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2008 DIGILAW 180 (KAR)

Nanjamma v. Akkayamma

2008-03-12

A.N.VENUGOPALA GOWDA, S.R.BANNURMATH

body2008
ORDER S. R. Bannurmath, J. In this appeal, Scrutiny Branch has raised objection regarding deficiency of Court-fee paid by the appellant on the memorandum of appeal and as the appellant took exception to the objections, the matter was placed before the Court. 2. We have heard the learned Counsel on both sides and perused the record. 3. In order to appreciate the rival contentions it is necessary to note the brief facts giving rise to the present appeal. 4. The appellant/plaintiff has filed the O.S.No.5085/2001 against the respondents for partition and separate possession in the suit schedule properties, on the ground that the properties were self acquired properties of her deceased father Shri Bachappa. It was contended that said Shri Bachappa died intestate leaving behind the plaintiff along with three sisters and two brothers. It was contended that as there was no partition and inspite of repeated requests and demand, the brothers have denied the share and she is forced to file the suit. It was also alleged that as the brothers have alienated some properties and also intend to dispose remaining properties, she is entitled to permanent injunction. In the suit, she has also impleaded some of the purchasers as co-defendants. 5. The suit was resisted by the defendants inter alia denying the right of the plaintiff for partition. It was contended that almost all of the suit schedule properties are self acquired properties of the brothers; the plaintiff has not right in the same. It was also contended that since the plaintiff married 30 years back during the life time of father, she is no more member of joint family of her father or the brother so as to claim partition. It was also contended that after the death of the father Bachappa, in the year 1972, the brothers Kalappa and Narayanappa have divided the properties by a partition deed dated 19-08-1973 and since that day, they are enjoying the properties as absolute owners. It was also contended that the plaintiff having relinquished her right by receiving 10 guntas land, it is no more open for her to claim partition in the rest of the properties. It was also contended that the plaintiff having relinquished her right by receiving 10 guntas land, it is no more open for her to claim partition in the rest of the properties. It was also contended that having known all these facts, the plaintiff has belatedly, nearly 30 years after the death of her father and after death of one brother Kalappa, has come up with present suit for partition on the ground of the suit is liable to be dismissed. The question regarding insufficiency of Court fee was also raised. 6. On the basis of the pleading of the parties, the trial Court has raised the following issues: delay and latches alone- (1) Whether plaintiff proves that the suit schedule properties are the self acquired properties of late Bachappa and that she has a share in the said properties? (2) Whether defendants prove that the properties as described in the plaint schedule are the joint family properties as pleaded? (3) Whether plaintiff proves that she is entitled to share in all the suit properties? (4) Whether defendants 2, 4, 6 and 8 prove that plaintiff and her other sisters have relinquished and gave up their rights in respect of joint family properties of late Bachappa as contended in para 17 of their written statement? (5) Whether defendants 2, 4, 6 and 8 prove the execution of General Power of Attorney on 12-7-1972 referred to in para 16 of their written statement? (6) Whether plaintiff proves that she is in joint possession of the suit properties, if not what is the effect? (7) Whether Court fee paid is proper and sufficient? (8) Whether plaintiff is entitled for share in all the suit properties? (9) Whether plaintiff is entitled for the relief of perpetual injunction prayed? (10) To what other relief? 7. Considering the material evidence, the trial Court negatived the contention of the plaintiff as to the properties being joint family properties; and it has also held that the plaintiff has failed to prove that she is in joint possession of the suit schedule properties. The trial Court also has held that the court fee paid is insufficient. Accordingly, it has dismissed the suit with the direction that the plaintiff should pay the deficit court fee under Section 35(1) of the Karnataka Court Fee and Suit Valuation Act (for short the ‘Act’) 8. The trial Court also has held that the court fee paid is insufficient. Accordingly, it has dismissed the suit with the direction that the plaintiff should pay the deficit court fee under Section 35(1) of the Karnataka Court Fee and Suit Valuation Act (for short the ‘Act’) 8. It is these findings in the impugned judgment and decree which are challenged in the present appeal. 