Back
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
REKHA BORANA, J.
Anil Kumar Bhansali S/o Late Paras Singh Bhansali – Petitioner
Versus
Anand Kumar Bhansali S/o Late Paras Singh Bhansali – Respondent
S.B. Civil Revision Petition No. 108 of 2023
Decided On : 03-04-2024
CIVIL PROCEDURE - COURT FEES AND PARTITION - Rajasthan Court Fees and Suit Valuations Act, 1961 - Sections 35(1), 35(2); Foreign Exchange Management Act, 1999 - Section 6(5); Foreign Exchange Management (Non-debt Instruments) Rules, 2019 - Rule 24(c) - The court discussed the provisions of the Rajasthan Court Fees and Suit Valuations Act, 1961, particularly Sections 35(1) and 35(2), which differentiate court fee obligations based on possession status in partition suits. The court interpreted these sections to affirm that a plaintiff in joint possession is liable for a lower court fee. Additionally, the court examined the Foreign Exchange Management Act, 1999, and its rules, concluding that they do not prohibit NRIs from inheriting property in India. This legal framework guided the court's decision to uphold the trial court's rejection of the defendants' applications under Order VII Rule 11 of the CPC, affirming the plaintiff's right to proceed with the suit without additional court fees for ancillary reliefs.
Fact of the Case:
The revision petition was filed against an order rejecting three applications under Order VII Rule 11 of the CPC by defendants in a partition suit. The defendants contended that the plaintiff, residing in America, was not in physical possession of the property and thus liable for a higher court fee. The plaintiff argued he was a coparcener in joint possession, paying appropriate court fees under Section 35(2) of the Rajasthan Court Fees and Suit Valuations Act, 1961.
Finding of the Court:
The court found that the trial court correctly determined that the plaintiff was in joint possession and thus governed by Section 35(2) of the Act, not requiring additional court fees for ancillary reliefs. The court also upheld the trial court's rejection of the defendants' claims regarding the suit being barred by law and the existence of a will, stating these issues could not be resolved at the preliminary stage.
Issues: 1. Whether the plaintiff was in joint possession of the property, affecting the court fee requirement. 2. Whether the suit was barred under the Foreign Exchange Management Act and its rules. 3. Whether the existence of a will precluded the partition suit.
Ratio Decidendi: The court emphasized that the determination of possession is crucial in partition suits under the Rajasthan Court Fees and Suit Valuations Act, 1961. It reiterated that a plaintiff in joint possession is subject to lower court fees and that ancillary reliefs do not require separate fees if the main relief is granted. The court also clarified that rules cannot override statutory provisions, affirming the plaintiff's right to inherit property as an NRI.
Final Decision: The revision petition was dismissed, affirming the trial court's order rejecting the defendants' applications under Order VII Rule 11 of the CPC.
ORDER :
1. The present revision petition has been preferred against order dated 24.07.2023 passed by the Additional District Judge No. 7, Jodhpur Metropolitan, Jodhpur in Civil Original Suit No. 65/2022 (NCV No. 131/2022) whereby three different applications as filed under Order VII Rule 11 of the Code of Civil Procedure (CPC) on behalf of the petitioners-defendants no. 1 and 2 have been rejected.
2. A preliminary objection has been raised by learned counsel for the respondent no. 1-plaintiff to the effect that one revision petition challenging an order whereby three different applications have been decided is not maintainable and three revision petitions ought to have been filed as vide the order impugned, three different applications have been decided.
3. So far as the above preliminary objection is concerned, the same cannot be sustained for the peculiar facts and manner in which the order impugned has been passed. Vide the order impugned, learned Judge has proceeded on to decide the first application in paras No. 1 to 10 of the order impugned and has even put his signature after para No. 10. But then, the learned Judge has proceeded on to decide the second application in para No. 11 to 20 of the order impugned and has again put his signature after para No. 20. Interestingly, the same manner has been adopted for deciding the remaining two applications also. Meaning thereby, without passing separate order for each application, the learned Judge has passed one common order segregating them into different paragraphs. In the specific opinion of this Court, the alleged separate orders segregated in different paragraphs in a common order cannot be said to be the independent orders. No party can be directed to challenge certain paragraphs of an order in one petition and the other paragraphs in a different petition. Just putting signatures at the end of certain paragraphs would not make the same an independent/separate order. The complete order has to be read as a whole and cannot be treated to be four separate orders. The said logic is also substantiated by the fact that even on behalf of the respondent no. 1-plaintiff, a single caveat has been filed qua the present petition. Had the respondent no. 1-plaintiff treated the order impugned to be four separate orders, four different caveats qua each of them would have been filed. Therefore, in the peculiar manner in which the order impugned has been passed, it could not have been expected from the petitioners to file separate revision petitions qua the alleged separate orders. The objection as raised by learned counsel for the respondent no. 1 hence being not tenable, is rejected.
4. Vide the order impugned, three applications under Order VII Rule 11, CPC as preferred by the defendants no. 1 and 2 have been rejected and one application under Order XI Rules 12 & 14, CPC as preferred by the plaintiff has been allowed. The present revision petition has been preferred challenging the order to the extent of rejection of the three applications as preferred by the defendants no. 1 and 2.
5. First application was preferred by defendants no. 1 and 2 on the ground that the plaintiff, who had been residing in America since last 39 years, was never in physical possession of the property sought to be partitioned and hence the Court fee as paid by him ought to have been computed on the market value of his claimed share of the property. As the Court fee of Rs.250/- only had been paid by the plaintiff, he be directed to pay deficit Court fee after valuing the suit on the market value of the property and if the deficit Court fee is not paid, the plaint be rejected.
6. Per contra, the case of the plaintiff is that he being a coparcener, was in joint possession of the property legally and to continue to be in joint possession in law, it is not necessary that he should be in actual possession of the whole or part of the property. Hence, the Court fee was payable in terms of Section 35(2) of the Rajasthan Court
In partition suits, the court fee is determined by the plaintiff's possession status, with joint possession leading to lower fees, and ancillary reliefs do not incur additional fees if the main relie....
A partition suit can proceed if the plaint discloses a cause of action, and issues of limitation and court fees will be determined at trial.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
