RAMESH KUMAR BHAGCHANDKA vs. MAHESH KUMAR BHAGCHANDKA & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on : March 06, 2014
Judgment Pronounced on : March 28, 2014

+ RFA (OS) 49/2014

RAMESH KUMAR BHAGCHANDKA .....Appellant
Represented by: Mr.V.P.Singh, Sr.Advocate
instructed by Mr.D.K.Rustagi,
Mr.Pankaj Gupta and
Ms.B.S.Bagga, Advocates

versus

MAHESH KUMAR BHAGCHANDKA & ORS. .....Respondents
Represented by: Mr.Rajiv Nayyar, Sr.Advocate and
Mr.Arvind Nigam, Sr.Advocate
instructed by Mr.Ajoy K.Roy,
Mr.Nitesh Jain and Mr.Shantanu
Tyagi, Advocates for R-1

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE JAYANT NATH

PRADEEP NANDRAJOG, J.
1. Vide order dated August 19, 2013 application under Order VII
Rule 11 of the Code of Civil Procedure filed by respondent No.1 praying
that the plaint be rejected was partially reflected upon by the learned
Single Judge only on the subject whether proper court fee had been
affixed on the plaint by the appellant. Holding, that in view of the
pleadings in the plaint wherein the appellant had neither pleaded actual
nor constructive possession of the suit properties, the appellant was
required to pay ad-valorem court fee and since appellant himself has
RFA (OS) No.49/2014 Page 1 of 10


pleaded that even as per conservative estimate the value of the properties
would be ` 1000,00,00,000/- (Rupees One Thousand Crores only),
hearing was deferred to enable the appellant to pay the requisite court fee
within 8 weeks. Compliance not being made with the said order the
plaint has been rejected vide impugned order dated December 05, 2013
while simultaneously dismissing IA No.16970/2013 filed under Order VI
Rule 17 of the Code of Civil Procedure praying to incorporate pleas that
the appellant was either in physical or constructive possession of several
properties partition whereof was claimed.
2. Our job in appeal would thus be two-fold. Firstly whether IA
No.16970/2013 was rightly dismissed and secondly to see whether the
averments in the plaint would warrant ad-valorem court fees to be paid on
the value of the properties being ` 1000,00,000,00/- (Rupees One
Thousand Crores only).
3. The journey must thus commence by pen profiling the plaint.
4. Appellant pleaded that he and his brothers – the defendants (heirs
of late brothers) were of the trading community in Rajasthan having a
custom that the male children with their father would invariably
constitute Hindu Joint Family even after the father’s death . That the
father of the parties Lakhi Prashad died on October 18, 2004 and during
his life time he and his sons constituted a Joint Hindu Family. Various
companies names whereof were disclosed in Schedule 1 to the plaint,
being 60 in number, were incorporated with shareholding as per Schedule
2 (and we find that in the said Schedule shareholding only in 24
companies has been indicated). That the main companies, being 3 in
number were as per Schedule 3, all of which belong to the joint family.
Lands detailed in Schedule 4 and Schedule 5 were acquired in the names
of different companies or members of the family. It was pleaded that
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irrespective of whether the assets were individual, joint, or held by a
company or a trust, they were always treating as belonging to the joint
family. It was pleaded that before the father died he had expressed a wish
that the brothers should separate because the businesses were becoming
somewhat unmanageable. It was pleaded that such businesses and
properties which were controlled by the first defendant were held out by
him to be his. Immediately thereafter it was pleaded, and we refer to
paragraph 18 of the plaint, that as of the date when the suit was filed the
entire businesses and properties were directly/indirectly under the control
of the first defendant. It was pleaded that the first defendant claims all of
them to be his personal property. Seeking partition, in paragraph 37, for
purposes of value of the suit qua jurisdiction it was valued at
` 1000,00,000,00/- (Rupees One Thousand Crores only) but for purposes
of court fee it was valued at ` 250/- (Rupees Two Hundred and Fifty
only).
5. Strikingly, there are no averments in the plaint that the appellant
was in actual or constructive possession of the suit properties.
6. During arguments of the appeal learned senior counsel for the
appellant had tacitly conceded to the fact that a corporate litigation was
being fought on Mufassil pleadings.
7. Where issue of shareholding in a company is the bone of
contention, the pleadings have to be specific with reference to what
percentage of the shareholding is claimed by the plaintiff for the reason a
company is distinct from its shareholders. The assets of a company
belong to the company and are not the assets of the shareholder. Through
the shares held, exercising control over the company, the shareholders
may manage the assets of the company but no shareholder can sue for
partition of the assets of a company as can be done by a partner or joint or
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co-owners of a property. The plaint is a hotchpotch of pleadings
intermixing the issue of shareholdings in companies and properties held
in the individual names of the parties. As was observed by the Supreme
Court in the decision reported as AIR 1955 SC 74 Bacha F.Guzdar Vs.
CIT Bombay , a company being a juristic person is the owner of the assets
in its name and a shareholder has no right over the assets of the company.
He is only entitled to the dividends when declared by the company from
time to time. A shareholder cannot ask a company for partition on the
basis of his shareholding.
8. Vide IA No.16970/2013 prayer was made to insert in the existing
paragraph 13 the averment that the plaintiff was in physical possession of
agricultural land mentioned at serial No.7 in Schedule 4 of the plaint and
is in constructive possession of the property mentioned at serial No.1 of
th
the 5 Schedule of which his wife is a co-owner. That he was in
constructive possession of the properties by reason of being joint owner
along with his brother. The appellant also pleaded that he be permitted to
insert paragraph 18A to the effect that parties enjoyed utmost faith and
trust, being related by blood, and it hardly mattered in whose name a
property was purchased.
9. The two amendments have been declined by the impugned order
dated December 05, 2013 holding that the amendments were not bona-
fide.
10. Simultaneously, since order dated August 19, 2013 was not
complied with, the plaint has been rejected.
11. The lands, partition whereof is prayed for, detailed in Schedule 4
and 5 of the plaint are described as under:-
“SCHEDULE-4
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SCHEDULE – 5

