DEEPA SHARMA, J.

1. The present suit has been filed by the sister of the defendant seeking partition of the estate of their late mother Ms. Kamal Phalpher. In the plaint it is submitted that the plaintiff and defendant are Class I legal heirs of their late mother. Their father died on 23.04.1991 and the mother expired on 09.09.2016 leaving behind the properties (movable and immovable) as enumerated in para 5 of the plaint. It is submitted that the mother of the plaintiff used to reside on the ground floor of the property bearing number 185, Jor Bagh, New Delhi (hereinafter referred to as “Jor Bagh Property”) before her demise and the plaintiff grew up in this house and resided with her mother till her marriage on 04.03.1990. After that although she had been living in her matrimonial home in Mumbai yet she used to regularly visit Jor Bagh property with her husband and daughter and was extremely close to her mother. Her mother was running her own kitchen during the period 1987-2015 and defendant was not providing any assistance to her. In December, 2015 she developed viral fever and doctors suspected typhoid. Plaintiff came to Delhi to take care of her mother. She however, went into coma by 12.01.2016 and had to undergo brain surgery on 13.01.2016 and could not recover from her illness and ultimately expired on 09.09.2016. She had executed a Will dated 07.09.2011 whereby she had bequeathed the Jor Bagh property equally between the plaintiff and the defendant and also divided her remaining estate equitably between the parties and she was informed of the said Will by her mother during her illness. The defendant, however, did not accept the said Will and disputed its execution vide legal notice dated 23.09.2016 and e-mail dated 26.09.2016. Subsequently, vide a legal notice and e-mail he had alleged that their mother had executed a Will dated 20.12.2015 which is disputed by the plaintiff on the ground that mother being extremely unwell in the third week of December, 2015 and not being in sound and disposing state of mind during that period and could not have executed the said Will. The plaintiff has filed the suit for partition claiming intestate succession for the reason that the defendant has denied the Will dated 07.09.2011.

2. On the date, this suit was listed for hearing before this court the defendant was present on caveat. He contended that the suit is not maintainable. His contention is two-fold:-

(a) That the plaintiff has admitted the execution of the Will dated 07.09.2011 by the deceased and hence cannot file a suit for partition on the basis of intestate succession and the option of election can be exercised only under the circumstances provided under Sections 180 to 186 of Indian Succession Act. The reliance is placed on the findings of Mani & Others vs. Mani Joshua, 1969 (1) SCC 828.

(b) That the suit is liable to be rejected since the plaintiff has not paid the sufficient court fee. An ad valorem court fee is required to be paid since she is not in possession of the property for which partition has been sought and in para 31 and 33 she has pleaded a clear case of ouster by the defendant. Reliance is placed on the finding of this court in various cases Smt. Prakash Wati vs. Smt. Dayawati, AIR 1991 Delhi 48, Nisheet Bhalla & Others vs. Malind Raj Bhalla and Others, AIR 2007 Del 60, Col. (Retd.) Anil Kumar Bansal & Another vs. R.K. Bansal & Others, 2013 (133) DRJ 257 and Suresh Kapoor vs. Shashi Krishnan Lal Khanna, (2015) 216 DLT 273.

3. Defendant has also furnished with the leave of the court his written submissions. Plaintiff did not wish to file any reply to the written submission and rest its case on pleadings.

4. The learned counsel for the plaintiff has argued that since the defendant has disputed the Will dated 07.09.2011, the only option open to the plaintiff is to file her case as if their mother had died intestate. It is urged that the provision of Section 180 is not applicable to intestate succession and