PANNALAL Vs. NANDLAL

JUDGEMENT

(1.) THIS revision application by the defendants arises out of a partition suit and raises a question regarding payment of court fee. In order to appreciate the point it would be necessary to state few facts :

(2.) THE parties are the sons and daughters of Madanlal. who died on 3-8-1957. Defendants Pannalal, Dhirajkumar, Shantilal, Smt. Pushpa and Smt. Nawali are the sons and daughters of Madanlal by the second wife whereas the plaintiff Nandlal is by the first wife. Madanlal was adopted by Mohanlal, who executed a mill on 12-1-1937 by which he bequeathed half of his property to Nandlal and the other half to Madanlal. After the death of Madanlal which took place on 10-2-1938. Nandlal filed the present suit for partition of that half of the property of Mohanlal which had been bequeathed to Madanlal.

(3.) IT is crystal clear that if the defendants' claim is considered as a counter claim or set off, the defendants are liable to pay ad valorem court fee. If on the other hand the claim is considered as one for adjustment of equities at the time of partition, no court fee is leviable. IT is further clear that where any party to a partition suit claims any amount out of joint family by way of contribution or as a debt due to him, it is a counter claim and cannot be investigated unless he has paid court fee on it. IT would, therefore, be proper to take each of the items claimed by the defendants separately in order to determine the question of court fee.