MS. Harjeet Kaur Lamba & Ors. v. Mr. Rajinder Pal Singh Lamba

1. By this application defendant seeks rejection of the plaint inter alia on the grounds that the Court fee has not been properly paid, the suit is barred by limitation and has been filed mala fidely as the defendant has been in uninterrupted and exclusive possession of the suit property. However, during the course of arguments, learned counsel for the defendant’s only contention is that requisite Court fee has not been paid by the plaintiffs who have ascertained their share in the sum of ₹4,50,00,000/- and thus should have paid ad valorem Court fee of ₹4,41,545/- as they are neither in actual nor constructive possession of the suit property and that the plaintiffs have admitted ouster based on the special power of attorney which has been revoked by them in the year 2018. 2019:DHC:5052

2. The present suit has been filed by the plaintiffs seeking decree of partition for the property bearing Municipal No.A-39 Church Road, Bhogal, New Delhi-110014 ad-measuring 167 sq.yd., constructed up to five floors (hereinafter referred to as ‘the suit property’) besides permanent injunction from selling or transferring the suit property and not to receive the rent from the tenants. Case of the plaintiffs who are the mother, brother and sister of the defendant is that the suit property was owned by late Shri Surjeet Singh Lamba, the husband of plaintiff No.1 and the father of plaintiffs No.2 and 3 and the defendant. The suit property was constructed up to five floors, each floor comprising of two rooms set on each side. Since the plaintiffs were residing in Canada they executed a special power of attorney on 20th November, 2007 in favour of the defendant for the purpose of maintaining/looking after the suit property, for collecting the rent from the tenants and to render the accounts thereof being the legal heir of the deceased late Shri Surjeet Singh Lamba. For the last two years, the defendant was neither maintaining the accounts nor rendering the same to the plaintiffs, thus the plaintiffs revoked the special power of attorney on 7th June, 2018 and filed the present suit.

3. Learned counsel for the defendant claims ouster of possession by virtue of revocation of special power of attorney as pleaded in para 7 of the plaint wherein it is stated that since the defendant was not rendering the accounts properly, the special power of attorneys were revoked vide legal notice dated 7th June, 2018. Learned counsel for the defendant has relied upon the decision of this Court reported as (2014) 146 DRJ 229 Suresh Kapoor vs. Shashi Krishan Lal Khanna & Ors. wherein this Court has held that the plaintiffs therein having admitted ouster were liable to pay the Court fee as they were never in possession.

4. A three Judge Bench of the Supreme Court in the decision reported as (1980) 2 SCC 247 Neelavathi vs. N. Natarajan, referring to its earlier decision in AIR 1958 SC 245 S. Rm. Ar. S. Sp. Sathappa Chettiar vs. S. Rm. Ar. Rm. Ramanathan Chettiar, reiterated that the question of Court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by final decision of the suit on merits. It was further laid down that the mere plea by the plaintiff therein that the defendant was not rendering accounts of the income from property will not amount to dispossession or exclusion of possession of the property in respect of which share is being sought by the plaintiff/plaintiffs. Para 6 and 8 of the report read as under:-

It will be seen that the court fee is payable under Section 37(1) if the plaintiff is “excluded” from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family, and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the Mitakshara coparcenary property, acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided “joint family property” though not in the strict sense of the term. The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been “excluded” from joint possession to which they are entitled in law. The averments in the plaint that the plaintiffs could not remain in joint possession as they were not given any income from the joint family property would not amount to their exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiffs had been excluded from possession.”

5. This Court in the decision reported as 2004 (78) DRJ 690 Dr. Durga Parmar & Ors. vs. V.K. Verma & Ors. held:-

6. From the reading of the plaint it is apparent that late Shri Surjeet Singh Lamba died intestate and thus plaintiffs and defendant inherit 1/4th share each of the suit property. Since the plaintiffs have been residing in Canada and the defendant in the suit property, special power of attorneys were executed by the plaintiffs in favour of the defendant which have been filed along with the plaint. In the present case, the plaintiffs have not claimed the relief of possession as they claim to be in constructive possession of the suit property and because of the said constructive possession had authorized the defendant to collect the rent on their behalf as well.

7. Considering the decision of the Supreme Court, this Court finds no merit in the application and the same is dismissed.