9. In the appeal memo, the plaintiff has stated that as the suit is for partition and separate possession, she is paying the maximum fixed court fee of Rs. 200/- as per Section 35(2) r/w Section 49 of the Act. 10. It is this court fee, which is objected to, by the Registry. The main objection of the Registry is that as per the trial Court judgment and decree, since it is held that there is ouster of the plaintiff from the suit schedule properties and there is a specific finding against her, she is liable to pay the court fee under Section 35(1) and not under Section 35(2) of the Act. 11. This office objection is resisted by the plaintiff/appellant interalia contending that as the suit is for partition and possession of separate share as she has pleaded that she is in joint possession of the properties along with her brothers, the court fee paid under Section 35(2) of the Act is just and proper. So far as ouster is concerned, it is contended that as held by various Courts for the purpose of court fee, only plaint allegations are to be looked into, when she had pleaded that she is in joint possession, the court fee paid under Section 35(2) is proper. It is further contended that at the trial, as there is not even pleading in the written statement and as no issue regarding ouster is framed by the trial Court, the same cannot be considered at present for the purpose of court fee. In this regard, the learned Counsel for the appellant has relied upon the pronouncement of the Hon’ble Superme Court in the case of Neelavati and Others Vs Natraj and Others reported in AIR 1980 SC 691 to contend that for the purpose of court fee, it is only the allegations in the plaint which have to be taken as basis and not the pleadings in the written statement or the findings of the trial Court. It is submitted that as the plaintiff has throughout contended that she is in joint possession of the properties along with her brothers, her case falls under Section 35(2) and not under Section 35(1) of the Act. 12. Learned counsel appearing on behalf of the caveator-respondents contended that it is a case of ouster and hence the appellant has to pay the Court fee in terms of sub-section (1) of Section 35 of the Act. Learned counsel also invited our attention to the evidence of PW.1, particularly the relevant portion of which reads as follows: “It is true that after the death of my father Bachappa, Kalappa and his sons and Narayanappa and his sons have not allowed me to deal with any of the suit schedule properties. It is true that after the death of my father Bachappa, Kalappa and his sons and Narayanappa and his sons were dealing with the suit schedule properties as if those properties are their own properties. It is true that after the death of Bachappa, Kalappa and his sons and Narayanappa and his sons have treated the properties as their exclusive properties.” 13. By pointing out the said evidence, learned counsel contended that it is a case wherein ouster is proved and hence the Court fee has to be paid under sub-Section (1) of Section 35 of the Act. 14. Considering the rival contentions and on perusing the record of the appeal memorandum, the point for consideration is ‘whether the appellant has to value the suit for the purpose of payment of Court fee and jurisdiction under sub-section (1) of Section 35 of the Act and pay the deficit Court fee, if any? 15. An identical question had come up for consideration in the case of T.K. Srinivasamurthy and other vs. T. Seetharamaiah and others reported in AIR 1990 Karnataka 149. The facts in the said case were: suit was filed seeking partition of suit schedule properties as well as for a declaration that certain alienations made by the defendants in respect of joint family properties are not binding on them. Suit was valued by the plaintiffs under Section 35(2) of the Act. Defendants while resisting the suit inter alia contended that the plaintiff not being in possession of the properties, should have valued under Section 35(1) of the Act, as they were out of possession of properly. Suit was valued by the plaintiffs under Section 35(2) of the Act. Defendants while resisting the suit inter alia contended that the plaintiff not being in possession of the properties, should have valued under Section 35(1) of the Act, as they were out of possession of properly. On the basis of the said pleadings, an issue was framed to the effect ‘whether the suit is property valued for purpose of Court fee and jurisdiction?’ The trial Court after hearing the arguments has held that the plaintiffs were out of possession of the suit schedule property and should have valued the claim under sub-section (1) of Section 35 of the Act and directed them to value the property accordingly and for non-payment of the court fee, after the time granted, the plaint was rejected. When the matter was questioned in this Court, following the law laid down by the Hon’ble Supreme Court in the case of Neelavathi (Supra), the Division Bench of this Court has held as follows: “5. Further one of us in the said revision expressed the view that in partition suits, at the time of final decree proceedings, each sharer is taxed according to the value of the property that is allotted to his share and therefore there would be no loss to the exchequer and as such where there was specific pleading by the plaintiffs for partition of joint family properties, normally they should not be excluded on plea of improper valuation of the suit schedule properties in the written statement. 