DELHI HIGH COURT
ANITA ANAND VS GARGI
KAPUR & ORS ON 19 SEPTEMBER, 2018
IA NO.4817/2017
This application
is under Order 7 Rule 11 of the CPC. The plaintiff and defendants NO.2
& 3 are brother and sisters whereas the defendant NO.1 WAS the mother
of the parties, who has since expired. This suit is for partition filed by
married sister, married in the year 1976. Before going to her claim in the
instant application, it would be appropriate to state few facts:
It is alleged
one Joginder Nath Kapur, the grandfather of the plaintiff was allotted a plot
in the year 1956 in lieu of the properties left there as he migrated from
Pakistan. The said plot was sold by the father of the plaintiff in the year
1972 and out of those sale proceeds, he has purchased ½ of the property bearing
NO.12/19, Western Extension Area, Karol Bagh, New Delhi in the name of his wife
i.e. mother of the parties thereafter, in the year 1981, the father also
purchased remaining ½ portion in the name of his wife - defendant NO.1 - the
mother of parties; it is alleged the use and right in the subject property was
only for the benefit of her all children and though it was purchased by the
father in the name of his wife-defendant NO.1 but it was an exclusive property
of the father. The application under Order 7 Rule 11 of the CPC is filed by the
defendants alleging interalia a bare reading of the plaint would reveal the plaintiff
has no case and the suit needs to be dismissed.
The defendant
alleges:
(i) prior to
filing this suit a public notice in Nav Bharat Times dated 08.11.2014 was got
published by the plaintiff claiming the property to be joint and ancestral one;
(ii) the
plaintiff claims her right in this ancestral property per Section 6 of the
Hindu Succession (Amendment) Act, 2005 and she cannot claim such right since
her father was not alive on the date of the amendment, as is held in Prakash
vs. Phulavati (2016) 2 SCC 36;
(iii) further it
is alleged the suit is barred by Section 3 of the Benami Transaction Act;
(iv) per Section
14 of the Hindu Succession Act the defendant NO.1 became an absolute owner of
the entire property and;
(v) the suit is
beyond limitation as the suit for declaration ought to have been filed by Late
J. N. Kapoor within his lifetime or within 3 years after his death to claim the
subject property belong to him;
(vi) the
advalorem court fees has not been paid; hence the plaint is liable to the
rejected.
In support of
his contention (i) and (ii) the defendant refers to paras 3 and 5 of the plaint:
"3. That in
1956, Sh. Chiranjeet Lai Kapur, father of Sh. Joginder Nath Kapur, was allotted
a plot of land admeasuring 200 sq. yards, bearing No. 18/17, West Patel Nagar,
New Delhi-110008, by the Government of India under the extant law and the
rehabilitation and compensatory scheme of Rehabilitation Ministry, Government
of India, in lieu of various properties, ancestral and self-acquired, and
various businesses he had left behind in Pakistan. Sh. Chiranjeet Lai Kapur
started running a business of educational tuition institute from the said
property and also started living in the said property with his wife, Smt.
Parvati Kapur, his son, Sh. Joginder Nath Kapur and Smt. Gargi Kapur, Defendant
No. 1 herein. That with the consent of his brothers and his mother, Sh.
Joginder Nath Kapur sold the said property and from the proceeds thereof,
purchased 1/2 share of the property admeasuring 556 sq. yards bearing No.
12/19, Western Extension Area, Karol Bagh, New Delhi - 110005 vide Agreement to
Sell dated 07.09.1981, in the name of his wife. Defendant No 1 herein. Sh.
Joginder Nath Kapur also got executed an Irrevocable General Power of Attorney
in his own name. The said General Power of Attorney in the name of Sh. Joginder
Nath Kapur stands incorporated by reference in the Agreement to Sell dated
07.09.1981, and is part of the title documents of the Suit Property. The said
document also manifests the intention of Sh. Joginder Nath Kapur to be de facto
in control of the Suit Property and conduct and control all transactions
pertaining to the same himself." and also to a public notice given by the
plaintiff in newspaper (page 26 of plaintiff's documents) which read as under:
"PUBLIC
NOTICE Notice is hereby given to public at large that the entire property
bearing No. 12/19, WEA Karol Bagh, New DELHI-110005 is a joint and ancestral
property and as such I am a co-sharer of the same. This property is not
available for sale, rent, lien construction, reconstruction, exchange, gift,
lease, mortgage, charge, trust, possession or otherwise without my concurrence.
