SMT. HEM MADAN vs MR. PAWAN CHOWDHRI & ANR.

$~19

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 09th January, 2024
+ CS(OS) 486/2019, CRL.M.A. 1/2022, I.A. 13002/2019, I.A. 12314/2020, I.A. 2359/2021, I.A. 54/2022, I.A. 19222/2022, O.A. 53/2022

SMT. HEM MADAN ….. Plaintiff
Through: Mr. Shreshth Jain, Advocate.

Versus

MR. PAWAN CHOWDHRI & ANR. ….. Defendants
Through: Mr. Varun Jain and Mr. Nikhil Fernandes, Advocates.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 19037/2022 (seeking rejection of plaint on account of payment of deficit Court free):

1. An application under Order VII Rule 11 of the Code of Civil Procedure, 1906 (hereinafter referred to as “CPC”) read with Section 151 CPC has been filed by defendant No. 2 for the rejection of plaint on account of payment of deficit court fee.
2. A suit for Declaration, Partition and Rendition of Accounts has been filed by the plaintiff, claiming to be a co-owner in the estate of her father late Shri Tek Chand Anand, who expired on 23.10.2016. Defendant Nos. 1 and 2 are the sister and brother of the plaintiff respectively.
3. It is asserted in the plaint that the plaintiffs father’s estate was under the name of Tek Chand Anand HUF (hereinafter referred to as “the HUF”) of which her father was the Karta. Late. Shri. Tek Chand Anand was also running a business under the name and style of M/s Garg Armoury Pvt. Ltd., operated from rented shop, bearing no. 1/1526, Kashmere Gate, Delhi – 110006.
4. The plaintiff states to be aware of the following estates owned by Late Shri Tek Chand Anand and the HUF:
“a. 21/2 storied constructed Residential house commonly known as 2, Birbal Road, Jangpura Extension, New Delhi – 110014 on a area of 533 sq yds., in the name of Late Sh. Tek Chand Anand.
b. 18, Feroz Gandhi Road, Lajpat Nagar – III, New Delhi – 110024 (Single Storied House) area about 800 sq yds, falls under the estate of Tek Chand Anand HUF.
c. shares in M/s Garg Armoury Pvt. Ltd. held in the name of Defendant No. 2 and husband of Defendant No. 1.
d. Public Provident Fund in State Bank of India, Sansad Marg, New Delhi – 110001 in the name of Tek Chand Anand;
e. Public Provident Fund, State Bank of India, Jangpura Extension, New Delhi -110014 in the name of Tek Chand Anand HUF;
f. Fixed Deposit, Bank Account in the name of Tek Chand HUF bearing account no. 05871930000073 with HDFC Bank, Jangpura Extension, New Delhi – 110014;
g. Other bank accounts, Lockers and other house hold goods.
h. Other movable properties.”

