The eldest coparcener, regardless of gender, is entitled to manage HUF property as Karta. After 2005 Amendment conferred coparcenary rights on daughters by birth, no restriction in law prevents the eldest female coparcener from being Karta.
["Eldest female coparcener can be Karta after 2005 Amendment","Gender-based disqualification from Karta-ship eliminated","Coparcenary rights include right to manage HUF","Statutory rights override customary restrictions","Plaintiff declared Karta of D.R. Gupta and Sons HUF"]
[Cites 4 , Cited by 0 ]
Delhi District Court
Krishan Gopal vs Smt. Kavita Gurnani & Ors on 19 August, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No. 1468/06
Krishan Gopal ..................Plaintiff
Vs.
Smt. Kavita Gurnani & Ors. ..............Defendants
O R D E R.
19.08.2011
By way of present order, I shall decide preliminary issues as
framed order dated 05.04.2011 to the following effect:-
Issue no. 5
Whether the plaintiff has not properly valued the suit for
purpose for Court fee and jurisdiction?
Issue No. 6
Whether this Court has no pecuniary jurisdiction to try the
suit.
Ld. Counsel for the parties submits that both these issues
being legal in nature can be decided without leading evidence of the
parties. Arguments on these issues have already been heard. My findings
on preliminary issue no.5 are as under:-
Suit No.1468/06 page 1 of page 6
Ld. Counsel for the defendant no.1 argued that total valuation
of the suit is Rs. 1,20,93,750/- (Rupees One Crore Twenty Lacs Ninety
Three Thousand Seven Hundred Fifty Only) i.e. value of land ad
measuring 12 Bigha 18 Biswa @ Rupees 45 lacs per acre. Ld. Counsel for
the defendant no. 1 further argued that in the present suit, the plaintiff also
sought the relief of cancellation of agreement to sell which is for the sale
consideration of Rs. 1,20,93,750/- (Rupees One Crore Twenty Lacs Ninety
Three Thousand Seven Hundred Fifty Only) and as per Section 7 Sub-
clause 5 of Court Fee Act the plaintiff is required to pay the advoleram
Court Fee upon the valuation of Rs. 1,20,93,750/- (Rupees One Crore
Twenty Lacs Ninety Three Thousand Seven Hundred Fifty Only) but
plaintiff has arbitrarily and illegally valued the suit property for the
purpose of Court fee and jurisdiction as Rs. 220/-. Ld. Counsel for the
defendant no. 1 further argued that as the agreement to sell in question has
been executed between the parties for a sum of Rs. 1,20,93,750/- (Rupees
One Crore Twenty Lacs Ninety Three Thousand Seven Hundred Fifty
Only) which is the true and correct value of the subject matter of the
present suit and this Court has no pecuniary jurisdiction over the subject
matter to the suit and defendant no. 1 has already filed a suit for Specific
performance of the agreement to sell dated 10.10.2006 against the plaintiff
before the Hon'ble High Court bearing no. 2028/2007. Ld. Counsel for the
defendant no. 1 has also drawn my attention in respect of authority
reported as 2005 (82) DRJ 104.
On the other hand, Ld. Counsel for the plaintiff argued that
the plaintiff has valued the suit for the purpose of Court fee and
jurisdiction at Rs. 220 for declaration, Rs. 130 for injunction and
Suit No.1468/06 page 2 of page 6
accordingly requisite Court fee has been affixed. Ld Counsel for the
plaintiff further argued that the authority as relied upon by the Ld. Counsel
for the defendant no.1 is not applicable as in that case the plaintiff valued
the suit for the purpose for jurisdiction at Rs. 77,000,00/- but valued the
suit for the purpose of the Court fee at Rs. 200/-, but, in the present case,
the plaintiff has valued the suit for the purpose of jurisdiction as well as
court fee on the same amount.
The prayers in the present suit are as follows:
a) Pass a decree of declaration in favour of the plaintiff and against the
defendant thereby declaring the agreement to sell dated 05.10.2006,as null-
void and not binding on the plaintiff, in respect of 1/6th share of the
plaintiff in the land bearing khasra no's 8/24 (6-13), 25(4-16), 9/21(4-16),
12/1(4-16), 10(4-16), 11(4-16), 20(4-16), 21(4-16), 13/4(4-16), 5(4-16),
6(4-16), 7(3-05), 15 (6-14), 16(5-19), 25(6-01), 35/7/1(1-14) total
measuring 77 bighas and 9 biswa situated in the revenue estate of Village
& P.O Chand Pur Delhi:-
b) Pass a decree for the cancellation of agreement to sell dated
05.10.2006 of the aforementioned land wherein the plaintiff have 1/6th
Share.
c) Pass a decree of permanent injunction in favour of the plaintiff and
against the defendant thereby restraining defendant, her legal heirs,
attorneys, agents, servants, successors etc. from dispossessing the plaintiffs
from the land mentioned in aforesaid Para A.
d) Pass a decree of permanent injunction in favour of the plaintiff and
against the defendant, her legal heirs, officials, associates, attorney, etc
thereby restraining them from selling, alienating, transferring or by any
Suit No.1468/06 page 3 of page 6
other way creating third party interest in the aforesaid land.