Whomsoever, enters into any kind of agreement regarding the above mentioned
property without my knowledge and concurrence, shall be doing so on his/her own
costs, risks and consequences. Sister Name : Anita Anand; Address: GH-IO/IO-B,
Outer Ring Road, Paschim Vihar, New Delhi-87."
The defendant
also refers to Section 6 of the Hindu Succession (Amendment)Act, 2005 :-
"6.Devolution
of interest in coparcenary property.-- (1) xxxx xxxx (2) xxxx xxxx (3)Where a
Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005,
his interest in the property of a Joint Hindu family governed by the Mitakshara
law, shall devolve by testamentary or intestate succession, as the case may be,
under this Act and not by survivorship, and the coparcenary property shall be
deemed to have been divided as if a partition had taken place and,-- the
daughter is allotted the same share as is allotted to a son; the share of the
pre-deceased son or a pre-deceased daughter, as they would have got had they
been alive at the time of partition, shall be allotted to the surviving child
of such pre-deceased son or of such pre-deceased daughter; and The share of the
pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such
child would have got had he or she been alive at the time of the partition,
shall be allotted to the child of such pre-deceased child of the pre-deceased
son or a pre-deceased daughter, as the case may be.
Explanation.--For
the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted
to him if a partition of the property had taken place immediately before his
death, irrespective of whether he was entitled to claim partition or not."
and Prakash (supra) wherein the Court held as under:- "23. Accordingly, we
hold that the rights under the amendment are applicable to living daughters of
living coparceners as on 9th September, 2005 irrespective of when such
daughters are born. Disposition or alienation including partitions which may
have taken place before 20TH December, 2004 as per law applicable prior to the
said date will remain unaffected. Any transaction of partition effected
thereafter will be governed by the Explanation."
5. Relying upon
above it is argued by the defendant the plaintiff could have got her share in
the ancestral property only if her father was alive on 09.09.2005, but since
her father expired in the year 1987, she is not entitled to any share in the
subject property.
6. The case put
up by the defendant is as if the plaintiff has filed the suit for partition of
an ancestral property and is claiming herself to be a coparcener in joint Hindu
undivided family. However a bare perusal of paras no.7,8 and 9 of the plaint
would reveal the plaintiff rather alleges the subject property being a self
acquired property of Sh. Joginder Nath Kapur and he was a de facto owner of the
suit property having purchased the property in the name of his wife not for her
benefit but for the benefit of his family and further the plaintiff has always
allegedly believed the said property to be the property of her father and it
was only in the month of July 2014 when plaintiff visited the said property but
was kicked by defendant NO.2 the cause of action arose for filing of this suit.
Hence earlier to July 2014 there could be no occasion for the plaintiff to file
such suit, much less, within three years from the date of death of her father
as she always allegedly believed the subject property to be her father's
property as was the alleged oral understanding between the parties for decades.
7. The plaintiff
has never stalked her claim as a coparcener in a joint Hindu family and thus if
at some odd places in plaint the property is described as an ancestral or joint
property but a meaningful reading of the plaint reveal the claim is not based
upon ancestral property but upon a plea the property was purchased by deceased
Joginder Nath Kapur by his own funds, hence it cannot be said the property is
claimed to be an ancestral one and consequently Section 6 of the Hindu
Succession Act, 1956 shall have no applicability. The suit property is a
coparcenary property has not even been pleaded by the plaintiff. It is, even
otherwise, a settled position of law after passing of the Hindu Succession Act,
1956, the traditional concept of "ancestral property" has undergone a
change. If a person after 1956 inherits a property from his paternal ancestors,
the said property shall not be HUF property in his hands but shall be taken to
be a self-acquired property of the person who inherits the same.
8. Even
otherwise, in Sunny (Minor) & Others vs Raj Singh and Others 225 (2015)
DLT 211 this Court held:-
"(ii) This
position of law alongwith facts as to how the properties are HUF properties was
required to be stated as a positive statement in the plaint of the present
case, but it is seen that except uttering a mantra of the properties inherited
by defendant NO.1 being 'ancestral' properties and thus the existence of HUF,
there is no statement or a single averment in the plaint as to when was this
HUF which is stated to own the HUF properties came into existence or was
created i.e. whether it existed even before 1956 or it was created for the
first time after 1956 by throwing the property/properties into a common
hotchpotch. This aspect and related aspects in detail I am discussing
hereinafter."
9. Qua
contentions (iii) viz. the suit is barred under Benami Transaction Act, the
learned counsel for defendant has referred to Section 3 of the Benami
Transaction Act :-
"3.
Prohibition of benami transactions.-
(1) No person
shall enter into any benami transaction.
