Delhi High Court
Col.(Retd) Anil Kumar Bansal & Another vs Shri R.K. Bansal & Others on 5 November, 2012
Author: Hima Kohli
Bench: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 387/2007
Date of Decision: 5th November, 2012
IN THE MATTER OF:
COL.(RETD) ANIL KUMAR BANSAL & ANOTHER ..... Plaintiffs
Through: Mr. D.S. Vohra, Advocate
versus
SHRI R.K. BANSAL & OTHERS ..... Defendants
Through: Mr. T.C. Chaudhary, Advocate for
LRs of D-1 & D-3.
Mr. S.C. Rana, Advocate for D-2.
Ms. Kusum Sanehi, Advocate for D-5.
Mr.A.K. Sharma, Advocate for D-4,9,11,12 & 18.
Mr. K.K. Bhalla, Advocate with Mr. S.K. Kalia,
Advocate for D-14 to D-17.
Mr. Anil Sapra, Senior Advocate with Mr. Rahul
Kumar and Mr. S. Sharma, Advocates for D-19.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (Oral)
I.A. No. 8753/2010 (by the defendant No.19 u/O VII R 11 CPC)
1. The present application has been filed by the defendant No.19, praying inter alia that the suit for partition, declaration and injunction instituted by the plaintiffs against the defendants be rejected on the ground that insufficient court fees has been affixed on the plaint.
2. Mr. Anil Sapra, Senior Advocate appearing for the applicant/defendant No.19 states that a bare perusal of the averments made in the plaint reveals that the plaintiffs are neither CS(OS) 387/2007 Page 1 of 13 in actual and physical possession, nor are they in symbolic possession of the suit properties bearing No.24 and 27, Sri Ram Road, Civil Lines, Delhi, and therefore, under the provisions of the Court Fees Act, 1870, they are liable to pay ad valorem court fees on the shares claimed by them in the suit premises, which should be assessed on their market value. He further states that as per the assessment made by the plaintiffs in para 26 of the plaint, they have valued the relief of partition at `15 crores and assuming without admitting the said valuation to be correct, the plaintiffs are liable to pay the ad valorem court fees on the aforesaid value of the shares claimed by them in the suit premises for the relief of partition and possession thereof. In support of the aforesaid submission, learned counsel for the defendant No.19 relies on the decision in the case of Smt. Prakash Wati vs. Smt. Dayawanti and Anrs. reported as AIR 1991 Delhi 48.
3. A reply in opposition to this application has been filed by the plaintiffs, wherein the averments made in the application have been denied and they have asserted that the suit properties have been correctly valued and they have paid the requisite court fees on the plaint, as per law. Learned counsel for the plaintiffs submits that even if the court fees that has been affixed on the plaint is found to be deficient, the plaintiffs may be permitted to pay the requisite court fees as per their shares, only after the suit is finally decided. CS(OS) 387/2007 Page 2 of 13 It is further argued by learned counsel that the plaintiffs are entitled to value the suit as they may deem appropriate, which valuation would have to be treated as final and conclusive and the said valuation of the suit properties cannot be interfered with either by the Court or by the defendants. In support of the aforesaid submission, he relies on the following decisions:-
(i) Neelavathi and Ors. vs. N. Natarajan and Ors. reported as AIR 1980 SC 691.
(ii) Kesho Mahton and Ors. vs. Ayodhya Mahton and Ors.
reported as AIR 1983 Patna 67.
(iii) Jagannath Amin vs. Seetharama (dead) by LRs and Ors.
reported as JT 2006 (10) SC 397
4. The Court has heard the arguments addressed by the counsels for the parties in the light of the averments that have been made by the plaintiffs in the plaint. For the purpose of deciding the question of court fees that is payable by the plaintiffs, it is necessary to examine the averments made in the plaint. The reliefs that have been claimed by the plaintiffs in the present suit, are as below:-
"(a) A preliminary decree for partition may be passed in respect of suit properties No.24 and 27, Sri Ram Road, Civil Lines, Delhi and possession be given to them of their share and a local commissioner be appointed for that purpose and in case partition is not feasible, then they may be sold and proceed of the sale be divided amongst them as per the law.CS(OS) 387/2007 Page 3 of 13
(b) A decree of mandatory injunction be passed against Defendants No.4 and 12 to furnish all the details of title deeds of all the family properties, jewellery, the details of fixed deposits in banks, cash, R.B.I. Bonds, bank balance(s), other investments and benami properties left by Shri Uttam Prakash Bansal, Smt. Kusum Lata etc. etc.
