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CASE NO.: Appeal (civil)  4739 of 2006

PETITIONER: Jagannath Amin

RESPONDENT: Seetharama (dead) by lrs. and Ors.

DATE OF JUDGMENT: 09/11/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising Out of S.L.P. (C) No.6221 of 2003)

ARIJIT PASAYAT, J.

       Leave granted.

                Challenge in this appeal is to the order passed by a  learned single judge of the Karnataka High Court dismissing  the Civil Revision Petition filed by the appellant.  

Challenge before the High Court was to the order passed  by learned First Additional Civil Judge, Junior Division,  Mangalore, holding that Section 35(1) of the Karnataka Court  Fee and Suit Valuation Act, 1958 (in short the ’Act’) was  applicable and not Section 35(2) of the said Act in a suit for  partition relating to agricultural land.  Originally the suit was  filed by the appellant’s mother. She had filed the suit for  partition of the scheduled property claiming that the same  should be divided into two equal shares by meets and bounds  through the process of Court. Plaintiff had filed suit under  Section 7(2)(d) of the Act and paid court fee of  Rs.200/- under  Section 35(2) of the Act. Four defendants filed written  statement. Defendant Nos. 2 and 3 also filed written statement  separately. After hearing the appellant, learned First  Additional Civil Judge framed several issues on 19.12.1998.   Appellant contended before the trial court that being a co- owner under the law she is presumed to be in constructive   possession of the property and as such court fee is to be paid  on the deemed market value and not on actual market value.   Plaint scheduled property being agricultural property as such  court fee is valued under Section 7(2)(d) of the Act and she  cannot be compelled to value the said under Section 35(1) of  the Act being a co-owner in respect of the plaint scheduled  property along with the defendants. Defendants took the stand  that the property is not agricultural property and is a house  site and as such court fee under Section 35(1) of the Act is to  be paid on the actual market value and not on deemed market  value.

When PW1 was examined during the cross examination  of the said witness the defendant No. 4 filed an I.A. under  Order XIV, Rule 2(2) of the Code of Civil Procedure, 1908 (in  short the ’C.P.C.’) for framing additional issues and the same  was allowed.  Accordingly three additional issues were framed.   Thereafter, defendant No.4 again filed an I.A. under Order XIV

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Rule 2(2) CPC for taking up additional issue No.3 i.e. regarding  payment of court fee as preliminary issue.  The trial court was  of the view that additional issue No.3 cannot be tried as a  preliminary issue and posted the matter for consideration of  all issues. Challenging the said order revision was filed before  the High Court which disposed of the application stating that  the defendant will be at liberty to adduce evidence on the  court fee issue as permissible under law. Thereafter the matter  proceeded. Again four defendants preferred revision before the  High Court questioning direction of the trial court to adduce  evidence on all issues.  The High Court directed the trial court  to treat additional issue no.3 as a preliminary issue and that  is how the said issue was framed as preliminary issue.  The  trial court held that Section 35(1) of the Act was applicable  and not Section 35(2) of the Act.  The same was challenged by  the appellant before the High Court. As noted above, the High  Court dismissed the revision petition. The High Court held  that though it is true that there is a graded scale under  Section 35(2) of the Act which applies to partition suits etc. the  trial court had "perhaps" rightly gone into special  requirements and has concluded that Section 35(1) would  apply to the facts of the present case.

Learned counsel for the appellant submitted that the  approach of the High Court is clearly erroneous.

Learned counsel for the respondents on the other hand  supported the judgments of the trial court and the High Court.

Identical issues came for consideration before the same   High Court in T.K. Srinivasamurthy & Ors. v. T.  Seetharamaiah and Ors. (AIR 1990 Karnataka 149).  In para 4  of the judgment it was noted as follows:   "That question came up for consideration  in CRP 309 of 1987 disposed of on Dec. 2nd,  1988 by one of us. Following the decision of  Supreme Court in the case of Neelavathi v.  Natarajan (1980) 1 Kant U (SN) Item 126: (AIR  1980 SC 691), concerning S. 37 of the Tamil  Nadu Court Fees and Suits Valuation Act,  which is in pari materia with S. 35 of the Act,  it was held that in a partition suit, plaintiff or  plaintiffs was only required to set out the joint  family properties in respect of which she or  they sought partition and separate possession  and pay court fee in accordance with sub-sec.  (2) of S. 35 of the Act. The Supreme Court had  expressed the following view in Neelavathi’s  case (AIR 1980 SC 691):

"126. Court feels pay able 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

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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."