(2) Nothing in
sub-section (1) shall apply to-
(a) the purchase
of property by any person in the name of his wife or unmarried daughter and it
shall be presumed, unless the contrary is proved, that the said property had
been purchased for the benefit of the wife or the unmarried daughter;
10. It is alleged
by the defendant the plaintiff had failed to plead in her plaint the suit
property was not purchased for the benefit of defendant NO.1 and thus referred
to paras 8 and 9 of the amended plaint to say, the plaintiff has alleged the
suit property was held by their mother in fiduciary capacity for the children
of Mr.Joginder Nath Kapur and per Section 7 of the Prohibition of Benami
Transaction Act, the plaintiff now cannot take benefit of Section 4. Section 7
read as under:
"7. Repeal
of provisions of certain Acts.-
(1) Sections 81,
82 and 94 of the Indian Trusts Act, 1882 (2 of 1882), section 66 of the Code of
Civil Procedure, 1908 (5 of 1908), and section 281A of the Income-tax Act, 1961
(43 of 1961), are hereby repealed.
(2) For the
removal of doubts, it is hereby declared that nothing in sub- section (1) shall
affect the continued operation of section 281A of the Income-tax Act, 1961 (43
of 1961), in the State of Jammu and Kashmir."
11. The
defendant also relied upon Amar N. Gugnani vs. Sh.Naresh Kumar Gugnani in
CS(OS) 478/2004 decided on 30.07.2015 wherein the Court held: "17. In my
humble opinion therefore the judgment in the case of Marcel Martins (supra) is
distinguishable in view of the existence of the provision of Section 7 of the
Benami Act repealing Sections 81, 82 and 94 of the Trusts Act.
18. In view of
the above, since the plaintiff in the plaint himself states that the property
was purchased as a benami property in the name of the father, late Sh. Jai
Gopal Gugnani, merely and although the plaintiff has used the expressions
fiduciary relationship and trustee, yet these expressions of fiduciary
relationship and trustee are not those expressions which will cause the
transaction to fall under the exception of Section 4(3)(b) of the Benami Act,
but these expressions are those expressions which fall under Sections 81, 82,
and 94 of the Trusts Act and which have been repealed by Section 7 of the
Benami Act.
19. In view of
the above, I hold that the suit is barred by the provision of Section 4(1) of
the Benami Transactions (Prohibition) Act, 1988."
12. Hence, it is
argued per section 4 (3) (b) read with section 7 of the Prohibition of Benami
Transactions Act and read with sections 81, 82 and 94 of The Trust Act the
claim of the plaintiff is barred.
13. I disagree.
The defendant rather has failed to look into the effect of Section
2(9)(A)(B)(III) of The Prohibition of Benami Property Transaction Act which
read as under:- "2. Definition: In this Act, unless the context otherwise
requires,-
(1) to (8) xxxxx
(9) "benami transaction" means,-
(A) a
transaction or an arrangement--
(a) where a
property is transferred to, or is held by, a person, and the consideration for
such property has been provided, or paid by, another person; and
(b) the property
is held for the immediate or future benefit, direct or indirect, of the person
who has provided the consideration, except when the property is held by--
(i) xxxxx
(ii) xxxxx
(iii) any person
being an individual in the name of his spouse or in the name of any child of
such individual and the consideration for such property has been provided or
paid out of the known sources of the individual;
(iv) xxxxx"
14. The
Prohibition of Benami Property Transactions Act, 1988 has been amended vide the
Benami Transaction (Prohibition) Amendment Act, 2016. Under the amended Act,
the definition of a benami transaction has been changed and the new definition
is contained in Section 2(9) of the amended Act and the present case does not
fall under the ambit of the definition of a "benami transaction", as
prescribed under Section 2(9) of the Act and is squarely covered by proviso
(iii) to the said definition. The present case thus is not that of a
"benami transaction" and hence bar of Section 4 of the Act is not
attracted in the present case. There is no legal impediment which can non-suit
the plaintiff at the threshold, as sought by the defendants, and the plaintiff
may lead evidence to prove Late Sh.Joginder Nath Kapur was the de facto owner
of the suit property. The argument of the defendant the suit is barred due to
repealing of certain provisions of Indian Trust Act, 1882 is also erroneous.
Further, the judgment of Sh. Amar N. Gugnani V. Naresh Kumar Gugnani is sub
judice before the Ld.Division Bench of this Hon'ble Court in RFA(OS) No.89 of
2015.
15. Rather in
Manoj Arora vs. Mamta Arora in RFA No. 522/2017 decided on 07.08.2018 this
Court held:-
"4.
