SHANTI DEVI Vs. VIJAY KUMAR

JUDGEMENT

(1.) THE dispute in this case relates to the movables including jewellery left behind by one Smt. Kiran Bala deceased. The petitioner claims herself to be legal heir and successor to the property left behind by the deceased. She has filed a suit for declaration to the effect that she and not the defendants are entitled to succeed to the property. She has also asked for mandatory injunction directing the defendants to deliver the property to her. The trial court has held that the suit in the present form would not lie. The plaintiff should sue for the recovery of the disputed movable property, which is the only relief available to her. The court has directed the plaintiff to suitably amend the plaint and ask for a relief by way of possession of immovable property. The court has further directed that the plaintiff shall value the amended suit at the market value of the property. The law is well settled that in deciding the question of the court fee the court should be more guided by the substance than the form of the suit. In Shamsher Singh Vs. Rajinder Prasad and others, AIR 1973 Supreme court 2384 the Supreme court has stated this principle in these words: "The court in deciding the question of court fee should look into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for."

(2.) THE question that, therefore, requires to be considered is what is the substantive relief claimed in the suit. It is not difficult to determine this question. The plaintiff asked for delivery of move -able property on the ground that her husband and mother -in -law have forfeited their right to claim the same for the reason that they were responsible for the deceased, thus the suit is in substance for the delivery of the movable property. For purposes of determining the court fee, provisions of Section 7 (iii) and not the provisions of Section 7 (IV) (c) would be applicable. In the circumstances, the court below was right in directing the plaintiff to value the suit at the market value of the disputed property But the additional direction for the amendment of the suit in order to change the form of relief, in my opinion, was not necessary, for, the relief as claimed could be treated in substance as the relief for delivery of the movable property. In this view, 1 do not see any good ground for interference. The impugned order is substantially a good order and must be upheld.

(3.) THE result, therefore is that the revision petition fails and is dismissed accordingly but without any order as to costs. The plaintiff shall file the amended plaint within a period of one month from today in the trial court.