1. Issues in this matter were framed on 15th September, 2008. Issue No.1 i.e. “Whether the suit has been valued properly and proper court fee has been paid thereon” is to be treated as a preliminary issue.

2. The brief facts of the case as per plaint are that the plaintiff and defendant nos. 1 to 4, 6, 7, 9-11,12A, 14, and 16 are descendants of late Shri D.R. Gupta, who had constituted a Joint Hindu Family HUF known as D.R. Gupta and Sons, HUF. The said HUF has been in existence since 5th January, 1963 as stated in late Shri D.R. Gupta”s affidavit of the same date wherein he has stated that all his immovable and moveable properties will belong to the HUF. The said Shri D.R. Gupta expired on 1st October, 1971. Naturally, the eldest living coparcener took over as Karta of the HUF. Thereafter, after the death of each subsequent son of Late Shri D.R. Gupta, of which there were five, the present situation arose after the death of the fifth son of late Shri D.R. Gupta and the then Karta of the HUF in 2006.

3. The plaintiff being born in 1946 and being the daughter of the eldest son of late Shri D.R. Gupta, discussed with other members of the family as to who ought to be the next Karta of the HUF. It was enquired of the plaintiff whether she being the oldest coparcener of the HUF would now be its Karta. Out of all the defendants, only defendant nos. 1 to 5, 10 and 11 have opposed the idea of the plaintiff being Karta. Defendant nos. 6 to 9, 12, 12A, 14, 15, 16 and 17 have given “No Objection” certificates regarding the same. For her part, the plaintiff has stated that taking stock of the 2005 amendments in the Hindu Succession Act, 1955 due to which now daughters also have a coparcenary right in a Joint Hindu Family HUF by virtue of their birth, the plaintiff being the eldest coparcener alive ought to simply be declared the Karta thereof.

4. As per plaintiff, she came to be aware of the fact that defendant no. 1, who is ten years younger than the plaintiff, sent a letter to the Defence Estate Officer projecting himself as the Karta of the D.R. Gupta & Sons HUF. The legal character of the plaintiff as the oldest coparcener and possible Karta was clouded and the plaintiff thus filed the present suit for declaration that she is the Karta of the HUF.

5. The plaintiff”s suit has been opposed on various legal issues of interpretation as well as of tradition. However, in their written statement defendant nos. 1 and 2 have raised the preliminary objection that this court has no jurisdiction to try the present suit as valuation of the suit for the purpose of jurisdiction has to be the same as valuation of the suit for the purpose of court fee.

6. In order to decide the preliminary issue No.1, it is necessary to consider paragraph 42 and the prayer clause of the plaint which read as under:

“42. The suit is valued for purposes for jurisdiction for relief of declaration at over Rupees one crore and the court fee payable on relief of declaration being fixed at Rs.20/-, the court fee of Rs.20/- has been paid.

Prayer:

It is prayed that a decree for declaration be passed in favour of the Plaintiff against the Defendants No.1, 2, 3, 4, 5, 10 and 11 (i.e. Shri Manu Gupta, Mrs. Aditi Desai, Shri Vasu Gupta, Mrs. Gita Lal, Mrs. Lalita Gupta, Mrs. Meera Sawhney and Mrs. Gargi Gupta declaring the Plaintiff as the “Karta” of the “D.R. Gupta & Sons (HUF)”, 4, University Road, Delhi-110007.”

7. The plaintiff has argued that the present suit is merely a suit for declaration and court fees is fixed at Rs.20/- in accordance with Article 17 Clause (iii) contained in Schedule II of the Court Fee Act, 1870. Since as per the referred provision the fee is fixed, therefore, the requisite court fee has been paid. It is also argued that as per prayer clause of the plaintiff, no further relief is sought therefore the provision of Section 7(iv) clause (c) of the Court Fee Act, 1870 has no application in the present case and the plaintiff need not pay ad-valore