(c) A decree of declaration be passed to the effect that sub division of property No.24, Sri Ram Road, Civil Lines, Delhi and transfer of property No.27, Sri Ram Road, Civil Lines, Delhi to Gulab Devi Charitable Trust was illegal, malafide, void and done for extraneous purpose by Shri Uttam Prakash Bansal. That the recent transfer of Gulab Devi Charitable Trust by inducting Shri Anil Sarin, Shri Ashok Sarin and their associates as trustees in place of Shri Ram Dev, Shri Nand Kishore and Shri Arjun Dev, the remaining trustees, for the purpose of transferring of property No.27, Sri Ram Road, Civil Lines, Delhi was illegal malafide, void and it continues to be the property of the plaintiffs and defendants No.1 to 3.
(d) A decree of declaration be passed to the effect that Defendants No.4 to 18 are not the children/relations of Shri Uttam Prakash Bansal but they are the sons and daughters of Shri Mahi Lal and Smt. Kusum Lata and are not legally entitled to get properties and assets left by Shri Uttam Prakash Bansal and instead the plaintiffs with defendants No.1 to 3 being his sons and daughter are entitled to inherit the family properties and assets left by Shri Uttam Prakash Bansal.
(e) A decree of permanent injunction be passed against Defendants No.4 to 19 that they will not deal with properties Nos.24 and 27, Sri Ram Road, Civil Lines, Delhi or transfer them in any manner and alter their present status, give permission to third parties, outsiders and receive rents from the tenants etc.
(f) A decree of accounts be passed ordering Defendants No.4 to 19 to render accounts of all the money received by them by way of rents, CS(OS) 387/2007 Page 4 of 13 profits/sale proceeds, if any etc. from the properties Nos.24 and 27, Sri Ram Road, Civil Lines, Delhi from time to time during and thereafter on the death of Shri Uttam Prakash Bansal including Rs.3.5 crores received by them.
(g) The Court may further, in its judicial inherent powers, order for initiation of criminal proceedings due to purgery committed by Shri Ram Dev, Defendant No.4 and Shri Arjun Dev, Defendant No.12."
5. In para 26 of the plaint, the plaintiffs have claimed that the approximate value of the suit properties, for the purpose of jurisdiction, is `15 crores and they have paid the court fee of `20,000/- thereon. The said para is reproduced hereinbelow for ready reference:-
"26. That the value of the suit for the purpose of court fee and jurisdiction is :
(a) For the relief of partition of properties.
Jurisdiction value Rs.15 crores
Court fee paid Rs.20,000/-
The plaintiffs will pay court fee per their share as determined under Order 7 Rule 2 CPC.
(b) For the relief of permanent injunction.
Jurisdiction value Rs.200/-
Court fee paid Rs.20/-
(c) For the relief of mandatory injunction.
Jurisdiction value Rs.200/-
Court fee paid Rs.20/-
(d) For the relief of declaration.
Jurisdiction value Rs.200/-
Court fee paid Rs.20/-
CS(OS) 387/2007 Page 5 of 13
(e) For the relief of mandatory injunction (d).
Jurisdiction value Rs.200/-
Court fee paid Rs.20/-
(f) For rendition of account.
Jurisdiction value Rs.200/-
Court fee paid Rs.20/-
The plaintiffs will pay further court fee per their share as determined after the accounts are determined."
6. In paras 11 and 12 of the plaint, the plaintiffs have stated as below:-
"11. After his move to 24, Sri Ram Road, Civil Lines, Delhi in the year 1961, Shri Uttam Prakash Bansal had allotted one bed room with attached bath room to each of his four sons, plaintiff No.1 and defendants No.1 to 3 and his daughter, plaintiff No.2 on the first floor of the family/ancestral property which was occupied by him with his children. Even though two of his sons had joined the Army and the other two had left for foreign countries and his daughter was married, they continued to hold their respective accommodation under lock and key, where they kept their luggage, belongings and non-essential stores in the said property till the death of their father Shri Uttam Prakash Bansal in August 2000. They all stayed with their father whenever they visited Delhi which was very often; especially his two sons in the Army while on their two months annual leave every year from their places of postings and operational areas and on their transfer to Army Headquarters at New Delhi etc. and also his daughter whose husband was also an Army officer. His two sons in foreign lands also visited Delhi with their families and stayed with him on a number of occasions. .......