Unfortunately, the trial court has committed a grave and fundamental error in
rejecting the suit plaint under Order VII Rule 11 CPC by relying upon the
provision of Section 4 and repealed provision of Section 3(2) of the Benami
Transactions (Prohibition) Act. When the impugned judgment was passed on
19.12.2016, what was, and is now applicable is the Prohibition of Benami
Property Transactions Act, 1988 which became applicable w.e.f 1.11.2016. As per
Section 2(9) of the Amended Act what is a Benami Transaction is
stated/specified, and also those transactions which are not benami are are also
stated/specified. As per the suit plaint/averments, in the present case the
existence of the properties in the name of the respondent/defendant/wife will
fall as an Exception to the prohibited benami transaction in view of Section
2(9)(A)(B) Exception (iii) inasmuch as it is legally permissible for a person
to purchase an immovable property in the name of his spouse from his known
sources, and in which position, the property purchased will not be a benami
property but the property will be of the de jure owner/plaintiff/husband and
not of the de facto owner (in whose name title deeds exist), being the
respondent/defendant/wife in the present case.
5. By the
impugned judgment since the suit has been held to be barred at the threshold by
applying Order VII Rule 11 CPC, and the plaint has been rejected by applying
the repealed provision of Section 3(2) of the Act which was no longer
applicable, and by ignoring the provision of Section 2(9)(A)(B) Exception (iii)
which was applicable, the impugned judgment is hence illegal and is set aside.
Whether or not the appellant/plaintiff/husband will or will not have the
benefit of Section 2(9)(A)(B) Exception (iii) is a matter of fact which
requires trial and such a suit cannot be rejected at the threshold by applying
Order VII Rule 11 CPC.
6. In view of
the aforesaid position, this appeal is allowed. Impugned Judgment dated
19.12.2016 is set aside. Suit would be tried and disposed of by the trial court
in accordance with law after trial/evidence."
16. Thus the
plaintiff's claim she treated her father to be an owner of subject property
cannot be ignored at this stage. Thus contention (iii) has no merit. Even
otherwise, in the hearing held on 21.08.2018 the learned counsel for defendants
NO.2 and 3 conceded the Benami Transactions Act is not applicable to this case.
17. Coming to
contention (iv), it was argued by the defendant viz. per Section 14 of the
Hindu Succession Act, the property vested in defendant NO.1 and hence she could
have even executed a Will/ gift deed for the entire property. Section 14 of the
Hindu Succession Act read as under:-
"14.
Property of a female Hindu to be her absolute property (1) Any property
possessed by a Female Hindu, whether acquired before or after the commencement
of this Act, shall be held by her as full owner thereof and not as a limited
owner.
Explanation: In
this sub-section, "property" includes both movable and immovable
property acquired by a female Hindu by inheritance or devise, or at a partition,
or in lieu of maintenance or arrears of maintenance, or by gift from any
person, whether a relative or not, before, at or after her marriage, or by her
own skill or exertion, or by purchase or by prescription, or in any other
manner whatsoever, and also any such property held by her as stridhana
immediately before the commencement of this Act.
(2) Nothing
contained in sub-section (1) shall apply to any property acquired by way of
gift or under a will or any other instrument or under a decree or order of a
civil court or under an award where the terms of the gift, will or other
instrument or the decree, order or award prescribe a restricted estate in such
property."
18. It was
argued by the learned counsel for the defendants the plaintiff had failed to
allege the property though was purchased in the name of defendant NO.1 but was
not for her benefit alone and further the property was acquired by the mother
in lieu of maintenance so per Section 14 of Hindu Succession Act the property
vested in her as an absolute owner, hence the suit is not maintainable.
19. The learned
counsel for the defendant also relied Jupudy Pardha Sarthy vs Pentapati Rama
Krishna & Others (2016)2 SCC 56 wherein the Court noted:-
"18.
Lastly, His Lordship after elaborate consideration of the law and different
authorities came to the following conclusions:- "We would now like to
summarise the legal conclusions which we have reached after an exhaustive
considerations of the authorities mentioned above on the question of law involved
in this appeal as to the interpretation of Sections 14(1) and (2) of the Act of
1956.
