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[Cites 18, Cited by 0]

Delhi District Court

Sh. Ravinderjit Singh Sethi vs Smt. Gurbachan Kaur on 23 November, 2011

              IN THE COURT OF SHRI ARUN GOEL, CIVIL  JUDGE, 
             **********************************************************

WEST: DISTRICT TIS HAZARI COURTS, DELHI SUIT NO: 229/2009 Date of Institution : 28.07.2009 Date of reservation of order : 16.11.2011 Date of pronouncement of order : 23.11.2011 IN THE MATTER OF:

Sh. Ravinderjit Singh Sethi S/o Late Sh. Harbans Singh Sethi Ro H­23, Bali Nagar New Delhi.
.........Plaintiff VERSUS
1.Smt. Gurbachan Kaur W/o Late Sh. Harbans Singh Sethi R/o H­23, Bali Nagar
2. Sh. Maniderjit Singh Sethi (performa defendant no.2) S/o Late Sh. Harbans Singh Sethi R/o WZ_6 & 7, Raja Garden New Delhi.

....... Defendants Vide this order I propose to dispose off the preliminary issues framed vide order 05.05.2011.

1. The plaintiff has filed the present suit stating that he is staying at the property bearing no. House No 23, Bali Nagar, New Delhi (herein after referred as 'suit property') since 1972. The suit Suit No. 229/09 Page No. 1/18 property was purchased in the year 1969­1970 by the father of the plaintiff in the name of his wife Smt. Gurbachan Kaur, who is the mother of the plaintiff and the defendant no. 1 in the present case. It is further submitted that the entire sale consideration was paid by the father of the plaintiff and no money was spent by the defendant no. 1 for the purchase of the suit property, as she had no self source of income from any business.

2. The purchase of the suit property in the name of the defendant no. 1 was benami transaction and the suit property was purchased only as she was head of the family and also a co­parcener in a Hindu Undvided Family. It is further stated that the suit property was purchased for the benefit of both the plaintiff and the defendants. The plaintiff has further stated that his father died in the year 1983 leaving behind legal heirs, mother, wife, two sons and one daughter.

3. It is further stated that after the death of his father, in the year 1995, it was orally settled between the parties that the plaintiff shall take care of the defendant no.1 and the first floor shall be used and occupied by the defendant no. 1 and along with the rental income. The plaintiff has further stated that the father of the plaintiff was the owner of two properties i.e WZ­6­7, Raja garden, New Delhi (herein after referred as 'property no. 1') and WZ - 79, Maya Puri Industrial Area, Phase - Ii, New Delhi (herein after referred as 'property no. 2'). The following oral family settlement was arrived between the parties on 2.5.1995 :­

a) The suit property was given to the plaintiff along with 2/3rd share out of the property no. 2.

Suit No. 229/09 Page No. 2/18

b) The property no.1 alongwith 1/3rd share in property no.2 was given to the defendant no.2.

c) As per the settlement defendant no.2 surrendered his possession and vacated suit property .

d) As per the settlement plaintiff constructed a kitchen at the second floor of the suit property and shifted to the second floor.

e) Defendant no.1 is enjoying rental income from the suit property as well as property no. 1.

f) It was further agreed that there is no rental income to defendant no.1. The plaintiff and defendant no.2 shall make payments towards the need and requirement of defendant no.2.

4. As per this settlement, the defendant no. 2 surrendered the possession of the suit property and vacated the same. The plaintiff has stated that the family settlement was acted upon between the parties but now in the year 2009, after 14 years of the family settlement, the defendant no. 1 is harassing the plaintiff and making false complaints to the Police Officer to get the suit property vacated.

5. The present suit has been filed on behalf of the plaintiff for declaring him to be owner of the suit property as per the family settlement. He had also sought injunction against the defendant no. 1 restraining them from altering any infrastructure already built on the suit property and restraining them to construct any new structure on the suit property and from selling , transferring, alienating or creating any third party interest with respect to the suit property and he has further sought injunction from dispossessing the plaintiff from the second floor of the suit property.

