- (1.) THIS is a revision application by Khemchand, defendant No. 6, in a suit for partition of joint Hindu family property filed by Yaswant Chand, respondent No. 1. Respondents 9, 10 and 11 are the sons of defendant No. 6. Respondent No. 12 is the brother of defendant No. 6. The petitioner and his sons and respondent No. 12 filed one written statement. They admitted that the property mentioned in plaint was joint Hindu family property except one property which defendant No. 6 claimed as his personal property. These defendants did not claim partition and separate possession of their shares of the remaining property in the plaint. Their objection wag that certain joint family property was in the possession of defendant No. 5 and had not been included in the suit and consequently it was not maintainable as a suit for partial partition of joint Hindu family property did not lie. Further they claimed partition and separate Possession of this additional property. This property is valued at Rs. 79,775/ -. _ According to their allegations their share in this property comes to --- -. 10/16
(2.) AN objection was taken by other party that these defendants must pay court-fee for claiming partition and separate possession over this property. An issue was framed on the point by the trial Court (issue No. 25) and was decided against these defendants. Against that order defendant No. 6 has filed this revision application.
(3.) SECTION 35 of the Rajasthan Courts-fees and Suits Valuation Act runs as follows:-- "35. Partition suits:-- (1) In a suit for partition and separate possession of a share in joint family property or of property owned, jointly or in common by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share of the property. (2) In a suit for partition and separate possession of joint family property or property owned, jointly or common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates, namely:- (1) Rupees thirty if the value of plaintiff's share is Rs. 5,000 or less; (ii) Rupees one hundred if the value is above Rs. 5,000 but does not exceed Rs. 10,000; and (iii) Rupees two hundred if such value exceeds Rs. 10,000. (3) Where, in a suit falling under Sub-section (1) or Sub-section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in subsection (2) according as such defendant has been excluded from possession or is in joint possession. (4) Where, in a suit falling under Sub-section (1) or Sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in Section 38 separate fee shall be payable on the relief of cancellation in the manner specified in that section". ;