Delhi District Court
Vijay Vohra vs . Kuldeep Kapoor on 29 April, 2017
CS No.376/16/06, New Case No. 614464/2016
Vijay Vohra vs. Kuldeep Kapoor
IN THE COURT OF SHRI SHAILENDER MALIK:
ADDITIONAL DISTRICT JUDGE03:(C) DELHI
CS No.376/16/06
New Case No. 614464/2016
In the matter of
Smt. Vijay Vohra
Wife of Shri Shyam Sunder Vohra
Resident of 41F, Kamla Nagar
Kolhapur Road
Delhi110007 .....Plaintiff
vs.
1. Shri Kuldeep Kapoor
S/o Shri A. C. Kapoor
R/o E/17, Model TownII
Delhi110009
2. Smt. Sarita Kohli
W/o Shri B. P. Kohli
R/o C3, C.C. Colony
Rana Partap Bagh
Delhi110007
3 Smt. Parveen Bhasin
W/o Shri Harkishan Bhasin
16804, Gothic Dr. Jamiaca
New York 11432
CS No. 376/16/2006 Page No. 1/20
CS No.376/16/06, New Case No. 614464/2016
Vijay Vohra vs. Kuldeep Kapoor
4. Smt. Neelam Dhawan
W/o Shri Kanwal Dhawan
12703, 15, AVE W
Everelt, W.A.
982045569 U.S.A.
5. Smt. Rekha Dhawan
W/o Shri Romesh Dhawan
R/o B1/8, Rana Partap Bagh
Delhi110007
6. Smt. Poonam Dhawan
W/o Shri Anil Dhawan
R/o B1/8, Rana Pratap Bagh
Delhi110007
7. Sh. Dalip Kapoor
S/o Shri A. C. Kapoor
R/o E/17, Model TownII
Delhi110009 ....Defendants
Date of filing of the Suit : 16.12.2006
Date of reserving the Judgment/Order : 29.04.2017
Date of passing the Judgment/Order : 29.04.2017
JUDGMENT
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1. This is suit for partition and possession.
2. It is mentioned in the plaint that plaintiff as well as of the defendant are brothers and sisters being children of late Sh. Atam Chand Kapoor and Smt. Sheela Kapoor. Late Sh. Atam Chand Kapoor had died on 30.11.1997 and Smt. Sheela Devi Kapoor died on 12.03.2004. Late Sh. Atam Chand Kapoor and Smt. Sheela Devi Kapoor had two sons and six daughters (plaintiff and defendant herein).
3. It is further stated in the plaint that Late Atam Chand Kapoor was exclusive owner of the property bearing No. E1/7, Modal TownII, Delhi110009, Smt. Sheela Devi Kapoor was an owner of 1/3rd share of property No. 2/9, Model TownIII, Delhi110009 and another property comprised in Khasra No. 9, in Gali No. 2, Sarup Nagar, Kusk Road, Delhi, in which they have ½ share. It is stated that late Smt. Sheela Devi Kapoor also had one locker No. 391,UCO Bank, Model Town, Delhi110009 in which gold items and other articles are lying, the total value of which CS No. 376/16/2006 Page No. 3/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor is assessed by Rs. 4,64,000/.
4. It is stated that plaintiff being one of the LR's of her parents is entitled for share in the above mentioned property left behind by her parents. It is stated that defendant no. 1 and defendant no. 7 are in possession of premise/properties. Plaintiff stated to have demanded partition of those properties by meets and bound to the extent of her 1/8th share. In order to settle the matter amicably, plaintiff stated to have also given one notice dated 21.08.2006 to defendant no. 1. However, since defendant no. 1 was avoiding for partition on one pretext or other, plaintiff, therefore, had earlier filed one petition for grant of letter of administrative which is stated to have withdrawn latter.
5. Now, has filed the present suit seeking partition in respect of the movable and immovable properties left behind by her parents. Therefore, a preliminary decree of partition has been sought in respect of the property bearing no. E17, Modal TownII, Delhi as well as one CS No. 376/16/2006 Page No. 4/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor Property No. 2/9, Modal TownIII, Delhi ( in which mother of the parties Late Smt. Sheela Devi Kapoor had 1/3rd share) as well as another property No. 9, in Gali No. 2, Sarup Nagar, Kusk Road, Delhi declaring therein that plaintiffs as well as all the defendants are entitled to these properties to the extent of 1/8th share. Plaintiff has further prayed for final decree of partition by meets and bound in respect of above said properties.
