THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 25.02.2011
Judgment Pronounced on: 04.03.2011
+ CS(OS) No. 2642/2008
SUSHMA TEHLAN DALAL .....Plaintiff
- versus -
SHIVRAJ SINGH TEHLAN & ORS ....Defendant
Advocates who appeared in this case:
For the Plaintiff: Mr. Y.P. Narula, Sr. Adv. with
Ms. Nandita Rao, Adv.
For the Defendant: Mr. Mohinder Madan, Adv. for
D-1. Mr Vivek Singh, Adv. for D-
7.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1.
Whether Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
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
CS(OS)No. 2642/2008 Page 1 of 16
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.
32/3,4,7/1,12/16,13/20,19,25/21/1,27/5/1,1
3/2,242,49,49/1.
(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,
CS(OS)No. 2642/2008 Page 2 of 16
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 26 th 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
CS(OS)No. 2642/2008 Page 3 of 16
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 courtCS(OS)No. 2642/2008 Page 4 of 16
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
CS(OS)No. 2642/2008 Page 5 of 16
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
CS(OS)No. 2642/2008 Page 6 of 16
payable under Court-fee Act, shall be computed accordingto 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 Chettiar 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 shareCS(OS)No. 2642/2008 Page 7 of 16
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 and Ors. v. N. Natarajan and
Others, 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
CS(OS)No. 2642/2008 Page 8 of 16
by the defendants in that suit that the plaintiff were not injoint 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 judgment, 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 diedCS(OS)No. 2642/2008 Page 9 of 16
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 vs. Seetharama (dead) by
Lrs. and Ors. 2007 (1) SCC 674, 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
CS(OS)No. 2642/2008 Page 10 of 16
Section 35(2) of Karnataka Court-fees and Suit ValuationAct, 1958. The plaintiffs had also alleged to be in joint
possession of the suit property. During the course of the
judgment, Supreme Court, referred to the following
observation made by it in Commercial Aviation and Travel
Co. Vs. Vimla Panna Lal, 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
CS(OS)No. 2642/2008 Page 11 of 16
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
CS(OS)No. 2642/2008 Page 12 of 16
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 vs. Pawan Kumar Seth & Ors. 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
CS(OS)No. 2642/2008 Page 13 of 16
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 ouster 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
CS(OS)No. 2642/2008 Page 14 of 16
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
CS(OS)No. 2642/2008 Page 15 of 16
two weeks.
The application stands disposed of accordingly.
(V.K. JAIN)
JUDGE
MARCH 04, 2011
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