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HIGH COURT OF DELHI
JUDGMENT
SHAMPA GHOSH ..... Plaintiff
Through: Mr. Nalin Tripathi and Mr. Sarvendra M. Tripathi and Mr. Divyanshu Priyam, Advocates
Through: Mr. D. Banerjee and Ms. S.Halder, Advocates for Defendant No.1
Mr. Anshu Mahajan and Mr.Vikas Aggarwal, Advocate for defendant
No.3.
Mr. Amit Shanker Amist and Ms.Mithila Jain, Advocates for defendant No.4
2081/2021 (of the defendant no.3 u/O-VII R-11 of CPC)
1. By way of this judgment, I shall decide applications filed on behalf of the defendants no.1 and 3 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint. Proceedings in the suit
2. The present suit was filed on behalf of the plaintiff seeking reliefs of partition, possession and permanent injunction in respect of the property bearing No. B-127, Chittaranjan Park, New Delhi-110019. (hereinafter referred to as ‘suit property’).
3. Summons in the suit were issued on 25th November, 2020. Written statements have been filed on behalf of the defendants no.1, 2, 3 and 4. Replications thereto have been filed on behalf of the plaintiff.
4. Subsequently, the present applications were filed on behalf of the defendants no.1 and 3. Notice in I.A. 1210/2021 and I.A. 2081/2021 were issued on 27th January, 2021 and 11th February, 2021 respectively. Replies have been filed on behalf of the plaintiff.
5. The statement of the plaintiff in respect of the earlier suit being CS(OS)77/2016 filed on behalf of the plaintiff was recorded on oath under the provisions of Order X of the CPC on 18th August, 2022. Pleadings in the plaint
6. The pleadings in the plaint insofar as are relevant for deciding the present application are set out below:
6.1. The suit property belonged to Late Sh. Moni, who expired on 24th February, 2006, leaving behind his wife, Smt. Kamala Dey and 5 children. The plaintiff and the defendants no.1 and 3 are 3 surviving children of Late Sh. Moni Dey. Sh. Debdas Dey, another son of the Sh. Moni Dey expired on 24th June, 2011 and is survived by his BANSAL daughter, Debashree Biswas, the defendant no.2 herein. Another daughter of Late Sh. Moni Dey, Smt. Khela Kanwar, expired on 9th September, 2019 and is survived by her son, the defendant no.4 herein.
6.2. After the death of Sh. Moni Dey, the defendant no.1 propounded an unregistered Will dated 11th March, 2004 executed by Sh. Moni Dey. However, it was decided by the parties mutually that the said Will would not have any bearing on the rights of the legal heirs of Sh. Moni Dey and the suit property would devolve upon Smt. Kamala Dey exclusively.
6.3. Sh. Kamala Dey expired intestate on 20th November, 2018. At the time of her death, Smt. Kamala Dey was the absolute owner of the suit property.
6.4. After the death of Smt. Kamala Dey, it was orally agreed between the parties that the legal heirs of Smt. Kamala Dey will use the suit property for residential purposes and make endeavours to partition the suit property by metes and bounds. It was also agreed that none of the legal heirs will deal with the suit property in any other manner. Thereafter, the plaintiff and the defendants have been residing in the suit property.
7. Accordingly, the present suit has been filed by the plaintiff seeking following reliefs: “(a) pass a Preliminary decree of partition in favour of the Plaintiff and against the Defendants towards one fifth (1/5) share of the property bearing No. No.B-127, Chittaranjan Park, New BANSAL Delhi-110019, admeasuring 196 square yards (164 square meter approx). (b) pass a decree of partition in favour of the Plaintiff and against the Defendants towards one fifth (1/5) share of the property bearing No. No.B-127, Chittaranjan Park, New Delhi-110019, admeasuring 196 square yards (164 square meter approx).
(c) pass a decree of possession in favour of the Plaintiff and against the Defendants towards one fifth (1/5) share of the property bearing No. B-127, Chittaranjan Park, New Delhi- 110019, admeasuring 196 square yards (164 square meter approx).
