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Neelam Batra v. Rakesh Bhatla
Bench: V.K. Shali, J. (Oral) — IA No. 4036/2012 (Order 7 Rule 11 r/w Section 151 CPC)
Factual and Procedural Background
The plaintiff, Ms. Neelam Batra, instituted CS (OS) No. 3291/2011 seeking declaration and partition in respect of a single‑storey residential house on plot No. D‑1017, New Friends Colony, New Delhi (admeasuring 500 sq. yards). The plaintiff alleges that her mother executed a Will dated 01.11.2008 bequeathing the mother's share to the plaintiff; the mother died on 20.01.2011. The plaintiff claims an overall 2/3 share in the suit property (1/2 by bequest of the mother and an additional share from the father's half) and values the suit at more than Rs. 15 crores. The plaint contains averments that the plaintiff is a permanent resident of Los Angeles, visiting India only 2–3 times per year when her mother was alive, and that the defendant (her brother) resisted partition and threatened to dispose of the property. The plaintiff paid fixed court fees of Rs. 19.50 on the entire suit. The interlocutory application before the Court raises the question whether the suit is liable to be rejected for having paid deficient court fees under Order 7 Rule 11(b) CPC, or whether the fixed court fee was appropriate.
Procedureally, the matter was listed for further proceedings on 02.05.2014.
Legal Issues Presented
- Whether the suit is liable to be rejected for deficient court fees under Order 7 Rule 11(b) CPC.
- Whether a plaintiff who does not specifically aver physical, constructive or joint possession of part of the suit property can pay the fixed court fee, or must instead pay ad valorem court fees on the plaintiff's claimed share.
Arguments of the Parties
Plaintiff's Arguments
- The plaintiff's counsel submitted that the law is settled that in partition suits the fixed court fee is payable unless the defendant pleads ouster of the plaintiff from possession; until the defendant avers ouster, the plaintiff is obliged to pay the fixed fee.
- The plaintiff relied on Division Bench authorities of this Court, including Saroj Salkan… v. Capt. Sanjeev Singh & Ors. and Anil Kumar Bansal (Col. (retd.)) v. R.K. Bansal, to support the contention that fixed fees apply unless ouster is pleaded by the defendant.
Defendant's Arguments
- The defendant's senior counsel contended that ad valorem court fees are payable because the plaint does not aver that the plaintiff is in possession (actual, constructive or joint) or in control/management of any part of the suit property.
- It was emphasised that the plaint shows the plaintiff was resident abroad and visited India infrequently, and that she has not pleaded joint possession; therefore the plaintiff must pay ad valorem fees. The counsel relied on the judgment in Sonu Jain v. Rohit Garg and related authority to support this submission.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Saroj Salkan… v. Capt. Sanjeev Singh & Ors. (155 (2008) DLT 300) | Illustrates that where a plaintiff pleads possession (including constructive possession) and joint ownership, fixed court fee under the applicable Article of Schedule II may be payable; the case contained specific averments of possession. | The Court distinguished this authority on facts, noting that in Saroj Salkan the plaintiff had specifically pleaded possession; therefore that case did not assist the plaintiff in the present matter where no such averment was made. |
| Anil Kumar Bansal (Col. (retd.)) v. R.K. Bansal (198 (2013) DLT 723) | This authority was cited by the plaintiff in support of the contention that fixed court fees apply unless ouster is pleaded. | The Court noted the citation but held that the facts of the cited case were different from the instant case and therefore the authority did not help the plaintiff. |
| Sonu Jain v. Rohit Garg (128 (2006) DLT 633) | Holds that when the plaint shows the plaintiff is neither in possession nor in control/management (even jointly), the plaintiff cannot pay the fixed token fee and must pay ad valorem court fee on the valuation stated. | The Court accepted the principle in Sonu Jain as supporting the defendant's position that a plaintiff not shown to be in possession must pay ad valorem fees. |
| Nisheet Bhalla v. Malind Raj Bhalla (AIR 1997 Delhi 60) | Sets out principles: (a) court-fee question is to be decided on averments in the plaint alone; (b) in law possession of one co-owner is possession of all unless ouster/exclusion is proved; (c) joint possession in law does not require actual possession or receipt of income. | The Court relied on these principles to examine only the plaint's averments and to assess whether joint possession was pleaded or whether ouster could be inferred from the plaint. |
| Master Kunal (AIR 2003 Delhi 441) | Applied the principle that where a plaint pleads joint ownership and joint possession, proper (fixed) court fee had been paid. | The Court referred to this authority as an example where a fixed fee was held proper because joint possession was pleaded; by contrast, the present plaint contained no such specific averment. |
Court's Reasoning and Analysis
The Court started from the settled legal position that in partition suits a plaintiff must specifically aver that he/she is in possession (physical, constructive or joint) of part of the property in order to justify payment of the fixed court fee. This averment must be explicit in the plaint; the inquiry into court fees is to be decided on the basis of the plaint's averments alone, not by subsequent pleas or ultimate merits.
