NEELAM BATRA Vs. RAKESH BHATLA

JUDGEMENT

(1.) IA No. 4036/2012 (u/Order 7 Rule 11 r/w Section 151 CPC)

(2.) THE question involved in the instant matter is as to whether the suit is liable to be rejected on account of deficient court fees having been paid under Order 7 Rule 11(b) CPC. Briefly stated, the facts of the case are that the plaintiff/Ms. Neelam Batra has filed the present suit for declaration and partition against her brother in respect of a single story residential house constructed on a plot of land bearing No. D -1017, New Friends Colony, New Delhi, admeasuring 500 square yards. In the plaint, the averment which pertain to question of payment of court fees are as that the plaintiff, after marriage with one Mr. Pradeep Batra, set up permanent residence at 415, 18th Street, Los Angeles, 90402 and stayed with her mother and brother at the suit property 2 -3 times in the year that she visited India. It is alleged that the mother of the plaintiff was not treated well by the her son (defendant herein) and his wife as a consequence of which she had been sending her letters and narrating her woes and misery to the plaintiff while she was in USA. This was also narrated to her on telephone as and when her mother would speak to the plaintiff. The mother unfortunately died on 20.01.2011 leaving behind the suit property to the plaintiff. As per the Will dated 01.11.2008, the mother had left her share to the plaintiff. It has been alleged by her that her mother hand written this Will in her own handwriting in mid -December, 2008 in the presence of two witnesses. It is alleged by the plaintiff that on the basis of the Will, the plaintiff is to get 1/2 share while as out of the other 1/2 share which was owned by the father of the parties, she is to get another 1/2 share of the same which would make her share to be 2/3rd on the bequest of the mother. It is alleged that she had represented to the defendant, her brother, for partition of the suit property so that it could be beneficially exploited by building four storeys, to which the defendant had shown resistance and contended that he would live in the property all by himself.

(3.) IN para 15 of the plaint regarding cause of action, the plaintiff has averred as under: