ORDER C.A. Vaidialingam, J. 1. In this Civil Revision Petition, on behalf of the plaintiff-petitioner Mr. K.P. Ramunni Menon, learned counsel, challenges the order of the learned District Judge of Tellicherry, dated 28th October 1964, recording a finding on issue No. 17 in the suit as against the plaintiff. 2. Issue No. 17 related to the question as to whether the suit is correctly valued and proper court fee has been paid. Before I come to the order that has been passed by the learned District Judge, it is necessary to refer to certain proceedings that were taken on a prior occasion in the Subordinate Judge's Court, Tellicherry. 3. The suit itself was originally filed as O.S. No. 14 of 1957 on the file of the Subordinate Judge's Court, Kozhikode, and was for partition and separate possession at that time of 1/53 share in the assets of a Moplah Marumakkathayam thavazhi known as Eranhal Karuvante Valappil thavazhi. There is no controversy that as the suit as at present stands, the plaintiff will be entitled to claim only 1/56 share in the partible tavazhi properties. The plaintiff had included in the plaint five schedules as assets in which she is entitled to partition. Schedule A related to immovable properties, which were as many as 747 items. Schedules B to E consisted of movables; and in particular schedule D related to 14 elephants. Schedule F related to certain amounts, which, according to the plaintiff she is entitled to claim as and by way of maintenance for 12 years, in the sum of Rs. 21,600. Originally, the plaintiff, by prayer A, asked for partition and separate possession of her share in the suit properties, making the payment of the sum of Rs. 21,600 a liability on the thavazhi. She has also stated that the value of her share at that stage, namely 1/53, will be about Rs. 1,79,505-3-7. So far as this claim is concerned, it is seen that she paid a fixed court fee of Rs. 200 under section 37 sub-section (2) of the Madras Court Fees and Suits Valuation Act, 1955, (Madras Act 14 of 1955), hereinafter to be referred to as the Act. In prayer B the plaintiff wanted the 1st defendant, who is the karanavan of the thavazhi, to account. So far as that is concerned, she tentatively valued that relief in the sum of Rs. In prayer B the plaintiff wanted the 1st defendant, who is the karanavan of the thavazhi, to account. So far as that is concerned, she tentatively valued that relief in the sum of Rs. 200 and paid court fee of Rs. 15. Therefore, in respect of the two reliefs asked for originally, the plaintiff paid a total sum of Rs. 215 as court fees under the Act. 4. The suit appears to have been transferred from the Subordinate Judge's Court, Kozhikode, to the Sub-ordinate Judge's Court, Tellicherry, so as to be tried along with another suit, namely O.S. 7 of 1957 which was pending in the latter court. When it was so transferred to the Tellicherry Court it was given a number as O.S. 11 of 1957. It is seen that the Tellicherry Sub Court appears to have taken up the question as to whether the plaint has been properly valued in respect of the sum of Rs. 21,600, which the plaintiff had shown as due to her said; by way of maintenance for 12 years and which had been detailed in schedule F to the plaint. At this stage it may be stated that in schedule F to the plaint, apart from this amount of Rs. 21,600, she had also made a claim that she will be entitled to future payments of maintenance at the same rate from 4th January 1957. The learned Subordinate Judge of Tellicherry appears to have taken the assistance of counsel appearing for the defendants at the stage; and ultimately, by his order dated 3rd June 1957, after a reference to the nature of the averments made in the plaint as well as the reliefs asked for, he was of the opinion that the plaintiff must be considered to make a claim for payment of arrears of maintenance amounting to Rs. 21,600 shown in schedule F to the plaint. The learned Judge was ultimately of the view that the plaintiff will have to ask for a definite relief for recovery of the said amount, and in consequence, the learned Judge directed that the plaintiff should amend the plaint by claiming recovery of arrears of maintenance and value the relief and pay the necessary court fee if she wants the question of arrears of maintenance to be considered by that court in the suit. But in the same order, the learned Judge has stated that if the plaintiff does not want to claim arrears of maintenance in the suit, prayer A in the plaint should be suitably amended by deleting the expression occurring in that prayer, namely. Time was given to the plaintiff to amend the plaint suitably in accordance with that order. I will have to revert to the nature of the approach made by the learned Subordinate Judge in the said order a little later, because one of the contentions that was raised by Mr. Ramunni Menon, learned counsel for the petitioner is that this order of the Subordinate Judge operates as res judicata, so far as the payment of court fee on the present plaint is concerned and that the lower court had no jurisdiction to take up that question over again. But, for the present, it is enough to note that the learned Subordinate Judge passed this order on 3rd June 1957, directing the plaintiff to pay the court fee, if she wants to pursue the claim in respect of the sum of Rs. 21,600, or to suitably amend the plaint. 5. There is no controversy that on the basis of the order passed by the learned Subordinate Judge dated 3rd June 1957, referred to above, the plaintiff filed an application I.A- 1299 of 1957 on 12th June 1957, seeking to amend the plaint by specifically asking for payment of the amount of Rs. 21,600. It is also seen that the plaint was amended, and prayer A(1) has been incorporated in the plaint as it now stands, seeking to recover the sum of Rs- 21,600; and for that relief the plaintiff has paid an additional court fee in the sum of Rs. 1,620. 6. It is seen that the 1st defendant filed his written statement on 3rd December 1957. Certain other defendants as also the 1st defendant, after filing written statements, raised the objection that the suit has not been properly valued and the requisite court fee has not been paid by the plaintiff. 1,620. 6. It is seen that the 1st defendant filed his written statement on 3rd December 1957. Certain other defendants as also the 1st defendant, after filing written statements, raised the objection that the suit has not been properly valued and the requisite court fee has not been paid by the plaintiff. At this stage, it may also be mentioned that the suit which was transferred from the Subordinate Judge's Court, Kozhikode, to the Subordinate Judge's Court, Tellicherry and numbered as O.S. 11 of 1957, was withdrawn to the file of the District Court, Tellicherry, and was given a fresh number as O.S. 1 of 1964 in that court. Inasmuch as the defendants raised a contention that the subject-matter of the suit has not been properly valued and proper court fee has not been paid, the learned District Judge appears to have framed issue No. 17 relating to the question as to whether the suit is correctly valued and proper court fee has been paid. The learned District Judge ultimately held that the court fee paid by the plaintiff is not correct, and that the plaintiff must pay ad valorem court fee under section 37 (1) of the Act computed on the market value of her share in the properties claimed by the various defendants as their own; and the plaintiff was given one month's time to amend the valuation and also pay the requisite court fee. It is that order that is under attack in this revision petition. 7. This will be a convenient stage to refer to the provisions of the Act, before adverting to the claim made by the plaintiff in the suit itself. Under section 5 of the Act, provision is made for collecting the necessary court fees on documents which have been inadvertently received. I am particularly referring to the provisions of section 5 because those provisions, in my opinion, will meet the point that has been raised by the learned counsel for the plaintiff-petitioner in this case, namely that the order dated 3rd June 1957 passed by the learned Subordinate Judge, Tellicherry, operates as res judicata in respect of court fees, and therefore the court had no further jurisdiction to take up the question of court fees over again. Under section 5 of the Act it is provided that when a document, on which the whole or any part of the fee prescribed by. Under section 5 of the Act it is provided that when a document, on which the whole or any part of the fee prescribed by. the Act has not been paid, is produced, or has, through mistake or inadvertence, been received in any court or public office, the court or the head of the office may, in its or his discretion, at any time, allow the person by whom such fee is payable to pay the fee or part thereof, as the case may be, within such time as may be fixed. It is also provided that upon such payment, the document shall have the same force and effect as if the full fee had been paid in the first instance. Section 10, occurring in Chapter III, provides for statement of particulars of subject-matter of suit and plaintiff's valuation thereof being furnished along with the plaint. Section II deals with the procedure to be adopted in respect of a decision to be arrived at regarding the correctness or otherwise of the proper fee paid so far as the High Court is concerned. Section 12 is the provision with which we are now concerned, in order to find out whether the learned District Judge of Tellicherry had jurisdiction to take up the question of court fee again and pass the order dated 28th October 1964. Sub­sections (1) and (2) of section 12 are as follows: "12. Decision as to proper fee in other Courts.”