These
conclusions may be stated thus:
(1) The Hindu
females right to maintenance is not an empty formality or an illusory claim
being conceded as a matter of grace and generosity, but is a tangible right
against property which flows from the spiritual relationship between the
husband and the wife and is recognised and enjoined by pure Shastric Hindu law
and has been strongly stressed even by the earlier Hindu jurists starting from
Yajnavalkya to Manu. Such a right may not be a right to property but it is a
right against property and the husband has a personal obligation to maintain
his wife and if he or the family has property, the female has the legal right
to be maintained therefrom. If a charge is created for the maintenance of a
female, the said right becomes a legally enforceable one. At any rate, even
without a charge the claim for maintenance is doubtless a pre-existing right so
that any transfer declaring or recognising such a right does not confer any new
title but merely endorses or confirms the pre-existing rights.
(2) Section
14(1) and the Explanation thereto have been couched in the widest possible
terms and must be liberally construed in favour of the females so as to advance
the object of the 1956 Act and promote the socio- economic ends sought to be
achieved by this long needed legislation. (3) Sub-section (2) of Section 14 is
in the nature of a proviso and has a field of its own without interfering with
the operation of Section 14(1) materially. The proviso should not be construed
in a manner so as to destroy the effect of the main provision or the protection
granted by Section 14(1) or in a way so as to become totally inconsistent with
the main provision.
(4) Sub-section
(2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which
create independent and new titles in favour of the females for the first time
and has no application where the instrument concerned merely seeks to confirm,
endorse, declare or recognise pre- existing rights. In such cases a restricted
estate in favour of a female is legally permissible and Section 14(1) will not
operate in this sphere. Where, however, an instrument merely declares or
recognises a pre-existing right, such as a claim to maintenance or partition or
share to which the female is entitled, the sub- section has absolutely no application
and the females limited interest would automatically be enlarged into an
absolute one by force of Section 14(1) and the restrictions placed, if any,
under the document would have to be ignored. Thus where a property is allotted
or transferred to a female in lieu of maintenance or a share at partition, the
instrument is taken out of the ambit of sub-section (2) and would be governed
by Section 14(1) despite any restrictions placed on the powers of the
transferee.
(5) The use of
express terms like property acquired by a female Hindu at a partition, or in
lieu of maintenance, or arrears of maintenance, etc. in the Explanation to
Section 14(1) clearly makes sub-section (2) inapplicable to these categories
which have been expressly excepted from the operation of sub-section (2).
(6) The words
possessed by used by the Legislature in Section 14(1) are of the widest
possible amplitude and include the state of owning a property even though the
owner is not in actual or physical possession of the same. Thus, where a widow
gets a share in the property under a preliminary decree before or at the time
when the 1956 Act had been passed but had not been given actual possession
under a final decree, the property would be deemed to be possessed by her and
by force of Section 14(1) she would get absolute interest in the property. It
is equally well settled that the possession of the widow, however, must be
under some vestige of a claim, right or title, because the section does not
contemplate the possession of any rank trespasser without any right or title.
(7) That the words restricted estate used in Section 14(2) are wider than
limited interest as indicated in Section 14(1) and they include not only
limited interest, but also any other kind of limitation that may be placed on
the transferee."
20. However, I
may refer to para 10 of the reply filed by the plaintiff to IA NO.4817/2017
wherein the plaintiff alleged :
"The
contents of paragraph No. 10 of the application under reply are misconceived,
incorrect and hence denied. It is specifically denied that the present suit is
barred under Section 14(1) of Hindu Succession Act, 1956, as alleged. The
present suit is maintainable under the provisions of the Prohibition of Benami
Property Transactions Act, 1988 and is not barred by Section 14(1) of Hindu
Succession Act, 1956. It is denied that Defendant No. 1 WAS absolute owner of
the suit property. It is denied that Defendant No. 1 had any right to deal with
the suit property, as alleged. It is reiterated that Late Sh. Joginder Nath
Kapur was the real and de facto owner of the suit property. Smt. Gargi Kapoor
only held the suit property in fiduciary capacity for the benefit of Shri
Joginder Nath Kapoor and their children. After his demise, and the demise of
Smt. Gargi Kapur, the Plaintiff has become an owner of 1/3RD share of the suit
property."
21. In Hemant
Satti vs. Mohan Satti, 2013 (2015) DLT 130, the Hon'ble Court was faced with a
similar question and it has harmonized the provision of Section 14(1) of the
Hindu Succession Act with Section 3(2) of the Prohibition of Benami Property
Transactions Act, 1988 (as it existed before the 2016 amendment). In paragraph
16 of the said judgment, the Court has held that a challenge to the right of a
woman under Section 14 of the HSA is entertainable if it is proved that the
property purchased in the name of a woman was not for her benefit.
