Anurag Sant v. Anupriya Vij & Anr

Judgment reserved on:

06.08 .2025

Judgment pronounced on: . 0 8 . 2025

+ FAO( OS) 173/2024, CM APL. 71085/2024, CM APL. 73925/2024 & CM APL. 27986/2025

ANURAG SANT

. A pelant

Through:

Mr. Ashok Kumar Singh, Senior Advocate along with Mr. Rakesh Chaudhary, Mr. Rajev Chauhan, Mr. Rajat Joshi, Ms. Eesha Garg and Ms. Salo ni Singh, Advocates .

versus

ANUPRIYA VIJ & ANR.

.Respondent s

Through:

Mr. Shekhar Gupta, Mr. Mehendra Pratap and Mr. Anand Mishra, Advocates .

CORAM:

HON'BLE MR. JUSTICE ANIL KSHETARPAL

HON'BLE MR. JUSTICE HARISH VAIDYANATHAN SHANKAR

J U D G M E N T

ANIL KSHETARPAL , J.

¶1The Apelant has prefered the present Apeal asailing the corectnes of the order dated 28.08.2024 (hereinafter refered to as the —Impugned Order ") pased by the learned Single Judge of this Court in CS(OS) 52/202, titled as Anupriya Vij and Anr. vs. Anurag

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Sant . By the Impugned Order, the learned Single Judge dismised I.A. No. 1295/202 in CS(OS) 52/202, filed by the Apelant/Defendant

therein under Order VI Rule 1(b ) of the Code of Civil Procedure, 1908 1 , se king rejection of the plaint on the ground of non - payment of apropriate ad valorem Court Fes based on the corect valuation of the concerned s uit p roperty. The Respondents/Plaintifs therein have instituted the aforesaid Civil Suit, which is curently pe nding before the learned Single J udge . FACTUAL MATRIX:

2 . The relevant facts, necesary for adjudication of the present Apeal , are briefly stated as under:

i . The parties in the present mater are the children and Clas - I legal heirs of Late Shri Shiv Chand Sant (deceased on 17.12.2020) and Late Smt. Vijaya Sant (deceased on 09.08.2020), both being the comon ancestors from whom the rights in the concerned suit prop erties devolve. The Respondents [ Plaintifs before the learned Single Judge] are the real sisters of the Apelant [ Defendant before the learned Single Judge] . i. The dispute arises in respect of two imovable properties [hereinafter colectively refered to as the —suit p roperties" ]:

a) Property bearing No. B - 215, Ashok Vihar , Phase - I, Delhi œ 1052, constructed on a plot admeasuring 30 sq. yards ( 250.80 sq. met ers) [ hereinafter refered to as —Ashok Vihar Prope ] ;

1 Hereinafter refered to as "CPC'.

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and

b) Property bearing No. 5 - B, Nath Market, Nai Sarak, Delhi œ 106, admeasuring 60 sq. fet [ hereinafter refered to as the —Nai Sarak Property" ] . i.

The present lis originated with the institution of the Civil Suit by the Respondents/Plaintifs, wherein they sought partition of the suit properties, partition of the imovable asets of the fathe r's busineses, namely Umesh Prakashan and Umesh Publications , mesne

profits, rendition of acounts, and permanent injunction along with a declaration in respect of the suit properties . iv . The factual controversy centers on the alegation that the Apela nt/Defendant, along with his family, is in exclusive use and ocupation of the Ashok Vihar Property to the exclusion of the Respondents. The Respondent/Plaintifs asert that, as Clas - I legal heirs, they and the Apelant /Defendant are each entitled to an

undivided 1/3 rd share in the suit properties and the imovable busines asets.

v . T he Apelant /Defendant disputes this claim by placing reliance upon two registered Wils dated 26.08.2015 (executed by the late father) and 24.09.2019 (executed by the late mother) which, acording to him, confer upon the Plaintifs a combined 34% share only in the Ashok Vihar Property. The validity of the aforesaid Wils is directly in isue in the pending Civil Suit, the Respondents /Plaintifs aleging that they were procured by the Apelant /Defendant through undue influence and coercion .

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3 . In the course of procedings, the Apelant/Defendant raised a preliminary objection under Order VI Rule 1(b ) of the CPC , contending that the Civil Suit was liable to be rejected for non - payment of ad valorem Court Fes by the Respondents/Plaintifs on their own valuation of the Ashok Vihar Property. It was urged that, having valued the relief for posesion, the Respondents/ Plaintifs were required to pay C ourt fes in acordance with Section 7(iv)(b) of the Court Fes Act, 1870 2 .

¶4Consequently, I.A. No. 1295/202 was dismised by t he learned Single Judge vide Impugned Order, who, after considering the contentions, held as under:

—This Court on the reading of the pl plaintifs have not admited their ouster or exclusion from the suit property. Therefore, in the judgments of Anil Kumar Bansal [Col. (Retd.)] & Anr. v. R.K. Bansal & Ors. 3 and Nishet Bhala and Ors. v. Malind Raj Bhala and Ors. 4 relied upon by the aplicant/defendant in the facts of this case as noted above, there is no exclusion admited by the plaintif. Acordingly, the said judgments are of no asistance to the plaintif herein.

