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2015 DIGILAW 1544 (MAD)

. v. .

2015-03-19

S.VIMALA

body2015
Judgment :- S. Vimala, J. 1. This Application has been filed by the second defendant in C.S.No.733 of 2008 seeking direction to the plaintiff to correct the valuation of the suit in the plaint and to pay requisite ad-valorem court fee on such corrected valuation and in the event of failure to reject the plaint. The plaintiff is the first respondent and defendants 1 and 3 are respondents 2 and 3. 2. This application has been filed on two grounds, viz., that (a) the plaintiff has undervalued the suit property and the plaintiff, as D.W.1, in TOS No.3 of 2009, has admitted that the valuation of the suit property (Royapettah house property) (Schedule-A) is worth more than 4 crores; and (b) the plaintiff has admitted that he is not in joint possession of plaint A, B and C schedule properties. 3. The suit has been filed by the plaintiff in C.S.No.733 of 2008 seeking the relief of partition and separate possession. The Court fee has been paid under Section 37 (2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 (hereinafter will be referred to as “the Act”) on the pretext that the plaintiff is in joint possession of the property. 4. The contention of the learned counsel for the Applicant / D-2 is that the Court fee ought to have been paid under Section 37 (1) of the Act, as the plaintiff has admitted that he is not in joint possession. 4.1. In view of the contention raised, there are only two issues to be considered in this Application, viz., 1. Whether there is an admission by the plaintiff that he is not in joint possession of the suit property? 2. Whether there is any material on record to come to the conclusion that the suit property has been under valued? 4.2. In view of the contention raised, there are only two issues to be considered in this Application, viz., 1. Whether there is an admission by the plaintiff that he is not in joint possession of the suit property? 2. Whether there is any material on record to come to the conclusion that the suit property has been under valued? 4.2. The learned counsel for the Applicant pointed out the two provisions available, i.e., one under Order 7 Rule 11 CPC providing for rejection of plaint, in case when the relief claimed is under-valued and despite the opportunity given by the Court to pay the deficit court fee, there is non-compliance on the part of the plaintiff and the other provision is under Order 2 Rule 3 of the Madras High Court Original Side Rules, which is in pari materia with Order 7 Rule 11 (b) of the Code of Civil Procedure, under which when a suit is under-valued the Court may require the plaintiff to make good the deficiency failing which it is open to the Court to dismiss the suit. The two provisions are extracted here-under for convenient reference:- Order 2 Rule 3 of the Madras High Court Original Side Rules, 1994:- “If during the hearing of a suit, it appears to the Court that the suit is undervalued or that the stamp affixed to the plaint is insufficient, the Court may require the plaintiff to make good the deficiency within a time fixed by it and in default dismiss the suit.” Order 7 Rule 11 (b) of the CPC:- “11. Rejection of plaint. - The plaint shall be rejected in the following cases:- (a) ..... (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) .......” 4.3. Out of these two provisions, which will prevail is the issue next raised in this Application. 4.4. The learned counsel for the Applicant referred to various provisions under Part X of the CPC (Sections 121 to 131 of CPC) which speak on rules. Out of these two provisions, which will prevail is the issue next raised in this Application. 4.4. The learned counsel for the Applicant referred to various provisions under Part X of the CPC (Sections 121 to 131 of CPC) which speak on rules. Sections 121, 122, 129 and 131 of the CPC read thus:- “121. Effect of Rules, in First Schedule:- The rules in the First schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part.” “122. Power of High Court to make rules:- High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annual alter or add to all or any of the rules in the First Schedule.” “129. Power of High Courts to make rules as to their original civil Procedure:- Notwithstanding anything in this Code, any High Court not being the Court of Judicial Commissioner may make such rules not inconsistent with the Letter Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code. 131. Publication of Rules:- Rules made in accordance with Section 129 or .... shall be published in the Official Gazette and shall from the date of publication or from such other date as may be specified have the force of law.” 4.5. It would be appropriate to refer Section 4 (1) of the CPC, dealing with delimiting power of the Civil Procedure Code, which reads thus:- “4. Savings. - (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.” 