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JUDGMENT S.K. Mahajan, J.
1. The plaintiff is the sister of the defendants and the parties are the legal heirs of late Sh. Madan Lal Arora. The suit has been filed by the plaintiff for partition of immovable properties allegedly, belonging to Sh. Madan Lal Arora & Co. It is stated in the plaint that the immovable properties mentioned in paragraph No. 5 of the plaint were acquired by defendants with the funds of the firm M/s. Madan Lal & Co. and the plaintiff claiming to be legal heirs of the deceased Sh. Madan Lal Arora, claims her share in the properties. In paragraph No. 10 of the plaint the plaintiff has submitted that on proper rendition of accounts of the firm and other assets, the plaintiff estimates that he would be entitled to a sum not less than Rs. 10 lacs and on partition of properties, it is mentioned in the plaint, her share will be of the value of about Rs. 30 lacs. The plaintiff, therefore has valued the suit for purpose of jurisdiction at Rs. 40 lacs and has fixed a tentative Court fee of Rs. 40/- on the plaint.
2. After summon has been issued to the defendant they filed an application under Order 7, Rule 11 of CPC stating that the plaintiff herself having admitted that the defendants were in exclusive possession of the property, she in terms of the provisions contained in Section 7(iv)(b) and Article 17(6) of Schedule-II of the Court Fee Act, was liable to pay ad valorem Court fee on the value fixed for purpose of jurisdiction in the plaint. According to them the plaint, is, therefore, liable to be rejected as the plaintiff has not affixed the Court fees in accordance with the said provisions of law.
3. I have heard the learned Counsel for the parties. It is not denied by the plaintiff that she is not in possession of any part of the property. However, the plaintiff's submission is that once the plaintiff has fixed a value for purpose of Court fees, the Court cannot interfere in the same. In support of his submission Mr. Chaudhary has placed reliance upon the Full Bench judgment of this Court in Smt. Shiela Devi and Ors. v. Sh. Kishori Lal Kalra and Ors., ILR 1974 (II) Delhi 491, to contend that the Court cannot interfere in the plaintiffs valuing the relief in the suit and according to Mr. Chaudhary, therefore, if the plaintiff has valued the suit for the purpose of jurisdiction at Rs. 40 lacs and has fixed the tentative Court fees of Rs. 40/- this Court should not interfere with the same. He has also drawn my attention to page 507 of the judgment wherein the judgment of the Supreme Court in S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Pr. Ar. Rm. Ramanbhan, , has been relied upon by this Court.
4. The Supreme Court in the aforesaid judgment had observed that it would be clear that the conversion of plaintiff's alleged undivided share in joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definitiveness. That is why legislator has left it to the option of the plaintiff to value his claim for the purpose of Court fees. It really means that in suits falling under Section 7(iv)(b) the amount stated was the plaintiff as the value of his claim for partition has ordinarily to be accepted by the Court in computing the Court fees payable in respect of the said relief.
5. In my view the judgment does not support the plaintiff. The plaintiff on her own has valued the suit for purpose of jurisdiction at Rs. 40 lacs and a tentative Court fees of Rs. 40/- has been fixed on the plaint has not been explained by the plaintiff. The Supreme Court in the aforesaid case was not concerned with a matter when the plaintiff had himself valued the suit for purpose of Court fees and jurisdiction at a particular amount but had stated that plaintiff's undivided share in the joint family property could not be easily valued in terms of rupees with any precision or definitiveness and it was in these circumstances that the Supreme Court observed that in such a case the value fixed by the plaintiff should ordinarily be accepted by the Court. This judgment in my view will not be applicable to the facts of the present case.
6. The Full Bench of this Court in Shield Devi and Ors. v. Sh. Kishori Lal (supra), was also not concerned with the suit for partition where the plaintiff was not in possession of any part of the property. The Full Bench judgment referred to by Mr. Chaudhary is not applicable to the facts of this case. Mr. Chaudhary has also drawn my attention to the Division Bench Judgment of this Court in M/s. Commercial Aviation and Travel Co. (Inc.) and Ors. v. Vimla Parma Lal, . In this case Full Bench judgment in Smt. Shiela Devi and Ors. v. Kishori Lal Kalra and Ors. (supra), was relied upon by the Court. The Court in this case also was not concerned with the partition of the property in which the plaintiff was not in possession of any part of the property. This judgment is also, therefore, not applicable to this case.
7. In Prakashwati v. Dayawati and Ors., , this Court was concerned with the matter of a similar nature where the plaintiff was not in possession of the property and it was held by the Court that where the plaintiff was never in physical possession of any portion of the property in question it could not be argued that the plaintiff was in joint possession of any portion of the property. However, the plaintiff had to pay Court fee on the value of her share for which relief for partition and for possession of her separate share was claimed.
8. In my view the plaintiff is not in possession of any portion of the property and she has herself valued her share in the property at Rs. 40,00,000 /- the plaintiff should pay Court fee on such a value. This application is therefore allowed and it is held that proper Court fees has not been paid on the plaint.
9. The LA. stands disposed of. Suit No. 1114/1997 :
It having been held that proper Court fees has not been paid on the relief claimed in the suit, the plaintiff is directed to supply the requisite Court fee stamp papers and make up the deficiency Court fee within four weeks.
Put up for further proceedings on 2.11.1998.