Suresh Kapoor Vs Shashi Krishan Lal Khanna and Others

G.P. Mittal, J.

IA No. 14898/2011 (Order VII Rule 11 CPC) by Defendant no. 1

1. By this application under Order VII Rule 11(c) and (d) of the Code of Civil Procedure, 1908 (CPC) read with Section 7 (iv) (b) of the Court Fees Act, 1870 question of valuation of the suit for the purpose of court fee is raised by Defendant no. 1.

2. The Plaintiff claims 1/9th share in the suit property which was owned by Late Mrs. Gullo Devi Malhotra, maternal grandmother of the Plaintiff. In the application it is stated that the Plaintiff admittedly is not in possession of the suit property, therefore, he is required to pay the court fee on the market value of his share in the suit property for seeking the relief of partition. It is also stated that the suit property consists of a built-up house on land measuring 725 sq. yds., which is valued at Rs. 50 crores. The suit being undervalued is liable to be dismissed.

3. Before adverting to the facts of the instant case, it would be essential to take note of the statutory provisions which govern valuation of the suit for the purpose of court fee. As per Section 7 (iv) (b) of the Court Fees Act, 1870 (the Act) any suit to enforce right to share in any property on the ground that it is a joint family property, the court fee is payable according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. At the same time, as per Section 7 (v) (e) of the Act, in a suit for possession of house or garden, the suit has to be valued for the purpose of court fee according to the market value of the house or garden. As per Article 17 (vi) Schedule II of the Act, in every suit where it is not possible to estimate at a money value the subject matter in dispute and which is not otherwise provided by the Act, fixed court fee is payable.

4. As per Section 9 of the Suit Valuation Act, 1887 when the subject matter of suits, other than the suits mentioned in the Court Fees Act, 1870, Section 7, paragraphs v. and vi, and paragraph x, clause (d) , is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High Court may with the previous sanction of the State Government, direct that suits of that class shall, for the purposes of the Court-fees Act be treated as if their subject-matter were of such value as the High Court thinks fit to specify in this behalf.

5. In Chapter III ''Valuation of Suits'', Rule 8 has been framed by the Delhi High Court for valuation of the suits for partition of immovable properties. It reads as under:-

"8. Suits for partition of property-

Court-fee-(a) As determined by the Court-fees Act, 1870.

Value-

(b) For the purposes of the Suits Valuation Act, 1887 and the Punjab Courts Act, 1918 the value of the whole of the property as determined by Sections 3, 8 and 9 of the Suits Valuation Act, 1887."

6. The learned counsel for the applicant/Defendant no. 1 has relied upon the following judgments:-

(i) Mrs. Meenakshi Gupta Vs. Mr. Naveen Mahajan ,

(ii) Nisheet Bhalla and Others Vs. Malind Raj Bhalla and Others, ,

(iii) Sarabjit Prakash and Another Vs. Udyajit Prakash and Others, ,

(iv) Mohan Babar and Another Vs. Kedar Nath Babar and Others ,

(v) Harjit Kaur and Others Vs. Jagdeep Singh Rikhy, ,

(vi) Smt. Rani Devi Vs. Ashok Kumar Nagi and Another, ,

(vii) Ms. Ranjana Arora Vs. Satish Kumar Arora and Others, , and

(viii) Md. Alam and etc. Vs. Gopal Singh and Others,

to urge that where the Plaintiff is not in joint possession of any portion of the suit property or is not in constructive possession ad valorem court fees is payable on the value of the share in the suit property which is claimed by the Plaintiff.

7. On the other hand, the learned counsel for the Plaintiff has relied upon the following judgments:-

(i) Neelavathi and Others Vs. N. Natarajan and Others, ,

(ii) Sushma Tehlan Dalal Vs. Shivraj Singh Tehlan and Others, ,

(iii) V.S.K. Sood Vs. Vir Surinder Beri and Others , and

(iv) Jagannath Amin Vs. Seetharama (dead) by LRs. and Others, ,

to contend that in case of co-owners, possession of one in law is possession of all unless ouster or exclusion is proved. In such cases, it is urged, the Plaintiff is entitled to pay a fixed court fee.

