Property to a third party. Accordingly, the Plaintiff is entitled to a decree of permanent injunction thereby restraining the Defendant, his agents and representatives from selling, assigning, alienating, creating third party interest or in any other way transferring, mortgaging or parting with possession of share of Plaintiff in the Vadodara Property to any third person.

24. It is also a settled proposition of law that the ouster or exclusion

cannot be inferred by picking up certain sentences or expressions from the

plaint. The plaint should contain clear and specific averment to the effect

that the plaintiff had been excluded from joint possession to which they are

entitled in law. The impression and meaning that emerges on reading the

whole of the plaint is relevant.

25. These paragraphs therefore cannot be read in isolation. The plaintiff

has shown the details of the property owned by her mother in para 5 of the

plaint. She has also pleaded in the plaint that she had been visiting her

mother who was staying in the property No.185, Jor Bagh, New Delhi where

they had shifted when she was 12 years old and continues to stay there till

she got married on 04.03.1990. She started living in her matrimonial home

but she was regularly visiting the Jor Bagh property with her husband and

CS (OS) No.579/2016 Page 19.

daughter and belongings of her and her husband and daughter such as

clothes, documents, books, music collection are still lying in the said house.

26. The relevant paragraphs of the averments made by the plaintiff in the

plaint are as under:

8. That Late Ms. Kamal Phalpher had undivided share in the Ground Floor of property bearing no. M-10, Greater Kailash-2, New Delhi. Late Ms. Kamal Phalpher had also inherited a share in the First Floor of property bearing no. M-10, Greater Kailash-2, New Delhi. Late Ms. Kamal Phalpher also has share in the basement of property bearing no. M-10, Greater Kailash-2, New Delhi. The said properties were co-owned by Late Ms. Kamal Phalpher with the Plaintiff and Defendant. The undivided share of Late Ms. Kamal Phalpher in the said property is the subject matter of the present suit. The aforesaid properties are collectively referred to as the "GK Properties" hereinafter.

9. That Late Ms. Kamal Phalpher also had a share comprising of 317 sq. feet situated in premises bearing no. 205, Ashoka Estate, Barakhamba Road, New Delhi. The said share of Late Ms. Kamal Phalpher is the subject matter of the present suit. The aforesaid properties is referred to as the "Barakhamba Property" hereinafter.

10. That Late Mr. Janak Raj had also left behind an agricultural land near Mehrauli,New Delhi in favour of his wife. Late Ms. Kamal Phalpher. Late Ms. Kamal Phalpher had during her lifetime sold the said property for a valuable consideration. Further, the sale proceeds were utilized by Late Ms. Kamal Phaipher to buy office premises admeasuring 2100 sq. ft. in premises bearing no. Ill, 112, 113 and 114 as well as 50% of Office Premises bearing no.

119, 120 & 121 on the First Floor of Marble Arch in Vadodara, Gujarat. The office premises were bought jointly

CS (OS) No.579/2016 Page 20.

in the name of the Plaintiff, Defendant and Defendant's wife Ms. Rita Phaipher. The Plaintiff, Defendant and Defendant's wife Ms. Rita Phaipher enjoyed the usage ofthe said property and the rental income generated from these office premises. It is pertinent to mention that the Defendant used to collect the rent of the said property and remit to the Plaintiff her share separately. Since November 2005, the Plaintiff has not received any amount towards the said rent on the pretext that the same is utilized for maintaining the ground floor of the Jor Bagh Property as it was well known to the parties that after the demise of late Ms. Kamal Phaipher the ground floor would be inherited by the Plaintiff as per the wishes of the parents of the parties. After Late Kamal Phalpher's demise, the rent for the tenancy month commencing from September 2016 should be duly paid to the Plaintiff. The Plaintiffs share in the said rent has been illegally withheld by the Defendant. Therefore, through the present suit. Plaintiff also seeks rendition of accounts by the Defendant regarding the amounts received by him from the said property. After rendition of true accounts. Plaintiff is entitled to 1/3''' share in the rental income received by leasing the entire property inVadodara since September, 2016 till date and pendent lite rental income till realization, with pendent lite interest of 18% from September 2016 onwards. The aforesaid property is referred to as "Vadodara Property" hereinafter.

27. She has also clearly stated that the original title documents of Jor

Bagh property were handed over to her by her mother while the documents

of the other properties were in possession of the defendant. She seeks

indulgence of the court in directing the defendant to produce the same. She

has also clearly averred that when her mother had fallen ill in December,

CS (OS) No.579/2016 Page 21.

2015 she came to stay with her in Delhi and stayed in Jor Bagh property and

employed nurses at their house in Jor Bagh property.

28. In para 31 and 33 on which the plaintiff has relied, she has sought her

rightful share and sought partition of the property by metes and bounds and

she mentioned of the insult inflicted upon her by the defendant and the threat

given to her. She also apprehended that the defendant was in the process of

selling out all the properties without giving her share to her. She claims that

defendant is seeking to exclude the plaintiff from her rightful inheritance

and making effort to create third party interest which was likely to cause

incalculable injury to her. The defendant has failed to point out that the

averments made in para 31 and 33 leads to the conclusion that the plaintiff

has pleaded exclusion from the suit property. Rather reading of these

paragraphs show that she apprehended that if partition by metes and bounds

not done and her portion of the property is not handed over to her of which

she is the joint owner, the defendant might dispose of the properties and

create third party interest in the properties. This apprehension cannot be

considered as the pleadings of complete exclusion from the suit property.