(d) pass a decree of permanent injunction in favour of the Plaintiff and against the Defendants towards use creating any hinderance towards one fifth (1/5) share of the property bearing No. No.B- 127, Chittaranjan Park, New Delhi110019,admeasuring 196 square yards (164 square meter approx). (e) and/or grant such further relief(s) in favour of the Plaintiff and against the Defendant as this Hon'ble Court deems fit and necessary in the facts and circumstances of the case and in the interest of justice.” Submissions on behalf of the defendants no.1 and 3
8. In support of their applications, the counsels appearing on behalf of the defendants no.1 and 3 have made the following submissions:
I. The plaintiff along with the defendants no.1, 3 and Smt. Khela
Kanwar, the mother of the defendant no. 4, had filed a suit being CS(OS) No. 77/2016 before this Court seeking permanent injunction against the defendant no.2 herein and one Mr. Amit Bidhuri. The plaintiff has deliberately suppressed filing of the aforesaid suit BANSAL
II. In CS(OS) No. 77/2016, the plaintiff and the defendants no.1, 3 and the mother of defendant no.4 had specifically relied on the Will dated 11th March, 2004 executed by their father, Late Sh. Moni Dey. As per the said Will, the entire suit property was bequeathed in favour of Smt. Kamala Dey. After her death, the ground floor of the suit property would belong to Debdas Dey, the father of the defendant no.2; the first floor was to belong to the defendant no.1 and; the second floor was to belong to the defendant no.3 first and then to other daughters of Sh. Moni Dey. If the daughters would not want to occupy the second floor, then the same would devolve upon defendant no.1 and Debdas Dey in equal shares. As per the said Will, none of the legal heirs of Late Sh. Moni Dey had any right to sell, mortgage, gift or lease in respect of the suit property.
III. No right to even occupy the suit property accrues to the plaintiff during the lifetime of the defendants. Therefore, the plaint is liable to be dismissed on the ground that it fails to disclose any cause of action in terms of Order VII Rule 11(a) of the CPC.
IV. The plaintiff has deliberately concealed the Will dated 11th March,
2004. The concealment of the Will is further compounded by the plaintiff’s assertions in paragraph 3 of the plaint that the legal heirs agreed that the said Will shall not have any bearing on their rights in the suit property.
V. In CS(OS) 77/2016, a final judgment and decree was passed by this
Court on 12th October, 2017 and the Will of Late Shri Moni Dey has been duly proved in terms of the said decree. Therefore, the said BANSAL decree would constitute res judicata and the present suit would be barred.
VI. The present suit has been valued at Rs. 52,60,000/- for the purposes of court fees and jurisdiction. The suit has not been valued separately for each of the reliefs claimed in the plaint and therefore, the proper court fees has not been paid. Reference in this regard is made to Section 7(iv)(b) and (d) and Section 7(v)(e) read with Section 17 of the Court fees Act, 1870. Reliance is placed on the judgment of Patna High Court in Sitbaran Jha v. Lokenath, AIR 1924 PATNA 558.
9. Per contra, the counsel for the plaintiff has made the following submissions:
I. The plaintiff had no knowledge about the institution of the suit being
CS(OS) No. 77/2016. Further, the plaintiff has never signed, verified or attested any document in regard to the said suit. The signatures of the plaintiff have been forged to grab the entire suit property of Late Shri Moni Dey and deny the legal rights of the plaintiff.
II. The plaintiff has not concealed the aforesaid Will in the present suit.
III. A perusal of the Will of Late Shri Moni Dey placed on record by the defendants would show that the same has not been signed by the attesting witnesses and therefore, the same is not a valid Will in terms of Section 68 of the Indian Evidence Act, 1872.
IV. It is wrong to state that the Will of Late Shri Moni Dey had been proved in CS(OS) 77/2016. The Will has to be proved in terms of Section 68 of the Indian Evidence Act, 1872 and the same has not been done in the earlier suit. Reliance is placed on the judgment of the BANSAL Supreme Court in Ramesh Verma (Dead) Through Legal Representatives v. Lajesh Saxena (Dead) by Legal Representatives and Another, (2017) 1 SCC 257.
V. The earlier suit being CS(OS) 77/2016 was a collusive suit filed by
Late Sh. Kamala Dey, defendants no.1, defendant no.3 and Late Smt. Khela Kanwar, the mother of defendant no.4 herein against defendant no.2 herein and a third party, Mr. Amit Bidhuri. Further, the aforesaid suit was filed seeking permanent injunction and no title could be decided therein. Therefore, the judgment and decree passed in the aforesaid suit cannot constitute res judicata against the present suit.
VI. In the present suit, the relief of possession is only a consequential relief to the main relief of partition. Therefore, no separate court fees is payable thereon. Reliance is placed on the judgments in Chandra Bhogi and Anr. v. Guddappa Bhandary, AIR 1953 Mad 846 and Sevanthi Bai and Ors. v. Mandodhari and Ors., 2002 (1) ALD 151. Findings
10. I have heard the counsels for the parties and the rival submissions.
11. First, I propose to deal with the issue of court fees. A perusal of the prayers made in the present suit as set out above, would show that the main relief claimed in the present suit is that of partition and permanent injunction. The plaintiff has valued the suit property at Rs.2,63,00,000/-, which is the market value of the suit property as per the circle rate. Since the plaintiff is claiming 1/5th share in the suit property, the valuation of the same comes to Rs.52,60,000/- and accordingly, the court fees of Rs.53,681/- has been paid. Further, for the purposes of permanent injunction, a separate BANSAL court fees of Rs.200/- has been paid. A perusal of the prayers made in the plaint would show that the relief of possession is not an independent relief and is only a consequential relief to the relief of partition. Though, it has been separately prayed for in prayer (c) in the plaint, in my view, it would not constitute two distinct subjects in terms of Section 17 of the Court Fees Act, 1870.