8. Although, the proposition of law is well settled as to how the suit has to be valued for the purpose of court fee in a suit claiming share in respect of joint Hindu family property, yet on facts disputes are galore inundating this court with the applications under Order VII Rule 11, CPC for rejection of the Plaint on the ground that the Plaintiff being out of possession, the suit has not been correctly valued for the purpose of court fee.

9. First of all, I shall refer to the judgment in Neelavathi & Ors. relied upon by the learned counsel for the Plaintiff, which has been referred to and relied upon in a number of judgments of Delhi High Court, which have been relied upon by the learned counsel for Defendant no. 1.

10. A three Judge Bench of the Supreme Court in Neelavathi & Ors. referring to S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar, , reiterated that the question of Court Fee must be considered in the light of allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by final decision of the suit on merits. It was further laid down that the mere plea by the Plaintiff that the Defendant were not rendering accounts of the income from property will not amount to dispossession or exclusion of possession of the property in respect of which share is being sought by the Plaintiff/Plaintiffs. Para 6 of the report is extracted hereunder:-

"6. On reading of the plaint as a whole, we are unable to agree with the view taken by the High Court. 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. All the material allegations contained in the plaint should be construed and taken as a whole vide S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar, . The plaint in para 5 states that Muthukumaraswamy Gounder died intestate and undivided and Muthukumaraswamy''s father Vanavaraya Gounder was managing all the ancestral joint family property as the head of the Hindu undivided joint family till his death. In para 8 the plaintiffs stated that on the death of Muthukumaraswamy Gounder his 1/3rd share in the joint family properties devolved upon his sons and daughters. It further alleged that the plaintiffs were in joint possession of the properties along with Vanavaraya Gounder and his other sons. In para 9, it is stated that each of the plaintiffs is entitled to a share in the suit properties as heirs of the late Muthukumaraswamy Gounder and also as heirs of the late Vanavaraya Gounder. In para 11, it is stated that since the death of Vanavaraya Gounder Defendants 1 to 6 are receiving the income from the properties and are liable to account to the plaintiffs. In para 12, it is stated that since the death of Vanavaraya Gounder Defendants 1 to 6 failed to give the plaintiffs their share of income and the plaintiffs could not remain in joint possession. Therefore the plaintiffs demanded partition and the Defendants 1 to 6 were evading. Again in para 13, it is claimed that each of the plaintiffs as co-owners is in joint possession of the suit properties, and this action is laid to convert the joint possession into separate possession so far as the shares of the plaintiffs are concerned. Throughout the plaint, the plaintiffs have asserted that they are in joint possession. We are unable to agree with the High Court that recitals in all the paragraphs is merely a formal statement repeating the statutory language. The plea in para 12 which was relied on by the High Court states that the Defendants 1 to 6 failed to give the plaintiffs their share of the income and the plaintiffs could not remain in joint possession. The plea that they were not given their due share would not amount to dispossession. Reading the plaint at its worst against the plaintiffs, all that could be discerned is that as the plaintiffs were not given their share of the income, they could not remain in joint possession. The statement that they are not being paid their income, would not amount to having been excluded from possession. The averment in the plaint cannot be understood as stating that the plaintiffs were not in possession. In fact, the defendants understood the plaint as stating that the plaintiffs are in joint possession of the suit properties. In para 18 of the written statement the defendants pleaded that the plaintiffs have framed the suit as though they are in joint possession and enjoyment of the suit properties. Asserting that the plaintiffs were out of possession, the defendants stated: "While it is so, the allegation that they are in joint possession of the suit properties, is not correct".

11. Relying on Sathappa Chettiar and Neelavathi, a learned Single Judge of this Court in Sushma Tehlan Dalal Vs. Shivraj Singh Tehlan and Others, , culled out the following proposition of law:-

"11. The following legal proposition of law emerges from the above-referred decisions:

(i) In order to ascertain whether the suit has been property valued for the purpose of Court fee or not, only the averments made in the plaint have to be seen, without reference to the plea taken by the Defendants;

(ii) If the plaintiff claims to be in joint possession of the suit property, he has to pay a fixed Court fee in terms of Article 17(vi) of Court-fees Act.