Suit No. 229/09 Page No. 3/18

6. Written Statement (herein after referred as 'W/S') was filed on behalf of the defendant no. 1, in which the preliminary objection was raised that the suit is not properly valued for the purpose of jurisdiction as well as court fee. The defendant has further stated that the value of the suit property is Rs. 5 - 6 crore and this court has no pecuniary jurisdiction to try this suit. The defendant no. 1 has further raised objection that the suit is barred by limitation. The defendant no. 1 has not denied that the suit property stands in her name. However, the factum of family settlement is denied by the defendant no. 1.

7. Defendant no. 2 has also filed the W/S before this court. He has also raised the objection that the suit has not been properly valued for the purpose of court fee and jurisdiction. However, he had supported the case of the plaintiff that family settlement took place between the parties but has further stated that in view of the family settlement, he has surrendered the possession of the suit property.

8. After completion of the pleadings, issues were framed on 05.05.2011. However, issue no. 4 and 5 were treated as preliminary issue, which are as follows:­ Whether the suit is properly valued for court fee and jurisdiction? OPD.

AND Whether the suit of the plaintiff is barred by limitation? OPD.

9. Arguments were addressed by both the parties on the said preliminary issues.

Suit No. 229/09 Page No. 4/18

10. PRELIMINARY ISSUE NO.1 Whether the suit is properly valued for court fee and jurisdiction? OPD.

The defendant no. 1 in the present case has raised the objection that the suit has not been properly valued for the purpose of court fee and jurisdiction. The defendant no. 1 has stated that as per Section 7 (IV) (C) of the court fee Act, where the declaration and consequential relief is sought with respect to the immovable property, the suit has to be valued at the market value of the immovable property. The defendant no. 1 has further stated that the plaintiff in the present case is not only seeking relief of declaration but is also seeking consequential relief and hence, he has to value the suit as per the Section 7 (IV) (C), which is of the market value of the suit property.

11. Ld. Counsel for the plaintiff on the other hand has stated that he is seeking declaration simplicitor and for declaration simplicitor, the plaintiff is at liberty to put the value of the suit as he wishes to. The minimum value prescribed is Rs. 200/­ and it has been done by the plaintiff and on that,the requisite court fee of Rs. 20 has been affixed. Ld. Counsel for the plaintiff in support of his contention has relied upon the judgment of Hon'ble Supreme Court reported as Suhrid Singh @ Sardul Singh V/s Randhir Singh 2010 RLR 229 SC.

12. This contention of the Ld Counsel for the plaintiff is not tenable. The suit is simplicitor declaration when the other reliefs that are sought by the plaintiff can be given without the need of declaration and does not follow from it. The plaintiff is claiming himself to be the owner of the suit property on the basis of the alleged oral family settlement of the year 1995 entered into between the parties.

Suit No. 229/09 Page No. 5/18

But the defendant no.1 has denied the alleged family settlement and also has stated that the suit property belongs to her.

13. In the present case, the plaintiff is also seeking three injunctions out of which two injunctions namely: ­ defendant no. 1 shall not create any IIIrd party interest in the suit property and the defendant shall not raise any construction on the suit property clearly follows from his relief the declaration. As admittedly, the suit property is standing in the name of the defendant no. 1 and she is the registered owner of the suit property, though the plaintiff is claiming to be the owner on the basis of family settlement but till the time the plaintiff is declared as the owner of the suit property, he cannot claim the above stated two injunctions. The aspect about what amounts to the consequential relief was discussed by the Hon'ble High Court in the judgment reported as AIR 1978 DELHI 114 "Purushottam Dass v. Har Narain". The hon'ble court has observed as :­ "As to what is the consequential relief has been the subject­matter of numerous decisions since the day the provision of S. 7 (iv) (c) was enacted but the controversy has since been settled. One of the cases which settled the controversy was the case reported as Mt. Zeb­ul­ Nissa v. Din Mohammad AIR 1941 Lah 97 (FB). This case received approval of the Supreme Court in the case reported as Shamsher Singh v. Rajinder Prasad, AIR 1973 SC 2384.

