Nishi Jha & Anr. v. Rakesh Bhatnagar & Anr.

1. This suit is filed by the two plaintiffs. The two plaintiffs are the sisters of the defendant no.1. Defendant no.2 is the wife of the defendant no.1. Essentially, the dispute between the parties is with respect to the immovable property bearing plot no.C-25, admeasuring 231.67 sq mtrs located in the lay out plan of Railway Board Employees Co-operative Group Housing Society Ltd., Anand Vihar, Delhi-110092 (hereinafter referred to as ‘the suit property’) purchased allegedly from the funds from the sale of the property bearing no.D/342, Anand Vihar, Delhi-110092, and which belonged to the father of the parties and whose estate is essentially sought to be partitioned in terms of the prayer made in this suit, though certain movable assets are also referred to for recovering plaintiffs’ shares. 2016:DHC:886

2. Plaintiffs who are the sisters claim that that the suit property though was purchased in the joint names of the father Sh. Maheshwari Prasad Bhatnagar and the brother/defendant no.1, however, it is claimed that monies for purchase of this property were paid only by the father Sh. Maheshwari Prasad Bhatnagar and no monies were contributed by the defendant no. 1 who is the co-owner as per the title deeds.

3. I have, during the course of hearing, repeatedly put it to the counsel for the plaintiffs that suit of such a nature as the present is ex facie barred by the provision of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988, inasmuch as, once the suit property is admittedly as per the title deeds co-owned by the late father Sh. Maheshwari Prasad Bhatnagar, with his son/defendant no.1 i.e the brother of the plaintiffs, then even if an averment is made that monies were paid only by the father, yet, such a suit cannot take away the right to 50% ownership of the suit property which would vest with the defendant no.1. Plaintiffs, therefore, at best would only have a right in the half share of the father Sh. Maheshwari Prasad Bhatnagar in the said immovable property, and of course provided Sh. Maheshwari Prasad Bhatnagar had died intestate.

4. Also, a reference to para 4 of the suit plaint shows that there is an admission of ouster of the plaintiffs from the suit property inasmuch as the plaintiffs themselves make an averment that plaintiffs have been restrained from using their respective portions of the suit property which were in their possession ie the defendants have effectively ousted the plaintiffs from physical possession of the suit property, and once that is so, that there is admittedly an ouster of the plaintiffs, plaintiffs have to necessarily sue for possession and pay ad valorem court fees on the shares which fall to the plaintiffs.

5. I may also note that plaintiffs in the plaint have pleaded entitlement to various movable properties belonging to the father Sh. Maheshwari Prasad Bhatnagar but the plaintiffs who ought to have tentatively valued the suit for recovery of monies in terms of Order VII Rule 2 of the Code of Civil Procedure, 1908 (CPC) have not done so, but have simply valued the suit for monies and movables properties at Rs.200 by paying court fee of Rs.20. This is not permissible in view of Order VII Rule 2 CPC which requires the plaintiffs to make necessary estimate as to the monies which would be due to the plaintiffs, assuming the father died intestate and the movable properties which are the subject matter of the plaint, belonged to the father Sh. Maheshwari Prasad Bhatnagar.

6. In view of the above, the suit is ex facie barred by the provision of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 to the extent of 50% share in the suit property of the defendant no. 1 i.e there does not exist 2/3rd right of the two plaintiffs (who are the two sisters of defendant no.1) in the suit property. So far as the claim with respect to possession is concerned, since counsel for the plaintiffs continues to assert that plaintiffs are not liable to pay court fee, but since in para 4 of the plaint ouster is clearly found to be pleaded by the plaintiffs themselves, plaintiffs were bound to have sued for possession and paid ad valorem court fee on their shares, and which has not been paid. Also, so far as money decree is concerned, the suit is not valued for the purposes of court fee and jurisdiction and the appropriate court fee not paid in terms of Order VII Rule 2 CPC.

7. In view of the above the suit plaint is dismissed under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 so far as the claim with respect to 2/3rd rights of the plaintiffs in the immovable property is concerned, and the plaint is rejected so far as the claim with respect to whatever share in the immovable property which may fall to the shares of the plaintiffs on account of the plaintiffs not being in possession but not suing for possession by paying ad valorem court fees. For recovery of monies plaint is rejected on account of non-payment of requisite court fees by not properly valuing the suit as required by Order VII Rule 2 CPC. Since the suit is dismissed, all pending applications stand disposed of.

FEBRUARY 03, 2016 VALMIKI J. MEHTA, J. ib