DURGA PARMAR Vs. V K VERMA

JUDGEMENT

(1.) This application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure has been filed by defendant No. 1 with the prayer to reject the suit by the plaintiffs on the ground that they have not properly valued the suit for the purpose of Court-fee and have not paid adequate Court- fee thereon.

(2.) The facts relevant for the disposal of this application, briefly stated, are that the plaintiffs, who are daughters of deceased Shri Shiv Lai Verma, have filed this suit for partition and rendition of accounts against the defendants alleging that the plaintiffs and defendants are legal representatives of the deceased and are entitled to equally share the properties left behind by deceased, which include various properties including House No. 69, Darya Ganj, New Delhi. According to the plaintiffs they are also entitled to rents being received from the properties as well as income and dividends accruing from the shares, debentures, fixed deposits, etc., left behind by the deceased. The defendants, including defendant No. 1, have filed their written statements controverting the pleas raised by the plaintiffs. The defendant No 1 has set up a Will dated 24th January, 1983 executed by the deceased. The defendant No. 1 has further raised a plea that the property No. 69, Darya Ganj, New Delhi, belongs to him alone and none else in entitled to claim any right, title or interest therein. He has also raised a plea in regard to the valuation of the suit, and Court-fee on the basis of which an issue also has been framed on 3rd March, 2004 and is awaiting trial.

(3.) In view of the fact that an issue has already been framed on the question of the valuation of the suit and the payment of Court-fee by the plaintiffs, the application of the defendant No. 1 under Order VII Rule 11, CPC for rejection of the plaint appears to be misconceived and premature for the reason that in the facts and circumstances of the case, the controversy in regard to the valuation of the suit is a factual controversy which cannot be adjudicated upon without recording evidence thereon. The plea of the defendant No. 1 that on the face of it the suit is under - valued and proper Court-fee has not been paid inasmuch as the plaintiffs are not in a possession of any part of the suit property cannot be sustained as in the plaint itself the plaintiffs have pleaded that some of the properties left behind by the deceased are with tenants. They have made a claim on the rents which are being collected by defendant No.1, The law is well - settled that the valuation of a suit for the purposes of Court - fee depends upon the prayers made in the plaint and in partition suits where immovable property sought to be partitioned is with the tenants, the co-owners are deemed to be in constructive possession. In such cases, they cannot be , prima facie, held to be out of possession of the property and cannot be made to pay Court-fee on the value of the share being claimed by them. The judgment of the Apex Court in Chief Inspector of Stamps Vs. Indu Prabha Vachaspati (Smt.) & Ors., reported in (1988) 9SCC 157, is a direct authority on this question. The judgment of this Court in Smt. Prakash Wati Vs. Smt. Dayawanti & Anr., reported in 42 (1990) DLT 421=AIR 1991 Delhi 48, is not applicable to the facts of the present case in as much as in the said case it was shown from the pleadings made by the plaintiff that the defendants had dispossessed the plaintiff from the possession of the suit property and had warned her not to come to the property in suit. It was held that the plaintiff was not in physical possession of any part of the property prior to the filing of the suit and was not being allowed even to visit the property by defendant. In view of such pleadings, it was inferred that the plaintiff was not in possession of any portion of the property in question.