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2014 DIGILAW 445 (KAR)

Sampangi Gowda v. Muddanna

2014-04-04

B.S.INDRAKALA, N.KUMAR

body2014
Judgment :- Kumar, J. 1. The plaintiffs have filed a suit for partition and separate possession of their legitimate share in the suit schedule properties. 2. In Paragraph No.8 of the plaint, it is averred that the plaintiffs are the members of the joint family and they are in joint possession and cultivation of the suit schedule properties having their 1/4th legitimate right. It is alleged by the plaintiffs that, defendants solely enjoyed the suit schedule property without dividing the property though the suit schedule property is the joint family property. Therefore, they valued the suit for the purpose of jurisdiction at Rs.35 Lakhs and for the purpose of Court fee, they valued the suit under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, hereinafter referred to as the ‘Act’) and paid ad valorem fixed Court fee of Rs.200/-. 3. The Trial Court framed five issues and three additional issues. The additional issues are as under:- i) Whether plaintiffs prove that they are in joint possession of the suit property along with defendants? ii) Whether Court fee paid by the plaintiffs is sufficient? iii) What order or decree? 4. On the additional Issue Nos.1 & 2, the Trial Court recorded a finding that the plaintiffs are not in possession of the suit schedule properties along with the defendants. Therefore, they have to pay the Court fee on the market value of the suit schedule property. In its opinion, the Court fee paid by the plaintiffs under Section 35(2) of the Act was not sufficient. Plaintiffs have to pay the Court fee under Section 35(1) of the Act. Ultimately, the suit came to be dismissed. Aggrieved by the said judgment and decree, the plaintiffs have preferred this Regular First Appeal. 5. In the appeal also, they have paid a Court fee of Rs.200/- as required under Section 49 of the Act. Office has raised an objection to the effect that the appellants/plaintiffs have to pay the Court fee as per Section 11(4)(a)(b) and Section 49 of the Act by valuing the suit under Section 35(1) of the Act as held by the Trial Court on additional issue No.2. 6. The appellant is challenging the said office objection. 7. We have heard the Learned Counsel for the parties. 8. Section 35 of the Act deals with partition suits, which reads as under: 35. 6. The appellant is challenging the said office objection. 7. We have heard the Learned Counsel for the parties. 8. Section 35 of the Act deals with partition suits, which reads as under: 35. Partition suits.- (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff’s share. (2) In a suit for partition and separate possession of joint family property or property owned jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:- Rupees fifteen if the value of plaintiff’s share is Rs.3,000/- or less; Rupees thirty if the value is above Rs.3,000 but not more than Rs.5,000. Rupees one hundred if the value is above Rs.5,000 but below Rs.10,000 and Rs.200/- if the value is Rs.10,000 and above. (3) Where, in a suit falling under sub-section (1) or sub-section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in sub-section (2), according as such defendant has been excluded from possession or is in joint possession. (4)Where, in a suit falling under sub-section (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in Section 38 separate fee shall be payable on the relief of cancellation in the manner specified in that section. 9. The Apex Court, interpreting Section 37(1) of the Tamilnadu Court Fees and Suits Valuation Act, which is similar to the aforesaid provision, in the case of JAGANNATH AMIN vs. SEETHARAMA (DEAD) BY LRS. AND OTHERS (2007) 1 SCC 694 , has held as under:- “It will be seen that the Court Fee is payable under Section 37(1) if the plaintiff is “excluded” from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family, and prayed for partition alleging that they are in joint possession. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family, and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the mitakshara coparcenary property, acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided ‘joint family property’ though not in the strict sense of the term. The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Sec.37 (1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been “excluded” from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiff has been excluded from possession.” 10. In laying down the said law, the Apex Court was following its earlier judgment in the case of NEELAVATHI vs. NATARAJAN AIR 1980 SC 691 , where it was held as under:- “126. Court fee is payable under S.37 (1), T.N. Act, if the plaintiff is ‘excluded’ possession of the joint property. In laying down the said law, the Apex Court was following its earlier judgment in the case of NEELAVATHI vs. NATARAJAN AIR 1980 SC 691 , where it was held as under:- “126. Court fee is payable under S.37 (1), T.N. Act, if the plaintiff is ‘excluded’ possession of the joint property. The general principle of law is that in the case of co-owners, possession of one is possession of all unless ouster or exclusion is proved. To continue to be in joint possession in law it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property is not disputed, the law presumes that he is in joint possession. To apply S. 37(1) there should be a clear and specific averment in the plaint that Plaintiff has been excluded from joint possession. An averment that remain in joint possession would not amount to exclusion from possession.” 11. Therefore, the general principle of law is that in the case of co-owners, possession of one is possession of all unless ouster or exclusion is proved. To continue to be in joint possession in law it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that the should be getting a share or some income from the property. So long as his right to a share and the nature of the property is not disputed, the law presumes that he is in joint possession. 