(1) In every suit instituted in any court other than the High Court, the Court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in the plaint and on the materials contained in the statement, if any, filed under Section 10, the proper fee payable thereon, the decision being however subject to review, further review and correction in the manner specified in the succeeding sub-sections. (2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub­section, not later, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not amended, or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit. * * * * " It will be seen that under sub-section (1) of section 12, which deals with the stage when the plaint is being registered, power is given to the court to decide, on the materials and allegations contained in the plaint and on the materials contained in the statement, if any, filed, under section 10, the question as to whether proper court fee has been paid by the plaintiff. No doubt it is also provided that the decision so arrived at will be subject to review, further review and correction in the manner specified in the succeeding sub-sections. Sub-section (2) of section 12 gives, so to say, a right to a defendant to raise a contention in any written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim, that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. The sub-section further states that all questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant. It also provides for the court giving time to the plaintiff for making the necessary amendments in respect of the valuation or payment of any court fee that may be found to be insufficient in accordance with the decision of the court, within the time allowed by it. The sub-section finally winds up by stating that if the plaint is not amended or the deficit court fee is not paid, the plaint shall be rejected, making provision also for the court awarding costs of the suit as it deems just. The sub-section finally winds up by stating that if the plaint is not amended or the deficit court fee is not paid, the plaint shall be rejected, making provision also for the court awarding costs of the suit as it deems just. It may also be mentioned here that Order 7, rule 11 of the Code of Civil Procedure, enumerates the several conditions under which a plaint shall be rejected, one of which is where the plaintiff, on being required to pay the deficit court fee within a time to be fixed by the court fails to do so. Sub-section (3) of section 12 gives a right similar to that conferred by subsection (2), to a defendant who has been added after issues have been framed on the merits of the claim. Subsection (4) deals with the powers of a court of appeal; and that jurisdiction is given to the appellate court, when the matter comes before it, to consider the correctness or otherwise of any order passed by the trial court regarding the court fee payable on a plaint. And consequential provisions regarding the collection of fee, if there was deficit payment in the trial court, or refund if the fee paid in the trial court is in excess, have been made in other clauses of sub-section (4). Sub-section (5) of section 12 provides that all questions relating to value for the purpose of determining the jurisdiction of courts arising on the written statement of a defendant shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim; and the Explanation to sub-section (5) defines as to what exactly is meant by the expression "merits of the claim" occurring in sub-section (5). 8. Therefore it will be seen that under sub-section (2) of section 12 of the Act, it is open to a defendant at the stage mentioned therein to raise a contention that the subject-matter of the suit has not been properly valued or that the court fee paid on the plaint is not sufficient; and when such a plea is raised, there is an obligation on the court to adjudicate on that plea. I have already indicated that in this case the defendants-in particular defendants 1, 5 and 6- appear to have raised a contest regarding the proper value of the subject-matter of the suit and also regarding the sufficiency of the court fee paid by the plaintiff. That is according to these defendants, the plaintiff should be directed to pay the court fee, not as she has paid under section 37 (2) of the Act, but really under section 37 (1). 9. It is now necessary to consider the claim made by the plaintiff in the partition suit itself; and for that purpose it may be necessary to refer to some of the averments made by her in the plaint, because, if it is seen that the plaintiff is claiming partition and separate possession of joint family properties, or properties owned jointly or in common, and if the plaintiff has been excluded from possession of such properties, she will have to pay court fee under section 37 (1) computed on the market value of her share. But, if, on the other hand, in such a suit for partition and separate possession of joint family property or property owned, jointly or in common, the plaintiff is in joint possession of such property, the fee is to be fixed under section 37 (2), depending upon the court where the suit is instituted. The contention that was taken by the learned counsel for the petitioner in the trial court as well as in this court is that the suit has been properly valued and proper court fees paid in respect of this relief of partition, in accordance with the provisions of section 37 (2) of the Act. That is, according to the plaintiff-petitioner, she claims to be in joint possession of properties which are owned jointly by herself and the other members of the thavazhi in common and therefore she is bound to pay only the fixed court fee as provided in sub-section (2) of section 37 of the Act. That is, according to the plaintiff-petitioner, she claims to be in joint possession of properties which are owned jointly by herself and the other members of the thavazhi in common and therefore she is bound to pay only the fixed court fee as provided in sub-section (2) of section 37 of the Act. On the other hand, the contention of the defendants, which has been accepted by the trial court in the order under attack, is that going by the averments contained in the plaint it is clear that the plaintiff must be considered to have been excluded from possession of the thavazhi properties, and therefore she is bound to pay fee computed on the market value of her share under section 37 (1). Therefore, the question for consideration in this revision petition is as to whether the order of the lower court is correct. 10. As I have already indicated, the suit itself is for partition and separate possession of the plaintiff's share the thavazhi properties. As the plaint at present stands the plaintiff is entitled to 1/56th share in the suit properties. As will be seen from paragraph 3 of the plaint, the plaintiff, defendants 1 to 52, 72, 73 and 75 are members of this Moplah Marumakkathayam thavazhi. It is also stated in that paragraph that the items mentioned in schedules A, B, C, D and E to the plaint, which consist of the immovable and movable properties, are owned by the thavazhi. It is also averred in the said paragraph that immovable and movable properties are in the management of the 1st defendant as karanavan of the thavazhi. In paragraph 4 of the plaint it is averred that the 1st defendant has been in management of the properties belonging to the thavazhi for a long time, and that before assuming management he had no separate properties of his own, nor had he any amounts by which he could have acquired any separate properties. In paragraph 4 of the plaint it is averred that the 1st defendant has been in management of the properties belonging to the thavazhi for a long time, and that before assuming management he had no separate properties of his own, nor had he any amounts by which he could have acquired any separate properties. It is further stated, in consequence of this averment, that the properties, immovable and movable, which stand (a) in the name of the 1st defendant, (b) in the names of his dependents, viz., sons-in-law, defendants 5 and 6, who are also his nephews, (c) in the names of his wife and children who are defendants 53 to 62, and (d) in the names of the children of defendants 5 and 6, namely, defendants 76 to 85, must be considered to be acquisitions made from and out of the income of the thavazhi properties. It is also specifically averred that those acquisitions have been made by the 1st defendant from and out of the income of the thavazhi properties of which he was in management. The point to be noted at this stage is that even according to the averments made in paragraph 4 of the plaint there are items of properties, both immovable and movable, some of which stand in the name of the 1st defendant, and the rest in the names of his sons-in-law (defendants 5 and 6), his wife and children (defendants 53 to 62) and the children of defendants 5 and 6 (defendants 76 to 85). Those properties, notwithstanding the fact that they stand in the names of the parties referred to above, according to the plaintiff, must be considered to be properties belonging