Sushma Tehlan Dalal v. Shivraj Singh Tehlan

V.K Jain, J.:—

IA No. 10367/2010 (O. 7 R. 11 CPC by D-1)

1. This is a suit for partition, cancellation of sale deeds, permanent injunction, rendition of accounts and mesne profits. Late Chaudhary Hukum Singh was the owner of the following properties:

(a) 2/28, Roop Nagar, Delhi of 246 square yards on GT Road.

(b) Lands in Village Nunglai Sakrawati, Najafgarh Tehsil Jila, Delhi, Delhi in Khasra Nos. 32/3, 4, 7/1, 12/16, 13/20, 19, 25/21/1, 27/5/1, 13/2, 242, 49, 49/1.

(c) 3 Farm Land Plots, Alipur Delhi, approximately 18 bighas.

(d) Sansar Service Station, Najafgarh (Near Vikas Puri), Delhi;

(e) Anup Service Station, Alaknanda upon land on 99 year lessee from DDA;

(f) Harjeet Filling Statin with adjoining plot Alipur (on GT Karnal Road), Delhi;

(g) 189 Bighas of land situated in Alwar at Khaderpur, Tehsil, Tejara Distt. Alwar, Rajasthan in Khasra No. 2 to 16, 23 to 26, 38, 140, 138, 142M, 34M, 1M, 46, 43, 44, 930, 939, 942/1058, 918, 920, 940, 928, 870, 871, 911, 893, 908, 909, 1029, 905, 890, 891, 894, 892, 868, 869, 872 to 875, 878, 906, 907, 1026, 1027, 1028, 896, 897 and 1023 total area around 189 bighas.

He died intestate on 15th August, 1969, leaving six legal heirs, including his widow Smt. Barfo Devi. Smt. Berfo Devi died on 26th June, 1981, leaving five legal heirs, namely, her son, late Shri Anup Singh Tehlan, her other son Harjeet Singh Tehlan, defendant No. 1 Shivraj Singh Tehlan, defendant No. 6 Kaushalya Chaudhary and the plaintiff Sushma Singh Tehlan. Shri Harjeet Singh Tehlan died intestate in the year 2003, without any issues and his wife, who was estranged from him, is stated to have since re-married. It is alleged that his share in the above-referred properties devolved on the plaintiff and the defendants, they being his Class-II legal heirs. Defendants 2 to 5 are the legal heirs of late Shri Anup Singh Tehlan.

2. The plaintiff claims to be in possession of two rooms, two verandahs, two stores, two toilets and washroom in the western wing of the first floor of house No. 2/28, Roop Nagar, Delhi and joint possession of the kitchen, open terrace of the second floor, the flat on second floor and shops and garage on the ground floor. It is further alleged that defendant No. 1 sold some portion of the parental property by executing a General Power of Attorney dated 26th May, 1987. One sale deed in respect of land in village Nangli is alleged to have been executed by defendant No. 1 on 02nd July, 2008 in favour of defendant No. 7, Bharat Singh and another sale deed of the same date is alleged to have been executed in favour of defendant No. 8 Vijay Sharma. The plaintiff has sought partition of the above-referred properties, besides seeking rendition of accounts and mesne profit with respect to the profits earned from the service stations. She has also sought cancellation of the sale deeds dated 02nd July, 2008, executed by defendant No. 1 in favour of defendant Nos. 7 and 8.

3. Para 2 of the plaint which deals with valuation reads as under:

“The suit is valued over a crore for the purpose of jurisdiction. As regards the reliefs of permanent injunction, the suit is valued at Rs. 20,01,000/- and a court fee of Rs. 22,000/- has been paid. As regards the relief of partition and mesne profits, the suit is valued at Rs. 200/- and a court fee of Rs. 20 has been paid. As regards the relief of cancellation for the documents being sale deeds dated 02.07.2008 which are a fraud, nullity the suit is valued at Rs. 200. The plaintiff also undertakes to pay any further court fee which may be required to be paid on actual partition of the property.”

4. IA No. 10367/2010 has been filed by defendant No. 1, seeking rejection of the plaint on the ground that the plaintiff has not paid requisite Court fee.

