In a suit for partition, the plaintiff must specifically state possession of part of the suit property to pay fixed court fees; failure to do so requires payment of ad valorem court fees on the plaintiff's share of the property.

V.K. Shali, J. (Oral)

IA No.4036/2012

(u/Order 7 Rule 11 r/w Section 151 CPC)

1. 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.

2. 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 ½ share while as out of the other ½ share which was owned by the father of the parties, she is to get another ½ 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 13 of the plaint, it has been alleged as under:

“13. That on her recent visit to India on 11.12.2011, the plaintiff and her husband along with common friends have once again sought to reason with the defendant but to no avail in the face of his intractable defiance and dangerous declaration made on the evening of 19.12.2011 that, exasperated by the plaintiff’s repeated call for partition, he is in the process of disposing of the SUIT PROPERTY (despite the want of title) and the plaintiff may thereafter recover her share from the prospective hoodlums who deal in such properties.

It is submitted that the defendant is in dire straits financially and has never refurbished the SUIT PROPERTY that is in a state of disrepair sticking out as a sore thumb in a posh South Delhi Colony. It is feared therefore that an escapist defendant may very well fall prey to the builder mafia, even on the look out of taking possession of disputed properties at distressed rates.

It is further submitted that it is reliably learnt that the defendant has not paid the property tax for the SUIT PROPERTY for over 5 years and refuses to part with the requisite documents in order to enable the plaintiff to do the needful.”

4. In para 15 of the plaint regarding cause of action, the plaintiff has averred as under:

“15. That the cause of action accrued to the plaintiff when the late Dr.Prakash Chand Bhatla died on 14.02.2001. The cause of action further arose when Mrs.Rani Bhatla died on 20.01.2011 leaving behind her Will dated 01.11.2008 bequeathing her share in the SUIT PROPERTY to the plaintiff. The cause of action further arose on countless occasions when the plaintiff sought the partition of the SUIT PROPERTY and the defendant defiantly resisted. The cause of action is continuing and subsisting.”

5. In para 17 of the plaint, the plaintiff has valued the suit prop