(iii) If the averments made in the plaint show that the plaintiff has been completely ousted from possession and is not in possession of any part of the suit property, he is required to claim possession and also pay ad valorem Court fee on the market value of his share in the suit property."

12. There is consensus of judicial opinion that for the purpose of determining the valuation of the suit for the purposes of court fee and jurisdiction, only the averments made in the plaint have to be taken into consideration. Similarly, if the Plaintiff is in constructive possession or ouster cannot be inferred from the averments made in the plaint, the Plaintiff would be well within his right to value the suit at Rs. 200/- for the purpose of court fee and pay a fix court fees thereon.

13. In Meenakshi Gupta, relied upon by the learned counsel for Defendant no. 1, the Plaintiff had been turned out of her house by the Defendant, relying on Prakash Wati v. Smt. Dayawanti, AIR 1999 Delhi 48, a learned Single Judge of the Court held that the Plaintiff had been excluded from the joint possession of the suit property to which she was entitled. Hence, ad valorem court fees is required to be paid.

14. In Nisheet Bhalla, the learned Single Judge relying on Prakash Wati reiterated that in order to decide the question of court fee, the averments made in the plaint are to be seen and decision cannot be influenced either by pleas in the written statement or by final decision of the suit. It was held that to continue to be in joint possession in law, it is not necessary that the Plaintiff should be in actual possession of whole or part of the property. The law presumes joint possession of a co-owner unless he is excluded from such possession.

15. The learned Single Judge culled out para 7 of the plaint in the judgment and observed that there is unambiguous ouster or exclusion from possession in the suit property and the facts situation being akin to Prakash Wati, the Plaintiff will be required to pay court fee on the market value of his share. It would be expedient to extract para 7 of the plaint in that suit which led the learned Single Judge to held that the Plaintiff was ousted from possession:-

" .. That though the Plaintiffs are co-owners and in joint possession of the aforesaid property along with the defendants, the defendants have been enjoying the rights in the said property and the defendants have not paid any amount realized by them from the tenants and/or for their occupation of the premises, to the Plaintiffs till date though the Plaintiffs and the defendants became co- owners of the property since May, 1993, i.e. after the death of late Smt. Swadesh Kumari Bhalla...."

16. In Sarabjit Prakash and Another Vs. Udyajit Prakash and Others, , another learned Single Judge on the basis of averments in the plaint that the Defendant was in physical and actual possession of the property and it deprived the Plaintiff from actual enjoyment and had also claimed damages, led the learned Single Judge to hold that the Plaintiff was required to pay ad valorem court fees as he was neither in actual nor in constructive possession.

17. In Harjit Kaur and Others Vs. Jagdeep Singh Rikhy, , in para 22 of the plaint averments were made about the cause of action and the learned Single Judge held the Plaintiff to be not in constructive possession as under:-

"... In paragraph 22 it has been pleaded that "the cause of action is a continuing one and since the defendant Nos.1 to 4 are in actual occupation of the same, it is the submission of the Plaintiffs that they have no right to continue in possession exclusively to the exclusion of the Plaintiffs and every heirs and the only course open to the parties as to partition the property be metes and bounds and if not possible by sale of property....."

18. Similarly, in Smt. Rani Devi Vs. Ashok Kumar Nagi and Another, on the basis of the averments made in the plaint that Defendant no. 1 is in actual possession and enjoyment of the first floor and whole of the second and third floor and symbolic possession of the property on the ground floor through tenant, only Defendant no. 1 was recovering rent from all the tenants, it was held that the Plaintiff was not in possession of any part of the suit property and is liable to pay ad valorem court fees.

19. In Saroj Salkan Vs. Capt. Sanjeev Singh and Others, , the appellant claimed herself to be in constructive possession being co-owner of the property and affixed a court fee of Rs.20/-.

