Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 449 (KAR)

T. N. SHARATH v. UJWAL

2010-04-01

SUBHASH B.ADI

body2010
ORDER Petitioner is defendant 3 in the Trial Court. Respondents 1 to 3 are the plaintiffs in O.S. No. 119 of 2005. They have filed a suit for partition and separate possession of their 3/4th share in the suit schedule properties and also for declaration that the registered settlement deed dated 10-9-1985, sale deed dated 9-10-1986 null and void not binding on the plaintiffs and consequential perpetual injunction. 2. Case of the plaintiffs is that, plaintiffs 1 to 3 are the heirs of Sundar, the second son of N.K. Rudrappa. The suit schedule properties belongs to the propositus and there has been no partition in the joint family and as such claimed for partition and separate possession inter alia alleging that, without there being a partition and separate possession, the sale deed executed by defendant 1 and settlement deed executed by defendant 1 in favour of the other defendant being not binding on the plaintiff. 3. The said suit was opposed by filing a written statement. Amongst the other contentions the defendants alleged that, the Court fees paid is not proper, as the plaintiffs are seeking for cancellation of settlement deed as well as the sale deed and as such the suit should have valued under Section 34 of the Kamataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as the 'Act'). Considering the contentions of both the sides by the impugned order rejected I.A. No. 7 filed by the defendant 3 holding that, suit is one for partition and separation possession that there is presumption of joint family. Unless it is shown that there was a severance and in view of the same the consequential relief sought for by the plaintiff would not attract the provisions of Section 38 of the Act. It is also observed that, plaintiff is not party to the transaction and as such it does not amount to cancellation of the deed to attract the provisions of Section 38 of the Act. 4. Sri S.V. Shankar, learned Senior Counsel appearing for the petitioner-defendant 3 vehemently submitted that, the specific prayer is made in the suit as regard to the declaration of settlement deed and the sale deed has not binding. 4. Sri S.V. Shankar, learned Senior Counsel appearing for the petitioner-defendant 3 vehemently submitted that, the specific prayer is made in the suit as regard to the declaration of settlement deed and the sale deed has not binding. In view of the specific prayer, the plaintiff ought to have valued the suit on the basis of the market value as on the date of the said suit instead the plaintiff has valued the suit under Section 35 of the Act. In this regard, he also relied on the judgment of the Apex Court in the case of Neelavathi and Others v N. Natarajan and Others1. The case arising under the provisions of Tamil Nadu Court Fees and Suits Valuation Act, 1955. The Apex Court in a suit for partition has observed as under: Para 8. .... He also relied on the another unreported decision reported in 1964 Mys. L.J. Short Notes and submitted that, the allegation made in the plaint should be the criteria for the purpose of valuation and payment of Court fees. On the other hand, learned Counsel M ... submitted that, it is a suit for partition and separate possession and consequential relief. The plaintiffs are the members of the joint family. They have not stated that, they have been ousted from the possession of the joint family properties. It not the case of seeking possession. So long as the rights of the plaintiffs to get the share in the joint family properties remains. The plaintiff deemed to be in joint possession. Unless they are executed from the possession, the presumption arises that the family is joint and possession is also joint possession, and in such circumstances even if there is any allegation by one of the coparcener, that does not amount to oust of plaintiffs joint possession and the plaintiff is not required to seek cancellation of the said transaction. If he protects suit for partition and cons.