Delhi High Court
Ms. Nishi Jha & Anr. vs Rakesh Bhatnagar & Anr. on 3 February, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 49/2016
% 3rd February, 2016
MS. NISHI JHA & ANR. ..... Plaintiffs
Through: Mr. S.N.Singh, Mr. Praveen Kumar,
Mr. Rajeev Gupta and Mr. Navlender
Kumar, Advs.
versus
RAKESH BHATNAGAR & ANR. ..... Defendants
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This suit is filed by the two plaintiffs. The two plaintiffs are the sisters
of the defendant no.1. Defendant no.2 is the wife of the defendant no.1.
Essentially, the dispute between the parties is with respect to the immovable
property bearing plot no.C-25, admeasuring 231.67 sq mtrs located in the lay
out plan of Railway Board Employees Co-operative Group Housing Society
Ltd., Anand Vihar, Delhi-110092 (hereinafter referred to as 'the suit property')
purchased allegedly from the funds from the sale of the property bearing
no.D/342, Anand Vihar, Delhi-110092, and which belonged to the father of the
parties and whose estate is essentially sought to be partitioned in terms of the
prayer made in this suit, though certain movable assets are also referred to for
recovering plaintiffs' shares.
CS(OS) No.49/2016 Page 1 of 5
2. Plaintiffs who are the sisters claim that that the suit property though
was purchased in the joint names of the father Sh. Maheshwari Prasad
Bhatnagar and the brother/defendant no.1, however, it is claimed that monies
for purchase of this property were paid only by the father Sh. Maheshwari
Prasad Bhatnagar and no monies were contributed by the defendant no. 1
who is the co-owner as per the title deeds.
3. I have, during the course of hearing, repeatedly put it to the counsel
for the plaintiffs that suit of such a nature as the present is ex facie barred by
the provision of Section 4(1) of the Benami Transactions (Prohibition) Act,
1988, inasmuch as, once the suit property is admittedly as per the title deeds
co-owned by the late father Sh. Maheshwari Prasad Bhatnagar, with his
son/defendant no.1 i.e the brother of the plaintiffs, then even if an averment
is made that monies were paid only by the father, yet, such a suit cannot take
away the right to 50% ownership of the suit property which would vest with
the defendant no.1. Plaintiffs, therefore, at best would only have a right in
the half share of the father Sh. Maheshwari Prasad Bhatnagar in the said
immovable property, and of course provided Sh. Maheshwari Prasad
Bhatnagar had died intestate.
CS(OS) No.49/2016 Page 2 of 5
4. Also, a reference to para 4 of the suit plaint shows that there is an
admission of ouster of the plaintiffs from the suit property inasmuch as the
plaintiffs themselves make an averment that plaintiffs have been restrained
from using their respective portions of the suit property which were in their
possession ie the defendants have effectively ousted the plaintiffs from
physical possession of the suit property, and once that is so, that there is
admittedly an ouster of the plaintiffs, plaintiffs have to necessarily sue for
possession and pay ad valorem court fees on the shares which fall to the
plaintiffs.
5. I may also note that plaintiffs in the plaint have pleaded entitlement to
various movable properties belonging to the father Sh. Maheshwari Prasad
Bhatnagar but the plaintiffs who ought to have tentatively valued the suit for
recovery of monies in terms of Order VII Rule 2 of the Code of Civil
Procedure, 1908 (CPC) have not done so, but have simply valued the suit for
monies and movables properties at Rs.200 by paying court fee of Rs.20.
This is not permissible in view of Order VII Rule 2 CPC which requires the
plaintiffs to make necessary estimate as to the monies which would be due to
the plaintiffs, assuming the father died intestate and the movable properties
CS(OS) No.49/2016 Page 3 of 5
which are the subject matter of the plaint, belonged to the father Sh.
Maheshwari Prasad Bhatnagar.
6. In view of the above, the suit is ex facie barred by the provision of
Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 to the
extent of 50% share in the suit property of the defendant no. 1 i.e there does
not exist 2/3rd right of the two plaintiffs (who are the two sisters of defendant
no.1) in the suit property. So far as the claim with respect to possession is
concerned, since counsel for the plaintiffs continues to assert that plaintiffs
are not liable to pay court fee, but since in para 4 of the plaint ouster is
clearly found to be pleaded by the plaintiffs themselves, plaintiffs were
bound to have sued for possession and paid ad valorem court fee on their
shares, and which has not been paid. Also, so far as money decree is
concerned, the suit is not valued for the purposes of court fee and
jurisdiction and the appropriate court fee not paid in terms of Order VII Rule
2 CPC.
7. In view of the above the suit plaint is dismissed under Section 4(1) of
the Benami Transactions (Prohibition) Act, 1988 so far as the claim with
respect to 2/3rd rights of the plaintiffs in the immovable property is
concerned, and the plaint is rejected so far as the claim with respect to
CS(OS) No.49/2016 Page 4 of 5
whatever share in the immovable property which may fall to the shares of
the plaintiffs on account of the plaintiffs not being in possession but not
suing for possession by paying ad valorem court fees. For recovery of
monies plaint is rejected on account of non-payment of requisite court fees
by not properly valuing the suit as required by Order VII Rule 2 CPC. Since
the suit is dismissed, all pending applications stand disposed of.
FEBRUARY 03, 2016 VALMIKI J. MEHTA, J.
ib