5. Section 8 of the Suits Valuation Act, 1887 provides that where other than those referred to in the Court-fees Act, 1870 Section 7, paragraph v, vi and ix, and paragraph x, clause (d), Court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same. section 9 of the above-referred act provides that when the subject-matter of suits of any class, other than suits mentioned in the Court-fees Act, 1870, Section 7, paragraph 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, 1870, and of this Act and any other enactment for the time being in force, be treated as if their subject-matter were of such value as the High Court thinks fit to specify in this behalf. In exercise of powers conferred by Section 9 of Suits Valuation Act, Punjab High Court made rules which are applicable to Delhi.

Suits for partition of property—

Court-fee — (a) as determined by the Court-fees Act, 1870

Value — (b) For the purpose of the Suit Valuation Act, 1887, and the Punjab Court 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. It would thus be seen that in view of the rules framed by Punjab High Court under Section 9 of Suits Valuation Act, which admittedly are applicable to Delhi, there can be separate valuations for the purpose of Court fee and jurisdiction. The valuation for the purpose of jurisdiction has to be the value of the whole of the properties subject matter of partition, whereas valuation for the purpose of Court fee would be such as is provided by the Court-fees Act.

7. Section 7(iv)(b) of Court Fees Act, provides that in a suit to enforce the right to share in any property on the ground that it is a joint family property, the amount of fee payable under Court-fee Act, shall be computed according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. It further provides that in all such suits the plaintiff shall state the amount at which he values the relief sought by him. Article 17(vi) of Schedule II of Court-fees Act provides for payment of a fixed Court fee in a suit where it is not possible to estimate at a money value the subject matter in dispute, and which is not otherwise provided for by this Act.

8. In S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettier, AIR 1958 SC 245, Supreme Court, inter alia, read as under:

“If the scheme laid down for the computation of fees payable in suits covered by the several sub-sections of S. 7 is considered it would be clear that in respect of suits falling under sub-section (iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court-fees. The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property. The basis of the claim is that the property in respect of which a share is claimed is joint family property. In other words, it is property in which the plaintiff has an undivided share. What the plaintiff purports to do by making a claim for partition is to ask the court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the conversion of the plaintiff's alleged undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness. That is why legislature has left it to the option of the plaintiff to value his claim for the payment of court-fees. It really means that in suits falling under S. 7(iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the court in computing the court-fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to consider whether, under the provisions of this section, the plaintiff has been given an absolute right or option to place any valuation whatever on his relief.”

9. In Neelavathi v. N. Natarajan, (1980) 2 SCC 247 : AIR 1980 SC 691, which arose out of a suit for partition, the plaintiff averred in the plaint that they were in joint possession of the property along with the defendants. The plaintiffs had valued their share of the property and paid fixed court fee of Rs. 200/- under Section 37(2) of Tamil Nadu Court-Fee and Suits Valuation Act. It was contended by the defendants in that suit that the plaintiff were not in joint possession and, therefore, were required to pay ad valorem Court fee at the market rate. The suit was dismissed on the ground that ad valorem Court fee had not been paid. Allowing the appeals, filed by the plaintiff, Supreme Court held that the question of Court fee was to be considered in the light of allegations made in the plaint and decision of this issue cannot be influenced either by the plea taken in the written statement or by final decision of the suit on merits. In that case, the plaintiff had stated in the plaint that the defendants had failed to give their share of income and they could not remain in joint possession. It was held that this averment would not mean that the plaintiffs had been excluded from possession of the suit property. During the Course of judgement, Supreme Court, inter alia, observed as under:

“It will be seen that the Court-fee is payable under Section 37(1) if the plaintiff is ‘excluded’ from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family, and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act having at the time of the death an interest in the mitakshara coparcenary property; acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided joint family property' though not in the strict sense of the term. The general principle of law is that in the case of co-owners, the possession of one is law possession of all unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay Court-fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been ‘excluded’ from joint possession to which they are entitled to in law.”