22. By amending
the old Act by the Benami Transactions (Prohibition) Amendment Act, 2016, the
legislators while recognizing and maintaining the said exception contained in
Section 3(2) and 4(3) of the Old Act, for abundant clarity, by virtue of
Section 2(9)(A)(B)(II) and Section 2(9)(A)(B)(III) of the amended Act,
specifically excluded transactions of the nature pleaded by the plaintiff from
the very definition of Benami Transactions. Given this position and there not
being any disharmony between the provisions of the Old Act and the amended Act
insofar as the aforesaid exception is concerned, the ration decendi of the
Hemant Sati case (supra) will, apply proprio vigore, to cases covered by the
amended Act as well. In view of the above, the argument of the defendants the
wife of the father of the parties had become the absolute owner of the suit
property when the same was purchased in her name by virtue of Section 14 of the
Hindu Succession Act, 1956 would be subject to trial.
23. Admittedly
no charge ever was created on the property in favour of defendant NO.1 in lieu
of maintenance, hence Jupudy Pardhas case (supra) even otherwise, shall not be
applicable.
24. Qua
contention (v) the learned counsel for defendant relied upon Leena Mehta vs
Vijaya Myne & Ors, CS (OS) NO.2118/2006 decided on 09.11.2009 wherein
it was held:-
"5. A
perusal of suit shows that the plaintiff sought a declaration that the property
standing in the name of her mother, did not belong to her and actually belonged
to her father. The property was registered in the name of her mother defendant
NO.1 in 1975. The husband of defendant NO.1 remained alive for 22 long years
after 1975 and died in 1997. He did not file a suit against his wife seeking a
declaration that the property was actually his benami property in the name of
his wife and he was the real owner. If he had not considered defendant NO.1
(wife) as owner of the property and he considered the property as his property,
he was at liberty to file a suit against defendant NO.1 during his lifetime.
The very fact that the husband of defendant NO.1 did not file a suit against
her seeking a declaration that the property was his property and not the
property of defendant NO.1, shows that defendant NO.1 WAS an absolute owner of
the property to the exclusion of everyone else. Her husband who remained alive
for 22 years, after 1975 only treated her as the sole owner of the property. The
plaintiff herself, even after attaining the age of majority did not claim any
share in the property either from her father or from the mother. She was
married off in 1997 and even after 1997 she did not file a suit within
limitation period seeking declaration that the property standing in the name of
her mother was not actually the property of her mother but was the property of
her father in which she had a right of inheritance. The timing of suit and
making only three defendants i.e. her mother, sister and brother, makes it
clear that the suit was a collusive suit, filed in collusion with defendants
no. 1, 2 & 3 in order to avoid an agreement to sell which defendant
NO.1 had entered with defendant no.4 and which was not fulfilled and for specific
performance of which defendant no.4 had to file a suit. I consider that the
suit for declaration filed by the plaintiff seeking a declaration that the
property was not the property of her mother but actually property of her father
is miserably time barred. The period of limitation for filing such a suit is
three years. The limitation starts in this case in 1975, when property was
transferred in the name of defendant NO.1 by Delhi Development Authority. Suit
could have been filed by husband of defendant NO.1. He expired in 1997. The
suit could have been filed by the plaintiff latest by year 2000. The suit is
liable to be dismissed being time barred."
25. It is argued
the facts of the present case are akin to the facts narrated in Leena (supra).
Neither the deceased father of the plaintiff nor the plaintiff ever filed a
suit for declaration claiming him to be an absolute owner of the subject
property during his lifetime or within three years of the date of death of her
father, hence the suit for declaration now is barred by limitation.
26. The learned
counsel for the defendants thus argued a legal presumption cannot be rebutted
by merely alleging averments of symbolic possession.
27. Qua
limitation the learned counsel for the defendants pleaded that Mr. Joginder
Nath Kapur expired on 15.12.1987; the plaintiff got married in 1976 and para 8
of the plaint reveal the plaintiff was well aware the property which Mr.
Joginder Nath Kapur purchased in the name of his wife was for the benefit of
all the children and was in fact the property of late Mr. Joginder Nath Kapur.
Admittedly late Mr. Joginder Nath Kapur during his lifetime did not file any
suit against his wife seeking a declaration the property belongs to him.
Admittedly the plaintiff also did not file such suit till after three years of
the death of Mr. Joginder Nath Kapur.
28. Hence, it
was argued this suit is primarily a case of declaration and not of partition
and the limitation for such a relief would start on 15.12.1987 from the death
of Joginder Nath Kapur. It is submitted the claim raised by the plaintiff would
only succeed if she gets a declaration that Joginder Nath Kapur is the real
owner of this property and she could have got such declaration either during
the lifetime of her father or within 3 years of his death and now this suit is
barred by limitation. In fact it is argued the plaintiff need to seek a
declaration the suit property exclusively belong to her father and also he died
intestate and is now she is a co-owner of the property.
