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2014 Supreme(Del) 2256
High Court of Delhi
G.P. MITTAL, J.
Suresh Kapoor
Versus
Shashi Krishan Lal Khanna & Others
IA. No. 14898 of 2011 In CS(OS). No. 236 of 2010
Decided on: 10-10-2014
For the Plaintiffs:Virender Goswami, Shubham Agarwal, Advocates.
For the Defendants:D1, Sangram Patnaik, Vishal Kumar Pandey, & D4, to D8, Jiwan Pal Singh, Advocates.
Headnote:
Court Fees Act, 1870 - Section 7 (iv) (b) - Civil Procedure Code, 1908 - Order 7 Rule 11 - Suit Valuation Act, 1887 - Section 9 - Court fee - Partition - Possession - Constructive possession - Plaintiff claims 1/9th share in the suit property - Property was owned by Late Sh.B.M. who died on 14.05.1973 - After his death his widow and his children inherited the suit property - Neither plaintiff nor his mother K.K. were in physical possession of the suit property - Other legal heirs of Mrs. G.Devi except Mrs. B.Devi and her sons, were never in possession and they never realised any rent from the property - B.Devi never rendered any account either to the Plaintiff or even to Mrs. G.Devi - Decades after the death of Late Sh.B.M, it was Late Mrs. B.Devi and her children who were in possession of the property or who were letting out the property and were keeping rental income to themselves - Plaintiff claims to be in constructive possession of the suit property, being co-owner - On the basis of the law ouster and exclusion from possession can safely and certainly be inferred from the plaint - Held, Plaintiff is not entitled to pay fixed court fee rather he is under obligation to pay ad valorem court fees on the market value of his share - Application is accordingly allowed with direction to the Plaintiff to specify the value of his share in the suit property and pay ad valorem court fees.
G.P. Mittal, J.
IA No.14898/2011 (Order VII Rule 11 CPC) by Defendant no.1
1. By this application under Order VII Rule 11(c) and (d) of the Code of Civil Procedure, 1908 (CPC) read with Section 7(iv)(b) of the Court Fees Act, 1870 question of valuation of the suit for the purpose of court fee is raised by Defendant no.1.
2. The Plaintiff claims 1/9th share in the suit property which was owned by Late Mrs. Gullo Devi Malhotra, maternal grandmother of the Plaintiff. In the application it is stated that the Plaintiff admittedly is not in possession of the suit property, therefore, he is required to pay the court fee on the market value of his share in the suit property for seeking the relief of partition. It is also stated that the suit property consists of a built-up house on land measuring 725 sq. yds., which is valued at Rs.50 crores. The suit being undervalued is liable to be dismissed.
3. Before adverting to the facts of the instant case, it would be essential to take note of the statutory provisions which govern valuation of the suit for the purpose of court fee. As per Section 7(iv)(b) of the Court Fees Act, 1870 (the Act) any suit to enforce right to share in any property on the ground that it is a joint family property, the court fee is payable according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. At the same time, as per Section 7(v)(e) of the Act, in a suit for possession of house or garden, the suit has to be valued for the purpose of court fee according to the market value of the house or garden. As per Article 17(vi) Schedule II of the Act, in every suit where it is not possible to estimate at a money value the subject matter in dispute and which is not otherwise provided by the Act, fixed court fee is payable.
4. As per Section 9 of the Suit Valuation Act, 1887 when the subject matter of suits, other than the suits mentioned in the Court Fees Act, 1870, Section 7, paragraphs 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 be treated as if their subject-matter were of such value as the High Court thinks fit to specify in this behalf.
5. In Chapter III ‘Valuation of Suits’, Rule 8 has been framed by the Delhi High Court for valuation of the suits for partition of immovable properties. It reads as under:-
“8. Suits for partition of property-Court-fee-
(a) As determined by the Court-fees Act, 1870. Value—
(b) For the purposes of the Suits Valuation Act, 1887 and the Punjab Courts 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. The learned counsel for the applicant/Defendant no.1 has relied upon the following judgments:-
(i) Meenakshi Gupta v. Naveen Mahajan, 149 (2008) DLT 746,
(ii) Nisheet Bhalla & Ors. v. Malind Raj Bhalla & Ors., AIR 2007 Delhi 60,
(iii) Sarabjit Prakash & Anr. v. Udyajit Prakash & Ors., 172 (2010) DLT 707,
(iv) Mohan Babar & Anr. v. Kedar Nath Babar & Ors., 2009 (113) DRJ 530,
(v) Harjit Kaur & Ors. v. Jagdeep Singh Rikhy, 116 (2005) DLT 392,
(vi) Smt. Rani Devi v. Ashok Kumar Nagi, 76 (1998) DLT 279,
(vii) Ms. Ranjana Arora v. Satish Kumar Arora, 80 (199) DLT 537, and
(viii) Mohd. Alam & Etc. V. Gopal Singh & Ors., AIR 1987 Patna 156 to urge that where the Plaintiff is not in joint possession of any portion of the suit property or is not in constructive possession ad valorem court fees is payable on the value of the share in the suit property which is claimed by the Plaintiff.
7. On the other hand, the learned counsel for the Plaintiff has relied upon the following judgments:-
(i) Neelavathi & Ors. v. N. Natarajan & Ors., (1980) 2 SCC 247,
(ii) Sushma Tehlan Dalal v. Shivraj Singh Tehlan, 2011 (123) DRJ 91,
(iii) V.S.K. Sood v. Vir Surinder Beri & Ors., and