Applying those principles, the Court examined the plaint and observed that the plaintiff had not anywhere averred that she was in joint, constructive or physical possession of any portion of the suit property, nor that she was in control or management of it. Instead, the plaint repeatedly stated that the plaintiff is a permanent resident of Los Angeles and visited India only intermittently (2–3 times a year) while her mother was alive. The Court recorded that the plaint did not allege visits after 2008 or at the time of the mother's death in 2011; on the plaintiff's own averments, she appeared to have been excluded from possession.
Because the plaintiff did not plead possession, and her own averments supported an inference of exclusion/ouster, the Court concluded that the plaintiff was required to pay ad valorem court fees calculated on the plaintiff's claimed 2/3 share of the property. The plaintiff herself had valued the suit at Rs. 15 crores; therefore the ad valorem fee must be calculated on 2/3 of that valuation.
Finally, the Court applied Order 7 Rule 11(b) CPC: where a suit is properly valued but deficient court fees have been paid, the Court must give the plaintiff an opportunity to pay the deficient fee. Consistent with that provision, the Court ordered that the plaintiff be given eight weeks to pay the deficient ad valorem court fees on 2/3 of the valuation stated by the plaintiff.
Holding and Implications
Holding: The interlocutory application stands disposed of on the following basis: the plaintiff is required to pay ad valorem court fees on 2/3 of the suit valuation (the plaintiff having valued the suit at Rs. 15 crores) and is given eight weeks to pay the deficient court fees in terms of Order 7 Rule 11(b) CPC. The application is accordingly disposed of.
Implications: The direct practical consequence is that the plaintiff must pay the deficient ad valorem court fees calculated on her claimed 2/3 share within eight weeks, failing which appropriate consequences under the procedural law may follow. The Court distinguished the authorities relied upon by the plaintiff on the basis that those cases contained specific averments of possession which are absent here; the decision is grounded on the application of established principles about deciding court‑fee questions from the plaint and the presumption of joint possession only where not excluded by the plaint. The opinion does not purport to lay down a new precedent beyond the application of the cited authorities to the facts of this case.
Order entry: CS (OS) No. 3291/2011 — listed on 02.05.2014.
V.K SHALI, J. (ORAL)
IA No. 4036/2012 (u/Order 7 Rule 11 r/w Section 151 CPC)
1. The question involved in the instant matter is as to whether the suit is liable to be rejected on account of deficient court fees having been paid under Order 7 Rule 11(b) CPC.
2. Briefly stated, the facts of the case are that the plaintiff/Ms. Neelam Batra has filed the present suit for declaration and partition against her brother in respect of a single story residential house constructed on a plot of land bearing No. D-1017, New Friends Colony, New Delhi, admeasuring 500 square yards. In the plaint, the averment which pertain to question of payment of court fees are as that the plaintiff, after marriage with one Mr. Pradeep Batra, set up permanent residence at 415, 18th Street, Los Angeles, 90402 and stayed with her mother and brother at the suit property 2-3 times in the year that she visited India. It is alleged that the mother of the plaintiff was not treated well by the her son (defendant herein) and his wife as a consequence of which she had been sending her letters and narrating her woes and misery to the plaintiff while she was in USA. This was also narrated to her on telephone as and when her mother would speak to the plaintiff. The mother unfortunately died on 20.01.2011 leaving behind the suit property to the plaintiff. As per the Will dated 01.11.2008, the mother had left her share to the plaintiff. It has been alleged by her that her mother hand written this Will in her own handwriting in mid-December, 2008 in the presence of two witnesses. It is alleged by the plaintiff that on the basis of the Will, the plaintiff is to get ½ share while as out of the other ½ share which was owned by the father of the parties, she is to get another ½ share of the same which would make her share to be 2/3rd on the bequest of the mother. It is alleged that she had represented to the defendant, her brother, for partition of the suit property so that it could be beneficially exploited by building four storeys, to which the defendant had shown resistance and contended that he would live in the property all by himself.
