RANJITA BETARBET vs SUBIR BANERJEE

2024-12-11 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30th September, 2024
Pronounced on: 11th December, 2024

+ C.R.P No.123/2023, CM APPL. 25450/2023, CM APPL. 31028-31029/2023, CM APPL. 37081/2023, CM APPL. 7996/2024
MS. RANJITA BETARBET
Daughter of Late Shri Sukanti Banerjee,
R/o 5310, Catalpa Court,
Lilburn, GA 30047, U.S.A. ….. Petitioner

Through: Ms. Anisha Banerji, Advocate
versus
SUBIR BANERJEE
Trespasser at 31B, Pocket B
Siddharth Extension,
New Delhi-110014. ….. Respondent

Through: Ms. Abha Maryada Bhatt, Advocate.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. Revision Petition under Section 115 read with Section 151of the Civil Procedure Code, 1908 has been filed against the Order dated 14.07.2022, vide which the Application under Order VII Rule 11of the CPC filed by the Petitioner (Defendant in the Main Suit), has been dismissed.
2. The Petitioner had sought rejection of the Suit for Partition filed by the Respondent (Plaintiff) on the grounds of the Suit was barred by Limitation and that the Court Fees paid was deficient.
3. According to the Revisionist, as per the averments in the Plaint, the Cause of Action arose on 02.08.2005 when Sh.Sukanti Banerjee, father of the parties, died at Delhi. The Respondent /daughter is a permanent resident of America who visits the country sparingly. Both the parties are living abroad and none were residing in the Suit Property wherein the mother of the parties Smt. Ava Banerjee, had been living till her demise on 11.11.2021. The present Suit for for Partition and Permanent Injunctionhas been filed in the year 2019.In terms of Article 69 and 110 of the Schedule to Limitation Act, the period for limitation for partition is three years and twelve years respectively. From the averments made in the Plaint itself, the Suit is patently barred by limitation.
4. It is further claimed that the Respondent (Plaintiff) has admittedly not been in possession of the property as per his own averments since 2018;thus, ad valorem Court Fee was required to be paid. His claim for constructive possession, is not tenable from the plaint itself and therefore, the Suit was liable to be rejected.
5. Learned Counsel on behalf of the Respondent had countered the averments made in the Application under Order VII Rule 11 of theCPC by asserting that the partition of the property was claimed by him for the first time on 09.03.2019 orally and thereafter, filed a Suit on 31.05.2019 i.e. within a period of three years from the date of accrual of cause of action. It is asserted that the Suit has been filed within limitation.
6. It is further submitted by the Respondent/Defendantthat he had gone to Jakarta and then to Singapore for the period between 2001 till July, 2018, but thereafter, he had returned to the Suit Property and resided with her to take care of his mother. However, on account of filing of malicious, frivolous Complaint under the Senior Citizens Act by the mother at the behest and under the influence of the Revisionist/Defendant, he had left the house in order to maintain peace and harmony.
7. He, thus, claimed that being the co-owner of the property in question, he was always in constructive possession. Moreover, during the pendency of the Suit, the mother has died on 11.11.2021 and now he is in constructive possession along with the Revisionist/Defendant and the Court Fee has been paid in accordance with law.
8. It is further asserted that the issues in regard to the limitation and court fee had already been framed and the same being a mixed question of fact and law can be adjudicated only after the evidence is recorded. It is, therefore, submitted that the learned Tribunal has rightly dismissed the Application under Order VII Rule 11 CPC.
9. Submissions heard and the record perused.
10. The Respondent/Plaintiff had filed a Suit for Partition and Permanent Injunction against his Sister and Mother, who are impleaded as Defendants. The partition was sought in respect of the Suit Property bearing Flat No.31-B, First Floor, Pocket-B, Siddharth Extension, New Delhi and also in respect of funds in the sum of Rs.2,34,277.78 lying in UCO Bank, Supreme Court Compound, New Delhi in account No.20004, in respect of which Succession Certificate bearing No.467/2006 has been obtained by the Revisionist/Sister (Defendant) vide Order dated 17.01.2007 which apparently has been appropriated by her on the basis of Succession Certificate, without Notice to the Plaintiff. He had, thus, sought Partition of the Suit Property and the bank balance along with Permanent Injunction. The suit property was originally owned by Sh.Sukanti Banerjee (the mother)vide Conveyance Deed dated 20.08.2001 registered on 25.09.2001. During the pendency of the Suit, Smt. Ava Banerjee, Defendant No.1 has died on 11.11.2021.
11. The first aspect which has been agitated on behalf of the Revisionist is that Respondent/Defendant had left his parents way back in 2001, when he went to Jakarta with his family, for job opportunities. Mere physical distance cannot be termed as ouster from the suit property.
12. The Respondent/Plaintiff has explained that according to the Revisionist/Defendant, he had been publicly denounced by the father by issuing a Newspaper Publication in the year 2001. It has been explained that he was at the requisite time, in Jakarta and never got any information or copy of this Notice allegedly published in the Newspaper. Furthermore, this alleged Notification had been issued under the signature of the Counsel and was not even signed by the father. It is claimed to be a manipulated Notification of alleged disowning of the Respondent. Moreover, it has been explained that this alleged disownment does not take away the right of the Respondent/Plaintiff to the properties of the parents after their demise.
13. In this aspect reference be held on the observation of the Apex Court in the case of Syed Shah Ghulam Ghouse Mohiuddin and Ors. (1971) 1 SCC 597 wherein it was held that possession of one co-owner is presumed to be on behalf of all co-owners unless it is established that the possession of co-owner is in denial of title of co-owners and possession is in hostility to co-owners by exclusion of them. It was further held that there has to be open denial of title to the parties who are entitled to it by excluding and ousting them.
14. Furthermore, in the case of Preeti Satija vs. Raj Kumar and Ors. MANU/DE/0167/2014 while considering the same plea of ouster by aPulic Notice, it was observed :
In fact, the strategy of disowning sons, through public notices of advertisement, is not to be taken lightly. For example, even if son is disowned by either parent, the death of that parent would, if intestate, still lead to devolution of property upon that son. Indeed, a mere proclamation does not have a dispositive legal effect, breaking all legally relevant familial ties. Thus, absence of a deed of relinquishment or other formal deed of partition of the family or separation between the members, the Court must be cautious in denying statutory rights to wives, as against members of the Husbands family on the basis of such tentative facts.
15. Even if the plea of the Revisionist/Defendant is accepted that the Plaintiff got disowned by the father by way of a Public Notice, but such disowning may be of moral social obligations but cannot divest the Plaintiff of his legal right in the property when there was no instrument of exclusion either by way of Will, Partition, Gift Deed etc. was executed. The plea of the Revisionist that the Plaintiff stood ousted and had no legal right, title in the Suit Property, is not made out.
16. The respondent has further asserted that the Revisionist herein, in the year 2007-2009 vide Affidavit of No Objection dated 08.01.2007 and Waiver dated 13.07.2009, waived her rights in the suit property. These documents were submitted in MCD on the basis of which Mutation was affected in the name of Smt. Ava Banerjee. These facts had been concealed by the Revisionist.
17. The respondent has further explained the circumstances which compelled him to physically remove himself from the suit property in 2019. His mother had filed a false Senior Citizen Complaint before District Magistrate/Deputy Commissioner, South-East under Section 22(1) of Maintenance and Welfare of Parents and Senior Citizens Act, 2008on the instigation and at the behest of the Revisionist (defendant), wherein directions were sought for Respondent/Defendant to vacate the Suit Property. The Respondent appeared before the ADM and filed his reply, but did not want to contest the Petition against his mother and therefore, he vacated the property on 04.05.2019.
18. The main ground which is agitated on behalf of the Revisionist/Defendant is that the requisite Court Fee has not been paid. Here it is pertinent to observe that the Revisionist herself is a permanent resident of America, while the Respondent/Plaintiff has been in Jakarta and Singapore since 2001 but returned to India only in July, 2018 and had initially shifted in the Suit Property with his mother. Subsequently, because of her filing a Complaint against him, he had shifted out of the Suit Property in due respect of his mother. After the demise of the mother, the Plaintiff is in legal possession of the Suit Property.
19. In the case of Uma Ghate vs. Umesh Phalpher,MANU/DE/3240/2016 it has been held as under: –
5. It is further argued that the plaintiff is not liable to pay ad valorem court fee because she is in constructive joint possession of undivided share in the Suit Property and she has continued to be in constructive possession of her undivided share in the said property and at no stage she was ousted of the property.

