Delhi High CourtSarabjit Prakash & Anr. vs Udyajit Prakash & Ors. on 20 October, 2011Author:Sanjay Kishan KaulBench:Sanjay Kishan Kaul,Rajiv Shakdher*                IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                                           Date of decision : 20.10.2011

+                               FAO (OS) No.719 of 2010


SARABJIT PRAKASH & ANR.                                     ...APPELLANTS
                   Through:                      Mr. Manu Nayar, Advocate.

                                           Versus

UDYAJIT PRAKASH & ORS.                                       ...RESPONDENTS
                   Through:                      Mr. Kishan Rawat, Mr. Mohit Mudgal
                                                 & Mr. Rajan Narain, Advocates for
                                                 Respondent No.1.

                                                 Respondents 2 to 5 proceeded ex parte
                                                 today.

CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE RAJIV SHAKDHER

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                    NO

2.        To be referred to Reporter or not?                     NO

3.        Whether the judgment should be                         NO
          reported in the Digest?

SANJAY KISHAN KAUL, J. (Oral)CM No.23291/2010 (for condonation of 25 days delay in filing) &
CM No.23293/2010 (for condonation of 9 days delay in refiling)1.      Despite last opportunity granted no reply has been filed by respondent

             No.1. Respondents 2 to 5 are already served but have chosen not to

             appear.__________________________________________________________________________________________FAO (OS) No.719 of 2010                                                          Page 1 of 92.      In view of the averments made in the applications sufficient cause has

            been shown for condonation of delay and the applications are

            accordingly allowed subject to payment of costs of `5,000.00 to

            respondent No.1.+ FAO (OS) No.719/20103.      Respondents 2 to 5 have chosen not to appear despite service and are,

            thus, proceeded ex parte.4.      Admit.5.      Learned counsel for respondent No.1 accepts notice.6.      At request of learned counsels for the parties, the appeal is taken up

            for final disposal.7.      The parties are brothers and sisters. The appellants and respondent

            No.1 are the brothers while respondents 2 to 5 are the sisters. The

            controversy primarily relates to property bearing No.33, Sunder

            Nagar, New Delhi of which the recorded owner was late Shrimati Raj

            Mohini who passed away on 20.4.1988. The appellants filed a suit for

            partition, rendition of accounts and damages in the year 2000 qua the

            suit property. The appellants pleaded that the deceased at the time of

            death was possessed of both movable and immovable properties

            which included the suit property. It was alleged that the property was

            a joint family property and the appellants as class-I legal heirs were

            entitled to share in the property.__________________________________________________________________________________________FAO (OS) No.719 of 2010                                                          Page 2 of 98.      The plaint goes on to state that the appellants had been demanding

            partition since soon after the death of their deceased mother but

            respondent No.1 sought to propound a Will of the deceased dated

            18.7.1987 and filed Probate Case No.383/1988 in terms whereof

            respondent No.1 claimed to be the sole beneficiary of the immovable

            property. This probate petition was not decided till 23.9.2000 when

            the prayer made by respondent No.1 for grant of the probate of the

            Will was rejected and the probate petition was dismissed on merits.

            We are informed that an appeal has been filed against that order but

            no stay has been granted. The property consists of the ground and the

            first floors. The first floor has been rented out while respondent No.1

            is residing in the ground floor. In paragraph 7 of the plaint there is an

            averment that the rent is being received by respondent No.1 alone to

            the exclusion of the appellants. In paragraph 8 of the plaint also there

            is an averment that respondent No.1 is in physical possession of the

            suit property and thus has deprived the appellants of the enjoyment of

            the suit property. In paragraph 9 of the plaint it is stated that the

            appellants are the co-owners and are in legal and joint possession of

            the suit property. Paragraph 11 of the plaint is the suit valuation

            paragraph where the relief of partition has been valued at

            `1,50,00,000.00 on which fixed court fee has been paid.                        The

            appellants have undertaken to pay additional court fee on the relief of


__________________________________________________________________________________________FAO (OS) No.719 of 2010                                                          Page 3 of 9rendition of accounts and damages, found due and payable, after final

            adjudication of the present suit.9.      The suit has been contested by respondents 1 to 4 by filing their

            written statements, which are almost identical. In a nutshell, the plea

            is that the suit property is not a joint family property but was

            exclusively owned by late Shrimati Raj Mohini who by leaving

            behind the Will dated 18.7.1987 bequeathed the suit property in

            favour of respondent No.1 alone. It is not disputed that all the parties

            are class-I legal heirs of the deceased but the claim of the appellants is

            sought to be ousted on the plea of the Will propounded by respondent

            No.1.10.     It appears that on the basis of the aforesaid pleadings, the learned

            single Judge vide order dated 28.11.2008 while referring to

            paragraphs 7 & 8 of the plaint containing an averment that respondent

            No.1 was in physical and actual possession observed that the

            appellants were admittedly ousted from the possession and would

            have to pay ad valorem court fee especially as they had prayed for

            possession also. The matter was thereafter listed on 29.1.2009 when

            more time was sought to pay the court fee and the final opportunity

            was granted on 17.2.2009, the matter being adjourned to 13.4.2009.

