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IN THE HIGH COURT OF DELHI
A.K.SIKRI,MANMOHAN SINGH
SAROJ SALKAN - Appellant
Versus
CAPT.SANJEEV SINGH - Respondent
FAO (OS) No.239/2007
Decided On : 28-11-2008
Court Fee - Partition - Court Fees Act, Schedule II Article 17(vi), Section 7(iv)(b) - The court discussed the appellant's claim of constructive possession and co-ownership, and the requirement of court fee payment. The court referred to legal provisions from the Court Fees Act and previous judgments to determine the applicable court fee for the partition suit.
Fact of the Case:
The appellant filed a suit for partition, rendition of accounts, and permanent injunction. The court directed the appellant to pay ad valorem court fee within four weeks, based on the appellant's claim of constructive possession and co-ownership.
Finding of the Court:
The court found that the appellant's claim of constructive possession and co-ownership influenced the determination of the applicable court fee for the partition suit.
Issues: The main issue was the determination of the court fee based on the appellant's claim of constructive possession and co-ownership.
Ratio Decidendi: The court held 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.
Final Decision: The appeal was allowed, and the impugned order directing the appellant to pay ad valorem court fee was set aside.
1. This appeal has been filed against the order dated 8th May, 2007, passed by the learned Single Judge of this court in suit no. 683/2007 filed by the appellant for partition, rendition of accounts and permanent injunction. By the impugned order the appellant was directed to pay ad valorem court fee within four weeks.
2. While passing the impugned order, the learned Single Judge has observed that the appellant being out of possession of the suit property would be liable to pay ad valorem court fee in respect of the share claimed and supported her view relying upon AIR 1991 Delhi 48. The appellants in the plaint seeking partition of the properties asserted that she was deriving benefits and rent from the property at Anand Niketan. However the admitted position is the appellant is not in physical possession of the suit properties. The appellant has affixed fixed court fee on the plaint only on the basis of a claim of co- ownership and constructive possession. She was directed to pay ad valorem court fee on her share of the suit properties.
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 plaintiffs 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 1/3rd 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.
4. The appellant claimed that property is in her constructive possession, she is a co-owner and thus affixed a fixed court fee of Rs.20/-. In support of submissions, the learned counsel has relied upon para 23 and 25 of the plaint which reads as under:- 23. The plaintiff and defendant no. 6 were treated as co-owners. They spent holidays at their parental home. Their nephews and nieces treated them as co-owners. They would regularly be given cash incomes as their share from the farm.. A major portion of income, according to her would be ploughed back into the farm for new tube wells, generators, threshing machines or tractor. However, despite the above reasons, in all fairness to her she openly acknowledged the rights of the plaintiff and her sister. 25. That the property at Anand Niketan had been rented out and rent was realized by all parties to the suit. The plaintiff and defendant no. 6 used to be given a cash compensation for their share in the Delhi house as well. Again, they never questioned the amount nor did they ask to see the lease deed to check the actual rental value.
5. The appellant states that she is the daughter of Late Major Gen. Budh Singh who died intestate in 1988. The Late Gen. Budh Singh had an HUF consisting of his son Anup Singh and himself as coparceners. Upon the Generals death and since he did not partition the assets of the HUF and since he died intestate in his lifetime the half share of Late Major Gen. Budh Singh devolved upon his sons and two daughters. Upon the death of Sh. Anup Singh his half share in the HUF devolved upon his wife and his children, the respondents no. 1 to 5 as his legal heirs. The appellant claims 1/3rd share in the half share of Late Gen. Budh Singh in his HUF (i.e. 1/6th share in the property).
6. It is further stated that she is a co-owner of the HUF assets for which she was receiving rent in the life-time of Sh. Anup Singh and after his death in 1989 the wife of Sh. Anup Singh (Sneh Lata). It is only after the death of Sneh Lata in June, 2004
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