Judgment :- 1. In this revision petition Mr. V.G. Sankaranarayana Pillai, learned counsel for the petitioner, attacks the finding of the learned Subordinate Judge of Kottayam on issue No.1 regarding the correctness of the court fee paid by the plaintiffs. 2. Issue 1 related to the question as to whether the plaintiffs have paid proper court fee. At the request of the 1st defendant, this issue was tried as a preliminary issue, and ultimately the learned Subordinate judge by his order, which is under attack, has held that the plaintiffs should have paid the court fee upon the market value of their shares as contemplated in S.37(1) of the Kerala Court Fees and Suits Valuation Act, 1959. The correctness of this view expressed by the learned judge is challenged in this revision on behalf of the plaintiff-petitioners. 3. There can be no controversy that for purposes of court fee the averments in the plaint will have to be prima facie accepted. A denial or other controversy raised in the written statement by the defendants has absolutely no bearing on the question of considering the court fee that is payable on the plaint; and for that purpose the court will have exclusively to confine its attention to the averments made in the plaint itself. The truth or otherwise of the allegations in the plaint will not arise at the time of deciding the question of the correct court fee to be paid. 4. In this case it will be seen that the suit itself was for partition and separate possession of the plaintiffs' shares, claiming to be co-tenants along with the defendants. The plaintiffs claim to be the children by the 1st wife - a Nair woman - of deceased Damodaran Nambiathiri. According to the plaintiffs, the properties, which are subject of partition, are the self-acquisitions of deceased Damodaran Nambiathiri. The 1st defendant is said to be the second wife of deceased Damodaran Nambiathiri, a Nambiathiri woman, and defendants 2 and 3 are said to be her children. The 4th defendant has been impleaded as the widow of one Vasudevan Nambiathiri of the said Illom and according to the plaintiffs the 4th defendant will be entitled to her maintenance claim recognised on the B schedule properties. The 4th defendant has been impleaded as the widow of one Vasudevan Nambiathiri of the said Illom and according to the plaintiffs the 4th defendant will be entitled to her maintenance claim recognised on the B schedule properties. The said Damodaran Nambiathiri died on 9th December 1961 intestate, and the plaintiffs aver that inasmuch as the properties, which are the subject of the litigation, are the self-acquired properties of the deceased, they are entitled to 2 out of 5 shares and that they are in legal possession of the properties jointly along with the other co-owners. The plaintiffs have also stated, no doubt, that ever since the death of Damodaran Nambiathiri, viz., 9th December 1961 the 1st defendant has been appropriating the income accruing from the properties and that she has not been paying the plaintiffs' share, which is fixed at Rs. 150. The plaintiffs have also referred to certain other matters in the plaint. In particular it will be seen in Para.4 of the plaint, they refer to their being entitled in law to 2/5 shares in the properties of the deceased, owned by themselves along with the other co-owners. So far as I could see, the averments in Para.5 of the plaint are that the 1st defendant, ever since the death of Damodaran Nambiathiri, is taking the income from the properties and appropriating it to herself and not paying their share. Ultimately they also recognise the right of the 4th defendant to have her maintenance right declared in respect of the B schedule properties, and subject to that right, they ask for relief by way of partition and separate possession of 2/5 shares, and also pray for directing the 1st defendant to pay their share out of the income that she has collected ever since the death of Damodaran Nambiathiri. On this basis, the plaintiffs have ultimately valued the reliefs claimed in the plaint, under S.37(2) of the Court Fees and Suits Valuation Act, 1959. 5. On this basis, the plaintiffs have ultimately valued the reliefs claimed in the plaint, under S.37(2) of the Court Fees and Suits Valuation Act, 1959. 5. As I mentioned earlier, objection appears to have been taken on behalf of the defendants that the suit has not been properly valued and that inasmuch as there are averments in the plaint that the plaintiffs have been excluded from possession of the properties, the proper provision of the statute, under which they should have paid court fee, is on the market value of their shares of the properties under S.37(1) of the Act. The question is whether this contention of the defendants is correct or not. The learned Subordinate Judge has no doubt ultimately accepted the contentions raised on behalf of the defendants and, as I have already stated, has held that court fee will have to be paid on the market value of the plaintiffs' shares under S.37(1) of the Act. 6. So far as I could see, two reasons have been given by the learned judge for coming to this conclusion, namely (i) that the plaintiffs being the children by a Nair wife of the deceased Damodaran Nambiathiri, joint possession as a family becomes prima facie difficult, if not altogether impossible, especially when the plaintiffs' status as children of the deceased Nambiathiri is denied. The second reason given by the learned Subordinate Judge is that the plaintiffs themselves have averred that the 1st defendant has been appropriating to herself the income accruing from the properties, without paying their share from the date of death of Damodaran Nambiathiri, i.e., 9th December 1961. This circumstance, according to the learned judge, will clearly show that even according to the plaintiffs, they have been excluded from the possession of properties and therefore payment of court fee under S.37[2] of the Act is not justified; and in consequence he has called upon the plaintiffs to pay court fee under S.37[1]. This order of the learned judge is very strenuously attacked by Mr. Sankaranarayana Pillai, learned counsel for the plaintiff-petitioners. 