Delhi District Court
Through vs Rajinder Prasad Pandya (Since ... on 6 August, 2022
IN THE COURT OF SH. NAROTTAM KAUSHAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE
(SOUTH), SAKET COURTS, NEW DELHI
MCA No.31/2019 CNR No.DLST010069592019
MEMO OF PARTIES
KUHU
Wd/o Late Sh.Samrat Pandya,
Presently married to Sh.Abhinav Aagrawal
R/o 4, Candy Street, Morley,
Western Australia6062, Australia
Through
KUMAR BODH ADVOCATE
Power of Attorney Holder,
11B, Mathura Road,
Opp. Rajdoot Hotel, New Delhi
Appellant...
VERSUS
1 RAJINDER PRASAD PANDYA (Since Deceased)
through Legal Heirs.
1A MAYA PANDYA
W/o Late Sh.Rajinder Prasad Pandya,
R/o 86 B, DDA Flats, Masjid Moth,
PhaseII, Delhi
1B AGGYA PANDYA
D/o Late Sh.Rajinder Prasad Pandya,
R/o 86 B, DDA Flats, Masjid Moth,
PhaseII, Delhi
MCA No.-31/2019 Page No.-1 of 12
1C RASHMI SADANA
W/o Sh.Amit Sadana,
R/o 84, Anupam Apartments,
M.G.Road, New Delhi17
1D MEGHNA BHATT
W/o Sh.Pradeep Bhatt
R/o House No.2B, SFS CategoryI
Shekh Sarai Road, PhaseI,
New Delhi17
1E SEEMIA VIDYARTHY
W/o Sh.Sharad Vidyarthy,
R/o B105, Prabha Apartments,
Sector 23, Dwarka, New Delhi
2 MAYA PANDYA (Motherinlaw)
W/o Sh.Rajinder Prasad Pandya,
R/o 86 B, DDA Flats, Masjid Moth,
PhaseII, Delhi
3 AGGYA PANDYA
D/o Late Sh.Rajinder Prasad Pandya,
R/o 86 B, DDA Flats, Masjid Moth,
PhaseII, Delhi
4 RASHMI SADANA
W/o Sh.Amit Sadana,
R/o 84, Anupam Apartments,
M.G.Road, New Delhi17
5 MEGHNA BHATT
W/o Sh.Pradeep Bhatt
R/o House No.2B, SFS CategoryI
Shekh Sarai Road, PhaseI,
New Delhi17
MCA No.-31/2019 Page No.-2 of 12
6 SEEMIA VIDYARTHY
W/o Sh.Sharad Vidyarthy,
R/o B105, Prabha Apartments,
Sector 23, Dwarka, New Delhi
Respondents...
DATE OF INSTITUTION :10.10.2019
DATE OF ARGUMENTS :11.07.2022
DATE OF ORDER :06.08.2022
Argued by: Sh.Harpreet Singh Bawa, Counsel for appellant
Sh.Jagjit Singh, Sh.Preet Singh &
Sh.Vipin Chaudhary, Counsel for respondent
JUDGMENT
1 Present miscellaneous appeal is directed against order dated 30.05.2018 passed by ASCJ, South District, District Court Saket, New Delhi; vide which application moved by the respondent/ defendant u/o 7 Rule 11 CPC has been allowed and the plaint has been ordered to be returned to the appellant/ plaintiff.
2.1 Brief facts necessary for disposal of the appeal are that : the plaintiff, who is widowed daughterinlaw of the respondents no.2 and widowed sisterinlaw of the remaining respondents, instituted a suit for declaration, partition, mesne profits, possession, rendition of the accounts and permanent injunction. It was the case of the plaintiff/ appellant that her husband died intestate on 20.08.2009 and being the widow of the MCA No.-31/2019 Page No.-3 of 12 son and brother of the defendants, she had inherited share in the properties of her late husband and also the share in ancestral properties left behind and also RBI relief bonds worth Rs.15 Lakhs. Details & descriptions of as many as 13 immovable properties have been given in para no.28 of the plaint. Present appellant/ plaintiff sought declaration that she is owner of the aforesaid properties, which were held jointly, as joint Hindu family property. She also sought partition & possession of the same. However, for the purposes of court fee and jurisdiction, the suit was valued at Rs.130/ and a court fee of Rs.13/ was affixed. It was further pleaded that for this relief of possession, court fee which will be payable on the share of the plaintiff shall be paid after the preliminary decree is passed.
