Proper valuation of joint family property is required to determine the court fee payable by the plaintiff for enforcing a right to a share in the property, in accordance with Section 7(iv)(b) of the Court Fees Act, 1870.

JUDGMENT

Amol Rattan Singh, J. - By this petition, the petitioners challenge the order of the learned trial Court (Civil Judge (Junior Division), Hisar), dated 25.11.2016, by which their application under Order 7 Rule 11 of the Civil Procedure Code (hereinafter to be referred to be as the Code), seeking rejection of the plaint in the suit filed by the first respondent herein, has been dismissed.

The suit filed by the respondent is one seeking a declaration to the effect that he as also the defendants, including the proforma defendant (also a proforma respondent in the present petition), are all joint owners in possession of their respective shares of the suit property as has been described in the plaint, they all being immediate descendents of Shri Ishwar Chand Bhargava, (the first petitioner being the wife of the immediate descendent of Ishwar Chand), with the suit property having therefore devolved equally upon them.

The 'ancillary relief claimed is that the respondent-plaintiff and the proforma defendant are entitled to possession of specific portions of the suit property, after its partition by metes and bounds.

Lastly, a relief of prohibitory injunction is sought against the contesting defendants, restraining them from alienating the suit property in any manner and from demolishing it or causing any damage to the structure thereof, as it exists presently.

2. The contention of the petitioners-defendants, in their application under Order 7 Rule 11 of the Code, was that since the plaintiff was also seeking possession of the suit property, he was bound to affix court fee, ad valorem, upon it as per the value of the property.

3. In his reply to the application, the respondent-plaintiff has stated that the suit essentially being one seeking a declaration of joint ownership, and possession thereof being claimed only by way of a partition of the property, court fee was not required to be paid ad valorem.

4. After considering the matter, the learned trial Court held that since the contention of the respondent-plaintiff was that in fact a family settlement had been entered into on 23.11.1997, with a deed executed to that effect, and that settlement had become final, with the matter thereafter referred to Arbitration, and the Arbitration Award had also been upheld up to this Court in a civil revision filed, (the order of this Court stated to be dated 23.02.2016), the parties to the suit were obviously co-sharers, with therefore each person deemed to be in possession of every square inch of the suit property.

Hence, simply because the contention of the defendants (present petitioners), was that the respondent-plaintiff was residing at Holland, did not take away his status of being a co-sharer in the suit land and consequently, that being so, he was not required to affix fee ad valorem, as per the market value.

5-A. A contention of the defendants was also noticed by the trial Court that one of the signatories to the family settlement, i.e. Smt. Krishna Bhargava, had executed a will dated 29.11.2002 during her life time, mentioning therein that the plaintiff was a citizen of Holland.

Thereafter, the trial Court went on to observe that the previous litigation starting with Arbitrators' Award having become final, the respondent-plaintiff and all the defendants, including the present petitioners, were co-sharers on every inch of the suit property.

6. On the aforesaid grounds the application was dismissed. Before this Court, Mr. Vivek Khatri, learned counsel for the petitioners, submitted that the respondent-plaintiff also having claimed possession of the suit property, court fee was required to be paid ad valorem as has been held by coordinate Benches of this Court in Balbir Singh Mehta v. Shyam Singh and others 2009 (4) Law Herald 3046 and Kailash Devi v. D.A.V. Senior Secondary School 2013 (4) PLR 299 .

He also referred to the judgments of the Supreme Court in Suhrid Singh (a) Sardool Singh v. Randhir Singh and others (2012) 12 SCC 112 a