12. It is not a case where the plaintiff has sought a relief of possession under the guise of partition. Therefore, the judgment in Sitbaran Jha (supra) would be of no assistance to the defendants. On the other hand, the judgment in Chandra Bhogi (supra) relied by the counsel for the plaintiff would be fully applicable to the facts of the present case. In the said case, it was held by the court that where the relief of declaration or cancellation is incidental to the relief of partition and therefore, no separate court fees is payable. Court further observed that if a relief relates to a distinct subject matter it should be separately valued, and in case where a relief is only incidental to the relief of partition, no separate court fee need to be paid.
13. In the present case, the relief of possession is only incidental to the main relief of partition. Therefore, no separate court fees is payable on the same.
14. CS(OS) 77/2016 was filed seeking a decree of permanent injunction, in which reliance was placed on the Will executed by Late Shri Moni Dey. However, the aforesaid Will was not proved in the said case. Under Section 68 of the Indian Evidence Act, 1872, a Will can only be proved if atleast one of the attesting witnesses appears before the court for proving its execution.
BANSAL Admittedly, no attesting witness to the Will appeared in the said case for proving the Will executed by Late Shri Moni Dey. Counsel for the plaintiff has correctly placed reliance on Ramesh Verma (supra) to submit that the mandate of Section 68 of the Indian Evidence Act, 1872 has to be complied with even if the opposite party does not specifically deny execution of the document in the written statement.
15. Further, the aforesaid Will has been filed by the defendants in the present suit. On a prima facie view, it appears that the aforesaid Will has not been signed by the attesting witnesses. Therefore, the aforesaid Will would have to be proved in the trial.
16. There is no merit in the contention of the defendants that the plaintiff has not disclosed the said Will in the present case. In this regard, a reference may be made to paragraph 3 of the plaint, which is set out below: “3. That after a long five years after the death of Shri Moni Dey, defendant No.1, Shri Alok Dey in 2011 out of somewhere produced an unregistered and unattested Will in front of the sisters, stated to be signed by Shri Moni Dey. However, the said Will was immediately objected by the other legal heirs and after a long persuasion it was decided by parties mutually that the said Will would not have any bearing on rights of any of the legal heirs of Shri Moni Dey, the property would devolve upon Smt. Kamala Dey exclusively.”
17. It has been vehemently contended on behalf of the defendants that the plaintiff herein was also a plaintiff in CS(OS) 77/2016 and had put her signatures on the plaint as well as vakalatnama in favour of the counsel, who appeared on behalf of the plaintiff in the said suit. Yet, the plaintiff has not disclosed the said suit in the present proceedings and therefore, the BANSAL plaint is liable to be rejected on the ground of concealment. Based on the aforesaid submission of the defendants, the plaintiff was examined by the Court under Order X of the CPC on 18th August, 2022. In her statement, the plaintiff has specifically denied filing CS(OS) 77/2016 or having signed the original plaint or the vakalatnama. The plaintiff also stated that she has never met the counsel, who appeared on her behalf in the said suit. This aspect can only be examined in trial.
18. A perusal of the reliefs claimed in CS(OS) 77/2016 would show that the said suit was filed against the defendant no.2 herein, who was the defendant no.1 in the said suit and a third party, only for the limited purpose of injunction. Therefore, the scope of the said suit was not to decide the respective title of the parties to the suit property. Even otherwise, the said suit was not a contested suit. The defendant no.2, Mr. Amit Bidhuri, in the said suit was proceeded against ex parte, and the defendant no.1 (defendant no.2 herein) consented to a decree of permanent injunction being passed against her. The plaintiff has filed an appeal against the judgment and decree dated 12th October, 2017 passed in the aforesaid suit.
19. In view of the discussion above, it cannot be said that the plaint does not disclose a cause of action. No grounds are made out under Order VII Rule 11 of the CPC for rejection of the plaint. Therefore, the plaint cannot be rejected under Order VII Rule 11 of the CPC without a proper trial.
20. Needless to state any observations made herein are only for the purposes of deciding the present application and would have no bearing on the final adjudication of the suit.
BANSAL
21. Both the applications stand dismissed.
22. List before the Joint Registrar on 10th January, 2023 for further proceedings. AMIT BANSAL, J. NOVEMBER 23, 2022 BANSAL