33. In the case of Mt. Zeb­ul­Nissa (AIR 1941 Lah 97) (FB) (supra) Bhide, J. speaking for the Full Bench explained line meaning of the expression "consequential relief" in S. 7 (iv) (c) of the Court­fees Act. the Bench held :

Suit No. 229/09 Page No. 6/18
"The Expression "consequential relief" in Art. 7 (iv) (c) means some relief, which would follow directly from the declaration given, the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot he claimed independently of the declaration as a "substantial relief."

34. We are in complete agreement with the meaning of the expression "consequential relief" given by the aforesaid Full Bench decision.

35. The aforesaid Full Bench in the case of Mt. Zeb­ul­Nisa (AIR 1941 Lah 97) (FB) further observed :

"In a suit for a declaration that a deed or a decree is null and void neither the answer to the question whether the plaintiff is or is not a party to the decree or the deed sought to be declared as null and void, nor to the question whether the declaration sought does or does not fall within the purview of S. 42, Specific Relief Act, furnishes a satisfactory or conclusive test for determining the court­fee payable. The true criterion for determining the question of court­fee in cases of this description is the substance of the relief claimed as disclosed by the plaint, taken as a whole and not merely the form in which the relief claimed is expressed. The mere fact that the relief as stated in the prayer clause is expressed in a declaratory form does not necessarily show that the suit is for a mere declaration and no more. If the relief so disclosed is a declaration pure and simple and involves no other relief, the suit would fall under Art. 17 (iii) and the court­fee payable would be Rs. 10 only. At the initial stage of determining the court­fee on a plaint, the Suit No. 229/09 Page No. 7/18 question whether the declaratory suit is liable to be dismissed, either because it does not fall within the purview of S. 42, Specific Relief Act, or because the plaintiff has failed to sue for a further relief which was open to him or for some other reason does not arise. That question arises only after the necessary court­fee on the true relief as disclosed by the plaint is paid and the plaint is properly before the Court"

36. We have already taken the view that the plaintiffs could not claim the relief of injunction without praying for declaration as prayed lor. It must, therefore, be held that the relief of declaration and injunction prayed for is a claim to obtain declaratory relief where consequential relief is prayed for."

14. This aspect that when the injunction will amount to consequential relief and the court fee to payable in that case was also discussed by the Delhi high court in the judgment reported Santosh Kumar Jain And Anr. vs Bahadur Singh Jain And Anr. 1982 (3) DRJ 377. Where in the hon'ble high court has observed as:­

15. "The plaintiffs have apart from seeking declarations in this suit sought two injunctions also. This circumstance by itself shows that further reliefs are available to the plaintiffs apart from the declaration sought when such reliefs are available, the plaintiffs are precluded from seeking mere declarations. The provisions of Section 34 of the Specific Re­ lief Act in this regard are mandatory and do not permit a mere relief of declaration being granted where consequen­ tial relief is as well available. That being the position of law, I am not inclinded to ignore these provisions, irrespective of specific plea having not been raised by the defendants in the written statement. The nature of the reliefs claimed in the Suit No. 229/09 Page No. 8/18 plaint itself shows that the further reliefs are available and the plaintiffs arc seeking them. The suit has in the circum­ stances to be treated as under Section 7(4)(c) of the Court Fees Act in so far as the reliefs by way of declaration and in­ junctions arc concerned. The plaintiffs have therefore to pay court­fee on the full value of the properties involved as per amendment made to Section 7(4)(c) in Punjab and Delhi."