to the thavazhi and acquired by the 1st defendant from and out of thavazhi funds. In paragraph 5 of the plaint the plaintiff states that the 1st defendant had in his hands a large surplus income, in the course of the management of the thavazhi properties; and that the 1st defendant has purchased shares, Government Promissory Notes; and has bank deposits in his name and also in the names of the persons referred to in paragraph 4” which obviously refers to defendants 5 and 6, defendants 53 to 62, and defendants 76 to 85. The plaintiff further states in paragraph 5 of the plaint, that they are all purchases made from and out of thavazhi funds; and inasmuch as the persons in whose names those items stand have no independent sources of income, and notwithstanding the fact that the documents stand in the names of those persons, the first defendant as karanavan of the thavazhi is in possession and is managing the properties and collecting the income from those properties. It is categorically stated in the concluding part of paragraph 5 that the other defendants referred to in paragraphs 4 and 5 are mere name-lenders. In paragraph 6 of the plaint, the plaintiff states that in order to avoid the truth about the nature, of the purchases made by the 1st defendant, he has been giving out that he maintains no accounts whatsoever. It is also alleged that though attempts had been made by the plaintiff, the 1st defendant has not submitted any accounts to her, nor has the 1st defendant agreed to a partition of the properties. The plaintiff then avers in paragraph 7 of the plaint that the 1st defendant has no right to claim that he has any separate means of income. It is also stated that the 1st defendant is not giving any accounts, but nevertheless he deals with the income from the thavazhi properties, mixing it with the funds which he claims to be his separate income, without any distinction whatsoever. The further averment in paragraph 7 is to the effect that all the properties standing in the name of the 1st defendant and the other persons referred to by the plaintiff earlier, belong to the thavazhi and are available for partition as among the members of the thavazhi. In paragraph 8 again the plaintiff refers to the 1st defendant having had large income of the thavazhi properties, by sale of timber, pepper, cocoanuts, paddy, etc. In paragraph 9 the plaintiff further avers that the 1st defendant from out of the said income has done only very little for the purposes of we thavazhi. There is also an allegation to the effect that the rest of the income was utilized by the 1st defendant for purchase of various properties, both movable and movable, in his name as well as in the names of other defendants detailed earlier. There is also an allegation to the effect that the rest of the income was utilized by the 1st defendant for purchase of various properties, both movable and movable, in his name as well as in the names of other defendants detailed earlier. In paragraph 10 it is alleged that the 1st defendant and defendants 5 and 6, in order to cheat the thavazhi, have been parties to the making of those purchases. Nevertheless the allegation is that those items so purchased are all thavazhi properties and are liable for partition. In paragraph 11 of the plaint, the plaintiff refers to the demand for partition that was made by her, by notice dated 4th January 1957. She also avers that she did not get any definite response from the 1st defendant to that notice. In paragraph 12 she makes a categorical statement to the effect that the 1st defendant has not paid her the income up-to-date which she is entitled to, and that though she is entitled to claim her share for a longer number of years, she is restricting the claim in the suit to 12 years. The amount mentioned as payable for the 12 years is in the sum of Rs. 21,600. In paragraph 13 the allegation is that there is a duty on the part of the 1st defendant to render account, and she calls upon him to do so. In paragraph 14 the plaintiff no doubt states that she is entitled to get a partition of her share effected of the properties which are described in schedules A to E to the plaint, and accordingly she has asked for that relief. 11. Then there are four reliefs asked for in the plaint. So far as relief A is concerned, she asks for her share of the thavazhi properties, which are now held jointly, to be separated. She also asks for future mesne profits from 4th January 1957. Prayer A (1) was probably included on the basis of the order of the learned Subordinate Judge of Tellicherry dated 3rd June 1957, namely, directing the plaintiff to specifically ask for recovery of the amount of Rs. 21,600. That is comprised in prayer A (1) wherein she asks for recovery of that amount from the defendants. By prayer B the plaintiff calls upon the 1st defendant to account for the income of his management of thavazhi properties. 21,600. That is comprised in prayer A (1) wherein she asks for recovery of that amount from the defendants. By prayer B the plaintiff calls upon the 1st defendant to account for the income of his management of thavazhi properties. Prayer C relates to costs of suit being directed to be paid to the plaintiff, and prayer D relates to a decree being granted to her allowing these and other appropriate reliefs that the court deems fit. This is the nature of the claim made by the plaintiff in the suit. In respect of the valuation given in the plaint, so far as prayer A, namely the claim for partition, is concerned, the plaintiff has paid only a fixed court fee of Rs. 200; and so far as prayer B, namely the relief for accounting, is concerned, she has paid a court fee of Rs. 15. And so far as the claim for recovery of the sum of Rs. 21,600 is concerned, it is seen that the plaintiff has paid a court fee of Rs. 1,620. Therefore, in all, the plaintiff has paid a court fee of Rs. 1,835 in respect of the reliefs asked for in the plaint. 12. The main objection that was taken by the defendants in their written statements appears to be, that from the averments made in the plaint itself, it will be clearly seen that notwithstanding the fact that here and there the plaintiff says that the properties are held by the members of the thavazhi jointly, it is manifest that there has been an exclusion of the plaintiff from possession of the properties. In particular, the averment contained in paragraph 12 of the plaint, to the effect that she has not been paid her share of the income of thavazhi properties up-to-date, and her further claim for recovery of the sum of Rs. 21,600 for 12 years, have been relied upon by the defendants. More than that, the defendants have raised a contention that in respect of the properties, which, even according to the plaintiff, stand in the name of the 1st defendant or in the names of defendants 5 and 6, as also in the names of the wife and children and grand­children of the 1st defendant, the title vests in those defendants, and the plaintiff cannot be considered to be in joint possession of such properties. That is, according to the defendants, the properties which stand in the names of those defendants are in their possession and enjoyment, and that even if the 1st defendant can be considered to be in possession of those properties, that possession cannot be considered to be for and on behalf of the members of the thavazhi including the plaintiff. That possession, if at all, according to the defendants, can only be for and on behalf of the original owners who are entitled to those properties. Therefore, on these grounds, objection appears to have been taken by the defendants to the sufficiency of the court fee paid by the plaintiff in respect of the relief for partition under section 37 (2) of the Act. 13. The contention of the defendants was resisted by the plaintiff on the ground that the averments in the plaint will clearly show that according to the plaintiff, the 1st defendant, who is the karanavan of the thavazhi in question, and who in law can be in possession of thavazhi properties and whose possession will be possession, not only for himself but also on behalf of all the members of the thavazhi including the plaintiff, has utilised a large amount of income that he had got from the management of the thavazhi properties and purchased properties in the names of his relations, namely his wife and children and grand-children, as well as his sons-in-law, defendants 5 and 6. The plaintiff further urged that the specific case set up by her is that notwithstanding the fact that those purchases ostensibly are in the names of those defendants, nevertheless those items are still in the possession and management of the 1st defendant, which possession and management can only be in the capacity of the 1st defendant as karanavan of the thavazhi and which can .ensure to all the members of the thavazhi. It was also urged for the plaintiff that any claim that may be made by the various defendants regarding their separate title to the items in question, cannot be taken into account for the purpose of considering the question of the correctness or otherwise of the court fee paid by the plaintiff. It was also urged for the plaintiff that any claim that may be made by the various defendants regarding their separate title to the items in question, cannot be taken into account for the purpose of considering the question of the correctness or otherwise of the court fee paid by the plaintiff. On the other hand, according to