2018 (9) TMI 1939 - HC - Indian Laws

Court dismisses application, plaintiff to pay court fees within 4 weeks. Suit to proceed on 14.11.2018.

Anita Anand Versus Gargi Kapur & Ors

The court disposed of the application under Order 7 Rule 11 of the CPC, directing the plaintiff to pay advalorem court fees within four weeks. The suit ... Share in ancestral property - suit property - Prohibition of Benami Property Transactions Act, 1988 has been amended vide the Benami Transaction (Prohibition) Amendment Act, 2016 - HELD THAT:- 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. 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. 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 - 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. 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 - 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. Application disposed off. Issues Involved:1. Applicability of Order 7 Rule 11 of the CPC.2. Claim to ancestral property under Section 6 of the Hindu Succession (Amendment) Act, 2005.3. Bar under Section 3 of the Benami Transaction Act.4. Absolute ownership under Section 14 of the Hindu Succession Act.5. Suit barred by limitation.6. Payment of advalorem court fees.Detailed Analysis:1. Applicability of Order 7 Rule 11 of the CPC:The defendants filed an application under Order 7 Rule 11 of the CPC, arguing that the plaint reveals no cause of action and should be dismissed. They contended that the plaintiff's claim to the property is baseless and unsupported by law.2. Claim to Ancestral Property under Section 6 of the Hindu Succession (Amendment) Act, 2005:The plaintiff claimed a right to the property under Section 6 of the Hindu Succession (Amendment) Act, 2005. The defendants argued that since the plaintiff's father was not alive on the date of the amendment (09.09.2005), she could not claim such a right, referencing the case of Prakash vs. Phulavati (2016) 2 SCC 36. The court noted that the plaintiff's claim was not based on the property being ancestral but on it being the self-acquired property of her father, purchased in the name of his wife for the benefit of the family.3. Bar under Section 3 of the Benami Transaction Act:The defendants argued that the suit is barred under Section 3 of the Benami Transaction Act, as the property was purchased in the name of the plaintiff's mother. The court disagreed, stating that the plaintiff's claim that her father was the de facto owner of the property could not be ignored at this stage. The court referenced Section 2(9)(A)(b)(iii) of The Prohibition of Benami Property Transaction Act, which excludes transactions where the property is held in the name of a spouse or child from known sources of the individual. Thus, the suit was not barred by the Benami Transactions Act.4. Absolute Ownership under Section 14 of the Hindu Succession Act:The defendants asserted that under Section 14 of the Hindu Succession Act, the property vested absolutely in the plaintiff's mother, who could have executed a will or gift deed for the entire property. The court noted that this contention would be subject to trial, as the plaintiff alleged that her mother held the property in a fiduciary capacity for the benefit of the family.5. Suit Barred by Limitation:The defendants argued that the suit was barred by limitation, as the plaintiff's father died in 1987, and the suit should have been filed within three years of his death. The court held that the plaintiff's suit for partition was maintainable, as the cause of action arose in July 2014 when the plaintiff was allegedly ousted from the property. The court referenced Vakil Chand Jain vs. Prakash Chand Jain, stating that a suit for partition inherently involves determining the capability of the property to be partitioned, making a separate declaration superfluous.6. Payment of Advalorem Court Fees:The defendants contended that the plaintiff had not paid the requisite advalorem court fees, as she was neither in physical nor symbolic possession of the property. The court agreed, noting that the plaintiff admitted her ouster from the property and that the defendants were in possession and deriving income from it. The court referenced Suresh Kapoor vs. Shashi Krishan Lal Khanna & Ors., stating that the plaintiff must pay advalorem court fees on her share of the property for the relief of partition. The plaintiff was given four weeks to make good the court fee.Conclusion:The application under Order 7 Rule 11 of the CPC was disposed of with directions for the plaintiff to pay the advalorem court fees within four weeks. The suit was scheduled for further proceedings on 14.11.2018.