Similar provisions were examined by this Court in M/s.  Commercial Aviation and Travel Company and others v. Mrs.  Vimla Pannalal (AIR 1988 SC 1636) it was noted as follows:

"In this connection, we may refer to a five  Judge Bench decision of this Court in S. Rm.  Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm.  Ramanathan Chettiar, 1958 SCR 1021(1024) :  (AIR 1958 SC 245 at pp. 251-52)  Gajendragadkar, J. speaking for the Court  observed as follows:

"If the scheme laid down for the  computation of fees payable in suits  covered by the several sub-sections of  S. 7 is considered it would be clear  that in respect of suits falling under  sub-s. (iv), a departure has been made  and liberty has been given to the  plaintiff to value his claim for the  purposes of court-fees. The theoretical  basis of this provision appears to be  that in cases in which the plaintiff is  given the option to value his claim, it is  really difficult to value the claim with  any precision or definiteness. Take for  instance the claim for partition where  the plaintiff seeks to enforce his right  to share in any property on the ground  that it is joint family property. The  basis of the claim is that the property  in respect of which a share is claimed  is joint family property. In other words,  it is property in which the plaintiff has  an undivided share. What the plaintiff  purports to do by making a claim for  partition is to ask the court to give him  certain specified properties separately  and absolutely on his own account for  his share in lieu of his undivided share  in the whole property. Now it would be  clear that the conversion of the  plaintiff’s alleged undivided share in  the joint family property into his  separate share cannot be easily valued  in terms of rupees with any precision  or definiteness. That is why legislature  has left it to the option of the plaintiff  to value his claim for the payment of  court-fees. It really means that in suits  falling under S. 7(iv)(b) the amount  stated by the plaintiff as the value of  his claim for partition has ordinarily to  be accepted by the court in computing  the court-fees payable in respect of the  said relief. In the circumstances of this

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case it is unnecessary to consider  whether, under the provisions of this  section, the plaintiff has been given an  absolute right or option to place any  valuation whatever on his relief."

In the above decision, this Court took  the view that the conversion of the plaintiff’s  undivided share in the joint family property  into his separate share cannot be easily valued  in terms of rupees with any precision or  definiteness. It is true that the Court did not  consider whether the plaintiff had been given  an absolute right or option to place any  valuation whatever on his relief under the  provision of Section 7(iv) of the Court-fees Act,  but the difficulty that would be felt by the  Court in exercising its power under Order VII,  Rule 11(b) of the Code of Civil Procedure is  that if it is unable to determine the correct  value of the relief, it cannot direct the plaintiff  to correct the valuation. Order VII, Rule 11(b)  contemplates correct valuation and not  approximate correct valuation and such  correct valuation of the relief has to be  determined by the Court. If the Court cannot  determine the correct valuation of the relief  claimed, it cannot require the plaintiff to  correct the valuation and, consequently. Order  VII, Rule 11(b) will not be applicable."

Reference was also made to the decision in Neelavathi  and Ors. v. N. Natarajan and Others (AIR 1980 SC 691).  In  para 8 this court while considering the identical provision of  the Tamil Nadu Court Fee and Suits Valuation Act, 1955  stated as follows:

"8. Section 37 of the Tamil Nadu Court  Fees and Suits Valuation Act relates to  Partition Suits. Sec. 37 provides as follows:

"37 (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.

"37 (1) 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 rates prescribed."

It will be seen that the Court Fee is nay- able  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. Under the proviso  to Section 6 of the Hindu Succession Act, 1956  (Act 30 of 1956) the plaintiffs being the

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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 had been excluded from  possession."

In view of what has been stated in M/s Commercial  Aviation’s case (supra) and Neelavathi’s case (supra) the view  of the trial judge as affirmed by the High Court cannot be  sustained.

The order of the High Court is set aside.  The appeal is  allowed but without any order as to costs.