The widow and daughter of my brother (who died in 2002) filed a partition and decree suit in 2007 claiming my father's property to be huf. My father was alive that time and the property was his self acquired. My father died in 2008 and his will stated "no part of property to my brother family" and further we demolished our house and constructed apartments over it and we are residing in flats. The plaintiff have paid fixed court fees claiming notional possession on the property. Few questions I need to ask:- 1. Do the plaintiff have to pay ad valorem court fees because they are not coparceners hence cannot claim constructive/notional possession. 2. Do the plaintiff have to pay ad valorem court fees because nature of property as joint and their right in property is disputed (as quoted in neelavathi vs Natarajan 79 SCC) and they have been evicted by way of will. 3. Do the plaintiff have to pay ad valorem court fees because the property on which they have claimed notional possession has been demolished and new property has been constructed during trial. 3. The widow not being coparcener and as my brother died before hindu succession ammendement 2005 his daughter also is not capable of suing (Prakash vs phulvati 2015), can I file an application stating the plaintiff did not have right to sue and under what section I can file this application. Can you give me some citations on above issues to substantiate your stand.
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1. In a suit for partition and separate possession the initial court fees is nominal. Only when decree is passed court fees on value of property is to be paid.
2. Again only if decree is granted giving share of the property.
3. Same as above.
4. You can file petition for rejection of plaint under order 7 rule 11 cpc.
Window is not coparcener even after the Amendment Act 2005 so it is immaterial that widow is coparcener or not. As far as daughter of your brother is concerned she has no right to claim any share in the property on the basis of ratio laid down by the Supreme Court of India in Prakash vs phoolwati.
Plaintiffs have to pay ad Valorem court fees for their alleged share in property as they are not co parceners and cannot claim notional possession
2)it is self acquired property of your deceased father , his wife and daughter cannot claim any share in property
3) better applyfor probate of your father will
4) in case brother wife oppose grant of probate it would be converted into suit and both suits clubbed together
Is there any single case where higher court have asked to pay ad valorem court fees just because the plaintiff were not coparceners in huf and have refused notional possession? She is also seeking relief for partition and recovery of 1/2 of rent money from tenant. Will this fact will have any impact on court fees?
Since widow is seeking partition and recovery of half of rent it would affect court fees demanded by her
The plaintiff as a litigant has to pay the court fee without which she cannot file a suit.
The requisite court fee need to be paid without which the court will not take the case on its file. The maintainability of the case shall depend on the proceedings of the case and decision of court.
The court fee is different from that of seeking relief through the case filed.Whether the relief sought by her is maintainable or not will be the question of law and will be decided by court as per position of law.
You do not have to file any suit, you can just file a written statement denying her claim citing that since this property was your fathers self acquired property and was transferred to your name during his lifetime, she is not entitled to claim any share in the property.
You do not have to go very deep into the law and discuss the amendments of the succession act.
Is there any single case where higher court have asked to pay ad valorem court fees just because the plaintiff were not coparceners in huf and have refused notional possession? She is also seeking relief for partition and recovery of 1/2 of rent money from tenant. Will this fact will have any impact on court fees?
Any person approaching a court of law seeking certain reliefs are required to pay court fee without which the case cannot be taken on file.
The maintainability of the claim or the relief shall be decided by the court only after the trial proceedings are concluded.
Hence instead of concentrating on good for nothing issue called court fee, you may just fight her case strongly on merits and position of law.