6. We also take support from the decision of the Supreme Court in the case of M/s. Commercial Aviation and Travel Company v. Mrs. Vimla Pannalal, AIR 1988 SC 1636 . In the latter mentioned case of the Supreme Court, Court Fee Act of the Union Territory of Delhi fell for consideration. The question for consideration was the correctness of valuation as in the case of partition, so also in the case of suit for accounts, allegations of the plaint form the basis on which the suit valuation must be accepted for the purpose of court fee and jurisdiction”. 16. The question for consideration was the correctness of valuation as in the case of partition, so also in the case of suit for accounts, allegations of the plaint form the basis on which the suit valuation must be accepted for the purpose of court fee and jurisdiction”. 16. In the case of B.S. Malleshappa vs. Koratagigere B. Shivalingappa and others reported in AIR 2001 Karnataka 384, considering almost an identical situation, after referring to various case laws and the pronouncements of the Apex Court in the case of Neelavathi (Supra), the Division Bench has held as follows: “11. We may now conveniently summarise the principles relating to Court-fee in regard to suits for partitions and appeals therefrom: (i) Payment of Court-fee depend on plaint averment alone. Neither the averments in the written statement, nor the evidence nor the final decision have a bearing on the decision relating to Court-fee. (ii) The scope of investigation under S. 11 is confined practically to determine two paints: (i) under valuation of the subject-matter of the suit and (ii) category under which the suit falls, for the purpose of Court-fee. Once the category of suit is determined with reference to plaint averments, the Court cannot subsequently changes the category on the basis of the averments in the written statement or on the basis of evidence and arguments. In short, if the suit is found to fall under S.35(2) of the Act on the plaint averments, the Court has no power to convert the suit as one falling under S.35(1) of the Act, at any point of time, much less while rendering judgment. The only exception is when the plaint is amended. (iii) The plaintiff in a suit being dominus litis has the choice of filing a suit of particular relief. Neither the defendant nor the Court can alter the suit as one for a different relief or as a suit falling in a different category and require the plaintiff to pay Court-fee on such altered category of suit. (iv) If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categories the suit under S. 35(2) of the Act. He is therefore, liable to pay Court-fee only under S. 35(2). (iv) If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categories the suit under S. 35(2) of the Act. He is therefore, liable to pay Court-fee only under S. 35(2). If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under S. 35(1) of the Act and directing the plaintiff to pay the Court-fee under S.35(1) of the Act does not arise. Even after written statement and evidence, (which may demonstrate absence of possession or joint possession) if the plaintiff chooses not to amend the plaint to bring the suit under S. 35(1) and pay Court-fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied. (v) On appreciation of evidence, if the Court disbelieves the claim of plaintiff regarding joint possession, it can only hold that the case does not fall under S. 35(2) and, therefore, plaintiff is not entitled to relief. It cannot, in the judgement, hold that the case of plaintiff should be categorised under S. 35(1) nor direct the plaintiff to pay Court-fee on market value under S 35(1) of the Act. (vi) The Court-fee payable on an appeal is the same as the Court-fee payable on the suit. Therefore, even if the trial Court holds that plaintiff was not in joint possession or that plaintiff had been excluded from possession, there will be no change in the Court-fee payable in an appeal by the plaintiff against such decision. The Court-fee on the appeal will still be the same as the Court-fee paid on the plaint in the Court of first instance.” (emphasis supplied) 17. In view of the declaration of law as above, merely because the trial court has held that the plaintiff is not in possession and has been excluded from possession, there will be no change in the Court fee payable in the appeal by the plaintiff against the judgement and decree of the trial Court. The Court fee payable on appeal is the same as the Court fee paid on the plaint in the Court of first instance i.e., in terms of Section 49 of the Act. The Court fee payable on appeal is the same as the Court fee paid on the plaint in the Court of first instance i.e., in terms of Section 49 of the Act. In view of the said pronouncement of the Apex Court in Neelavathi and others vs. Natraj and others reported in AIR 1980 SC 691 and this Court, which have been rendered in identical circumstances, with regard to the aspect of valuation for the purpose of jurisdiction and payment of court fee, the office objection re: deficit court fee is over ruled. 18. Consequently, the office objections with regard to payment of deficit court fee is unsustainable and we hereby overrule the same.