the plaintiff, the truth or otherwise of the averments made in the plaint does not require to be investigated at this stage; and going by the averments made in the plaint, the case of the plaintiff is a very straight one, namely that the properties are in the possession of the 1st defendant as karanavan of the thavazhi, and if that is so, the plaintiff as a member of the thavazhi must in law be considered to be in joint possession of such properties, and therefore the court fee paid by her under section 37(2) of the Act is perfectly justified. This contention of the plaintiff has not been accepted by the learned District Judge in the order under attack. I will have to revert to the reasons given by the learned District Judge a little later, after setting out the contentions that have been taken by the learned counsel for the plaintiff-petitioner before me. 14. Mr. Ramunni Menon, learned counsel for the petitioner, raised two contentions in the main, viz., (1) that when once the Subordinate Judge's Court of Telli­cherry had passed an order on 3rd June 1957 and considered the question as to whether the plaint has been properly valued and proper court fee has been paid and also taken a decision on that aspect, and as the plaintiff had also complied with the directions given by the court in the said order by amending the plaint, there was no further jurisdiction in the lower court at any other stage of the suit to consider the question of correctness or otherwise of the court fee paid on the plaint. That is, according to the learned counsel, the decision of the Subordinate Judge's Court, Tellicherry, dated 3rd June 1957, operates as res judicata in these proceedings. That is, according to the learned counsel, the decision of the Subordinate Judge's Court, Tellicherry, dated 3rd June 1957, operates as res judicata in these proceedings. The learned counsel also urged that even at that stage, inasmuch as the order dated 3rd June 1957 shows that counsel for the various defendants were heard, the defendants should have raised the objection regarding sufficiency of the court fee on the plaint with reference to the relief for partition, at that stage itself. I understood the learned counsel to urge that the order dated 3rd June 1957 operates at any rate as res judicata in the present proceedings. (2) The second contention of the learned counsel for the petitioner is really based on the averments made in the plaint. According to the learned counsel the only conclusion that is possible, on a fair reading of the plaint and the allegations made therein, is that the plaintiff's case is one of being in joint possession of the thavazhi properties, which are owned common and in respect of which proper court fee has been paid under section 37 (2) of the Act, and that the order of the lower court holding otherwise is erroneous. 15. The first contention of Mr. Ramunni Menon can be disposed of straightaway. It is pointed out by Mr. K. V. Surianarayana Iyer, learned counsel appearing for the 5th defendant-5th respondent, that the order of the Subordinate Judge's Court, Tellicherry, dated 3rd June 1957 must obviously be on the basis of objection raised by his office. Therefore, according to Mr. Suria­narayana Iyer, action was taken by the court as it is entitled to under section 5 of the Act. It is necessary now to refer to the actual terms of the order of the learned Subordinate Judge of Tellicherry dated 3rd June 1957. I have already indicated that the suit, which was originally instituted in the Subordinate Judge's Court, Kozhikodeas O.S. 14 of 1957, was transferred to the Subordinate Judge's Court, Tellicherry and numbered in that court as O.S. 11 of 1957, and it is that court which passed the order dated 3rd June 1957 referred to above. I have already indicated that the suit, which was originally instituted in the Subordinate Judge's Court, Kozhikodeas O.S. 14 of 1957, was transferred to the Subordinate Judge's Court, Tellicherry and numbered in that court as O.S. 11 of 1957, and it is that court which passed the order dated 3rd June 1957 referred to above. It is seen from the statements contained in the said order that after the plaint was received and numbered in that, court, it was brought to its notice that the plaintiff has not valued the relief for arrears of maintenance and paid court fee on the same. It is further stated in the order that: so the question of court fee was raised by this Court". No doubt it is also mentioned in the order that arguments were addressed by the learned advocate for the plaintiff as well as for the 1st defendant. Therefore, it will be seen that the court had taken action, so to say, suo motu on objection raised by its own office, when the suit was transferred to that court. So far as that is concerned, it is seen that the stage for taking action under section 12 (1) of the Act must be considered to be past, because that relates to a decision being taken by the court before ordering the plaint to be registered. In this case the plaint was already registered in the Subordinate Judge's Court, Kozhikode, and the suit was transferred to the Subordinate Judge's Court, Tellicherry. Under those circumstances, section 5 of the Act, to which reference has already been made by me, gives jurisdiction to the court, when it is seen that "when a document on which the whole or any part of the fee prescribed by this Act has not been paid is produced or has, through mistake or inadvertence, been received in any Court or public office, the Court or the head of office may, in its or his discretion at any time ", consider the question of the correctness of the fee payable and give directions regarding the payment of additional fee within such time as may be fixed by the court. Therefore, the jurisdiction that is given to the court under section 5 of the Act can be exercised by it at anytime. 16. Therefore, the jurisdiction that is given to the court under section 5 of the Act can be exercised by it at anytime. 16. There can be no controversy that the principle of res judicata is certainly applicable to different stages of the same proceedings, as has been laid down by the Supreme Court in the decision reported in Satyadhyan v. Smt. Deorajin Debi A.I.R. 1960 S.C. 941.But the question is whether in the present case that plea is available to the petitioner. As already mentioned, the order of the Subordinate Judge's Court, Tellicherry dated 3rd June 1957 must be considered to have been passed under section 5 of the Act. Even otherwise, it will be seen that the question that was taken up for consideration by that court at that stage related only to a very limited point, namely, as to whether the plaintiff was bound to ask for recovery of the sum of Rs. 21,600 which had been included in the plaint F schedule, and as to whether she was bound to pay court fee on the same. It was in respect of that limited matter that the Subordinate Judge's Court, Tellicherry took up the question for consideration, no doubt, after taking assistance from counsel appearing for the 1st defendant also; and after a consideration of the averments made in the plaint, the court was of the view that the plaintiff must be considered to ask for recovery of that amount and therefore she should be asked include a relief to that effect in the prayer portion of the plaint also, for which purpose the plaintiff was directed to amend the plaint and pay the necessary court fee thereon. Option, no doubt, as I have already indicated, was also given to the plaintiff to delete that prayer if she did not want to make the suitable amendment to the plaint in this respect. But the plaintiff did comply with the directions given by the court by its order dated 3rd June 1957. Therefore, in my opinion, it cannot certainly be said that the fact that the Subordinate Judge's Court, Tellicherry, took a decision under section 5 of the Act on an earlier occasion, namely on 3rd June 1957, in respect of one particular aspect, completely bars the jurisdiction of the court to consider the matter over again. Therefore, in my opinion, it cannot certainly be said that the fact that the Subordinate Judge's Court, Tellicherry, took a decision under section 5 of the Act on an earlier occasion, namely on 3rd June 1957, in respect of one particular aspect, completely bars the jurisdiction of the court to consider the matter over again. In this context it is necessary to refer to the fact that even in respect of a decision taken, at the time when the plaint is registered, under section 12 (1) of the Act, that decision itself is subject to review, further review and correction in the manner specified in the succeeding sub-sections of section 12. More than that, sub-section (2) of section 12 categorically gives a right to a defendant to raise a plea in his written statement, at the stage mentioned therein, and contest that the subject-matter of the suit has not been properly valued or that the court fee paid is not sufficient. It is not the case of the petitioner that on 3rd June 1957 any of the defendants had filed written statement. On the other hand, it is seen that the 1st defendant filed his written statement only on 3rd December 1957, and in that written statement he raised the question regarding the valuation of the subject-matter of the suit and also regarding the sufficiency of the court fee paid by the plaintiff. Therefore, in my opinion, the contention of the learned counsel for the petitioner that the order of the Subordinate