She has expressed her apprehension that if her rights are not protected in the

jointly owned properties, the defendant might exclude her from her rightful

CS (OS) No.579/2016 Page 22.

ownership to half share in jointly owned properties. The defendant has

relied on the findings in Nisheet Bhalla's case (supra), Suresh Kapoor's

case (supra) and Col. (Retd) Anil Kumar Bansal's case (supra). The

findings in all these cases have been given on peculiar facts of those cases

where on the averments in the plaint the court reached to the conclusion that

the plaintiff had pleaded exclusion from the property to be partitioned and

directed the plaintiff to pay the ad valorem court fee.

29. In Nisheet Bhalla's case (supra), the court had averred that from the

averments in the plaint the fact that emerges were that the plaintiff was not

in possession of any portion of the suit property and the entire property was

in possession of defendant and relied on the averments in para 3 and 5 of the

application under Order XXXIX Rule 1 and 2, which are reproduced as

under:

" 3. That the said property is in the use and occupation of the defendants and they are enjoying the income being received from the said property.

5. The Defendants are, now, taking advantage of their use and occupation of the said property, in a wrong and illegal manner, attempting to dispose of or otherwise create third party interest and/or otherwise part with possession of the property or any part thereof to some third parties."

However, in this case defendant has failed to point out any averment

which shows that plaintiff has pleaded exclusion or ouster.

CS (OS) No.579/2016 Page 23.

30. In Suresh Kapoor's case (supra) the court held that the plaintiff had

admitted in the plaint that neither he nor his mother were in physical

possession of the suit property while other legal heirs of Mrs.Gullo Devi

Malhotra except Bimla Devi and her two sons were never in possession and

never realized any rent from the property. It was also stated that Bimla Devi

never rendered any account either to the plaintiff or Gullo Devi Malhotra

rather the bank account of Gullo Devi Malhotra in which the rent was to be

deposited was closed by late Bimla Devi and court held that for decades

after the death of late Beli Ram Malhotra in 1973 it were Bimla Devi and

her children who were in possession of the property or who were letting out

of the property and were keeping rental income to themselves and stated that

earlier ouster and exclusion from the possession can safely and certainly be

inferred from the plaint and therefore the plaintiff was held liable to pay ad

valorem court fee. In Col. (Retd) Anil Kumar Bansal's case (supra), the

court reached to the conclusion that bare perusal of the averments revealed

that the plaintiff was neither in actual and physical possession nor there was

any symbolic possession of the suit property and therefore they were held

liable to pay ad valorem court fee.

CS (OS) No.579/2016 Page 24.

31. The plaintiff has enumerated the properties In para 5 of the plaint in

which she is co-owner, which is reproduced as under:

5. That Late Ms. Kamal Phalpher died on 09.09.2016 leaving behind an estate (as known to the Plaintiff) comprising of movable and immovable properties enlisted herein below:

a) Immovable property admeasuring 374.89 sq. yards situated at property bearing no. 185, Jor Bagh, New Delhi, (residential house)

b) Undivided share in Immovable commercial property situated at M-10, First Floor, Greater Kailash-2, New Delhi.

c) Undivided share in Immovable commercial property situated at M-10, Ground Floor, Greater Kailash-2, New Delhi.

d)Undivided share inImmovable commercial property situated at M-10, Basement, Greater Kailash-2, New Delhi.

e) Immovable property situated at premises bearing no. 205, Ashoka Estate, Barakhamba Road, New Delhi, comprising of share equal to 317 sq. feet.

f) The personal effects including sarees, shawls and jewellery of Late Ms. Kamal Phalpher.

g) The furniture, fixtures, household items, paintings, etc. at the Ground Floor of the residential property, 185 Jor Bagh, New Delhi.

CS (OS) No.579/2016 Page 25.

h) Bank Account(s) and locker(s) held singly and jointly in the name of Late Ms. Kamal Phalpher.

i) All other movable and immovable properties held by Late Ms.Kamal Phalpher.

32. In the present case the plaintiff has clearly stated that she was visiting

and occupying along with her mother the property of 185, Jor Bagh where

she was residing with her mother since childhood till her marriage and

thereafter had been visiting her mother with her daughter and husband and

that personal belongings of her husband as well as her daughter were still

lying in the suit property. it is also important to note that their mother till

she was alive, was the sole owner of the property. It was only on her demise

on 09.09.2016 that properties devolved on parties and they became joint

owner of the properties. Immediately on demise of their mother the plaintiff

had implored the defendant to honor the Will dated 07.09.2011, but

defendant disputed the Will vide legal notice dated 23.09.2016 and e-mail

dated 26.09.2016. The plaintiff has approached the court immediately. The

plaintiff has categorically averred that she even after her marriage continued

visiting Jor Bag property with her family where her mother lived till her

demise and her and her family's personal belongings are still lying. There is

certainly no averment in the plaint to suggest ouster or exclusion.

CS (OS) No.579/2016 Page 26.

33. The plaintiff continues to be joint owner of the properties and hence

in constructive possession of the same and therefore she is not required to

pay ad valorem court fee. The arguments of defendant fail on both counts.

The suit is maintainable.

34. The matter be put up for completion of pleadings and

admission/denial of the documents on 12.01.2017 before the Joint Registrar.

Parties are directed to appear before him.

35. List before the Court on 11.04.2017.

I.A.14239/2016 (for exemption)

Exemption is allowed subject to just exceptions.

Application stands disposed of.

                                                DEEPA SHARMA
                                                   (JUDGE)
DECEMBER 01, 2016
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CS (OS) No.579/2016                                                     Page 27.