Agricultural Lands admeasuring 12 bighas and 4 biswas with
boundary wall, tube well, one room and other fittings in village
Ghadaipur, Tehsil Mehraulli, New Delhi, Sale Deed dated
22.02.1991 executed by M/s Jai Laxmi International, B-37
Rajouri Garden in favour of Smt.Sunita Bhagchandka,
Smt.Meena Bhagchandka, Smt.Ruchi Bhagchandka, Smt.Preeti
Bhagchandka in respect and renovated by the members of
Bhagchandka family.

1. Land at Gurgaon
2. Land at Daruheda
3. Land at Maneser
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4. Land at Noida
5. Land elsewhere in U.P.
6. Land in Indore
7. Land in Aurangabad
8. Land in Kolkata
9. Land in Delhi
10. Land elsewhere in Maharashtra
11. Land elsewhere in Punjab”

12. At the outset we note that as regards Schedule 5, no particulars of
the lands have been detailed and it is apparent that the appellant is fishing
and roving. To describe, while seeking partition, that the land is at
Gurgaon, Daruheda, Maneser, Noida etc. is no description of the land.
Similar is the position with respect to the land detailed in Schedule 4,
where the additional problem is that three out of seven lands are in the
names of companies.
13. Order VII Rule 3 of the Code of Civil Procedure mandates that
where the subject matter of the suit is immovable property, the plaint
shall contain a description of the property sufficient to identify it, and, in
case such property can be identified by boundaries or numbers in a record
of settlement or survey, the plaint shall specify such boundaries or
numbers.
14. The plaint is completely silent in said regard.
15. Section 7(v)(d) of the Court Fees Act, 1870 would require ad-
valorem court fee to be paid on the market value of the land where
possession thereof is the subject matter of the dispute.
16. The interplay between Section 7(iv) and (v) and Article 17 of
Schedule 2 of the Court Fees Act, 1870 has been a matter of debate and
discussion in various judgments.
17. As was held by the Supreme Court in the decision reported as AIR
1958 SC 245 Sathappa Chettiar Vs. Ramanathan Chettiar , while
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deciding the question of court fee the Court has to look into the
allegations in the plaint to see what substantial relief has been asked for.
In the decision reported as AIR 1939 Patna 274 Sital Prasad Vs. Ramdas
Sah the Court cautioned that meandering with dexterous, pleadings in a
suit claiming partition may actually be in the nature of a title suit and in
such case ad-valorem court fee is payable. In the decision reported as
ALR 1935 Lahore 59 Hari Ram Vs. Ram Ditta it was held that a property
which was not joint family property would require ad-valorem court fee
to be paid even if partition thereof was prayed for.
18. We need not make a cornucopia of the case law for it would be
better for us to state the principle of law applicable. Where a property is
admittedly joint property, possession by one joint owner has to be treated
in law as possession on behalf of all and a suit for partition of such a
property would not be having a claim by the plaintiff, to be put in
possession of the property. The claim would be to severe the jointness by
partitioning the property and allocating separated shares with possession
thereof to the joint owners with reference to the share of each in the
whole property. But where title is not joint and has to be established with
the property standing in the name of an individual, the principle that the
possession of the recorded owner would be treated in law as possession
on behalf of the plaintiff would not be attracted and in such a case the
plaintiff would have to first succeed on title followed by possession and
hence ad-valorem court fee has to be paid.
19. In the decision reported as AIR 1934 Lahore 563 Asa Ram Vs.
Jagan Nath , a view which was also taken by the Bombay High Court in
the decision reported as ILR 1953 Bom. 821 Irappa Bommaneppa Vs.
Shankreppa Bommaneppa , it was held that where the plaintiff was ousted
from enjoyment of the stated joint family property and it was pleaded in
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the plaint that the defendants were claiming the property to be theirs, in a
suit for partition and possession, ad-valorem court fee had to be paid.
20. The reasoning of the two decisions would be the same as noted by
us in paragraph 18 i.e. the plaintiff would have to first prove a joint