4.6. This Court is of the considered view that Order 1 Rule 3 of the Madras High Court Original Side Rules, 1994, (hereinafter referred to as “the Rules”) provides answer to these contentions. This Court is of the considered view that Order 1 Rule 3 of the Madras High Court Original Side Rules, 1994, (hereinafter referred to as “the Rules”) provides answer to these contentions. Order 1 Rules 3 of the said Rules reads under:- “Repeal and Supersession. Rule 3. Except to the extent specifically provided for by these rules, the provision of this Code shall apply to all proceedings. The rules and forms mentioned in Appendix III hereto and all previous rules and forms, and the provisions of the Code, so far as such provisions are inconsistent with these rules and forms, are hereby repealed, superseded and the following rules, orders and forms shall stand in lieu thereof.” 4.7. As per this provision, if the rules on the Original Side did not provide for any solution, then it is open to the Court to apply the provisions of the Code of Civil Procedure. So far as this case is concerned, the factual situation is governed by Order 2 Rule 3 of the Rules. Therefore, this Application has to be considered only in terms of Order 2 Rule 3 of the Rules. 5. C.S.No.733 of 2008 has been filed by the plaintiff, M.K.Ravi, as against his brother (D-1) and her two sisters (D-2 and D-3) seeking the relief of partition in respect of three schedules of suit property. All the three schedules of property have been totally valued at Rs.2,00,00,000/- and in respect of plaintiff's 1/4th share, namely, Rs.50,00,000/-, Court fee of Rs.1,000/- has been paid, in respect of the relief of partition. 5.1. T.O.S.No.3 of 2009 (O.P.No.693 of 2008) has been filed by P.Archana (daughter of the second defendant in C.S.No.733 of 2008) as against M.K.Ravi, plaintiff, in C.S.No.733 of 2008, seeking the relief of grant of Letters of Administration with the last Will dated 15.03.1995, annexed to it. 5.2. In this T.O.S., in paragraph 9 of the affidavit filed in this support of the petition, Schedule A of the suit property has been valued at Rs.80,00,000/-. 5.3. It is the contention of the learned counsel for the Applicant/ D-2 that the value of 'A' Schedule property alone would worth Rs.4,00,00,000/- as admitted in the evidence, by the plaintiff himself and therefore, the plaintiff must be directed to effect corrections in the valuation and be required to pay the deficit ad valorem Court fee. 6. 5.3. It is the contention of the learned counsel for the Applicant/ D-2 that the value of 'A' Schedule property alone would worth Rs.4,00,00,000/- as admitted in the evidence, by the plaintiff himself and therefore, the plaintiff must be directed to effect corrections in the valuation and be required to pay the deficit ad valorem Court fee. 6. In order to appreciate this contention, it is necessary to look into the nature of admission made by D.W.1 in the evidence. 6.1. What is stated in evidence reads thus :- “It is true that in paragraph 10 of my written statement filed in T.O.S.No.3/2009, I have stated that Royapettah House Property is more than Rs.4 crores.” 6.2. This written statement has been filed on 17.12.2009. The valuation of the property as on 17.12.2009 may be more than Rs.4 crores. This admission in the written statement cannot be taken to be the valuation as on the date of presentation of the plaint in C.S.No.733 of 2008, which was filed on 11.07.2008, i.e., one year and five months before. 6.3. When the Applicant's daughter herself has stated that the valuation of the suit property as Rs.80 lakhs, the contention of the Applicant that the valuation of the property should be taken as Rs.4 crores cannot be accepted, especially when there is no evidence or material to come to the conclusion that the valuation of the property as on the date of the presentation of the plaint was more than Rs.4 crores. 7. The next question to be decided is, whether the plaintiff has admitted that he is not in joint possession of the property. 7.1. Contending that the plaintiff has admitted that he is not in joint possession and towards proving the same, the learned counsel for the applicant drew the attention of this Court to the answer given by the plaintiff, in respect of a question put to him with regard to valuation of the suit property and the question and answer runs thus: “Q:- I put it to you that your valuation of the suit properties in the plaint, as well as payment of court fee is only to defraud the revenue? A:- I deny the suggestion. I am not in joint possession of plaint A, B & C schedule properties and no other legal heirs of my mother K.Saroja Bai are in possession of the same.” 7.2. A:- I deny the suggestion. I am not in joint possession of plaint A, B & C schedule properties and no other legal heirs of my mother K.Saroja Bai are in possession of the same.” 7.2. In order to appreciate this answer, it is