Judge's Court, Tellicherry dated 3rd June 1957 operates as res judicata or constructive res judicata so as to take away the jurisdiction of the District Court to consider the correctness of the court fee paid on the plaint, cannot certainly be accepted. In fact, it is particularly seen that on the basis of the plea raised by the defendants concerned, the District Court, Tellicherry appears to have specifically raised an issue dealing with the question of the correctness of the court fee; and that is issue No. 17, which related to the question as to whether the suit has been correctly valued and the proper court fee has been paid, and it was that issue that was taken up for consideration by the lower court and dealt with by it in its order under attack, dated 28th October 1964. r consideration in this revision petition is whether the order of the learned District Judge dated 28th October 1964, which is under consideration requires any interference at the hands of this Court. The stand taken by Mr. Ramunni Menon, learned counsel for the plaintiff-petitioner, is very strenuously controverted by Mr. V. R. Krishna Iyer appearing for the 1st defendant, Mr. K. V. Surianarayana Iyer for the 5th defendant, Mr. Abdul Rahiman for defendants 53 to 62 and Mr.M, M. Abdul Kader for defendants 6 and 56; and the stand taken by them is also supported by the learned Government Pleader appearing for the State. In fact, Mr. V. R. Krishna Iyer, learned counsel for the 1st defendant, was prepared to take an extreme position that from the averments made in the plaint it is very clear that even according to the plaintiff, she has been excluded from joint possession of the properties. In particular, the learned counsel referred to the fact that in paragraph 12 of the plaint she has categorically stated that the 1st defendant has not paid her any share of the income from the thavazhi properties up-to-date and that though she is entitled to claim the arrears for a larger number of years, she is restricting the claim in the suit for 12 years. The learned counsel also pointed out that the averments in the plaint will clearly show that according to the plaintiff, the 1st defendant has been acting to the detriment of the estate and that he has not in any manner recognize the rights of the plaintiff or any other sharers to the properties in question. Therefore, the learned counsel urged that this is a clear case where, even according to the averments in the plaint, it can be categorically stated that the plaintiff has been excluded from possession of thavazhi properties, and the view of the trial court that court fee has to be paid under section 37 (1) of the Act is perfectly correct. Mr. Mr. Surianarayana Iyer, learned counsel appearing for the 5th defendant, pointed out that there is absolutely no averment in the plaint to the effect that in respect of properties, which, even according to the plaintiff, stand in the name of the 5th defendant the latter has at any time recognised any interest or right to share in the proceeds of those properties, in the plaintiff, or for the matter of that, in any other sharers. The learned counsel also pointed out that the nature of the movable properties, which are particularly referred to in schedule C to the plaint, will clearly show that most of them are cash or shares, which are absolutely in the control and possession of the 5th defendant, even according to the averments in the plaint; and it is not the case of the plaintiff that she had at any time any benefit from those transactions by way of payment of income that accrued from and out of those properties. On the other hand, the learned counsel drew my attention to the averments contained in paragraph 10 of the plaint wherein the plaintiff herself has stated that the 1st defendant, 5th defendant and 6th defendant, in order to cheat the thavazhi, have created all these transactions; and that itself will clearly show that defendants 5 and 6 in particular have not recognised, in respect of the purchases which stand in their names, any right in any member of the thavazhi, nor have they in any manner accepted any claim of the thavazhi in respect of those properties. The learned counsel also pointed out that though the 5th and 6th defendants are nephews of the 1st defendant and may be considered to be members of the thavazhi, the allegations in the plaint are not to the effect that the purchases have been made in the names of defendants 5 and 6 and that they are in possession of the properties as co-owners or members of the thavazhi. But on the other hand, the specific allegation made in paragraph 4 of the plaint” which allegation has been reiterated in the subsequent paragraphs is to the effect that the purchases have been made by the 1st defendant from and out of the income of the thavazhi funds, in the names of his dependents, namely the sons-in-law, defendants 5 and 6. The sons-in-law, defendants 5 and 6 the learned counsel points out, have absolutely nothing in common with the other members of the thavazhi. Therefore the status given to them by virtue of which the purchases are stated to have been made in their favour, even according to the plaintiff, is certainly, as purchases made by the 1st defendant, in the names of strangers to the family. The learned counsel pointed out that in the nature of things, regarding the items which stand in the names of defendants, 5 and 6, it is absolutely futile on the part of the plaintiff to allege that there is any question of her being in joint possession of the properties. Therefore according to the learned counsel, the view of the lower court is perfectly correct. The same stand has also been adopted by Mr. K. K. Abdul Rahiman, learned counsel appearing for defendants 53 to 62 and also by Mr. M. M. Abdul Kader appearing for respondents 6 and 56. According to Mr. Abdul Rahiman, though the 1st defendant is the karanavan of the thavazhi concerned, his wife and children are in no sense members of the Moplah Marumakkathayam thavazhi, and therefore any properties which stand in the names of those persons cannot be considered to be in the joint possession of the plaintiff also. It is also pointed out by the learned counsel that even assuming that in respect of the properties which stand in the names of the wife and children of the 1st defendant, the 1st defendant is in possession of those properties, such possession of the 1st defendant cannot certainly be. considered to be possession on behalf of the thavazhi as such, of which the plaintiff is a member, but really possession for and on behalf of the original owners, in whose names the properties stand, namely the wife and children of the 1st defendant and the wife and children of the 1st defendant are members of this thavazhi and therefore the plaintiff cannot be considered to be in joint possession of those properties. The learned Government Pleader also supported the stand taken by the learned counsel for the contesting respondents referred to above. 18. The learned Government Pleader also supported the stand taken by the learned counsel for the contesting respondents referred to above. 18. Before I consider the order of the lower court under attack and the reasons given in that order for coming to the conclusion which it has arrived at, it is necessary to bear in mind certain principles when a question arises regarding the correctness or otherwise of the court fee payable on a plaint. As pointed out by Their Lordships of the Supreme Court in the decision reported in Sathappa Chettiar v. Ramanathan Chettiar A.I.R 1958 S.C. 245 at P.251, the question of court fees must be considered in the light of the allegations made in the plaint, and a decision on that matter cannot be influenced either by the pleas in the written statement, or by the final decision of the suit on merits. More or less to the same effect is also the decision rendered by this Court in the decision reported in Thankamma v. Unniamma Antharjanam 1964 K.L.T. 529. It has been stated in that decision that for the purpose of assessing the proper court fee payable on a plaint, the averments made in the plaint will have prima facie to be accepted, and 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. It is also stated in the said decision that for that purpose the court will have exclusively to confine its attention to the averments made in the plaint itself, and the truth or otherwise of the allegations in the plaint will not arise at the time of deciding the question as to the correct court fee to be paid. 19. It is also necessary to consider now the question as to under what circumstances a party can be considered to have been ousted from possession of properties. Those principles may have a bearing in considering the question a which arises in this case, namely as to whether the averments in the plaint will enable the court to come to a conclusion as to whether the plaintiff has been excluded from possession of the properties so as to make her liable to pay court fees under section 37 (1) of the Act. In Abdul Ratheef v. Musthaf Ali 1959 K.L.T. 412, a Division Bench of this Court, consisting of my learned brothers Raman Nayar and Velu Pillai, JJ., has observed at 413 of the report to the effect 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 to "exclusion" of other co-sharers from possession, for which an intention on the part of the co-sharer to keep the others out of possession, such intention manifesting itself in some manner and to the knowledge of the others, is an essential element". Similarly I had also to consider the same question in the decision reported in Thankamma v. Unniamma Antharjanam 1964 K.L.T. 529, wherein I have held that exclusion from enjoyment of receipt of income is totally different from exclusion from possession, and 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 of the same. To the same effect are the observations made in a Division Bench decision of this Court, consisting of myself and Mathew, J., in an unreported decision in C.R.P. No. 1035 of 1963. 