3. In para 13 of the plaint, it has been alleged as under:
“13. That on her recent visit to India on 11.12.2011, the plaintiff and her husband along with common friends have once again sought to reason with the defendant but to no avail in the face of his intractable defiance and dangerous declaration made on the evening of 19.12.2011 that, exasperated by the plaintiff's repeated call for partition, he is in the process of disposing of the SUIT PROPERTY (despite the want of title) and the plaintiff may thereafter recover her share from the prospective hoodlums who deal in such properties.
It is submitted that the defendant is in dire straits financially and has never refurbished the SUIT PROPERTY that is in a state of disrepair sticking out as a sore thumb in a posh South Delhi Colony. It is feared therefore that an escapist defendant may very well fall prey to the builder mafia, even on the look out of taking possession of disputed properties at distressed rates.
It is further submitted that it is reliably learnt that the defendant has not paid the property tax for the SUIT PROPERTY for over 5 years and refuses to part with the requisite documents in order to enable the plaintiff to do the needful.”
4. In para 15 of the plaint regarding cause of action, the plaintiff has averred as under:
“15. That the cause of action accrued to the plaintiff when the late Dr. Prakash Chand Bhatla died on 14.02.2001 The cause of action further arose when Mrs. Rani Bhatla died on 20.01.2011 leaving behind her Will dated 01.11.2008 bequeathing her share in the SUIT PROPERTY to the plaintiff. The cause of action further arose on countless occasions when the plaintiff sought the partition of the SUIT PROPERTY and the defendant defiantly resisted. The cause of action is continuing and subsisting.”
5. In para 17 of the plaint, the plaintiff has valued the suit property at more than Rs. 15 crores so far as the pecuniary valuation is concerned and she has sought a declaration that she is the owner of 2/3 share of the suit property and further that the suit property be partitioned and she be given her share in the property.
6. The plaintiff has paid the fixed court fees of Rs. 19.50 on the entire suit. The question which arises for consideration is as in none of the averments made by the plaintiff, she has averred that she is in joint possession or constructive possession or even that she is in part possession of any part of the premises, the question arose as to whether she could file the suit for partition by simply paying the fixed court fees of Rs. 19.50 or not.
7. The contention of the learned counsel for the plaintiff was that the law regarding the payment of court fees in the suits for partition is very well settled and until and unless the defendant avers the ouster of the plaintiff from the suit property, the plaintiff is under an obligation to pay the fixed court fees. In this regard, the learned counsel for the plaintiff has referred to the Division Bench judgment of this court Saroj Salkan… v. Capt. Sanjeev Singh & Ors.…; 155 (2008) Delhi Law Times 300 and Anil Kumar Bansal (Col. (retd.)) v. R.K Bansal; 198 (2013) Delhi Law Times 723.
8. As against this, the learned senior counsel for the defendant contended that the plaintiff has to pay the ad valorem court fees. In this regard, it was contended by him that in none of the paras of the plaint, the plaintiff has stated that she is in possession of any part of the suit property. It has also been stated that she is not even claiming to be in joint possession of the suit property. All that the plaintiff has stated in the plaint is that as and when she visited in India 2-3 times when her mother was alive, she would stay in the suit property along with his mother who incidentally was staying with the defendant in the suit property. In the light of these averments, it has been contended by the learned senior counsel that the plaintiff has to pay the ad valorem court fees. He has drawn the attention of this court to the judgment of this court in Sonu Jain v. Rohit Garg128 (2006) Delhi Law Times 633 wherein it has been observed in para 18 as under:
“18. In the present case the plaint of the plaintiff clearly shows that plaintiff is neither in possession nor in control or management of the property, even jointly. The right of the plaintiff in regard to possession or management is apparently an admitted fact. Paragraph 25 of the plaint does not further the case of the plaintiff. The plaintiff therefore could not have valued the suit in regard to the relief of partition, for the purposes of jurisdiction of Rs. 100 crores while valuing the same for the purposes of court fee at a fixed rate of paying only Rs. 20/- in terms of Article 17 in Schedule II of the Court Fees Act. In these circumstances of the case and the plaintiff being not in possession, symbolic or otherwise, and having no role in the management of the said properties, the plaintiff would be required to pay ad valorem court fee at Rs. 100 crores, the valuation stated for the purposes of jurisdiction. The arguments raised on behalf of the plaintiff violates the known principles governing this aspect and the plaintiff is obliged to pay the court fee, ad valorem, in accordance with law.”
