Delhi High Court, Division Bench — FAO(OS) 173/2004 (with connected CM applications). Appeal by the defendant against an order of the learned Single Judge in a pending civil suit between the children/Class-I legal heirs of Late Shiv Chand Sant and Late Vijay Sant concerning (a) Property No. B-215, Ashok Vihar, Phase-I, Delhi ('Ashok Vihar Property', approx. 30 sq. yards) and (b) Property No. 5-B, Nath Market, Nai Sarak, Delhi ('Nai Sarak Property'). The suit, instituted by the respondents/plaintiffs (real sisters of the appellant), seeks possession, partition of the father's business assets (Umesh Prakash; Umesh Publication), mesne profits, rendition of accounts, permanent injunction and declaration; each plaintiff claims an undivided 1/3rd share. By the impugned order the learned Single Judge dismissed the appellant/defendant's application under Order VII Rule 11(b) CPC seeking rejection of the plaint for non-payment of ad valorem court fee on the plaintiffs' own valuation of the Ashok Vihar Property, holding that no exclusion of the plaintiffs was made out and that Anil Kumar Bansal and B Nishet Bal were of no assistance to the plaintiff. Before the Division Bench, the appellant (through Ashok Kumar Singh, Senior Advocate) contended that the plaintiffs are ousted and bound to pay ad valorem court fee under Section 7(iv)(b) of the Court Fees Act, 1870, relying on registered wills dated 26.08.15 (executed by the father) and 24.09.1… (executed by the mother) conferring a combined 34% share only in the Ashok Vihar Property, a rent agreement dated 01.02… with the tenant of the Ashok Vihar Property, and a valuation report; the respondents categorically disputed the genuineness and validity of the wills (alleging they were procured through undue influence, and pleading mental and physical abuse), asserted co-ownership and joint possession, and relied on Jagnth Amin and Nelavthi for the position that possession of one co-owner is possession for all unless ouster is clearly established, with court fees in such co-ownership partition claims payable under Schedule I, Article 17(vi) of the Court Fees Act, 1870. The supplied text ends at ¶10 (Page 8 of 13); the Division Bench's findings and the final result are not contained in the extract.