16. The aspect that when the injunction will amount to consequential relief and also what amount to consequential relief was also discussed by the allahabad high court in the judgment reported as AIR 1973 ALLAHABAD 223 (V 60 C 75) "Chief Ins. of Stamps v. Z. P. Unnao" . where in the hon'ble high court has observed as:­ " I have heard for the State the learned Chief Standing Counsel and for the opposite party­plaintiff Sri Umesh Chandra Srivastava, learned Advocate for the Zila Parishad. The question for determination is whether the relief of injunction was a consequential relief within the meaning of Section 7 (iv) (a) of the Indian Court Fees Act. The Full Bench of seven Judges of this Court in the case of Chief Inspector of Stamps, U. P., Allahabad v. Mahanth Laxmi Narain, AIR 1970 All 488 (FB) overruled the earlier Full Bench case of this Court in Kalu Ram v. Babu Lal, AIR 1932 All 485 (FB) and laid down that in order to ascertain the real nature of the reliefs claimed, the substance of the plaint has to be considered. It was further held that the words 'consequential relief' imply that the other relief should be one which flows Suit No. 229/09 Page No. 9/18 directly from the declaration which the plaintiff desires to be made which means that the plaintiff should be entitled to the other relief only as a necessary consequence or result of granting of the declaratory relief. The other relief must be so dependent on the declaratory relief that it cannot be allowed if the principal relief is refused."

17. The aspect that when the injunction will amount to consequential relief and the court fee payable in that case was also discussed by the Jammu high court in the judgment reported as AIR 1991 JAMMU AND KASHMIR 30 "S. Gurdeep Singh v. State". Where in the hon'ble high court has observed as:­ "Under Sec. 7(iv)(c) of the Court­fees Act the plaintiffs in suits to obtain a declaratory decree or order where consequential relief is prayed can value the suit according to the amount at which the relief is sought. Under Sec. 8 of the Suits Valuation Act, in such suit the value as determinable for the computation of Court­fee and the value for purposes of jurisdiction has to be the same. With a view to determine whether a particular suit falls under Section 7(iv)(c) of the Courtfees Act or not, the substance of the plaint has to be seen and not its mere form. The Court fee has to be determined on the nature of the suit at the choice of the plaintiff, provided it is legally open to him to frame the suit in that manner. In the instant case even though the plaintiff has prayed for the relief of injunction separately and not making it consequential to the relief of declaration, it is apparent that no injunction can be granted to the plaintiff Suit No. 229/09 Page No. 10/18 unless the declaration prayed for by him is decreed. The suit filed by the plaintiff is a suit for declaration with consequential reliefs of injunction covered by Sec. 7(iv)(c) of the Court­fees Act. Faced with this situation Mr. Salaria has submitted that the present suit may be deemed to have been valued at Rs. 9200/­ for the purposes of Court­fee and., jurisdiction for the relief of declaration and consequential injunction."

18. The Jammu and Kashmir high court in the judgment reported as AIR 1991 JAMMU AND KASHMIR 30 "S. Gurdeep Singh v. State"

discussed the aspect that when the injunction will amount to consequential relief. In this case the facts were quite similar, the plaintiff had sought the relief of deceleration of title on the ground that the suit property was benami transaction and also the relief of injunction restraining the alienation of the same. Where in the hon'ble high court has observed as:­ "I have given my earnest consideration to the submissions made by the learned counsel for the parties. Reading the petition of plaint as a whole and looking to the substance of the claim, it appears to me that the reliefs sought in respect of the properties mentioned in Schedules, A, B and D of the plaint is really for declaration to the effect that the plaintiff is the real and true owner of the properties and that the relief of injunction sought by him is merely a consequential relief which flows from the aforesaid declaratory relief sought by him. In the circumstances, the plaintiff ought to have put a single valuation on the reliefs of declaration and injunction according to Section 7(iv)(c) of the Court Fees Act."
Suit No. 229/09 Page No. 11/18

19. Perusal of the above stated judgments clearly reveals that the Hon'ble High Courts have stated where the injunction cannot be granted without the relief of declaration being first obtained and is depend upon them then it amounts to consequential relief and the valuation has to be done according to Section 7(iv)(c) of the Court Fees Act .