The plaintiff valued the suit in para no.22 of the plaint, which
reads as under:-
"22.That the value of the suit for the purpose of court fee and
jurisdiction is Rs.220 for declaration Rs.220 for declaration Rs.130 for
clause C & D of the prayer clause for injunction and the requisite court
fee of Rs.70, has been affixed on the plaint of the suit"
Now the question comes to decide whether in a suit for
declaration with consequential relief for declaring the agreement to sell
null and void, the plaintiff has to value the suit as per value of the
instrument sought to be cancelled or he can value the suit at a fixed rate of
Rs.220/- for declaration and Rs.130/- for injunction.
In an authority reported as AIR 1999 Punjab and Haryana
121 titled as " Anil Rishi V. Gurbaksh Singh ", it is held by Punjab and
Haryana High Court and I quote :-
" Court-fees Act (7 of 1870), S.7(iv)(c) and Sch.1.Art.1 - COURT-FEE-
Suit for declaration document void - Proper Court Fee - Suit for
declaration that document, sale-deed of property in dispute, is void -
Court fee on valuation reflected in document - is to be paid as relief of
declaration that document is void cannot be granted unless document is
cancelled."
In an authority reported as 2010 III AD (DELHI) 325 titled
as Sujata Sharma (Mrs.) Vs. Shri Manu Gupta & Ors. it is held by
Hon'ble Delhi High Court and I quote :-
" Court Fees Act, 1870 -- Sec.7 - Proper valuation of suit - Question as
to whether suit has been valued property and proper court fee has been
Suit No.1468/06 page 4 of page 6
paid thereon - Held, It is settled law that declaration with consequential
relief falls within the meaning of Section 7 (iv) (c) and plaintiff in such
case is required to value suit for purposes of court fee which is payable
ad-valorem according to value of relief sought ...................................
Therefore, Court has to see as to whether declaration of suit is merely
declaration or declaration with consequential relief - Contents of plaint
are very much necessary to be looked into in order to suggest as to
whether relief sought by plaintiff ultimately gives benefit to plaintiff for
further reliefs or not - Petition disposed of."
In another authority as relied upon by ld.counsel for defendant
no.1, 2005 (82) DRJ 104, it was held by Hon'ble Delhi High Court and I
quote:-
"The question that may have arisen is whether it was open for the
plaintiff to given an artificial or unrealistic assessment of the value for
the purposes of jurisdiction. I am of the opinion that where this occurs
i.e.where the value is extremely high so as to oust jurisdiction of one
Court to bring it before another, or is very low for the same reason, it is
the bounden duty of the Court to go into this question and pass
appropriate orders. Obviously the valuation of Rs.77 lakhs bares
reasonable relation to the market value of the suit property regardless of
whether it is the lease hold or free hold right. Therefore I would accept
the valuation of Rs.77 lakhs. The effect is that while this Court may
have pecuniary jurisdiction to entertain the suit, appropriate court fees
has not been paid."
Adverting back to the facts of present case, the plaintiff has
filed the present suit for declaration and consequential relief to cancel the
Suit No.1468/06 page 5 of page 6
agreement to sell dated 05.10.2006 and the sale consideration agreed
between the parties was admittedly Rs.45 lakhs per acre and as per terms
of the contract/agreement, a sum of Rs.11 lakhs was paid by the defendant
no.1 to the plaintiff as advance/earnest money. It is settled law that a
declaration with consequential relief falls within the meaning of section 7
(iv) (c) of the Court Fee Act, 1870 and the plaintiff in such a case is
required to value the suit for the purpose of court fee which is payable ad-
valorem according to the value of the relief sought. Therefore, I am of the
considered opinion that the relief claimed by the plaintiff is under valued
and as per sub clause (b) of order 7 rule 11 CPC , plaintiff is directed to
properly value the suit qua relief claimed for declaration and cancellation
of agreement to sell dated 05.10.2006 within four weeks. Accordingly,
preliminary issue no.5 is decided in favour of defendant no.1 and against
the plaintiff.
Announced in open court ( S.K.MALHOTRA )
on 19.08.2011 SCJ/RC/(North)/DELHI
Suit No.1468/06 page 6 of page 6