2.2 Present respondents/ defendants sought rejection of the plaint on the ground that the suit was not maintainable and was barred under the Hindu Succession Act. Suit as instituted is a declaratory suit also seeking partition of the property. It was pleaded that there was no ancestral or joint Hindu family property as pleaded. It was next pleaded that most of the property has devolved upon defendant no.2 by way of a Will executed by her motherinlaw Mrs. Kalawati with respect to the property, which was selfacquired property of Mrs.Kalawati.
2.3 Plaint is also sought to be rejected on the ground that suit has not been valued correctly. Since the relief of partition MCA No.-31/2019 Page No.-4 of 12 and possession has been sought with respect to as many as 12 properties, the suit should have been valued as per the market value of the properties and not at a fixed rate of Rs.130/.
2.4 Appellant/ plaintiff contested the application. However, the trial court, vide the impugned Order dated 30.05.2018, held the suit to be maintainable. It was observed that plea of defendants that the suit property was self acquired property of Kalawati can not be looked into, as the same is a matter of defence. Contents of the plaint however declare the same to be joint Hindu family property qua which the plaintiff's husband certainly has a right under the law. Therefore, the suit was held to be maintainable and existence of cause of action was also observed by the Trial Court. Nonetheless, the trial court held that the suit had not been properly valued. Having sought the relief of possession, court fee was payable advalorem on the market value of the property as the plaintiff was not in possession. The valuation of Rs.130/ and court fee of Rs.13/ was not found by the trial court to be correct valuation. Plaint was, therefore, ordered to be returned to the plaintiff.
3 Aggrieved by the aforesaid order, present appeal has been preferred.
4 Sh.Harpreet Singh Bawa, Counsel for appellant has argued that the trial court has committed an error in observing MCA No.-31/2019 Page No.-5 of 12 that the appellant was not in possession. It is argued that the appellant/ plaintiff being one of the cosharers shall be deemed to be in constructive position of the suit property. Thus, court fee payable is not advalorem, rather fixed court fee of Rs.130/ was payable. It was also argued that in case of coowners, possession of one is deemed to be possession of all. The possession of plaintiff/ appellant was constructive and, therefore, advalorem court fee was not payable. Reliance has been placed upon law laid in Krishna Gupta & Anr. Vs. M/s. Rajinder Nath and Co. HUF and Ors. reported as (2013) 5 AD (Delhi) 537, wherein it is 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 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.
MCA No.-31/2019 Page No.-6 of 12Reliance has also been placed upon law laid down by Hon'ble Supreme Court in S. Rm. Ar.S. Sp. Sathappa Chettiar Vs. S. Rm. Ar. Rm. Ramanthan Chettiar reported as 1958 AIR 228 Supreme Court. On the strength of law laid down in Nagabhushanammal Vs. C.Chandikeswaralingam reported as (2016) AIR (SCW) 1134, it is argued that possession of one coowner is presumed to be on behalf of all coowners.
5 Appeal is strongly contested by Sh.Jagjit Singh, counsel for the respondents and it is argued that there is no irregularity or illegality in the impugned order. The same does not call for any interference. Trial Court has taken the right view that advalorem court fee is payable and not the fixed court fee. Reliance has been placed upon law laid down in Col. (Retd) Anil Kumar Bansal & Anr. Vs. Shri R.K.Bansal & Ors. bearing CS (OS) No.387/2007 decided on 05.11.2012 by the Hon'ble High Court of Delhi. Counsel for the respondents has also placed reliance upon law laid down in Satheedevi Vs. Prasanna & Anr. bearing Civil Appeal No. 4347/2010 decided on 07.05.2010 by the Hon'ble Supreme Court of India.
6 I have heard Sh.Harpreet Singh Bawa, Counsel for the appellant and Sh.Jagjit Singh, Counsel for respondents and with their assistance, I have gone through the impugned Order, cited judgments and the trial court record.