12. That after the death of Shri Uttam Prakash Bansal in August, 2000, the family of Shri Mahi Lal and Smt. Kusum Lata, who were living separately at 24, Sri Ram Road, Civil Lines, Delhi, in the absence of the plaintiffs and Defendants No.1 to 3 illegally took over the entire accommodation of Shri Uttam Prakash Bansal and CS(OS) 387/2007 Page 6 of 13 impounded all their belongings thinking that the entire property had been gifted to them, prior to his death, by Shri Uttam Prakash Bansal. They prevented their entry in the said accommodation by posting security guards and by making false and fabricated police reports. They are yet to account for the belongings of the plaintiffs and defendants No. 1 to 3 that are still there."
7. Once there is a complete ouster of a joint owner from possessory management of or any other direct involvement in the affairs of immovable properties, it would be necessary for such a person to pay the requisite ad valorem court fees. In the case entitled Sudershan Kumar Seth vs. Pawan Kumar Seth & Ors., reported as 124 (2005) DLT 305, it was held that it is settled law that in order to decide as to what relief has been claimed by the plaintiff, the entire plaint has to be read and only on perusal thereof can it be inferred that the plaintiff is in possession of any of the properties to be partitioned, and if so, then the court fees is 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. However, if the conclusion is contrary thereto, then the plaintiff has to pay the court fees under Section 7(iv)(b) of the Court Fees Act, i.e., on the value of the plaintiff‟s share. (Ref.: Jamila Khatoon vs. Saidul Nisa, AIR 1999 Delhi 48, Smt. Prakash Wati vs. Smt. Daywanti, AIR 1999 Delhi 48, Ms. Ranjana Arora vs. Satish Kumar Arora, 80(1999) DLT 357, Harjit Kaur & Ors. vs. Jagdeep Singh Rikhy, 2004 VII AD (Delhi) 567, Rajiv Oberoi & Ors. vs. Santosh Kumar Oberoi & CS(OS) 387/2007 Page 7 of 13 Ors. 2005 (80) DRJ 120) & Smt. Sonu Jain vs. Shri Rohit Garg & Ors., 128 (2006) DLT 633).
8. In the case of Prakash Wati (supra), taking into consideration the reliefs claimed in the plaint by the plaintiff therein and the fact that she was not in possession of the properties, the court had held as below :
"4. Counsel for the plaintiff has made reference to Jagdish Pershad v. Joti Pershad, 1975 Rajdhani Law Reporter 203, wherein it has been laid down that keeping in view of 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 plaintiff is to pay only 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 Neelavathi and others v. N. Natarajan and others, 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 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. I order accordingly. The deficiency in the Court-fee be made up within ten days and the suit be listed for further proceedings on August, 22, 1990, in „Short Matters‟."CS(OS) 387/2007 Page 8 of 13
9. The court fees that is required to be paid by the plaintiffs, for seeking the relief of partition of the suit properties by metes and bounds, has to be examined in the context of Section 7 of the Court Fees Act, 1870 which prescribes computation of fees payable in suits. The relevant extract of Section 7 is reproduced hereinbelow:-
"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."
10. Further, Section 8 of the Suits Valuation Act, 1887 stipulates that in suits other than those referred to in the Court Fees Act, Section 7, paragraphs V, VI, IX and X, clause (d), court fees is payable ad valorem, the value as determinable for the computation of court fees and the value for purpose of jurisdiction shall be the same.
CS(OS) 387/2007 Page 9 of 13
11. Thus, Section 7(iv)(b) of the Act prescribes the court fees at which the relief sought is valued in the plaint and under Section 8 of the Suits Valuation Act 1987, the plaintiff is required to value the suit for the purpose of court fee and jurisdiction identically except for the exceptions provided for under Section 7 of the Court Fee Act, 1870.
