1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.541 of 2009 IN Suit No.3183 of 2008 Mohan Tahilram Krishnani & anr. ... Plaintiffs v/s. Jayesh Krishnani & ors. ... ... Defendants Mr.Charanjeet Chandrapal for Plffs. Mr.Chirag Shah i/by Mr.J.J. Shah for Deft. Nos.1 & 2. ------ CORAM : SMT.ROSHAN DALVI, J. DATED : 23rd March, 2010 P.C. : 1.The Plaintiffs are father and mother of Defendant No.1. Defendant No.2 is their daughter-in-law. Defendant No. 3 is the other son of the Plaintiffs. Defendant Nos.4 and 5 are the brother and sister-in-law of Plaintiff No.1. Defendant Nos.6, 7 and 8 are the sisters of Plaintiff No.1. Defendant No.9 is the father-in-law of Defendant No.1. 2.The Plaintiffs claim that the suit property is HUF property of the father of Plaintiff No.1. Accordingly, it survived to Plaintiff No.1 and his brother, Defendant No.4 on his death. Plaintiff No.1 has two 2 sons, Defendant No.1 and Defendant No.3. Defendant No. 4 has one son. Defendant No.1 also has one son. HUF, therefore, comprises Plaintiff No.1, Defendant No.4, Defendant No.1, Defendant No.3, the son of Defendant No.4 and the son of Defendant No.1. 3.For and upon various incidents that have transpired between Plaintiff No.1 and Defendant No.1, who are father and son, the Plaintiffs have sued essentially to pay off the share of Defendant No.1 in the suit flat and to claim an injunction against him restraining his entry therein. Since the suit flat is admitted to be the HUF property by the parties, the share of Defendant No.1 shall have to be the share which he would obtain upon partition of the property. Upon such partition, however, the other members can continue joint. Since Defendant No.1 has a son, who is also a co-parcener in the HUF, his share would also have to be determined upon partition. 4.Upon Defendant No.1 and his son being paid off their share in the suit flat as the HUF property, they as also Defendant No.2 would no longer be entitled to enter upon the suit flat. 5.This Suit is incorrectly valued. The Plaintiffs have sought to pay off Defendant No.1 Rs.10 Lakhs as 3 nuisance value. The Suit is valued upon such nuisance value. The valuation is, therefore, incorrect. Since the Plaintiffs seek to restrain the entry of the Defendants 1 and 2 in the suit flat, albeit upon payment of Rs.10 Lakhs or his share upon partition of the HUF property, the Plaintiffs would be required to value the entire suit premises as they would be in possession of the entire suit flat upon the Plaintiffs paying off Defendant No.1 and his son their due share. 6.The Advocate on behalf of the Plaintiffs concedes that Defendant No.1 be paid off his 1/6th share and his son, though not a party to the Suit, be paid off his 1/6th share. Defendant No.1 and his son would together be entitled to 1/3rd share of the suit flat. 7.The suit flat shall have to be valued and 1/3rd of that value be paid off to Defendant No.1. However, that could be done only upon and after the Plaintiffs paying ad-valorem Court fee, based upon the valuation of the suit premises arrived at and making necessary amendments in the Plaint. The Plaintiffs Advocate offers to pay the full ad-valorem Court fee of Rs.3 Lakhs, less the Court fee already paid. 8.Hence the following order:- 4 ORDER After the Plaintiffs pay the Court fee of Rs.3,00,000/- as aforesaid, the Prothonotary and Senior Master shall appoint a valuer from the panel of valuers of this Court. The valuer shall determine the value of the suit flat as of today. The valuer shall be notified of this order by the Plaintiffs Advocate within 1 week from today. The valuer shall make his report of the valuation within 4 weeks from today. Upon the Plaintiffs paying off Defendant No.1, 1/3rd of the said valuation, Defendant Nos.1 and 2 shall not enter upon the suit premises or create any nuisance therein in future. 9.The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.)