29. I am afraid
the contention of the plaintiff has no force since a suit for partition would,
even otherwise, be maintainable as in order to grant a prayer of partition the
Court will nonetheless shall decide the property is being capable of
partitioned and hence a separate relief of declaration would be superfluous as
held in Vakil Chand Jain vs. Prakash Chand Jain 2009 SCC online Del 2769 as
under :
"15. On the
basis of the pleadings the following issues were framed by this Court on 15TH
April 2005:
1-3. xxxx
4. Whether the
suit pertaining to prayer 3 is barred by limitation? OPD 5-7.
29. Viewed from
another angle, the relief of declaration as sought for by the plaintiff is
actually superfluous. Even if one were to omit this relief from the prayers in
the suit, in order to succeed in the prayer for partition, the plaintiff would
nevertheless have to prove:
(a) that the
property is capable of being partitioned;
(b) that the
plaintiff has a share in the property;
(c) that such
share can be ascertained and granted either by metes and bounds or by sale of
the property.
30. Therefore,
in effect, the Court will have to decide whether the plaintiff has any right,
title or interest to a share in the property as claimed by him. This Court,
therefore, does not find any inconsistency in the pleas for a decree of
declaration and a decree for partition sought for by the plaintiff in the
instant case."
30. I have
already noted above there being no occasion for the plaintiff to come to the
court prior to July 2014 in view of an alleged settled understanding between
the parties prior to such date and if such understanding ever existed is a
question of fact requiring evidence.
31. Qua
contention (vi) viz. the advalorem Court-fee, it is argued (a) the plaintiff
has valued the suit property at `5,93,56,644/- and seeks a declaration to be a
co-owner of such property when, admittedly, she is neither in physical nor
symbolic possession of the property, she being married since 1976 and is
residing in her matrimonial home, hence has to pay advalorem Court fee on the
relief of declaration/partition with a consequential relief and (b) the
plaintiff seeks a declaration qua the gift deed valued at `5.93 Crores, to be
void but whereas the Court-fee of `200 only has been paid and hence the
plaintiff be directed to pay the actual Court fee.
32. I agree to
these submissions. Though the plaintiff claims to be in constructive possession
of the property but she herself alleges all documents concerning the property
are with defendant NO.2 WHO is even enjoying the rental income, and even per
allegations in the plaint she claims her ouster in July, 2014, she need to pay
Court fee to the extent of her share in the property to seek partition.
33. In Suresh
Kapoor versus Shashi Krishan Lal Khanna & Ors. 2015 (2016) DLT 273 the
Court held:
"15. The
learned Single Judge culled out para 7 of the plaint in the judgment and
observed that there is unambiguous ouster or exclusion from possession in the
suit property and the facts situation being akin to Prakash wati, the Plaintiff
will be required to pay court fee on the market value of his share. It would be
expedient to extract para 7 of the plaint in that suit which led the learned
Single Judge to held that the Plaintiff was ousted from possession:
" .. That
though the Plaintiffs are co-owners and in joint possession of the aforesaid
property along with the defendants, the defendants have been enjoying the
rights in the said property and the defendants have not paid any amount
realized by them from the tenants and/or for their occupation of the premises,
to the Plaintiffs till date though the Plaintiffs and the defendants became
co-owners of the property since May, 1993, i.e. after the death of late Smt.
Swadesh Kumari Bhalla. In Anil Kumar Bansal vs R. K. Bansal & Ors. II
(2013) DLT 11B (CN) the Court held:
"16. It is
clear that upon a bare reading the entire plaint as a whole and in particular,
paras 11, 12 and 26 thereof, the plaintiffs have not been able to establish the
fact that at the time of institution of the suit, they were in possession of
any portion of the suit premises, either actual or physical or symbolic, for
claiming a right to pay any amount less than the ad valorem court fees on the
value of their shares, as has been done by them. Rather, the plaintiffs have
admitted their exclusion from the joint possession of the suit premises.
17. In view of
the aforesaid facts and circumstances, this Court is of the opinion that the
plaintiffs are required to pay ad valorem court fees on the value of their
shares, for seeking the relief of partition and possession of their separate
shares in the suit premises."
34. Thus merely
by assertion of possession the Plaintiff cannot avoid payment of Court fee in a
suit for partition. The married daughter once moves to her matrimonial home
after marriage cannot claim that contrary to the customs she is keeping
possession of the suit property owned by her mother.