6. Defendant no. 1 filed the written statement taking the objection that suit has not been properly valued for the purpose of court fees and jurisdiction. Plaintiff has intentionally under valued the suit. It is stated that market value of single property in Model Town cannot be less than 1 crore as such valuation given in para12 of the plaint is not correct and is illusionary. It is stated that the valuation of all the three properties in question might not be less than 3 crores. As such this court has no pecuniary jurisdiction to entertain the suit. It is further stated that suit is otherwise devoid of cause of action qua defendant no. 1. It is stated that plaintiff has filed the present suit at CS No. 376/16/2006 Page No. 5/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor the instigation of defendant no. 7. Since defendant no. 1 has already filed a suit in the court of District Judge in May 2009 for relief of declaration against defendant no. 7 herein claiming to be exclusive / absolute owner of property bearing no. E1/7, Modal TownII by virtue of (oral settlement between defendant no. 1 and defendant no. 7). It is, therefore, pleaded that trial in the present suit cannot proceed further in view of Section 10 of CPC till the disposal of suit of defendant no. 1 in which matter in issue is also directly substantially in issue in the present suit.
7. It is pleaded that as regard property no.2/9, Modal TownIII, Delhi since that property belong to defendant no. 1, defendant no. 7 and Late Smt. Sheela Kapoor (mother of parties) in three equal shares. In respect of the portion of that property, was gifted away by three owners jointly by a registered Gift Deed executed on 22.11.2009 in favour of two donees with the consent of all the other LR's. That fact being very much in the knowledge of plaintiff, therefore, plaintiff cannot proceed to seek relief in respect of that property. Even otherwise, when plaintiff had CS No. 376/16/2006 Page No. 6/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor already filed one petition for grant of letter of administration, being Petition No. 478/2006, and same has already been dismissed as withdrawn, therefore, present suit for partition is hit by principle of resjudicata.
8. It is also pleaded that plaintiff has no locus or right to file the suit for partition in respect of dwelling house inherited by defendant no. 1 from their parents as plaintiff cannot seek relief of partition in respect of dwelling house against male members of the family. While case of the plaintiff for claiming of partition has been denied. It is further pleaded in reply to corresponding para4 of plaint, that alleged property of Sarup Nagar as stated in plaint was not owned by late Smt. Sheela Devi Kapoor.
9. Defendant no. 2 to 6 did not appear despite being served with the summons and therefore, were proceeded exparte.
10. Defendant no. 7 filed the written statement taking the objection therein that present suit is premature as CS No. 376/16/2006 Page No. 7/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor plaintiff has already filed petition for grant of letter of administration. It is also stated that plaintiff has no locus to file the present suit and claim of the plaintiff is not sustainable in view of the provisions of Section 23 of Hindu Succession Act. Objection was also taken with regard to valuation of subject matter of the suit for the purpose of court fees and jurisdiction. While case of the plaintiff was not disputed regarding other aspects. It is, however, pleaded in the written statement that defendant no. 1 is appropriating the income being generated from the property No. 2/9 Modal TownIII, the 1/3rd share of which was of Late Smt. Sheela Devi Kapoor as such defendant no. 1 is also liable to render the accounts of income arising out of that property. It is pleaded by defendant no. 7 in corresponding para4 of WS that defendant no. 1 is dealing with property comprised in Khasra No. 9, in Gali No. 2, Sarup Nagar, Kusk Road, Delhi.
11. On the basis of the pleadings as come on the record, ld. Predecessor of this court on 21.01.2010 framed the following issues: CS No. 376/16/2006 Page No. 8/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor
1. Whether plaintiff has not properly valued the suit or this court has no pecuniary jurisdiction to try and entertain the present suit? OPD
2. Whether plaintiff is entitled for decree of partition and possession of suit property as prayed for? OPP
3. Relief.
12. During the course of proceedings, additional issues were also framed on 02.04.2011 which reads as under:
1. Whether the plaintiff has no right to seek partition of suit property? OPD
2. Whether the present suit is hit by principle of resjudicata, one probate petition having already been filed by CS No. 376/16/2006 Page No. 9/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor present defendant no. 1? OPD
13. On behalf of the plaintiff Smt. Vijay Vohar has appeared in the witness box as PW1 whereas on behalf of the defendants DW1 Sh. S. L. Dhir has been examined who is Architect/ Valuer and has given Valuation Report. DW2 is defendant no. 7 Dilip Kapoor, DW3 defendant no. 1 Kuldeep Kapoor.