20. The judgment of Suhrid Singh @ Sardul Singh V/s Randhir Singh 2010 RLR 229 SC, which has been relied upon by the Ld. Counsel for the plaintiff is not applicable to the facts of the present case. The said judgment was given wherein the court was dealing with the question of valuation of the suit in case where the relief of declaration of declaring the instrument as null and void is sought by the person, who was not the party to the instrument. The Hon'ble Supreme Court was not dealing with aspect of the valuation of the suit for court fee when the relief of the declaration with consequential relief is sought. Moreover, in the said judgment, the suit property was in the name of the father and it was alleged by the plaintiff in that case, that the suit property was ancestral property. However, in the present case, the suit property stands in the name of the wife though it has been alleged by the plaintiff that it is a co­ parcener property. However, this contention is not plausible, as the defendant no. 1 was the wife of the father of the plaintiff and the father was alive when the property was purchased, she cannot be the member of the co­parcener,

21. Moreover, as per Section 14 of the Hindu Succession Act, the property stands in the name of female after 1956 is her absolute property. It states as:­ Suit No. 229/09 Page No. 12/18 "14. Property of a female Hindu to be her absolute property (1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation: In this sub­section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

.............."

22. This question as to whether the property standing in the name of female is absolute property was raised before the Hon'ble Supreme court in the judgment reported as AIR 2009 SUPREME COURT 2561 "Gangamma v. G. Nagarathnamma. In this judgment, the partition was sought with respect to the property that was standing in the name of mother­in­law on the similar ground as stated in this case that it was purchased from the income of the father in law. The Hon'ble Supreme Court after quoting the provision of Section 14 has observed that the partition of the property cannot be done It observed as "14. Section 14(1) of the Hindu Succession Act (hereinafter referred to as the Act) has a bearing on the issue. As the properties at item Nos. 1 and 2 are recorded in the name of the appellant, in the absence of any evidence to the contrary in this case, the appellant by operation of Section 14(1) of the said Act is the full owner of those Suit No. 229/09 Page No. 13/18 properties. In the facts of this case discussed above it has to be accepted that those properties are not joint properties but the appellant is the sole owner of those properties.

15. The principle laid down in Section 14(1) of the said Act has been read by courts in a very comprehensive manner since the said Act overrides the old law on Stri Dhana in respect of properties possessed by female Hindu. In Eramma Vs. Veerupana and others, AIR 1966 SC 1879, Justice Ramaswami speaking for the Court held that Section 14(1) of the Act contemplates that a female Hindu, who in the absence of the said provision would have been a limited owner of the property, will now become full owner by virtue of the said section. Such female Hindu will have all powers of disposition to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder.

16. Again in the case of Punithavalli Ammal Vs. Minor Ramalingam and another, AIR 1970 SC 1730, a three­Judge Bench of this Court reiterated the position that the said Act has overriding effect and confers full ownership on Hindu female and made it very clear that rights conferred under Section 14(1) to a Hindu female are not restricted or limited by any rule of Hindu law. In the opinion of the Court in Punithavalli (supra) the said section makes a clear departure from all texts of Hindu laws and rules and those texts and rules cannot be used for circumventing the plain meaning of Section 14(1) of the said Act."

Thus, the property that is standing in the name of the female is absolute property. Hence, the judgment that has been relied upon Suit No. 229/09 Page No. 14/18 by the Ld. Counsel for the plaintiff is not applicable in the present case.