12. Therefore, what the Court has to look into is the averment in the plaint. If in the plaint it is averred that the plaintiffs and defendants are in joint possession, notwithstanding the fact that they are living separately, even at two different places, in law it makes no difference. In the eye of law, in the case of co-parcenery, joint family or co-ownership, possession of one co-parcener or member of the joint family or co-owner is possession of all. Then the case would fall under Section 35(2) of the Act. In the eye of law, in the case of co-parcenery, joint family or co-ownership, possession of one co-parcener or member of the joint family or co-owner is possession of all. Then the case would fall under Section 35(2) of the Act. To take the case out of Section 35(2) there should be a clear and specific averment in the plaint that the plaintiff has been excluded from joint possession. In fact, in the case of co-parcenary or joint family property, the averment should be that the plaintiff has been ousted from possession. If the is a clear and specific averment in the plaint that they have been excluded form joint possession to which they are entitled to in law, then the case would fall under Section 35(1) of the Act. In a suit for partition, if the Court after trial records a finding that the plaintiff is not in possession and the plaintiff challenges the said finding, the correctness of the said finding has to be gone into by the Appellate Court. Therefore, as the finding has not attained finality, the question of the appellants paying Court fee on the basis of the said finding would not arise. Therefore, the High Court office cannot insist on payment of Court fee on the basis of the findings recorded by the Trial Court on the issue regarding possession. 13. In appeal, the Court fee payable is under Section 49 of the Act. Section 49 of the Act reads as under: 49. Appeals: [Save as provided in Section 48, the fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject matter of the appeal. Provided that, levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the Court of first instance or by the Court of appeal is pending; credit shall be given for the fee paid by such person in the appeal against the preliminary decree. 14.A reading of the aforesaid provision makes it very clear that the Court fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject matter of the appeal. The word used is “payable” and not merely ‘that paid’ in the Court of first instance. 14.A reading of the aforesaid provision makes it very clear that the Court fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject matter of the appeal. The word used is “payable” and not merely ‘that paid’ in the Court of first instance. By virtue of Section 15 the provisions of Sections 10 to 13 relating to the determination of levy of fee on plaints in suits, shall apply mutatis mutandis to the determination and levy of fee in respect of a memorandum of appeal. Therefore, when the question is raised about the Court fee payable on an appeal, the Court before which the appeal is filed is bound to decide the question whether the Court fee paid is sufficient or not. The proper Court fee payable would depend on the nature of the suit filed and the relief claimed and the relevant provisions of the Court fees Act in regard to the valuation for the purpose of Court fees. If the subject matter of the appeal is different from the subject matter in the suit, there would obviously be a difference in valuation for the purpose of Court fee. Explanation (1) to Section 49 makes the position clear. It is expressly provided that, whether the appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the Court of first instance. Explanation (2) to (5) has no application to a partition suit. 15. Section 11 of the Act deals with a decision as to proper fee in Courts to be paid. 16. Rule (4) (a) on which reliance is placed by the office reads as under: “(4)(a) : Whenever a case come up before a Court of appeal, it shall be lawful for the Court, either on its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon.” 17. A reading of the aforesaid provision makes it clear that, if there is a dispute regarding the Court fee payable and the said ground is urged in the appeal, the Court of appeal shall decide the question of Court fee also. If the Court of appeal decides that the fee paid in the lower Court is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it. If not paid, the consequence mentioned therein would follow. Therefore, it is the Court which has to decide what is the proper Court fee payable after hearing both the parties and not the Court office at the time of scrutinizing the appeal papers on the basis of the findings recorded by the Court below. What the office is expected to look into is, how the plaintiff has valued the suit in the Trial Court. In the appeal, the Court fee payable is, on the basis of what is paid by the plaintiff in the Trial Court. Even if the Trial Court has recorded a finding that, the Court fee paid is not sufficient, something more is payable and that finding is the subject matter of the appeal, then it is only at the final hearing of the appeal, Court of appeal has to decide the said question. The High Court office cannot insist on payment of Court fee on the basis of the finding recorded by the Trial Court, which is impugned in the appeal. 18. The maximum fee payable in a suit for partition where joint possession is pleaded is Rs.200/- by virtue of Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958. In an appeal preferred against the said judgment in the suit, the fee payable is, what is paid before the Court below, i.e., Rs.200/- notwithstanding the fact that the Trial Court has recorded a finding that the plaintiff was not in possession of the joint family property. 19. In that view of the matter, the office objection is overruled.