5. The plaintiff further asserts that she was apprised of a Will dated 18.06.2003 executed by her father vide which he had bequeathed all his estate in favour of Defendant no. 2 except for Public Provident Fund with State Bank of India, Sansad Marg, New Delhi – 110001 (HUF) which had been bequeathed in favour of Plaintiff and Defendant no. 1 equally.
6. Another purported Will of 2014 was thereafter, disclosed by defendant No. 2 wherein late Shri Tek Chand Anand had bequeathed his entire estate in the name of defendant No. 2. However, the said Will was unsigned.
7. Since the plaintiff disputed both the Wills, the siblings decided to reconcile the dispute. After much deliberation, the parties arrived at a mutual Oral Agreement which was reduced to writing by way of Family Settlement Deed dated 31.12.2018 which was signed by the parties. However, the defendants failed to act on the said Settlement despite the requests of the plaintiff through letter dated 29.07.2019 and Legal Notice dated 12.08.2019. The plaintiff also learnt that defendant No. 2 has an ulterior motive of selling the assets to third party.
8. The present suit has thus, been filed for Declaration that the plaintiff is a co-owner in her father’s estate and Rendition of Accounts. Further, she has sought for the Partition of the estate of late Shri Tek Chand Anand as per the Family Settlement Deed dated 31.12.2018 or in the alternative has sought for 1/3rd share in the said estate as per Hindu Succession Act, 1956 and Permanent Injunction against the defendants.
9. Defendant No. 2, in his application, has submitted that the present suit is barred under Order VII Rule 11 CPC as the plaintiff has not paid the requisite court fee mandated under law. The Plaintiff has valued the suit for the purposes of jurisdiction at Rs. 60,00,00,000/-. She has sought the relief of Declaration, partition along with several other consequential reliefs. Therefore, in terms of the Section-7(iv)(c) read with Section-7(v) of the Court Fee Act, 1870, the plaintiff is obligated to pay Court Fees in accordance with the amount at which relief sought in the plaint is valued, i.e. Rs.60 Crores whereas the Plaintiff has merely affixed Rs. 73/- as Court Fee.
10. It is further submitted that in a suit for Declaration and consequential relief, the valuation of the suit has to be in accordance to the market value of the house. Reliance has been placed on Jagdish Singh vs Jaswinder Singh and ors, 2015 (147) DRJ 596.
11. The plaintiff had got married in the year 1974-75 and ever since has been living in her matrimonial home. It can be evinced from her memo of parties that she resides in Mumbai. Her claim to be in deemed possession as co-owner, is merely to avoid the payment of requisite court fee. A bald assertion of constructive possession, shall not suffice in the absence of any document supporting the same. Therefore, without disclosing documents to show prima-facie possession of the plaintiff, Article 17(vi) of Schedule II of the Court Fees Act, 1870 cannot be applied as held in the case of Om Prakash Arora vs Meenakshi Sardana & Ors., CS(OS) No. 162/2020 decided on 28.07.2022.
12. It is submitted that for a suit for relief of Declaration, the valuation for the purposes of court fee and jurisdiction has to be the same and cannot be different. Reference in this regard may be made to Section 8 of the Suits Valuation Act, 1987 read with Section 7(4) of the Court Fees Act, 1870. Such findings were made in Ravinder Kumar Khanna Vs. Prem Prakash Khanna & Ors., 2017 III AD (Delhi) 786.
13. Further reliance has further been placed on the judgements in Jagdish Singh vs Jaswinder Singh and ors, 2015 (147) DRJ 596; Anita Anad vs Gargi kapur and ors, 256 (2019) DLT 84.
14. The counsel for the plaintiff has contested the application and claimed that since the plaintiff is in constructive/deemed possession of the suit properties, only fixed court fees is liable to be paid under Article 17 (vi) Schedule II of the Court Fees Act, 1872. Reliance has been placed on the judgements in Saroj Salkan vs Capt. Sanjeev Singh, (2008) SCC OnLine Del 1278; Neelavathi and ors vs N. Natarajan and ors, (1980) 2 SCC 247; Anu vs Suresh Verma and ors, CS(OS) No. 2546/2010 decided on 12.07.2011; Shobha Jolly vs Suraj S.J Bahadur and anr, 2013 SCC OnLine Del 4106; Sarabjit Prakash and anr vs Udyajit Prakash and ors, 2011 On Line Del 4465; of Uma Ghate vs Umesh Phalpher, CS(OS) 579 of 2016 decided on 01.12.2016.
15. Submissions heard.
16. The plaintiff in the present case, is not only seeking for the partition of the self acquired estate of her father, but is also seeking a Declaration and Rendition of accounts for the HUF in which her father was the Karta. The obvious implication from the above is that the plaintiff is seeking the partition of certain assets as an legal heir of late Shri Tek Chand Anand and the remaining assets under the capacity of being a member of the HUF. In essence, the plaintiff is making claims as a co-owner of the estate listed in the her plaint.
17. The Supreme Court in the case of P.V. Gururaj Reddy Rep. by GPA Laxmi Narayan Reddy and Anr. Vs. P. Neeradha Reddy and Anr., (2015) 8 SCC 331 held as follows:
“5. Rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.”