MCA No.-31/2019 Page No.-7 of 127.1 Short point involved in the present appeal is whether the plaintiff has correctly valued the suit for jurisdiction, as well, as court fee. At the threshold, it may be noticed that suit has been instituted for declaration, partition and possession among other reliefs. A study of the plaint reveals that the plaintiff has not pleaded herself to be in actual & physical possession of the suit property. She has also not pleaded herself to be in constructive or symbolic possession. Though, it is sought to be argued by Sh.Harpreet Singh Bawa, Counsel for the appellant/ plaintiff that plaintiff is in possession as a cosharer; however, it has not been so pleaded in the plaint. In the absence of any such pleading, the appellant can not read the facts so as to suit her case and to make it tailor fit with the judgments relied upon. It may be noticed that in para no.34 of the plaint, plaintiff has specifically pleaded that she was forced to leave the matrimonial home on 19.11.2009. Thus, she was not in possession of any of the suit properties on the day she instituted the suit i.e. on 03.02.2014. The fact that she is not in possession is also contained in para no.29 of the plaint, where she has sought partition & possession of the suit property, which is allegedly held jointly as Hindu joint family property. Plaintiff's reliance upon law laid down in Nagabhushanammal's case (supra) is misconceived, as the Hon'ble Supreme Court has specifically held that the possession of one coowner is presumed to be on behalf of all coshare owners, unless it is established that the possession of coowner is in denial of title of coowners and MCA No.-31/2019 Page No.-8 of 12 possession is in hostility to coowners by exclusion of them. It is the case of appellant/ plaintiff herself that she was ousted from the matrimonial home on 19.11.2009. Therefore, evidently the coowners are in possession hostile to that of the plaintiff. Therefore, judgment relied upon by the appellant does not come to her rescue.
7.2 Similarly, the law laid down in Krishna Gupta & Anr's case (supra) also does not help the appellant/ plaintiff, in the said case also it was held that fixed court fee is to be paid, if joint possession is pleaded by plaintiff. However, as noticed above, plaintiff has not pleaded joint possession, rather she has pleaded to have been ousted from the matrimonial home. On the contrary, the judgment relied upon by respondent's counsel i.e. Col. (Retd) Anil Kumar Bansal & Anr.'s case (supra) applies with all force on the facts of the present case, wherein, it was held that if there is complete ouster of a joint owner from the affairs of immovable property, advalorem court fee is payable. For ready reference, para no.7 & 8 of the judgment are reproduced hereinbelow:
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 MCA No.-31/2019 Page No.-9 of 12 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 & 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. MCA No.-31/2019 Page No.-10 of 12 Natarajan and others, AIR 1980 SC 691, wherein the Supreme Court has laid down that it is settled law that the question of Courtfee 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 courtfee on the value of her share. I order accordingly. The deficiency in the Courtfee be made up within ten days and the suit be listed for further proceedings on August, 22, 1990, in 'Short Matters'."
Similar view had earlier been taken by the Hon'ble Supreme Court of India in Satheedevi's case (supra).
7.3 In view of the law laid down by Hon'ble High Court of Delhi in Col. (Retd) Anil Kumar Bansal & Anr.'s case (supra) and Hon'ble Supreme Court in Satheedevi's case (supra), this court is of the opinion that plaintiff/ appellant, who has not pleaded to be in joint or constructive possession of any of the suit properties and has rather pleaded her ouster is liable to pay advalorem court fee on the market value of the suit MCA No.-31/2019 Page No.-11 of 12 properties. It may be noticed that the plaintiff has sought partition, possession & declaration with respect to as many as 12 properties and has not pleaded market value of any one of them. She has also sought her share in RBI Relief Bonds of Rs.15 Lakhs. In the absence of value of the properties having been pleaded and advalorem court fee having been paid on the basis of market value, the plaint was liable to be rejected and trial court has committed no error in returning the plaint to the plaintiff/ appellant. Thus, finding no error in the impugned order dated 30.05.2018 passed by ASCJ, South District, District Court Saket, New Delhi; the same is upheld. Appeal is accordingly dismissed.
8 Appeal file be consigned to record room. Trial Court record be sent back along with copy of this judgment.
Digitally signed by NAROTTAM NAROTTAM KAUSHAL KAUSHAL Date: 2022.08.06 16:35:14 +0530 Announced in (NAROTTAM KAUSHAL) the open court on Principal District & Sessions Judge (South) 06.08.2022 Saket Courts, New Delhi MCA No.-31/2019 Page No.-12 of 12