14 I have heard counsels of the parties and has gone through the record carefully. My issue wise findings on each of the above said issues are as follows: 15 ISSUE NO. 1 (Whether plaintiff has not properly valued the suit or this court has no pecuniary jurisdiction to try and entertain the present suit? ) 16 This issue relates to court fee and pecuniary jurisdiction. The Court fees that is required to be paid by CS No. 376/16/2006 Page No. 10/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor 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."
17 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. Thus, Section 7(iv)(b) of the Act prescribes the Court fees at CS No. 376/16/2006 Page No. 11/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor 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 Suits for the purpose of Court fees and jurisdiction identically except for the exceptions provided for under Section 7 of the Court fees Act, 1870.
18 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 coowner 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 coowners, 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.
CS No. 376/16/2006 Page No. 12/20CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor 19 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 v. 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. Reference in this regard can be given of pronouncements in Jamila Khatoon v. Saidul Nisa, AIR 1999 Del. 48; Smt. Prakash Wati v. Smt. Daywanti, 42 (1990) DLT 421=AIR 1999 Del. 48; Ms. Ranjana Arora v. Satish Kumar Arora, 80 (1999) DLT CS No. 376/16/2006 Page No. 13/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor 537; Harjit Kaur & Ors. v. Jagdeep Singh Rikhy, 116 (2005) DLT 392=2004 (VII) AD (Del.) 567; Rajiv Oberoi & Ors. v. Santosh Kumar Oberoi & Ors., 2005 (80) DRJ 120 & Smt. Sonu Jain v. Shri Rohit Garg & Ors., 128 (2006) DLT 633).
20 Keeping above said proposition in mind in the present case, plaintiff is seeking relief of partition of three different properties. Admittedly, plaintiff is not in possession of either of these properties. In para12 of the plaint has valued the subject matter of the suit i.e. three properties to be Rs. 15,00,000/ and has further valued the gold and other articles lying in the locker to be Rs. 58,000/. As such plaintiff has valued the suit entirely for sum of Rs. 15,58,000/ and accordingly has furnished court fees in terms of her 1/8th share to be of Rs. 4,248/. Defendants no. 1 & 2 both have disputed valuation of subject matter of suit for the purpose of court fees as well as jurisdiction. According to defendant no. 1 the value of the property in Modal Town may not be less than one crore. Similarly, the defendant no. 7 has also disputed the CS No. 376/16/2006 Page No. 14/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor valuation for the parties of court fee and jurisdiction. 1.
21. Since the onus to prove issue under consideration was of defendants, defendants have examined one DW1 S. L. Dhir who has testified that on the instructions, defendant no. 7 Dilip Kapoor he has visited the property no. E1/7, Modal TownII Delhi as well as another property E2/9 Modal TownIII, Delhi. DW1 says that valuation of property No. E1/7 Modal TownII is about Rs. 59,18,500/ as per his report Ex.DW1/1 and the value of property No. 2/9 Modal TownIII is about 70,64,400/ as per his valuation report Ex.DW1/2. As such DW1 has gave valuation of two properties to be of Rs. 1,29,82,900/. DW though has given such report and valuation on the date of his inspection. Valuation in respect of suit for partition is to be assessed as on the date of institution of the suit. Here, however, it is important to note that plaintiff has not led any specific evidence as to how she has simply valued the subject matter of the suit to be of Rs. 15,00,000/ besides Rs. 58,000/ for movable articles lying in the locker. In the absence of any specific evidence coming forth from CS No. 376/16/2006 Page No. 15/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor the plaintiff in rebuttal and considering the convincing evidence of DW1 and also taking judicial notice of valuation of properties in the area of Modal Town, Delhi, I find the valuation as given by DW1 appears to be more correct and cogent. Therefore, I find that the valuation for the purpose of the present suit is of Rs. 1,29,82,900/, the 1/8th share of which comes out to be Rs.16,22,862.50/, plaintiff, therefore, is liable to pay the deficient court fees on the above said valuation of Rs. 16,22,862.50/. Issue, accordingly, stands decided against the plaintiff in the above said terms.