18. Further, in paragraph 17 of the plaint it is stated that the plaintiff along with Defendant No.1 and 2 is in joint possession as co – owners of the aforesaid properties.
19. The valuation of the suit and the details regarded the payment of court fee has been specified paragraph 27 of the plaint, which reads as under:
“That the present suit is a non-commercial suit and Plaintiff is in deemed possession of the suit property as mentioned above. The value of the suit for the purpose of partition is valued at Rs. 200/- and the requisite court fees upon the same has been paid. The suit has been valued for more than Rs. 2,00,00,000/- (Rupees Two Crore Only) for the purpose of pecuniary jurisdiction. It is valued at Rs. 60,00,00,000/- (Rupees Sixty Crores only) being the market value of the immovable properties for the relief of partition and possession and since the Plaintiff is deemed to be in possession as a Co- owner only, the fixed court fee of Rs. 20/- is payable under Schedule – II Article 17 (VI) of the court Fee Act, 1870 and relief for rendition of accounts is assessed at Rs. 200/- and for the relief of declaration is assessed at Rs. 200/- and for the relief of permanent injunction is assessed at Rs. 130/-. The Plaintiff has accordingly paid fixed Court fee of Rs. 20/- + Rs. 20/- + Rs. 20/- + Rs. 13/- respectively, totaling Rs. 73/- on the Plaint. The Plaintiff undertakes to pay the requisite court fee on the conclusion of the proceedings.”

20. While the relief of Partition has been valued at Rs. 60,00,00,000 for the purposes of pecuniary jurisdiction, a fixed court fee of Rs. 20 has been paid by the plaintiff as stated in paragraph 27 of the plaint. Only the relief of Partition has been valued at Rs. 60,00,00,000 and therefore, the commensurate court fee for the said relief, is the sole consideration under the present application.
21. According to Section 7 (iv) (b) of the Court Fees Act, 1872, in a suit for enforcement of a right in a joint family property, court fee is payable according to the amount at which the relief sought is valued in the plaint. Therefore, court fee is payable ad volarem in partition suits. Article 17(vi) Schedule II of the Court Fees Act, 1872 provided for the payment of fixed court fee in cases where it is not possible to estimate a monetary value of the subject matter in dispute. However, the court must look at the averments and determine whether the plaintiff was in the possession of the suit property of which partition is sought.
22. It was held by this court in Prakash Wati vs Dayawanti, (1990) 42 DLT 421, that in the case of co-owners, the possession of one is in law the possession of all, unless ouster or exclusion is proved. By relying on the judgement in Jagdish Pershad v. Joti Pershad, 1974 SCC OnLine Del 214, this court in Prakash Wati (Supra) re-iterated that when the plaintiff asserts shared possession of the property for which partition is requested, whether actual or constructive, the plaintiff is only required to pay a fixed court charge in accordance with Article 17(vi) Schedule II of the Court Fees Act, 1870. Thus, ad volarem court fee under Section 7(iv) (b) of the Court Fees Act, 1870 can be applied only when the plaintiff has been ousted from its enjoyment of the suit property and seeks restoration of the joint possession by way of a suit as was held in Asa Ram Vs. Jagan Nath and others, AIR 1934 Lahore 563.
23. In Jagdish Pershad & ors vs Jyoti Pershad & ors, ILR 1975 Delhi 841, this Court held that when a joint owner seeks partition of the property, they merely seek a change in the mode of enjoyment of the said property, where a mere denial of right or title by the other co sharers does not amount to an ouster of the plaintiff.
24. To appreciate implication of refusal/ denial by defendant No. 2 of title in the suit property and his threats to alienate the said properties, the necessary ingredients of ouster has to be delineated.
25. The Apex court in Nagabhushanammal (Dead) vs C. Chandikeswaralingam, (2016) SCC 434, placed reliance on judgement in Vidya Devi vs Prem Prakash, (1995) 4 SCC 496 wherein the meaning and connotation of the term ‘ouster’ was expounded as follows:
“28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