9. I have carefully considered the submissions made by the learned counsel for the parties. I have also gone through the judgments.
10. There is no dispute about the fact that in a suit for partition, the fixed court fees is to be paid provided the plaintiff from the averments of the plaintiff specifically states that he is in possession of part of the suit property, be that constructive or physical, or even joint possession, but this averment has to be specific in the plaint. In the instant case, the plaintiff has not averred anywhere in the entire plaint that she in joint or constructive or physical possession of any part of the suit property. She has even not alleged that she is in control or management of the suit property. In the absence of any such averment, the consideration of question that there has to be an allegation of ouster or the consideration of the said question does not arise. Therefore, in my view, the ad valorem court fees has to be paid by the plaintiff on her share that is 2/3. The judgments relied upon by the learned counsel for the plaintiff do not in any way help the plaintiff for the simple reason that the facts of these cases were totally different than the facts of the case in hand. The averments made in Saroj Salkan's case (supra) were as under:
“3. The appellant had valued the suit for the purposes of jurisdiction for relief of partition at about Rs. 20 crores in para 48 of the plaint which is reproduced hereinbelow:
48. That the value of the suit for purpose of jurisdiction for the relief of partition is above 20 crores. The plaintiff is in possession of an undivided share in their suit properties and has been receiving cash compensation as her share. She is in constructive possession of the properties. The value of the plaintiff's share cannot be computed in terms of money since the share is to be ascertained as to whether it will be as co-parcener to the extent of - in General Budh Singh HUF or whether it will be 1/3 in the half share of General Budh Singh. Thus a fixed fee under Schedule II Article 7(ii) of Rs. 20/- is being affixed. The plaintiff undertakes to pay the Court fee as and when her share is computed.” (emphasis supplied)
11. In para 13, it was observed as under:
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 advalorem 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.”
12. In Nisheet Bhalla v. Malind Raj Bhalla; AIR 1997 Delhi 60, the learned single Judge in para Nos. 9 & 10 had observed as under:
9. Following principles can be culled out from the aforesaid judgment: (a) in order to decide the question of Court-fee, averments made in the plaint are to be seen and decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits; (b) the general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved; and (c) 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. It is also not necessary that he should be getting a share or some income from the property so long as his right to a share and his 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.
10. Relying upon this judgment, this Court in Master Kunal, AIR 2003 Delhi 441 (supra) held that proper Court-fee had been paid. That was also a suit for partition and rendition of accounts and plaintiff has pleaded joint ownership and joint possession.”
13. Ultimately, in para 15 it has been observed that if in no uncertain and unambiguous terms, the plaintiffs admit their ouster or exclusion from the suit property, the plaintiffs are liable to pay ad valorem court fees.
14. Now, based on the aforesaid principles of law, the plaintiff, in the instant case, from the averments has clearly depicted that she is not in possession of even a part of the property, physically or constructively. Further, the same is reinforced by the plaintiff unwittingly by saying that she is a permanent resident of Los Angeles and used to visit India 2-3 times in a year when her mother was alive. That was also way back in 2005. Admittedly, the mother of the plaintiff died in 2011. It is not her case that she has visited India after 2008 at any point of time or even in 2011 at the time of death of her mother and that she was living or was in possession, constructive or physical, in respect of the suit property. Therefore, it is clear from her own averments in the plaint that she has been ousted from the suit property and in such a contingency she has to admittedly pay the court fees on ad valorem basis.
15. The plaintiff has herself stated in the plaint that she has 2/3 share in the suit property which has been valued by her at Rs. 15 cores If that be so, then she has to pay the court fees on 2/3 of Rs. 15 crores on ad valorem basis as the court fees. As per the provisions of Order 7 Rule 11(b) CPC if a suit is properly valued but deficient court fees has been paid, then an opportunity has to be paid to the plaintiff for payment of the deficient court fees. Keeping in view the aforesaid principle in view, the plaintiff is given an opportunity to pay the deficient court fees within eight weeks on 2/3 of the total valuation of the suit property which has been assessed to Rs. 15 crores by the plaintiff himself.
16. The application accordingly stands disposed of.
CS (OS) No. 3291/2011
1. List on 02.05.2014
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