Acordingly, the plea of the defendant that the plaintifs ought to pay ad - valorem Court fes as per Section 7(iv) (b) of the Court Fes Act, 1870 for the relief of separate posesion with respect to Ashok Vihar suit property despite admiting their co - ow nership is without any merits and

SUBMISIONS OF THE APELANT:

5 . It is submited and pleaded by learned senior counsel for the

Apelant that the Respondents /Plaintifs are admitedly ousted from

2 Hereinafter refered to as "Act'.

3 198 (2013) DLT 723.

4 AIR 207 DELHI 60.

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the suit p roperties and thus, they a re under legal obligations to pay ad valorem Court Fes under Section 7(iv)(b) of the Act . 6 . Indisputably, the learned senior counsel for the Apelant submited that, in acordance with the registered Wil dated

26.08.2015, executed by his father, the decision to let out the suit property was solely taken by the Apelant /Defendant as its " absolute owner' . This, acording to the Apelant /Defen dant , reflects that the Respondents /Plaintifs are neither in posesion of the suit property nor do they exercise any influence or control over its day - to - day management. The Apelant /Defendant also relied upon the valuation report dated 25.02.202. For this, as per the aforesaid Wil, the Apelant /Defendant

is declared the head of the house with responsibility for his parents, whose decisions are binding on the family, and is granted sucesion rights in the property from the testator to his wife, and t hereafter to the Apelant /Defendant

exclusively . 7 . The Apelant /Defendant contends that, in view of the rent agrement dated 01.1.2021 betwen the Respondents/ Plaintif s and the tenant of the Ashok Vihar Property, Sh. Vipin Nagpal , the Apelant, has himself aserted ownership over the suit properties . Hence, the Respondents /Plaintifs

canot claim constructive posesion thereof through the said tenant . 8 . Learned senior counsel for the Apelant, further, pleaded that a bare peru sal of the registered Wil dated 26.08.2015 and 24.09.2019 stipulates the parents' desire with similar expresion and sentiments,

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and these are in norms of the society, that consequential ouster or exclusion from the suit properties , which has ben admite d in clear and unambiguous terms . 9 . In view of the aforementioned submisions, the learned senior counsel relied on Prakash Wati v s . Dayawanti & Anr. 5 where a party is not in posesion of the property and aleges ouster, as in this case, the claim amounts to seking posesion of their share, making ad valorem C ourt Fes on the market value of that share mandatory, rather than the fixed fe aplicable t o joint posesion cases .

10.

Learned senior counsel for the Apelant also relied upon

Nishet Bhala & Ors. vs. Maini Raj Bhala & Ors. 6 and Col. (Retd.) Anil Kumar Bansal v s . R.K. Bansal 7 that the plaintifs were bound to pay ad valorem Court Fes on that valuation as per the Act. It further held that the plaintifs were not in posesion of any portion of the suit property at the time of filing and had admited their exclusion, making them liable to pay ad valorem fes on the value of their shares for partition and posesion . SUBMISIONS OF THE RESPONDENT S : 1 1 . Per contra , learned counsel for the Respondents, in oposition to the submisions advanced on behalf of the Apelant and as stated in their reply to the Order VI Rule 1(b ) of the CPC aplication, contended primarily on two grounds:

F irstly , that the Respondents/Plaintifs therein had knowledge of the aleged Wils

5 AIR 191 Delhi 48.

6 206 SC OnLine Del. 649.

7 2012 SC OnLine Del 5635 .

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executed by their father and mother, respectively. Secondly , the Respondents have ben ousted from the suit properties , an d therefore, C ourt Fes ought to be afixed on the plaint. In view of these submisions, the Respondents /Plaintifs have categoricaly disputed the genuinenes and validity of the aleged Wils of their father and mother, respectively, and have also raised alegations of both mental and physical abuse. With respect to the isue of ouster and payment of ad valorem C ourt fes, the Respondents /Plaintifs have clearly stated in the plaint that they are in "c properties and als o claim to be co - owners thereof .

12.

In view of the aforesaid submisions, the learned counsel for the Respondents placed reliance on Jaganath Amin vs. Setharama

(Dead) By LR s . and Others 8 and Nelavathi and Others vs. N. Nataranjan and Others 9 to emphasize that the suit properties , though not strictly so, are treated as undivided joint family property. In law, when property is jointly owned, posesion by one co - owner is demed posesion for al, unles it is clearly established that a co - owner ha s ben ousted or excluded. Therefore, a Plaintif is considered to be in joint posesion in the eyes of the law even without physicaly posesing any part of the property .

13.

Learned counsel for the Respondents further submited that it is a setled pos ition of law that for the purpose of determining constructive posesion, only the averments made in the plaint are to be considered, and where joint posesion is pleaded on the basis of

8 207 (1) SC 694.

9 ( 1980) 2 SC 247.

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co - ownership, the C ourt Fes are payable under Article 17(vi) of Schedule I of the Act, and no

1 of * IN THE HIGH COURT OF DELHI AT NEW DELHI %