20. In the case of Commercial Aviation and Travel Company vs. VimlaPannalal, AIR 1988 SC 1636 it as observed as under:
since the conversion of the plaintiffs undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with precision and definiteness and since the court itself is unable to determine the correct value of the relief, it cannot direct the plaintiff to correct the valuation as under Order 7 Rule 11(b) contemplates correct valuation of the relief has to be done by the court and if the same cannot be done, Order 7 Rule 11(b) will not be applicable.
21. Respondent has asserted that he has always been in constructive possession of the property. The contention of the Revisionist about the deficit court Fees is not made out, and it cannot be said that the requisite Court Fees has not been paid at this stage of O. VII Rule 11 CPC and may be decided after recording of evidence.
22. The second aspect agitated is that the Suit is barred by Limitation. The Revisionist has asserted that the Respondent/Plaintiff in paragraph No. 11 of the plaint disclosed Cause of Action has stated that on 02.08.2005 when the father died, he became entitled to partition and to his share in the property of the father. The suit for partition could have been filed within three years, but has been filed in 2019 and is barred by limitation.
23. However, as has been detailed that after the demise of the father, No Objection and Waiver documents had been executed by the Revisionist/Defendant in favour of the mother and the property got mutated in the name of mother. The Plaintiff had sought a share in the property which was originally owned by the father, by seeking partition only in March, 2019.
24. According to Articles 69 and 110 of the Schedule II Limitation Act, the right to sue for partition arises from the day when the cause of action arises. In the present case, the property may be joint, but the right of seeking partition is continuing and a definite cause of action arises only when a demand for partition is made.As per the averments in the Plaint, the request for partition was made in March, 2019 and the Suit has been filed in May, 2019 which is well within a period of three years.Prima facie, it is shown that the Suit is within limitation.
25. It is also pertinent to observe that the issues have already been framed in regard to limitation and Court Fee. It is only thereafter, that the present Application has been filed. From the averments made in the Application, it is evident that it is nothing but an endeavour to delay the Suit.
26. None of the grounds agitated by the Revisionist entail rejection of the suit. The Application under Order VII Rule 11 CPC has been rightly rejected.
27. It is hereby clarified that observations made herein are only for the purpose of deciding the Revision Petition and is not an expression on the merits of the case.
Relief: –
28. There is no merit in the present Revision Petition, which is hereby dismissed.

(NEENA BANSAL KRISHNA)
JUDGE
DECEMBER 11, 2024
va

CRP NO.123/2023 Page 1 of 8