26. In the case of Nisheet Bhalla Vs. Malind Raj Bhalla, AIR 1997 Delhi 60, the Coordinate Bench of this Court had held that in order to decide the question of court fee, averments made in the plaint are to be seen and the decision cannot be influenced by the pleas taken in the written statement or by the final decision of suit on merits. It is only when the ouster or the exclusion from the property is proved that the question of ad valorem Court Fee may arise. So long as there is joint possession in law, it is not necessary that the plaintiff should be in actual possession in whole or part of the property.
27. This court in Krishna Gupta and Anr. vs M/S Rajinder Nath & Co Huf And Ors, 2013 SCC OnLine Del 547 held that while ascertaining if the plaintiff had been ousted from the suit property, the same must be indisputably admitted by the plaintiff in their plaint. Specific sentences and paragraphs in the plaint cannot be read in abstract while determining an ouster especially when the plaintiff has categorically stated that they are in joint and constructive possession of the suit property. Thus, once an express plea of constructive possession has been made, the onus to prove ouster for the payment of ad volarem court fee shifts on to the defendants.
28. From a combined reading of the aforesaid judgements, it is clear that a party claiming partition of property is liable to pay ad valorem court fee only in those circumstances where ‘ouster’ is established from the plaint. The reason for this exception is that, in cases of joint possession, be it actual or constructive, it is not possible to ascertain the value of the subject matter in dispute. Therefore, irrespective of the quantum of valuation of the suit for the purposes of pecuniary jurisdiction, fixed court fee is payable in partition suits where the plaintiff is found to be in actual or constructive possession of the suit property.
29. The facts of the present case may now be examined to ascertain whether the plaintiff can be held to be in constructive possession of the suit properties.
30. First and foremost, this objection has been taken in the application under Order VII Rule 11 CPC whereby only the averments made in the plaint have to be considered. The plaintiff has claimed that some properties of the deceased father was HUF and also that there was a Family Settlement inter se the parties to the Suit in respect of the deceased father which defendant No.2 is now intentionally refusing to abide with. The plaintiff has unequivocally claimed to be a co-owner in the suit properties; the mere fact that she got married in 1974-75 and began to reside in Mumbai, is not a circumstance which may be held as legal ouster and such a defence can be considered only at the final stage.
31. Therefore, whether there was an ouster of the plaintiff from the suit properties cannot be made out from a comprehensive reading of the plaint, at this stage. Defendant no. 2 may dispute the averments made by the plaintiff in the plaint regarding the Will and her title in the property, but these questions have to be considered on merits and not at this stage while deciding an application under Order VII Rule 11 CPC.
32. The learned counsel for defendant No. 2 has made a misplaced reliance on the Om Prakash Arora vs Meenakshi Sardana & Ors. (supra). In the said case, the plaintiff claiming partition of the suit property, was not a blood relative of the other parties as he alleged to have purchased a share in the suit property by way of an Agreement to Sell for which no proof or substantiation had been given by him. In fact, the co-owner from whom the plaintiff has purchased a share in the property had been earlier ousted and not even an averment had been made in the plaint explaining how his possession had been restored after the ouster of his predecessor. The facts of the said case are distinguishable from the present facts as the plaintiff and the defendants are admittedly the Class I heirs of late Shri Tek Chand Anand.
33. Even the other judgements referred to by the counsel for defendant No.2 have no relevance as they relate to the court fees payable in suits for Declaration and consequential relief. Admittedly, all other reliefs have been valued at a fixed rate for court fee as well as jurisdiction except for the releif of Partition.
34. As discussed above, for the relief of partition, the plaintiff claims to be in constructive possession of the suit properties due to which only a fixed court fee is payable. Thus, any objection on insufficient court fee raised by the defendants is not tenable.
35. Therefore, the fixed court fee has been paid by the plaintiff in accordance with the Court Fee Act, 1870. The application under Order VII Rule 11 CPC, is hereby dismissed with the observation that this question shall be determined at the final stage.

CS(OS) 486/2019, CRL.M.A. 1/2022, I.A. 13002/2019, I.A. 12314/2020, I.A. 2359/2021, I.A. 54/2022, I.A. 19222/2022, O.A. 53/2022

36. List before Court on 14.05.2024.

(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 09, 2024/Ek

CS(OS) 486/2019 Page 1 of 12