            Admittedly, no ad valorem court fee was paid but IA No.5066/2009

            was filed seeking recall of the orders dated 29.1.2009 and 17.2.2009

            predicated on the plea that as per the legal advice obtained, they are
__________________________________________________________________________________________FAO (OS) No.719 of 2010                                                          Page 4 of 9not liable to pay ad valorem court fee and deemed to be in

            constructive possession of their undivided share in the property. This

            plea was sought to be supported by the fact that the first floor of the

            property was with the tenant and the factum of respondent No.1

            receiving the rent alone did not disentitle them to claim possession as

            well as rent in respect of the first floor. The factum of the probate

            petition being dismissed was also relied upon.11.     The appellants relied upon the observations of the Supreme Court inNeelavathi & Ors. Vs. N. Natarajan & Ors.AIR 1980 SC 691, which

            have been reproduced in the impugned order and are relevant in the

            present appeal and, thus, reproduced as under:"The general principle of law is that the case of coowners, the
                possession of one is in law possession in all, unless ouster
                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 plaintiff could be called upon to pay court fee under
                Section 37(1) of the Act on the ground that they had been
                excluded from joint possession, it is necessary that on a reading
                of the plaint that they had been excluded from joint possession to
                which they are entitled to in law. The averments in the plaint
                that the plaintiff could not remain in joint possession as he was
                not given any income from the joint family property would not
                amount to his exclusion from possession. We are unable to read
                into the plaint a clear and specific admissions that the plaintiff
                had been excluded from possession."12.     The aforesaid view is followed inJagannath Amin Vs. Seetharama

            (Dead) By Lrs. & Ors. (2007) 1 SCC 694.__________________________________________________________________________________________FAO (OS) No.719 of 2010                                                          Page 5 of 913.     In terms of the impugned order dated 14.9.2010 this application has

            been rejected giving four (4) weeks' time to the appellants to pay

            court fees failing which the plaint would be liable to be rejected underOrder 7 Rule 11 of the Code of Civil Procedure, 1908.14.     The impugned order is also predicated on the factum of the first floor

            of the said property being on rent and the rent being received by

            respondent No.1 alone and the ground floor of the property being

            enjoyed exclusively by respondent No.1.15.     Learned counsel for the appellants, once again, before us has adopted

            the same argument as urged before the learned single Judge that the

            possession of respondent No.1 of the ground floor must be held to be

            a constructive possession on behalf of all and the mere receipt of rent

            by respondent No.1 alone would not, in any manner, affect such

            constructive possession.          Learned counsel further states that in

            paragraphs 7 & 8 of the plaint relied upon in the impunged order

            ought not to be read in isolation but have to be read with paragraph 9

            of the plaint where there is a categorical averment that the appellants

            are co-owners and in legal and joint possession of the suit property.16.     Learned counsel for respondent No.1, on the other hand, has adopted

            the reasoning of the impugned order to contend that once the

            appellants are ousted they must pay the ad valorem court fee. He

            further submits that the appellants were given opportunities to pay the

            deficient court fee but failed to avail of the same.                 In fact, the
__________________________________________________________________________________________FAO (OS) No.719 of 2010                                                          Page 6 of 9appellants at that stage sought time to pay the court fee twice but

            failed to deposit the court fee.17.     We have to examine the controversy in question. In so far as the plea

            of the appellants earlier seeking time to pay the court fee is

            concerned, the same cannot, in our considered view, prejudice the

            appellants from raising the plea in law which is permissible. We

            would, thus, have to examine on merits whether the appellants are

            required to pay ad valorem court fee or not.18.     The legal position is not in doubt and if one may say so there is really

            an agreement on the general principle that in case of ownership the

            possession of one is possession of all unless ousterer/exclusion is

            proved. It is not necessary that a co-owner should be in actual and

            physical possession of the whole or part of the property or that he

            should be getting a share of income from the property so long as his

            right to share and the nature of the property is not disputed.19.     In this behalf the plaint has to be read as a whole. If the present plaint

            is seen, a conjoint reading of paragraphs 7 to 10 shows that what is

            pleaded by the appellants is that there is a tenant on the first floor

            while respondent No.1 resides on the ground floor of the property and

            the property is jointly owned and there is constructive possession of

            the appellants.20.     We may note that the factum of the appellants being class-I legal heirs

            and entitlement to property has not even been questioned but
__________________________________________________________________________________________FAO (OS) No.719 of 2010                                                          Page 7 of 9respondent No.1 seeks to exclude the appellants solely on the basis of

            the Will propounded of their late mother who was the owner. The

            probate proceedings dragged on for almost twelve (12) years before

            the probate petition was dismissed on 23.9.2000.                  The appeal is

            pending without any stay. Thus, as on date there is no valid Will

            propounded by respondent No.1.21.     We are, thus, of the considered view that the plaint be read as a whole

            which clearly shows that the appellants claim constructive possession

            being the legal heirs of late Shrimati Raj Mohini.                    In fact, in

            paragraph 5 of the plaint the plea raised is of Shrimati Raj Mohini

            passing away intestate and the factum of respondent No.1 seeking to

            propound a forged and fabricated Will the probate of which was

            dismissed.22.     We do not think that the judgement of the learned single Judge of this

            Court in Prakash Wati Vs. Dayawati & Ors. 42 (1990) DLT 421

            relied upon by learned counsel for respondent No.1 will come to his

            aid when such constructive possession is pleaded arising from the

            demise of the owner of the property when all parties are class-I legal

            heirs. The fact that the appellants have not been given their due share

            in the property or in the rent will not make any difference.23.     The appeal is accordingly allowed and the impugned order dated

            14.9.2000 is set aside with a direction that the suit will proceed to trial

            on merits.__________________________________________________________________________________________FAO (OS) No.719 of 2010                                                          Page 8 of 924.     In the given facts of the case, the parties are left to bear their own

            costs.CM No.23290/2010 (Stay)25.     In view of the disposal of the appeal, no directions are called for on

            this application and the same stands disposed of.SANJAY KISHAN KAUL, J.OCTOBER 20, 2011                                         RAJIV SHAKDHER, J.
b'nesh__________________________________________________________________________________________FAO (OS) No.719 of 2010                                                          Page 9 of 9