M. S. A. Siddiqui,j.

( 1 ) BY this application under Order 7, Rule 1, Civil Procedure Code. , the defendant Nos. 1 and 2 seek rejection of the plaint on the ground that the plaintiffs have under-valued their claim for petition of the suit properties and for rendition of accounts.

( 2 ) THE plaintiffs have filed the present suit for partition of the suit properties and for rendition of accounts on the ground that the suit properties were owned and possessed by late Ram Saran Das Tuli. Ram Saran Das Tuli died intestate leaving behind his widow (defendant No. 2), two sons, namely, Har Saran Das Tuli, Shiv Saran Das Tuli and one daughter Smt. Kamlesh Verma. Har Saran Das Tuli expired on 6. 8. 1995 leaving behind the plaintiffs as his legal heirs. The plaintiffs claimed that on the death of Ram Saran Das Tuli, the suit properties mentioned in Schedules I and II annexed with the plaint devolved upon his class I heris, the plaintiffs and the defendants being entitled to equal shares. According to the plaintiffs the defendant Nos. 1 and 2 have been receiving rents of the immovable properties left by late Ram Saran Das Tuli but they failed to give the plaintiffs their shares of income from the suit properties. The plaintiffs repeatedly demanded partition and the defendant Nos. 1 and 2 were evading. The plaintiffs claimed that each of the plaintiffs as co-owners is in legal possession of the suit properties. For the purposes of court fee and jurisdiction, the plaintiffs valued the suit for Rs. 4 crores and paid fixed Court fee of Rs. 20. 00 on the relief for partition. They also valued their relief for rendition of account at Rs. 200. 00 and paid a fixed Court fee of Rs. 20. 00.

( 3 ) THE defendant Nos. 1 and 2 pleaded in their written statement as well as in their application under Order 7, Rule 11, Civil Procedure Code that since the plaintiffs are out of possession of the suit properties, they ought to have paid ad valorum Court fee on the market value of their shares in the suit properties as required by Section 7 (4) (b) of the Court-fees Act.

( 4 ) LEARNED Counsel for the defendant contended that the plaintiffs suit is governed by Section 7 (4) (b) of the Court-fee Act and unless the court fee at the market rate is paid the plaint is liable to be rejected under Order 7, Rule 11 (b), Civil Procedure Code. Reliance has been placed on a decision of this Court in Prakash Wati v. Dayawanti, AIR 1991 Delhi 48=42 (1990) DLT 421 in support of the said contention. On the contrary, learned Counsel for the plaintiffs, relying upon the decision of the Supreme Court in Neelavathi v. N. Natrajan, AIR 1980 S. C. 691, contended that they are entitled to a share in the properties left by late Ram Saran Das Tuli and as such they shall be deemed to be in joint possession of the suit properties alongwith the defendant Nos. 1 and 2.

( 5 ) IT is stated in the written statement filed by the defendant Nos. 1 and 2 that the plaintiff alongwith the defendant No. 3 have been disinherited by the registered Will dated 24. 10. 1991 executed by late Ram Saran Das Tuli. It is also stated that during his life time, late Ram Saran Das Tuli had separated his son Har Saran Tuli by gifting away the house bearing No. 29/3955 and thus, the plaintiffs are not entitled to any share in the suit properties.

( 6 ) IN the case of Neela Vathi (supra), it was held that the question of Court-fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced by the pleas in the written statement. It is relevant to mention that although the defendants No. 1 and 2 have filed their written statement but issues have not yet been framed in this suit. In Samar Singh v. Kadal Nath, AIR 1987 SC 1926, it was held that Order 7, Rule 11, Civil Procedure Code does not either expressly or by necessary implication provide that power under the said provision should be exercised at a particular stage only and the power under the said provision can be

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