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2006 DIGILAW 974 (MP)

Digambar Kumar Jain v. Maya Bai

2006-08-11

AJIT SINGH

body2006
ORDER 1. This petition is directed against the order dated 20.12.2005 passed in Civil Suit No. 102-A/2004 by the Second Additional District Judge, Jabalpur, whereby he has called upon the petitioner to pay additional court-fees as required under section 7 (vi-a) (b) of the Court Fees Act, 1870 (hereinafter referred to as "the Act"). 2. The case of the petitioner before the trial Court is that the suit house originally belonged to late Laxmichand who expired leaving behind his four sons, namely; Chakodilal, Harishchand, Sumerchand and Bansilal who have now also expired. Respondent No. 1 is the only legal heir of late Chakodilal. Harishchand died leaving behind the present petitioner and respondents No.2 and 3 in the suit house. Similarly, Bansilal left behind his widow, respondent No.5, and three sons, respondents No.6 to 8. Respondents No. 4-a to i are the legal representatives of Sumerchand. The petitioner has pleaded that during the lifetime of late Laxmichand the suit house was not partitioned between him and his four sons named above. Thus, according to the petitioner, after the death of Laxmichand his four sons jointly inherited the suit house in equal shares. Respondent No. 1 has alienated the suit house to the respondents No.2 and 3 by a registered sale deed dated 11.3.2002 on a sale consideration of Rs. 10 lac. In the suit, the petitioner has prayed for partition claiming 1/4th share in the suit house. He has also sought a declaration that he being one of the co-owners of the suit house, the sale effected by the respondent No. 1 in favour of respondents No. 2 and 3 was void to the extent of his share and the respondent No.1 could only sell 1/4th of the undivided share. He has also categorically prayed for the delivery of possession of his share in the suit house. For these reliefs of partition, declaration and possession the petitioner has valued the suit at Rs.1,25,000/-. The petitioner has claimed a further relief of permanent injunction for which additional valuation of Rs. 300/- has been made. He has paid the court-fees of this amount under section 7 (vi-a) (a) of the Act. 3. The respondents in their written statement have denied the petitioner's claim of being a co-owner of the suit house. The petitioner has claimed a further relief of permanent injunction for which additional valuation of Rs. 300/- has been made. He has paid the court-fees of this amount under section 7 (vi-a) (a) of the Act. 3. The respondents in their written statement have denied the petitioner's claim of being a co-owner of the suit house. They have also denied the averment of petitioner that there was no partition of the suit house between Laxmichand and his four sons. 4. The trial Court has framed number of issues in the suit. Issue No. 11 is whether the suit is properly valued and proper court-fee has been paid. 5. The trial Court, by the impugned order, has held that as the petitioner is not in possession of the suit house and his claim of being a co-owner of the same has been denied by the respondents, he is liable to pay court-fees on Rs.2,50,000/-, which is 1/4th share of the total sale consideration of Rs.10 lac. The Court has called upon the petitioner to pay additional court-fees as required under section 7 (vi-a) (b) of the Act. 6. The learned counsel for the petitioner, relying upon the decision of the Nagpur High Court in Dhanji Ramji v. Kalyanji Ramji and others [AIR 1956 Nagpur 175] has argued that the trial Court committed an illegality in directing the petitioner to pay additional court-fees as required under section 7 (vi-a) (b) of the Act. He has also argued that the trial Court ought to have inferred the possession of petitioner in the suit house, as he is a co-owner of the same. The learned counsel for the respondents, on the other hand, defended the impugned order and argued that the decision of the Nagpur High Court in Dhanji Ramji (supra) does not help the case of petitioner. 7. Section 7 (via) of the Act, which deals with court-fees payable in suits for partition, reads as under: "7 (via). Computation of fees payable in suits for partition: (a) according to one half of the value of the plaintiff's share of the property; and . 7. Section 7 (via) of the Act, which deals with court-fees payable in suits for partition, reads as under: "7 (via). Computation of fees payable in suits for partition: (a) according to one half of the value of the plaintiff's share of the property; and . (b) according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a co-parcener or co-owner, and his claim to be a coparcener or co-owner on such date is denied." 8. The Nagpur High Court in the case of Dhanji Ramji (supra) construed this provision and in paragraphs 11 and 12 of the order observed as follows: " 11. ...................... For the purposes of sub-clause (a) of clause (vi-a) the question whether the plaintiff who sues for partition is in possession or not also becomes irrelevant. In every suit for partition whether, the plaintiff is in or out of possession, whether in the language of many of the earlier rulings he has been ousted or not ousted from the enjoyment of all or any of the joint family property, the minimum that he must always be called upon to pay is court-fees on one-half of the value of his share in the property. 12. Sub-clause (b) of clause (vi-a) refers to two conditions which if fulfilled the full ad valorem court-fee is payable. The two conditions are: (a) that the plaintiff's claim to be a coparcener or co-owner on the date of presenting the plaint should be denied, and (b) that the plaintiff must be found to be out of possession of the property of which he claims to be a coparcener or co-owner. The normal rule governing all partition suits is thus payment of court-fees on one-half of the value of the plaintiff's share in the property; the exception is where the plaintiff's claim is denied by the defendants and it is found that the plaintiff is out of possession of the property he claims. He must then be called upon to pay court-fee according to the full value of share claimed by him." (emphasis supplied) 9. In the present case, the petitioner himself has claimed the relief of possession of his share in the suit house. It is nowhere pleaded in the plaint that petitioner is in possession of the suit house. He must then be called upon to pay court-fee according to the full value of share claimed by him." (emphasis supplied) 9. In the present case, the petitioner himself has claimed the relief of possession of his share in the suit house. It is nowhere pleaded in the plaint that petitioner is in possession of the suit house. His learned counsel has also fairly conceded during the arguments that the petitioner is, in fact, not in actual possession of the suit house. Under these circumstances, more particularly, when the respondents deny the claim of petitioner of his being a co-owner of the suit house, his ouster from that house is not to be proved and it has to be held that he is out of the possession. There is no provision in the Act, which provides that a co-owner shall be either inferred or deemed to be in possession of the property for the purposes of computation of court-fees in suits for partition. Thus, the petitioner cannot be inferred or deemed to be in possession of the suit house for the purpose of computation of court-fees in the suit. The respondents, as already mentioned above, have denied the petitioner's claim of his being a co-owner of the suit house. For these reasons, the trial Court, in my considered opinion, did not commit any illegality in calling upon the petitioner to pay additional court-fees as required under section 7 (vi-a) (b) of the Act. 10. The petition is dismissed.