(emphasis supplied)

10. In Jagannath Amin v. Seetharama (dead) by Lrs., (2007) 1 SCC 694, a suit for partition of agricultural land was filed seeking its division into two equal shares. The plaintiff had paid Court fee of Rs. 200 under Section 35(2) of Karnataka Court-fees and Suit Valuation Act, 1958. The plaintiffs had also alleged to be in joint possession of the suit property. During the course of the judgement, Supreme Court, referred to the following observation made by it in Commercial Aviation and Travel Co. v. Vimla Panna Lal, (1988) 3 SCC 423 : AIR 1988 SC 1636:

“It is true that the Court did not consider whether the plaintiff had been given an absolute right or option to place any valuation whatever on his relief under the provision of Section 7(iv) of the Court-fees Act, but the difficulty that would be felt by the Court in exercising its power under Order VII, Rule 11(b) of the Code of Civil Procedure is that if it is unable to determine the correct value of the relief, it cannot direct the plaintiff to correct the valuation. Order VII, Rule 11(b) contemplates correct valuation and not approximate correct valuation and such correct valuation of the relief has to be determined by the Court. If the Court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and, consequently. Order VII, Rule 11(b) will not be applicable.”

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. In the present case, the plaintiff has specifically alleged that she is in exclusive possession of house No. 2/28, Roop Nagar, Delhi and in joint possession of certain other parts of the aforesaid house. Thus, the plaintiff has undisputedly claimed joint possession with respect to one of the properties in respect of which partition has been sought by her. In my view, in order to constitute joint possession, it is not necessary that the plaintiff should claim to be in joint possession of each of the properties in respect of which partition is sought by him/her. If she claims to be in joint possession of even one of the properties either wholly or partly, that would be sufficient to bring the case within the ambit of Article 7(iv) of Court-fees Act, because what is relevant is joint possession of the estate in respect of which partition is sought. The plaintiff is seeking partition not with respect to any one property, but with respect to all the properties which were owned by her late parents. If partition is sought in respect of more than one property and one of the co-owners possesses one property or a part of it and the other co-owners possess the remaining properties, all of them will be deemed to be in joint possession of the properties subject matter of partition. In this regard, the following observations made by this Court in Sudershan Kumar Seth v. Pawan Kumar Seth, 124 (2005) DLT 305:

“It is settled that in order to decide as to what relief has been claimed by the plaintiff, the whole of the plaint has to be read. From the perusal of the plaint if it can be inferred that the plaintiff is in possession of the any of properties to be partitioned, then the court fees shall be 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 but if the conclusion is that the plaintiff is not in possession of any part of the properties then the plaintiff has to pay Court fees under section 7(iv)(b) of the Court fees Act i.e on the value of plaintiff's share.”

13. Moreover, in the case before this Court, there is no averment in the plaint that the plaintiff has been ousted from the possession of the other properties which were owned by her parents. It is true that she has not specifically averred that she is in joint possession of the other properties, but, it is also equally true that she does not claim or admit ouster from those properties. She being one of the co-owners of the other properties is by fiction of law, deemed to be in joint possession of those properties along with other co-owners unless she pleads or admits complete ouster from those properties. This view also confirms to the observations made by Supreme Court in the case of Neelavathi (supra) that the general principle of law is that in case of co-owners, it is not necessary that the plaintiff should be in actual possession of the property, the possession of one co-owner is in law the possession of all unless duster or exclusion is proved and so long as his right to share and the nature of the property as joint is not disputed, the law presumes that he is in joint possession, unless he is excluded from such possession.

14. The logic behind not insisting on payment of ad valorem Court fee in a case of joint possession was explained by Supreme Court in the case of Sathappa Chettiar (supra) when the Court said that in such cases what the plaintiff seeks by claiming partition is to ask the Court to give certain specific properties to him for his absolute and exclusive enjoyment, to the exclusion of other co-owners of that property and, thereby what he is seeking only a conversion of his undivided share into a separate share. Moreover, as observed by Supreme Court in the case of Jagannath Amin (supra), the Court needs to have exact valuation before it, before it can reject the plaint under Order VII Rule 11(d) of Code of Civil Procedure and that determination cannot be made in such a case.

15. Therefore, there is no ground to reject the plaint, as far as Court fee on the relief of partition is concerned. During the course of arguments, the learned counsel for the plaintiff fairly stated that as far as relief of cancellation of sale deeds are concerned, the plaintiff would pay ad valorem Court fee on the sale consideration, shown in the sale deeds, executed in favour of defendants 7 and 8. Therefore, the plea taken by the plaintiff with regard to inadequate Court fee on the relief of cancellation of sale deeds does not survive anymore. The plaintiff is directed to pay deficient Court fee on the relief of cancellation of sale deeds within two weeks.

The application stands disposed of accordingly.