20. But there is also another aspect that will, have to be borne in mind, as pointed out by Subba Rao, C. J. (as he then was) of the Andhra Pradesh High Court, in the decision reported in Srirama v. Lakshmidevamma A.I.R. 1955 A.P. 200, wherein the learned Chief Justice has observed that for that ascertaining the court fee payable on a plaint the terminology used in the plaint is not of much relevance, but it is the substance that matters. The learned Chief Justice has also stated that a plaintiff by a clever device and camouflage cannot evade court fee if, in substance, the relief he asks for falls under one or other of the provisions of the Court Fees Act. In that decision, it will be seen that the plaintiff was claiming a share in the estate of one Adiseshayya. A part of the estate, of which partition was asked for, had been purchased by the deceased Adiseshayya in the name of his widow. In that decision, it will be seen that the plaintiff was claiming a share in the estate of one Adiseshayya. A part of the estate, of which partition was asked for, had been purchased by the deceased Adiseshayya in the name of his widow. The plaintiff claimed to be in joint possession of that item also, and wanted to value the relief under Article 17-B of the Court Fees Act, 1870. It appears to have been urged that a member of a Joint Hindu family can file a suit for partition treating the properties purchased benami in the name of the wife or relative of a member of a family, and that it was enough if court fee was paid under Article 17-B. The learned Chief Justice takes note of the fact that it is a common phenomena among joint families that properties are purchased sometimes, for various reasons, in the name of female members of the family, but that fact does not make the properties any the less joint family properties; and if a member of the family files a suit for partition on the basis that the family is in possession of those properties, the plaintiff can pay court fee under Article 17-B of Schedule II of the Court Fees Act, 1870. But in that case the learned Chief Justice ultimately held that inasmuch as the properties stood in the name of the widow of the deceased, and the plaintiff had no benefit from those properties, the claim will have to be valued under section 7 (v) of the Court Fees Act, 1870, as one for recovery of possession. Therefore it will be seen that in cases where the plaintiff does not get any benefit out of the properties which stand in the names of strangers, though in a sense they may be called properties of the family, the suit will have to be valued as and for possession, and not merely as one for partition on the basis that the plaintiff is in joint possession. It also follows from that decision that under those circumstances there can be no question of the plaintiff being in joint possession of the properties along with the persons in whose name the documents stand. More or less the case on hand is also substantially similar, excepting with regard to defendant I, as I will be discussing later. It also follows from that decision that under those circumstances there can be no question of the plaintiff being in joint possession of the properties along with the persons in whose name the documents stand. More or less the case on hand is also substantially similar, excepting with regard to defendant I, as I will be discussing later. And it is having due regard to those principles that the correctness or otherwise of the order under attack in this case will have to be considered. 21. The learned District Judge has come to the conclusion that the plaintiff will have to pay court fee ad valorem under section 37 (1) of the Act, computed on the market value of her share in the properties claimed by the various defendants as their own. In coming to that conclusion, the learned Judge has adverted to the averments made by the plaintiff in paragraph 12 of the plaint, to the effect that the 1st defendant has not paid her share of the income from the thavazhi properties up-to-date, and also the further fact that she was claiming maintenance for 12 years prior to suit. The learned Judge has also adverted to the averments made in paragraph 10 of the plaint wherein it is stated that defendants 1, 5 and 6, in order to cheat the thavazhi, have been creating several transactions in their favour. This allegation, according to the learned District Judge, will also clearly show that defendants 1, 5 and 6 are in possession of the properties purchased by them in their favour, without recognising any right or title in anybody else including the plaintiff. The learned Judge is also further of the view that all these averments indicate that the plaintiff's plea that she is in joint possession of those properties cannot certainly be accepted. The learned Judge has in this connection referred to the written statement filed by the 1st defendant wherein he has appended 9 schedules showing several items of properties, which have been included in the A schedule to the plaint as belonging to the different members of the thavazhi including himself, as their own separate acquisitions. 22. One of the criticisms that has been levelled by the learned counsel for the petitioner is that the lower court has committed an error in adverting to the matters referred to in the written statement. 22. One of the criticisms that has been levelled by the learned counsel for the petitioner is that the lower court has committed an error in adverting to the matters referred to in the written statement. Matters in the written statement of the 1st defendant, referred to by the learned District Judge in the order under attack and referred to by me earlier, are not for the purpose of considering the claim of the plaintiff that she is bound to pay court fee only under section 37(2), but more to reinforce the conclusion that he has already arrived at, to the effect that in respect of properties which stand in the name of the 1st defendant and defendants 5 and 6 and the various other persons mentioned in paragraph 4 of the plaint, the claim of the plaintiff that she is in joint possession cannot be accepted. It is only more for that purpose that the learned District Judge has referred to the written statement of the 1st defendant wherein he has stated that the several items of properties enumerated by him therein are owned, not by the thavazhi, but as their own separate properties. Ultimately the learned District Judge directed the petitioner to pay court fee on the market value of her share in the properties claimed by the various defendants as their own, calculated under section 37 (l) of the Act. 23. In my opinion, the question that arises for consideration in this case will have to be considered from two points of view, namely (a) in respect of the claim that is made with regard to the properties, which, according to the plaintiff, have been purchased by the 1st defendant in his own name, and (b) with reference to the claim of joint possession made by the plaintiff in respect of the properties, which, even according to her, stand in the name of defendants 5, 6, 53 to 62 and 76 to 85. Mr. Ramunni Menon no doubt urged that the lower court has very freely drawn from the statements made in the written statements for the purpose of considering as to whether the plaintiff can be considered at that stage to be in joint possession of the properties or not. Mr. Ramunni Menon no doubt urged that the lower court has very freely drawn from the statements made in the written statements for the purpose of considering as to whether the plaintiff can be considered at that stage to be in joint possession of the properties or not. According to the learned counsel, the averments made in the plaint alone will have to be considered; and going by those averments, counsel pointed out that according to the plaintiff, the various items of properties enumerated in schedules A, B, C, D, and E which comprise the movable and, immovable properties belonging to the thavazhi, are in the joint possession of the thavazhi and managed by the 1st defendant as karanavan of the thavazhi. That allegation contained in paragraph 3 of the plaint, the learned counsel urges, is being only elaborated in the later averments made in the plaint, and that at no stage has the plaintiff accepted the position that the properties passed out of the hands of the 1st defendant, nor has the plaintiff stated anywhere that she is not in joint possession of the properties. This contention of the learned counsel for the petitioner is partially correct to this extent, namely that the plaintiff has not stated categorically that she is not in possession of any of the properties which stand in the names of defendants 1, 5, 6, 53 to 62 and 76 to 85. As emphasised by Subba Rao, C. J., (as he then was) in Srirama v. Lakshmidevamma A.I.R. 1955 A.P.200, it is the substance of the allegations in the plaint that will have to