7. No doubt, the learned Government Pleader appearing for the State, to whom notice has been issued, as well as Mr. G.R. Menon, learned counsel for the defendants-respondents, have attempted to sustain the order of the learned Judge. This order of the learned judge is very strenuously attacked by Mr. Sankaranarayana Pillai, learned counsel for the plaintiff-petitioners. 7. No doubt, the learned Government Pleader appearing for the State, to whom notice has been issued, as well as Mr. G.R. Menon, learned counsel for the defendants-respondents, have attempted to sustain the order of the learned Judge. I am not inclined to accept the reasons given by the learned judge for coming to the conclusion that averments in the plaint will give an indication that even according to the plaintiffs they have been excluded from possession of the properties. But on the other hand, a reading of the plaint will clearly go to show that after the death of Damodaran Nambiathiri, the plaintiffs and the defendants claim to be in law, in possession as co-owners and they are in such possession from 9th December 1961, and that in law the plaintiffs are entitled to 2/5 shares out of the properties owned jointly by the plaintiffs and the other defendants. The only averment in the plaint which will show that they have not been getting the income due to them from the properties is contained in Para.5, wherein they have no doubt stated that the 1st defendant is realising the entire income from the properties ever since the death of Damodaran Nambiathiri from 9th December 1961 and that the 1st defendant has not been paying the plaintiffs' share which is fixed at Rs. 150. 8. The learned Subordinate Judge seems to have been obsessed with the idea that because the plaintiffs are the children by the Nair wife of deceased Damodaran Nambiathiri, there cannot be a joint possession as such by the plaintiffs and the defendants. Evidently the learned judge forgot that the whole plaint is based on the allegation that the properties, in respect of which the plaintiffs are seeking a partition and possession of their 2/5 shares, are the self-acquired properties of deceased Damodaran Nambiathiri. As to whether that allegation is true or not, or as to whether the plaintiffs will be able to make out that case, is a matter which will arise for consideration in the suit. As to whether that allegation is true or not, or as to whether the plaintiffs will be able to make out that case, is a matter which will arise for consideration in the suit. If the plaintiffs are the children of deceased Damodaran Nambiathiri and the properties are self-acquired properties of the deceased, then there can be no controversy, that notwithstanding the fact that they may be the children by the Nair wife of deceased Damodaran Nambiathiri, the possession by the 1st defendant and her children, who are no doubt the caste wife and children of deceased Damodaran Nambiathiri, will certainly amount to possession as co-owners in law for and on behalf of the plaintiffs also. That aspect unfortunately has been missed by the learned judge. 9. Then the question is whether the view of the learned judge that because the plaintiffs themselves have stated that they have not been getting the income from the properties from 9th December 1961 and that the 1st defendant has been appropriating the income, it will amount to an averment that the plaintiffs have been excluded from possession. Exclusion from enjoyment of receipt of income is totally different from exclusion from possession. This aspect again has been very seriously missed by the learned judge in the order under attack. The learned judge has proceeded on the basis that the mere circumstance that the plaintiffs have averred that they are not being given their legitimate share of the income from the properties by the 1st defendant, will also amount to a plea of exclusion of possession from the properties. Authority for the position that this view is wrong, if it is necessary, is to be found in the Division Bench decision of this court by Raman Nayar and Velu Pillai, JJ., reported in Abdul Lateef v. Musthaf Ali 1959 KLT. 412. In that decision the learned judges have considered the scope of sub-section (1) of S.37 of the Court Fees and suits Valuation Act, and held that the provision in sub-section (1) of S.37 can apply, only, if the case pleaded is one of exclusion of the plaintiff from possession. 412. In that decision the learned judges have considered the scope of sub-section (1) of S.37 of the Court Fees and suits Valuation Act, and held that the provision in sub-section (1) of S.37 can apply, only, if the case pleaded is one of exclusion of the plaintiff from possession. The learned judges have also held that mere appropriation of the profits of the property or even exclusive use or possession of the property by one co-sharer, does not amount in law to 'exclusion' of other co-sharers from possession, and such exclusion will have to be established by the averments in the plaint and other evidence in the case. Therefore, going by the averments in the plaint, in my view, the direction given by the learned judge that the plaintiffs should be understood to proceed on the basis that they are excluded from possession and therefore court fee should be paid under S.37(1), is absolutely erroneous and that order has to be set aside. If that order is set aside, it follows that the court fee already paid by the plaintiffs is sufficient and the suit will proceed in accordance with law. 10. The order under attack is therefore set aside, and the revision petition allowed. Parties will bear their own costs.