20. On the basis of the averments made in paras 23 and 25 of the plaint, the Court stated that the ouster can be inferred from the averments made in paras 23 and 25 of the plaint and held that the appellant had been rightly directed to pay the ad valorem court fees. The averments in the plaint were extracted in para 4 of the judgment and conclusion given in para 14, which are extracted as under:-

"4. The appellant claimed that property is in her constructive possession, she is a co-owner and thus affixed a fixed court fee of Rs. 20/-. In support of submissions, the learned counsel has relied upon para 23 and 25 of the plaint which reads as under:

23. The plaintiff and defendant No. 6 were treated as co- owners. They spent holidays at their parental home. Their nephews and nieces treated them as co-owners. They would regularly be given cash incomes as their share from the farm....

A major portion of income, according to her would be ploughed back into the farm for new tube wells, generators, threshing machines or tractor. However, despite the above reasons, in all fairness to her she openly acknowledged the rights of the plaintiff and her sister.

25. That the property at Anand Niketan had been rented out and rent was realized by all parties to the suit. The plaintiff and defendant No. 6 used to be given a cash compensation for their share in the Delhi house as well. Again, they never questioned the amount nor did they ask to see the lease deed to check the actual rental value.

x x x x x x x x x

14. In view of the averment made in the plaint as well as e-mail dated 06.02.2005, prima facie, the plaintiff who claims to be in joint possession of the property of which partition is sought, we find that the appellant has been excluded from joint possession to which she is entitled in law and has to pay only fixed court as per Article 17(vi) in Schedule II."

21. Now it is the time to turn to the facts of the instant case. As per the averments made in the plaint, property was owned by Late Shri Beliram Malhotra who died on 14.05.1973. After his death Late Mrs. Gullo Devi Malhotra, his widow and his children Mr. Harbans Lal Malhotra, husband of Defendant no. 6 and father of Defendants no. 7 and 8 and Late Mrs. Kamla Kapoor, mother of the Plaintiff and Late Mrs. Bimla Devi, mother of Defendants no. 1, 2 and 3 inherited the suit property.

22. The Plaintiff has alleged that Late Mrs. Bimla Devi, who was the mother of Defendants no. 1,2 and 3 was a resident of Delhi, who volunteered to look after the property and collected rent and was to deposit the same in Mrs. Gullo Devi''s bank account and give periodical accounts to Late Mr. Harbans Lal Malhotra and also to the mother of the Plaintiff. The Plaintiff has further alleged that Late Mrs. Bimla Devi, mother of Defendants no. 1 to 3 has never given any account to Late Mrs. Gullo Devi Malhotra rather she was instrumental in closing the bank account. It is averred that Mrs. Bimla Devi fell ill and was bedridden and father of Defendants no. 1 to 3 expressed regret that he had not been able to devote time to accounts due to ill health of his wife Mrs. Bimla Devi. Smt. Gullo Devi Malhotra died in the year 1999 whereas Mrs. Bimla Devi and Kamla Kapoor expired in the year 2004 and 2005 respectively.

23. In para 15 of the plaint, it is urged that Plaintiff met Defendant no. 1 in New Delhi number of times and requested him to give accounts of the property but that was not done.

24. Thus, the Plaintiff has admitted that neither he nor his mother Kamla Kapoor were in physical possession of the suit property; the other legal heirs of Mrs. Gullo Devi Malhotra except Mrs. Bimla Devi and her sons, were never in possession and they never realised any rent from the property. It is also stated that Mrs. Bimla Devi never rendered any account either to the Plaintiff or even to Mrs. Gullo Devi Malhotra rather the bank account of Mrs. Gullo Devi Malhotra, in which the rent was to be deposited was closed by Late Mrs. Bimla Devi.

25. Thus, for decades after the death of Late Shri Beliram Malhotra in the year 1973, it was Late Mrs. Bimla Devi and her children who were in possession of the property or who were letting out the property and were keeping rental income to themselves.

26. Thus, although the Plaintiff claims to be in constructive possession of the suit property, being co-owner but on the basis of the law laid down in catena of judgments as stated earlier ouster and exclusion from possession can safely and certainly be inferred from the plaint and therefore, the Plaintiff is not entitled to pay fixed court fee rather he is under obligation to pay ad valorem court fees on the market value of his share.

27. The application is accordingly allowed with direction to the Plaintiff to specify the value of his share in the suit property and pay ad valorem court fees within eight weeks from the date of this order.

28. List before the Joint Registrar for reporting compliance on 22nd December, 2014.