12. A bare reading of the entire plaint reveals that the plaintiffs have not made any submission to the effect that they were in actual physical possession or even in symbolic possession of any part of the suit premises bearing No. 24 and 27, Sri Ram Road, Civil Lines, Delhi, at the time of instituting the suit. On the contrary, a perusal of paras 11 and 12 of the plaint reveals that the plaintiffs have themselves clearly admitted that they used to keep their luggage, belongings and other non-essential stores in the premises No.24, Sri Ram Road, Civil Lines, Delhi, till the date of demise of their father, Shri Uttam Prakash Bansal, in August, 2000 and upon his demise, the family of Shri Mahi Lal and Smt. Kusum Lata had illegally taken over the entire accommodation and they had impounded all their belongings and further, that they had prevented the entry of the plaintiffs and the defendants No.1 to 3 in the said premises.
13. As regards premises No.27, Sri Ram Road, Civil Lines, Delhi, it has been averred in para 17 of the plaint that in the year 1990, CS(OS) 387/2007 Page 10 of 13 the deceased, Shri Uttam Prakash Bansal had made a trust called „Gulab Devi Charitable Trust‟ and in the year 1995, he had transferred the property to the trust. Though there were some old tenants residing therein and cases of eviction were going on, the trustees had got the entire building demolished from the MCD to rid the same of old tenants and the plot was lying vacant. A bare perusal of the aforesaid paras reveals that there is no averment therein to the effect that the plaintiffs or for that matter, the defendants No.1 to 3 were in actual physical possession or even symbolic possession of the aforesaid premises, at the time of instituting the present suit. Nor do they claim any direct involvement in managing the affairs of the suit premises. Instead, the plaintiffs have specifically admitted their exclusion from possession.
14. There can be no quarrel with the contention of the counsel for the plaintiffs that the fixation of the value of the suit is in the sole discretion of the plaintiffs and the valuation of the suit as assessed by the plaintiffs will have to be taken as correct. However, once the plaintiffs have exercised such a discretion, they are under an obligation to pay the court fees in accordance with the provisions of the Court Fees Act, 1870 and the Schedule enclosed therewith.
15. When the plaintiffs have themselves chosen to value the suit for the purposes of court fees and jurisdiction at Rs.15.00 crores, CS(OS) 387/2007 Page 11 of 13 then they are required to deposit the ad valorem court fees on the basis of their own valuation. In such circumstances, the decisions relied upon by the learned counsel for the plaintiffs, as mentioned in para 3 above, cannot be of any assistance to the plaintiffs for the reason that for the purposes of deciding the present application, defendant No.19 has chosen not to question the valuation given by the plaintiffs in the suit, but is only calling upon them to deposit the court fees on the basis of the very same valuation, without prejudice to the argument that the suit valuation is arbitrary or unreasonable.
16. It is clear that upon a bare reading the entire plaint as a whole and in particular, paras 11, 12 and 26 thereof, the plaintiffs have not been able to establish the fact that at the time of institution of the suit, they were in possession of any portion of the suit premises, either actual or physical or symbolic, for claiming a right to pay any amount less than the ad valorem court fees on the value of their shares, as has been done by them. Rather, the plaintiffs have admitted their exclusion from the joint possession of the suit premises.
17. In view of the aforesaid facts and circumstances, this Court is of the opinion that the plaintiffs are required to pay ad valorem court fees on the value of their shares, for seeking the relief of partition and possession of their separate shares in the suit CS(OS) 387/2007 Page 12 of 13 premises.
18. In the facts and circumstances of the case, the present application is allowed. As the provisions of Order VII, Rule 11 (b) require that an opportunity be afforded to the plaintiffs to supply the requisite stamp paper, they are directed to deposit the ad valorem court fees on the value of their shares as claimed in the suit premises after adjusting the amount that has already been paid by them. The deficiency in the court fees shall be made good by the plaintiffs within a period of two weeks, failing which the court shall be compelled to dismiss the suit.
19. List on 10th December, 2012, in the category of „directions‟, for reporting compliance of this order.
(HIMA KOHLI)
NOVEMBER 5, 2012 JUDGE
rkb/sk/mk
CS(OS) 387/2007 Page 13 of 13