SUMAN MADAN Vs. SATENDER PRAKASH LAMBA

JUDGEMENT

(1.) THIS order shall dispose of the two abovesaid separate applications filed by the defendant nos. 1 and 2.

(2.) ARGUING the present applications, learned counsel for the defendant No. 1 and 2 submits that it is a settled legal position that the question of court fees is required to be considered in the light of the allegations made by the plaintiffs in the plaint. Counsel further submits that the plaintiffs have filed the present partition suit and for rendition of accounts in respect of five properties which as per the plaintiffs are joint family properties in which the plaintiffs have claimed their legitimate share. Counsel further submits that it is an admitted case of the plaintiffs that they are not in possession of any of these properties and this fact is evident from a bare perusal of the averments made by the plaintiffs in paras 6 to 11 of the plaint. Counsel further submits that it would be manifest that the plaintiffs have been excluded from all these properties and due to such exclusion or ouster of the plaintiffs from the said properties, it was incumbent upon the plaintiffs to have paid the court fees after CS(OS) No. 1883/2008 Page 2 of 9 having given valuation of their share in the five properties. Counsel further submits that there is a difference between the legal possession of a co -sharer and the exclusion of such co -sharer from the joint possession. The contention raised by the counsel for defendant no. 1 and 2 is that every co -owner even if not in actual and physical possession of the joint family properties is deemed to be in the legal possession of the same and in such a case it would be not difficult as fixed court fees is to be paid, but where in a case on the averments made in the plaint, it can be seen that not only the fact that the plaintiffs are not in actual and physical possession of such properties but their ouster or exclusion from such joint properties can be easily made out, then in such a case ad -valorem court fees is payable by the plaintiffs on their share in the properties with a further claim for possession as a consequential relief. In support of their arguments, counsel for the defendant no. 1 and 2 has placed reliance on the judgment of the Apex Court in Neelavathi Vs. N. Natgarajan, : AIR 1980 SC 691 and the judgment of this court in the case of Sushma Tehlan Dalal Vs. Shivraj Singh Tehlan & Ors. CS(OS) No. 2642/2008.

(3.) OPPOSING the present applications, Mr. N.S. Dalal, learned counsel for the plaintiffs submits that so far as separate valuation of CS(OS) No. 1883/2008 Page 3 of 9 individual properties is concerned, the plaintiffs would seek to amend the present plaint to properly value the individual properties. So far the rejection of the plaint as claimed by the defendant no. 1 and 2 for not paying the ad -valorem court fees in terms of Section 7(iv)(b) of the Court Fees Act is concerned, counsel submits that both the judgments cited by the counsel for the defendants proves the case of the plaintiffs. The substance of the argument of the counsel for the plaintiffs is that the plaintiffs nowhere in the present plaint have claimed ouster or exclusion as has been misconstrued by the counsel for the defendant no. 1 and 2. Counsel submits that the plaintiffs being the daughters have legal right to claim their share in all the joint family properties left by their deceased father and from the mere fact that the plaintiffs are not in actual and physical possession of these joint family properties, no inference can be drawn that they stand excluded or ousted from the said joint family properties. Counsel further submits that just because the plaintiffs have expressed their apprehension that the defendants may usurp their share in the joint family properties, the same cannot be construed as if the plaintiffs have admitted their exclusion or ouster from the joint family properties.