be considered, and if there is an attempt at camouflaging the real nature of the allegations, the court must have due regard to the various averments made in the plaint to find out whether those averments lead to a conclusion that the plaintiff is in joint possession of properties in which she claims a share. And considering the question from that point of view, in my opinion, the position occupied by the 1st defendant in relation to the plaintiff, and the position occupied, on the other hand, by defendants 5, 6, 53 to 62 and 76 to 85 in relation to the plaintiff, stand on a different footing. And considering the question from that point of view, in my opinion, the position occupied by the 1st defendant in relation to the plaintiff, and the position occupied, on the other hand, by defendants 5, 6, 53 to 62 and 76 to 85 in relation to the plaintiff, stand on a different footing. Though Mr.V. R. Krishna Iyer, learned counsel for the 1st defendant, as I have already mentioned, was prepared to take up the extreme position that the averments contained in paragraphs 10 and 12 of the plaint will clearly show that there has been an ouster of the rights of the plaintiff even in respect of properties acquired by the 1st defendant, it is rather difficult to accept that extreme contention. So far as the 1st defendant is concerned, it should be rembered that he is the karanavan of the thavazhi, and any purchases that he makes it may be from his funds or funds belonging to the thavazhi will necessarily have to be in his name. As to whether those acquisitions were really made from and out of funds of the thavazhi, or whether they are his self-acquisitions, are matters which do not arise for consideration at this stage; and they will have to be investigated very fully in the course of the trial of the suit itself. But in respect of the purchases stated to have been made by the 1st defendant, the mere fact that the plaintiff has stated in paragraph 12 of the plaint that the 1st defendant has not given her any share of the income of the thavazhi properties up-to-date, or the further fact that she is claiming arrears of maintenance for 12 years prior to suit do not lead to a conclusion that there has been an ouster of her rights even in respect of the properties which stand in the name of the 1st defendant. 24. I have already referred to the principles laid down in that regard by a Division Bench of this Court in Abdul Ratheef v. Musthaf Ali 1959 K.L.T. 412 as well as in the decision of myself and Mathew, J., in C.R.P. No. 1035 of 1963, as also in the Judgment rendered by me sitting singly in Thankamma v. Unniamma 1964 K.L.T. 529. Therefore, whatever the truth or otherwise of these allegations may be, the mere fact that the plaintiff herself avers, that she has not been paid any maintenance up-to-date of suit or that the 1st defendant has been acting to the detriment of the interest of the thavazhi by utilising funds belonging to the thavazhi for making purchases in his own name, will not at all lead the court to come to a conclusion that there has been an ouster of her rights, so as to make her liable to pay court fee under section 37(1) even in respect of properties standing in the name of the 1st defendant. But the decision of the lower court as it now stands, is that even in respect of those properties, the plaintiff will have to pay court fee ad valorem on the market value of her share computed under section 37(1) of the Act. In my opinion, in respect of such properties standing in the name of the 1st defendant karanavan, the plaintiff must be considered to be in joint possession. 25. But so far as the other defendants are concerned, namely defendants 5, 6, 53 to 62 and 76 to 85, there is a categorical averment in the plaint that the said properties have been purchased in the names of those parties. No doubt the further averment in the plaint is that those purchases have been made by the 1st defendant in the names of those parties, utilising thavazhi funds. But that is an aspect which has to be gone into in the suit itself. Therefore the question that now arises for consideration is as to whether the plaintiff, even in respect of properties standing in the names of the other defendants just now referred to, can be considered to be in joint possession of those properties along with those parties. In my opinion, it is not possible to accept the contention of Mr. Ramunni Menon, that even in respect of those properties, the plaintiff must be considered to be in joint possession. In my opinion, it is not possible to accept the contention of Mr. Ramunni Menon, that even in respect of those properties, the plaintiff must be considered to be in joint possession. No doubt, as I mentioned already, the learned counsel relied upon the statements contained in paragraph 3 of the plaint to the effect that the items of immovable and movable properties enumerated in schedules A to E to the plaint belong to the thavazhi and that they are in the possession of the 1st defendant as karanavan of the thavazhi. But it is categorically stated that the 1st defendant has been acting against the interests of the thavazhi, and that defendants 5 and 6, with a view to cheating the thavazhi, have colluded with the 1st defendant. These allegations clearly show that when defendants 5 and 6, though also junior members or co-sharers, made those purchases in their names, the source of which it is not now necessary to be considered, they never intended to recognise any title in the plaintiff at any stage. In fact even the plaintiff does not make any averment to the effect that defendants 5, 6, 53 to 62 and 76 to 85 have at any time recognised any right in the plaintiff to those properties, nor have they accepted the claim of the plaintiff to have a share in those properties. There is absolutely no allegation in the plaint that at any stage the plaintiff had got any share accruing to her, from the income of those properties. On the other hand, the averments in the plaint lead to the conclusion that even according to the plaintiff, from the very beginning, the 1st defendant has been acting prejudicially to the interest of the plaintiff and the thavazhi, and has been making purchases in the names of various persons. Even in respect of the various acquisitions stated to have been made in the names of defendants 5 and 6, the allegation is not that such acquisitions are made in their names as sharers in the thavazhi, but really as being the sons-in-law of the 1st defendant. It is also seen that there is no doubt an averment to the effect that the defendants in whose names those properties stand, are mere name-lenders, inasmuch as funds for those acquisitions had come from the 1st defendant himself. It is also seen that there is no doubt an averment to the effect that the defendants in whose names those properties stand, are mere name-lenders, inasmuch as funds for those acquisitions had come from the 1st defendant himself. Here again, it will be seen that I am referring to this aspect only to show that even according to the plaintiff, the documents of purchase stand in the name of the persons referred to in paragraph 4 of the plaint. 26. Even assuming that the averments contained in the plaint have to be accepted in full, and proceeding on the basis that the 1st defendant is in possession of properties, which have been purchased in the name of the defendants referred to above, in my opinion, it cannot certainly be stated that the 1st defendant can be considered to be in possession of those properties as karanavan of the thavazhi for himself and on behalf of the other members of the thavazhi including the plaintiff. Even assuming that the 1st defendant is in possession of those properties, that possession by the 1st defendant can only be for and on behalf of the persons in whose name the documents of title at present stand. Therefore, in my opinion, the contention of Mr. Ramunni Menon that the view of the lower court that in respect of the properties standing in the name of defendants 5, 6, 53 to 62 and 76 to 85 the plaintiff has to pay court fee under section 37(1) of the Act is not correct, cannot certainly be accepted. 