necessary to look into the basis of claim made for partition. It is the case of the plaintiff that in the partition between the mother and the legal heirs, namely, the plaintiff and the defendants, suit property was allotted to the share of the mother, K.Saroja Bai in the partition that took place on 02.12.1994; that Saroja Bai died on 02.06.1999; that after the death of Saroja Bai the plaintiff and the defendants became entitled to the property as legal representative and each of them are entitled to 1/4th share. The sum and substance of the pleadings would go to show that after the death of the mother, the plaintiff and the defendants are deemed to be in joint possession of the property. When it is stated in the evidence that nobody is in possession of the property and when the pleadings indicate presumptive joint possession, the evidence must be interpreted as the plaintiff having meant the actual physical residence as possession. In other words, the plaintiff has understood that actual physical entry into the property alone would mean possession, which is the understanding of a common man. But the Court should not be carried away by the language used by the common man and the Court is duty bound to interpret the same legally. Therefore the evidence adduced would show that the plaintiff and the defendants must be deemed to be in joint possession of the property. 7.3. The answer, referred to above, is only an indication that nobody is in possession by actual residence in the property, including the plaintiff and it does not mean that nobody is in possession in legal sense of the term. 8. Whether the admission would amount to admitting that he is neither in possession nor in joint possession of the property, in terms of Sections 37 (1) / 37 (2) of the Act? 8.1. It would be relevant to consider the bare provision of Section 37 of the Act, which reads as under:- 37. Partition suits. 8. Whether the admission would amount to admitting that he is neither in possession nor in joint possession of the property, in terms of Sections 37 (1) / 37 (2) of the Act? 8.1. It would be relevant to consider the bare provision of Section 37 of the Act, which reads as under:- 37. 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 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:-- When the plaint is presented to – (i) a District Munsif's Court. Rupees one hundred. (ii) the City Civil Court, Chennai or a Sub-Court or a District Court. Rupees one hundred, if the value of plaintiffs share is rupees thirty thousand or less; rupees five hundred, if it is above rupees thirty thousand but below rupees one lakh; and rupees seven hundred and fifty, if the value is rupees one lakh and above. (iii) The High Court. Rupees one thousand (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.” 8.2. Requirement under Section 37 (2) of the Act has to be considered along with the requirement under Section 37 (1) of the Act to interpret and understand what is contemplated by joint possession. The phrase “joint possession” has to be interpreted, viz-a-viz., exclusion from possession. If a person is not proved to be excluded from possession, then he is presumed to be in joint possession. The phrase “joint possession” has to be interpreted, viz-a-viz., exclusion from possession. If a person is not proved to be excluded from possession, then he is presumed to be in joint possession. The word 'joint possession' has been interpreted in the decision reported in Neelavathi v. N.Natarjan, AIR 1980 SC 691 : (1980) 2 SCC 247 : (1980) 2 MLJ 21 (SC) : (1980) 2 SCR 307 and the observation reads as under:- “Joint possession – If not to a share and joint nature of the property remains unimpaired,joint possession is presumed in law unless the exclusion is established by clear and specific averments in the plaint. Exclusion from possession of joint property is essential for application of sub-section (1) of Section 37.” 8.3. It has been held in the case of Kurivakkatt Chacko v. O.Ayissumma reported in (1966) Ker.L.J. 1111 : 1966 Ker.L.T. 1061 : AIR 1967 KER 176 : 1966 Ker L.R. 614 that in a partition suit alleging joint possession and appropriation of the entire income by the defendant, the Court-fee has to be paid under Section 37 (2) of the Act and that mere appropriation of profits or even exclusive use of property does not amount to exclusion. 9. Therefore, it is clear that unless exclusion is alleged and proved, the defendants cannot contend that court fee payable is under Section 37 (1) of the Act. 9.1. In other words, actual physical possession by residing in the suit property is not a sine qua non to claim that a person is in joint possession of the property. 10. Therefore, the direction sought for by the Applicant / D-2 cannot be granted and the Application is liable to be dismissed. 10.1. In the result, this Application is dismissed. The matter shall be placed before the Master for continuation of evidence.