23. In view of above stated discussion it is held that the present suit is suit for declaration with consequential relief. Now the question is that how the suit is to be valued. The Section 7 (IV) (C) of the court Fee Act and the second proviso as is applicable to the Delhi states how the suit has to be valued. It would be relevant to have the provision of the Section 7 (IV) (C) for ready reference. It states as:­ "7 the amount of fee payable under this Act in the suits next hereinafter mentioned, shall be computed as follows:

** ** **
(iv) In Suits­ ** **
(c) to obtain a declaratory decree or order, where consequential relief is prayed, ** ** ** ** according to the amount, at which the relief sought is valued, in the plaint, or memorandum of appeal:
In all such suits the plaintiff shall state the amount at which he values, the relief sought;
Provided that the minimum court­fee in each case shall be thirteen rupees.
Provided further that in suits coming under sub­clause (c), in cases, where the relief sought is with reference to any property, such Suit No. 229/09 Page No. 15/18 valuation shall not be less than the value of the property, calculated In the manner provided for by Cl.(v) of this section."
24. The above section clearly reveals that in case where the declaration is prayed along with consequential relief, and it relates to immovable property, the value has to be done as per clause V of section according to the second proviso. Clause V(C) of the Section 7 further provides that where the property is immovable property and is not paying land revenue, value of the suit has to be the market value. In this case the consequential relief is with respect to the immovable property and is not the immovable property on which land revenue is paid. Then the market value of the property will be the value of the suit for the purpose of court fee and jurisdiction.

Hence, the suit has not been valued properly for the purpose of valuation and jurisdiction by the plaintiff.

25. However, even if for the sake of arguments, the contention raised by the Ld. Counsel for the plaintiff is admitted and it is assumed that the present suit is simple suit for declaration with out consequential relief. Admittedly, the plaintiff is claiming the declaration of ownership with respect to the immovable property. The Chapter 3 Part C of the High Court Rules provides the valuation which is to be done for declaration with respect to the immovable property where no consequential relief is prayed. It states as :­ "7. Suits in which the plaintiff in the plaint asks for a mere declaration without any consequential relief in respect of property other than land assessed to land revenue.

Value--(a) For the purposes of the Court­fees Act, 1887, as determined by that Act.

Suit No. 229/09 Page No. 16/18

(b) For the purposes of the Suits Valuation Act, 1887, and the Punjab Courts Act, 1918--the market value of the property in dispute, at the date of institution of the suit, subject to the provisions of Part I of the Suits Valuation Act, 1887, and the rules in force under the said Part, so far as those provisions are applicable."

26. Perusal of the above stated Rules clearly reveals that when the declaration is with respect to the immovable property though no consequential relief has been prayed. The suit is to be valued for jurisdiction at the market value of the immovable property. In that case, the suit has not been properly valued for the purpose of jurisdiction.

In view of the above stated discussions, this issue is decided in favour of the defendant no. 1.

27. PRELIMINARY ISSUE NO. 2

Whether the suit of the plaintiff is barred by limitation? OPD. The onus to prove this issue was upon the defendant. The defendant has alleged that the suit of the plaintiff is barred by limitation. It is stated by the defendant no. 1 that the plaintiff has said that the oral partition has taken place in the year 1995 while the present suit has been filed in the year 2009.The defendant no.1 has stated that the limitation period for the suit for declaration is 3 years from the date when the cause of action accrued and in the present case, the cause of action accrued in the year 1995 but the suit has been filed in the year 2009, which is beyond the period of limitation. However, the plaintiff has stated that the oral partition took place in the year 1995. However, the plaintiff started to back out from the said family Suit No. 229/09 Page No. 17/18 settlement when she filed the complaint in the year 2009 and his cause of action accrued from that date and from that period the suit is within the period of limitation.

28. There is a dispute between the parties as to when the cause of action accrued. Plaintiff is of the view that the cause of action accrued in the year 2009 while the defendant no.1 is of the view that the cause of action accrued in the year 1995 when the alleged oral family settlement took place.

The date on which the cause of action accrued is disputed between both the parties. As the date is disputed, it cannot be decided without leading evidence. Hence, this issue cannot be decided at this stage. This issue will be decided along with other issues. 

     Announced in the Open Court                                     (ARUN GOEL)
     on 23rd November, 2011                                    CIVIL JUDGE WEST
     All Pages Signed                                                      DELHI 




     .

Suit No. 229/09                                                       Page No. 18/18