27. It is only necessary to refer to a decision of Ramachandra Iyer, J., (as he then was) of the Madras High Court, reported in Quamrunissa Begum v. Fathima Begum (1960) 1 M.L.J. 354 because the learned counsel for the petitioner has placed considerable reliance on that decision. It will be seen from a perusal of that decision, that in a suit for partition by a Mohammaden co-sharer, the allegation was that the original owner of the properties had made some purchases in the names of other co-sharers; and there was also an allegation that certain amounts standing in the names of other defendants, who were not co-sharers, belonged to the original owner. The plaintiff paid court fee under section 37 (2) of the Act, with which this Court is now concerned. The plaintiff paid court fee under section 37 (2) of the Act, with which this Court is now concerned. The learned Judge in that case had to consider the question as to whether payment of court fees was correct or not. But it will be seen that ultimately the learned Judge has no doubt held that payment of court fee under section 37 (2) was perfectly justified. But it is necessary to note the basis on which the decision of the learned Judge in that case is rested. The learned Judge, it will be seen, takes note of the fact that defendants 1 to 8 in that proceeding are co-sharers. The learned Judge also takes note of the fact that there is absolutely no averment in the plaint that there is any adverse claim made by those co-sharers in regard to the items, except in regard to one single item, which will be referred to later. And the learned Judge also takes note that according to the plaintiff, those items of properties, though standing in the name of the other co-sharers, are really purchases made by the original owner in the names of those co-sharers. Therefore the learned Judge held that in respect of properties standing in the name of defendants 1 to 8, who are admittedly co-sharers, the possession by those co-sharers, must be considered to be possession for and on behalf of the plaintiff; and therefore, so far as those properties are concerned, the learned Judge held that court fees need be paid only under section 37 (2) of the Act. Then there was a further question posed by the learned Judge as to whether, in respect of a sum of Rs. 6,000, which stood not in the name of the co-sharers as such, but in the name of the children of one of the co-sharers, namely defendants 9 to 11, the plaintiff's claim should not be valued under section 37 (1). No doubt in that connection the learned Judge takes note of the fact that though defendants 9 to 11 are not really sharers, they can be considered to be members of the family. But the view of the learned Judge is that in the plaint there is absolutely no allegation to warrant the inference that defendants 9 to 11, in whose name the money stands, have made any claim adverse to the family. But the view of the learned Judge is that in the plaint there is absolutely no allegation to warrant the inference that defendants 9 to 11, in whose name the money stands, have made any claim adverse to the family. The learned Judge is also of the view that notwithstanding the fact that defendants 9 to 11 in that case are the children of one of the co-sharers, namely the 4th defendant, they cannot be considered to be co-sharers, in the sense that they are entitled to share in the estate of the deceased, but nevertheless they can be considered to be members of the family. Therefore the decision of Ramachandra Iyer, J., as pointed out above, has to be restricted to the particular averments made in the plaint in that case and an inference drawn by the learned Judge regarding the claim made by the plaintiff. 28. In my opinion the decision of Ramachandra Iyer, J., referred to above, is of no assistance to Mr. Ramunni Menon, learned counsel for the plaintiff-petitioner. According to the learned counsel, in this case, defendants 5 and 6 are admittedly members of the thavazhi, being nephews of the 1st defendant karanavan, and they also stand in the same position as the plaintiff. Defendants 53 to 62 and 76 to 85, who are the wife and children of the 1st defendant and defendants 5 and 6, can certainly be considered to be members of the thavazhi in a larger sense in which case, according to the learned counsel, the principles laid down by Ramachandra Iyer, J., in the I decision referred to above apply with full force to the case on hand. In my opinion, it is not possible to accept this contention of the learned counsel. I have already referred to the decision of the learned Judge, as well as the basis on which that decision is rested. In my opinion, the averments contained in the present plaint are totally different from the allegations in the plaint that the learned Judge had to deal with. I have already referred to the decision of the learned Judge, as well as the basis on which that decision is rested. In my opinion, the averments contained in the present plaint are totally different from the allegations in the plaint that the learned Judge had to deal with. I have also indicated that the averments contained in paragraph 4 of the plaint, and which are reiterated in the subsequent paragraphs of the plaint, clearly show that the plaintiff does not aver that the properties have been purchased in the name of defendants 5 and 6 and that they are in the position of co-sharers or members of the thavazhi. On the other hand, the clear allegation is that the 1st defendant has put chased certain items of properties in the names of his sons-in-law, namely defendants 5 and 6. If defendants 5 and 6 are only sons-in-law of the 1st defendant, they can in no sense be considered to be members of the thavazhi. I have already dealt with the other allegation in the plaint which will not certainly enable this Court to come to a conclusion that the plaintiff is in joint possession of the properties standing in the names of defendants 5 and 6, particularly when the plaintiff avers in paragraph 10 that defendants 5 and 6 are cheating her. 29. Coming to defendants 53 to 62 and 76 to 85, the position of the plaintiff is made still worse. It is absolutely impossible to accept the contention of the learned counsel for the petitioner that the wife and children of the 1st defendant or his grand-children, namely the children of defendants 5 and 6, are members of this Marumakkathayam thavazhi. They may be the wife and children and the grand-children of the 1st defendant. But certainly the wife and children, or the grand-children of the 1st defendant, though he is karanavan of the thavazhi, are not members of this Moplah Marumakkathayam thavazhi, the assets of which are sought to be partitioned in this litigation. Therefore, in my opinion, defendants 53 to 62 and 76 to 85 are total strangers to the thavazhi, and the properties which stand in the names of those defendants cannot be considered to be in any manner held a jointly by them for and on behalf of the plaintiff also. Therefore, in my opinion, defendants 53 to 62 and 76 to 85 are total strangers to the thavazhi, and the properties which stand in the names of those defendants cannot be considered to be in any manner held a jointly by them for and on behalf of the plaintiff also. Putting it in the reverse fashion, it cannot be stated that the plaintiff can be considered to be in joint possession along with those defendants of the properties standing in the names of those defendants. 30. I have already dealt with the case of defendants 5 and 6 and negatived the claim of the plaintiff to be in joint possession of the properties standing in their names. Therefore the view of the learned District Judge that the plaintiff-petitioner will have to pay court fee under section 37 (1) of the Act will have by and large to be accepted. But one clarification will have to be made; because, according to the lower court's order as it now stands, it will mean that the plaintiff will have to pay ad valorem court fee computed on the market value of her share under section 37 (1) of the Act, even in respect of the properties which stand in the name of the 1st defendant karanavan. I have already indicated that the position of the 1st defendant is entirely different from the position of defendants 5, 6, 53 to 62 and 76 to 85. If that is so, in my opinion, the order of the lower court, directing the plaintiff to pay court fee under section 37(1) of the Act, even in respect of properties standing in the name of the 1st defendant, will have to be set aside. But so far as properties, standing in the names of defendants 5, 6, 53 to 62 and 76 to 85 are concerned, the plaintiff is bound to pay court fee under section 37 (1) of the Act, in accordance with the directions contained in the order of the lower court. Once again, in order to make matters very clear, it is necessary to emphasise that the plaintiff is bound to pay court fee under section 37 (1), computed on the market value of her share, only in respect of the properties standing in the names of defendants 5, 6, 53 to 62 and 76 to 85. Once again, in order to make matters very clear, it is necessary to emphasise that the plaintiff is bound to pay court fee under section 37 (1), computed on the market value of her share, only in respect of the properties standing in the names of defendants 5, 6, 53 to 62 and 76 to 85. In respect of all other properties, which are the subject of the partition suit, the plaintiff is at liberty to pay the court fee under section 37 (2). 31. Before closing the discussion on this aspect, it is necessary to refer to one circumstance, namely that the learned counsel for the petitioner attempted to rely upon certain orders that appear to have been passed in connection with applications filed for appointment of receiver for these properties. Based upon those orders, the learned counsel wanted to urge that some of the properties, which are the subject of this litigation have been admitted to be thavazhi properties. I was not inclined to permit the learned counsel to rely upon any of those matters which had happened subsequent to the institution of the suit; because, as I have already made it clear, the question of payment of court fees will have to be decided only on the basis of the averments made in the plaint. Therefore I am not adverting to those matters referred to by learned counsel for the petitioner. 32. In the result, the revision petition is allowed to the extent indicated above, i.e., in so far as the order of the lower court makes the plaintiff liable to pay court fees under section 37 (1) of the Act in respect of the properties standing in the name of the 1st defendant also, the order of the lower court will stand set aside; and in all other respects, it is confirmed. The parties will bear their own costs.