interest in the property from which he was ousted and thereafter claim
possession.
21. It is trite that the same principles govern a claim for partition and
possession alleging the property to be belonging to the joint family.
22. To put it pithily : where meaningfully read the averments in the
plaint would show that the plaintiff admits ouster by the defendants to
keep him away from immovable property and the ouster is premised on
the plaintiff’s right, title or interest in the property being denied; title,
right or interest has to be established and only thereupon partition
claimed followed by possession. In the decision reported as 20 Cal. 762
Mohendra Chandra Ganguli Vs. Ashutosh Ganguli it was held that if it
was a case of complete ouster, a claim of being a co-sharer in an
immovable property and hence partition with recovery of possession as
the prayer would warrant ad-valorem court fee to be paid on the plaint.
23. The plaint in the instant case is a classic instance of Mufassil
pleadings in a corporate litigation. A claim for change of shareholding in
companies has been intermingled with a claim for partition of immovable
properties held by some companies and in the name of some individuals.
The plaint overlooks the fact that a company is a distinct juristic entity
vis-à-vis its shareholders and movable as also immovable properties in
the name of the company belong to the company. A shareholder cannot
seek partition pleading that since he holds 20% shares of a company he is
entitled to a partition of the movable and immovable properties of the
country and to be put in possession of 20% thereof.
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24. The other immovable properties, partition whereof has been prayed
for admittedly are in the names of individuals. The plaint admits said
fact. The plaint admits that the recorded owners of the properties are
claiming a title thereto in their own right. In other words the plaint
admits ouster of the plaintiff.
25. The amendments prayed for are illusory and have rightly been
declined by the learned Single Judge. The plaintiff being in actual
possession of one immovable property, of which he is the recorded
owner, would not mean that the plaintiff would be in constructive
possession of the others.
26. Now, constructive possession is a matter of fact and law. It would
be useless to plead that the plaintiff is in constructive possession without
disclosing the facts on which it is pleaded that the plaintiff is in
constructive possession. The amendment to insert further pleadings in
paragraph 13 of the plaint to said effect are ex-facie without any material
particulars; and are illusory. The insertion of paragraph 18A that parties
enjoyed utmost faith and trust and it did not matter as to in whose name
the properties were purchased and it was irrelevant who was in physical
possession is again an illusory pleading. The said pleadings would run
contrary to the pleadings in the original plaint wherein the plaintiff has
admitted ouster when he pleads that he is being denied enjoyment of the
properties in the names of the defendants who claim individual title
thereto on the strength of the sale-deed in their favour and further assert a
right to exclusive possession and enjoyment of the properties.
27. Besides, we cannot overlook the fact that there is no presumption
of law in favour of a Joint Hindu Family. The pleadings in the plaint on
the subject of the existence of a Joint Hindu Family are vague and would
attract the law declared by the Supreme Court in the decision reported as
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(2007) 1 SCC 521 Appasahep Peerappa Chamdgade Vs. Devendra
Peerappa Chamdgade . We may additionally note that there are no
pleadings as to the existence of a ancestral nucleus through which
properties were allegedly acquired. Schedules 4 and 5 to the plaint are
completely vague in relation to the description of the assets.
28. Looked at from any angle it is apparent that the suit is simply to
needle his brothers.
29. Be that as it may, the plaintiff i.e. the appellant had to pay ad-
valorem court fee as was held by the learned Single Judge in the order
dated August 19, 2013.
30. The appeal is dismissed with costs in sum of 1,00,000/- (Rupees
`
One Lakh only) to be paid by the appellant to the first respondent.

(PRADEEP NANDRAJOG)
JUDGE


(JAYANT NATH)
JUDGE
MARCH 28, 2014
mamta
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