22 Additional Issue No. 2.
(Whether the present suit is hit by principle of resjudicata, one probate petition having already been filed by present defendant no. 1?) 23 This issue was subsequently framed as additional issue. Issue apparently was framed in view of the objection taken on behalf of the defendant no. 1 to the effect that the suit of the plaintiff is barred by principle of constructive resjudicata as earlier petition of plaintiff for grant of letter of administration being petition no., 478/06, was dismissed CS No. 376/16/2006 Page No. 16/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor as withdrawn. I find such objection is highly unsustainable in law because principle of resjudicate does not get attracted by anyway. Earlier petition for letter of administration was different nature of proceedings. Moreover, same was not decided on merits rather said petition was dismissed as withdrawn. Therefore, present suit in any way cannot be held to be barred by resjudicata. Issue therefore stands decided against the defendant and in favour of plaintiff.
24 Additional Issue No. 1.
(Whether the plaintiff has no right to seek partition of suit property? ) 25 Onus to prove this issue was on the defendants. It is not the case of the defendants that parents of the parties have left any Will in favour of defendant no. 1 or 7. Daughters of deceased Hindu male or female are considered to be first class legal heirs. In case of intestate succession daughters can inherit in the estate of her father or mother in equal share. So far as application of section 6 of Hindu Succession Act. Section 6 of such Act was CS No. 376/16/2006 Page No. 17/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor amended in year 2005. consequent upon the amendment in section 6 a female member of Joint Coparcenars is also entitled to equal share in the estate of a Hindu male died intestate. Since this suit has been filed subsequent to the amendment in the section 6, therefore, amended provisions of the Act would apply. So far as section 23 of Hindu Succession Act for bar of claiming partition in a dwelling house, post amendment in the Hindu Succession Act, section 23 has already been deleted, therefore, there is no bar of section 23. As such from the above discussion of law it can safely be concluded that defendant has failed to establish any fact disentitling the plaintiff to seek relief of partition. Issue accordingly decided against the defendant.
26 ISSUE NO. 2(Whether plaintiff is entitled for decree of partition and possession of suit property as prayed for?) 27 In view of my findings on the above mentioned issues and taking into consideration the evidence of PW1, it can safely be concluded that plaintiff is entitled for 1/8th share CS No. 376/16/2006 Page No. 18/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor in respect of properties bearing No. E1/7 Modal TownII Delhi being property owned by late father of the plaintiff and defendants. In respect of another property No. E2/9 Modal TownIII Delhi in which mother of parties late Smt. Sheela Devi Kapoor had share only to the extent of 1/3rd, therefore, plaintiff and defendant each would have 1/8th share in the 1/3rd share of their mother late Smt. Sheela Devi Kapoor in the property No. E2/9 Modal TownIII. However, there being no evidence coming on the record in respect of third property comprised of Khasra No. 9, in Gali No. 2, Sarup Nagar, Kusk Road, Delhi.
28 I find that since it has not established that such property was owned by either of the parents of the parties, therefore, no relief of partition can be ordered in respect of such property. So far as movable properties / gold articles and other articles lying in the locker No. 391 of UCO Bank Modal Town, Delhi it is ordered that plaintiff and defendants have 1/8th share in the entire value of the articles lying in that locker. Valuation of the articles lying in that locker will of course will be assessed at the time of CS No. 376/16/2006 Page No. 19/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor drafting final decree by passing necessary order in this regard. Issue accordingly decided in favour of plaintiff.
RELIEF In view of my findings on the above said issues, suit of the plaintiff for relief of partition is decreed. Plaintiff and defendants are entitled to 1/8th share in respect of property No. E1/7 Modal Town II Delhi as well as in respect of 1/3rd share of late Smt. Sheela Devi Kapoor in property No. E2/9, Modal TownIII, Delhi as well as in respect of articles lying in the locker No. 391 UCO Bank. Suit stands decreed accordingly. Plaintiff, however, is liable to furnish deficient court fee, as per directions given while deciding issue No. 1 within one month from today. Preliminary decree be prepared. File be consigned to record room after due compliance.
Announced in the open court on Today : 29.04.2017 (SHAILENDER MALIK) ADJ03 (CENTRAL) TIS HAZARI COURTS:
DELHI CS No. 376/16/2006 Page No. 20/20 CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor CS No.376/16/06, New Case No. 614464/2016 Vijay Vohra vs. Kuldeep Kapoor
29.04.2017 Present : None.
Vide separate judgment of even date dictated and announced in the open court, suit of the plaintiff for relief of partition stands decreed. Preliminary decree be prepared. File be consigned to record room after due compliance.
(SHAILENDER MALIK) ADJ03 (CENTRAL) TIS HAZARI COURTS DELHI/29.04.2017 CS No. 376/16/2006 Page No. 21/20