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2012 DIGILAW 31 (RAJ)

Kiran Devi v. Nirmal Joshi

2012-01-02

PREM SHANKER ASOPA

body2012
Hon'ble ASOPA, J.—By this revision petition, the defendants No.1 & 2 have challenged the order dated 10.10.2011 passed by the Addl. Distt. Judge No.1, Sikar in Civil Suit No.(236/2010) 97/2010 whereby the applica-tion filed by the defendants under Order 7 Rule 11 CPC has been rejected. 2. Briefly stated, the facts of the case, are that a civil suit for cancellation of the Will dated 23.12.1998 was filed by the plaintiff-respondent Nirmal Joshi against the defendants No.1 and 2-petitioners and proforma respondents contending therein that the agricultural land mentioned therein is ancestral and the plaintiff is having the pre-existing rights and the defendants have conspired and prepared the Will dated 23.12.1998 to deprive him of his right in the ancestral property. 3. The defendants filed an application under Order 7 Rule 11 CPC on the ground that the suit is under-valued as per Sec.24(a) of the Rajasthan Court Fees and Suits Valuation Act, 1961 (in short `the Act of 1961') as the relief of declaration and cancellation of the Will has been sought, for which court fees has not been paid on the market value of the property and further, the property in dispute is not ancestral but the same is the self-acquired property of Ram Chandra Joshi, out of his own income, therefore, no cause of action has arisen to the plaintiff-respondent. 4. The trial court, after considering the application, came to the conclusion that as per Sec. 7(2) of the Act of 1961 since it was the agricultural land, the valuation is to be calculated at 25 times of the land revenue (Lagan) which is 45.40 in this particular case and the court fees has been properly paid as per the said section which is specifically for the agri-cultural land. As regards the issue of the property being ancestral or self acquired, the same can be decided only after taking evidence and thus, vide order dated 10.10.2011, rejected the application under Order 7 Rule 11 CPC. 5. Submission of counsel for the defendant-petitioners is that the suit was for cancellation of the Will dated 23.12.1998 and valuation ought to have been calculated as per Sec. 24(a) and further, the property was purchased by Shri Ram Chandra Joshi from his own income, who has subsequently executed the Will in favour of the defendants, therefore, no cause of action has arisen to the plaintiff-respondent. 6. 6. I have gone through record of the revision petition and further considered the aforesaid submission. 7. A bare perusal of Sec.7(2) of the Act of 1961 clearly reveal that as regards the agricultural land, the valuation is to be calculated taking the multiplier of 25 of the land revenue -Lagan of last settlement which in the instant case is 45.40 and whether the land is ancestral or self acquired, that is the subject matter of evidence which can be decided only after framing the issues. The case of the plaintiff in the plaint is that the property in question is ancestral and the defendants have conspired and prepared the Will dated 23.12.1998, therefore, it discloses the cause of action for cancellation of Will and the trial court has not committed any illegality in the exercise of its jurisdiction. No interference is required to be made in this revision petition. The revision petition has no force and the same is therefore, dismissed.