35. In the
present case the Plaintiff herself in para NO.11 of the plaint has averred the
defendant NO.1 and 2 live in the suit property and are currently in possession
of the title documents. It is also averred defendant NO.2 continuous to derive
income from the suit property and has acquired other properties from the
proceeds and earnings of the said income from the suit property.
36. Once it is
own case of the plaintiff that defendant NO.1 and 2 are living in the suit
property and the defendant NO.2 is deriving income from the suit property,
itself shows that the suit property is not in the possession of the plaintiff
and the defendant NO.2 is deriving income either by letting out the same or by
doing some kind of work, business of the said property.
37. A meaningful
reading of averments in the plaint shows the plaintiff admits her ouster by the
defendants and the ouster is premised on the plaintiff right, title or interest
in the property being denied, the plaintiff has to pay advalorem Court fee. In
para NO.14D of the plaint she has averred the defendant NO.2 WAS conducting
commercial business of tuition centre at the suit property.
38. Clever
nature of pleadings in the plaint which is of ambiguous nature will not save
the plaintiff from her liability to pay Court fee if the exclusion from
possession is being established from the pleadings.
39. All the
above facts, clearly establishes complete ouster of the plaintiff from the suit
property. Moreover as per Section 8 of the Suit Valuation Act, 1887, the value
of the suit for the purpose of jurisdiction and Court fee has to be same. The
plaintiff has not paid advalorem Court fee on the relief of partition on her
share. The plaintiff is liable to pay the same.
40. Qua (b) of
contention (vi) the learned counsel for the plaintiff has relied upon Suhrid
Singh vs Randhir Singh & Others AIR 2010 SC 2807 the Court held
otherwise:-
"7. Where
the executant of a deed wants it to be annulled, he has to seek cancellation of
the deed. But if a non-executant seeks annulment of a deed, he has to seek a
declaration that the deed is invalid, or non-est, or illegal or that it is not
binding on him. The difference between a prayer for cancellation and
declaration in regard to a deed of transfer/conveyance, can be brought out by
the following illustration relating to `A' and `B' -- two brothers. `A' executes
a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has
to sue for cancellation of the deed. On the other hand, if `B', who is not the
executant of the deed, wants to avoid it, he has to sue for a declaration that
the deed executed by `A' is invalid/void and non- est/illegal and he is not
bound by it. In essence both may be suing to have the deed set aside or
declared as non-binding. But the form is different and court fee is also
different. If `A', the executant of the deed, seeks cancellation of the deed,
he has to pay ad-valorem court fee on the consideration stated in the sale
deed. If `B', who is a non-executant, is in possession and sues for a
declaration that the deed is null or void and does not bind him or his share,
he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(III) of
Second Schedule of the Act. But if `B', a non- executant, is not in possession,
and he seeks not only a declaration that the sale deed is invalid, but also the
consequential relief of possession, he has to pay an ad-valorem court fee as
provided under Section 7(iv)(c) of the Act."
41. Admittedly
the plaintiff is not in possession of the suit property, hence, the above
judgment would not be applicable upon her and she need to pay advalorem Court
fee on the value of Gift Deed since asking for its cancellation.
42. As per
Section 7 (iv) (c) of the Court fee Act, 1870 where the plaintiff filed a suit
for declaratory decree with consequential relief, advalorem Court fee is
payable. Thus for above prayers of declaration, the plaintiff is liable to pay
advalorem Court fee as per Section 7 (iv) (c) of the Court fee Act.
43. The relief
of partition sought by the plaintiff will be consequential to the declaration
of gift deed as illegal as till the time the gift deed will stand in the name
of defendant NO.2, the plaintiff shall not be entitled for partition. Thus, the
present suit is a suit for declaration with consequential relief and the
judgment of the Apex Court would be of no help to the plaintiff as incase the
suit would have been only qua the declaration of a document as illegal without
any further relief viz. possession, the said judgment would have been
applicable.
44. No Court fee
was payable in the cited case viz. Suhrid Singh (supra) as the plaintiff had
not sought any consequential relief of possession and being a non-executant
simply sought for a declaration of the sale deed as illegal, hence was held not
required to seek relief of cancellation since was not a party to the said sale
deed. However, the facts are otherwise in the present case and since the
plaintiff is seeking declaration of Gift Deed as null and void need to pay
advalorem court fee. This issue is decided accordingly. The plaintiff is given
four weeks' time to make good the court fee.
45. Application
stands disposed of in terms of above. CS(OS) 3489/2014 & IA
NOS.22638/2014, 6761/2016, 3778/2018.
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