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PETITIONER: NEELAVATHI AND ORS.

       Vs.

RESPONDENT: M. NATARAJAN AND ORS.

DATE OF JUDGMENT30/11/1979

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1980 AIR  691            1980 SCR  (2) 307  1980 SCC  (2) 247

ACT:      Court Fee  payable-The question  of Court  fee  payable must be  considered in  the   of the allegations made in the plaint.      Tamil Nadu  Court Fees  and Suits Valuation Act-Section 37-Plaint allegation  is that  the plaintiffs  were in joint possession and  the prayer  was for  partition and  separate possession-The correct  court fee  payable  is  governed  be Section 37 (ii) and not 37 (i).

HEADNOTE:      The plaintiffs,  appellants filed  a suit for partition and separate possession of their individual share as per law and paid  a court  fee at the rates prescribed under section 37 (ii) of the Tamil Nadu Court Fees and Suit Valuation Act. There was  a specific  allegation that  they were  in  joint possession. The  Trial Court  decreed the  suit but directed the plaintiffs appellants to pay the court fec under Section 37 (ii)  of the  Act. As the difference in court fee was not paid the  trial Court  dismissed the  suit. Two appeals were filed by  the appellants  in the High Court, one against the decision that  they were  liable to  pay court  fee  (m  the market value  of the  property  under  section  37  (1)  and another against  the order  dismissing the  suit.  The  High Court heard  the two  appeals together  and disposed  of the appeals     accepting      the     contention     of     the respondents/defendants that  the Court fees are payable both on the plaint and on the memorandum of appeals under Section 37 (I ) of the Act.      Allowing the appeal by special leave, the Court ^      HELD: 1.  It is  settled law that the question of Court fee must  be considered  in the light of the allegation made in the  plaint and  its decision cannot be influenced either by the  pleas in  the written  statement  or  by  the  final decision of the suit on merits. All the material allegations contained in  the plaint  should be construed and taken as a whole. [311 D-E]      In the  instant case: (a) on reading of the plaint as a whole,  it   is  clear   that  throughout  the  plaint,  the plaintiffs/appellants have  asserted that they were in joint

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possession and  therefore the  observation of the High Court that recite  in  all  the  paragraphs  is  merely  a  formal statement repeating  the statutory  language is not correct. (b) the  plea that they were not given their due share would not amount to dispossession. Reading the plaint at its worst against the  plaintiffs, all that could be discerned is that as the  plaintiffs were not given their share of the income, they could  not remain  in joint  possession. The  statement that they  are not being paid their income. would not amount to having been excluded from possession. The averment in the plaint cannot  be understood  as stating that the plaintiffs were not  in possession.  In fact, the defendants understood the plaint  as stating  that the  plaintiffs  are  in  joint possession of  the suit  properties. In  paragraph 18 of the written statement the defendants pleaded 308 that the  plaintiffs have framed the suit as though they are in joint  possession and  enjoyment of  the suit properties. Asserting that  the plaintiffs  were out  of possession, the defendants stated: "while it is so, the allegation that they arc in  joint possession  of the  suit  properties,  is  not correct." The  mere fact  that the  plaintiffs were not paid their share  of the  income or were not in actual possession would not amount to the plaintiffs having been excluded from joint possession  to which  they are in law entitled.[1311D, 312 B-F]      S. Rm.  Ar. S.  Sri Cathanna Chettiar v. S. RM. Ar. Rm. Ramanathen Chettiar, [1958] SCR 1021 @ PP 1031-32; followed.      2. Under section 37(1) of the Tamil Nadu Court Fees and Suit Valuation  Act, relating  to partition suits, the Court fee  is   payable,  if  the  plaintiff  is  "excluded"  from possession of  the property. 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 section 37 (1) of the Act on the ground that they had been excluded from possession it is necessary  that there  should be  a  clear  and  specific averment in  the plaint  that they  had been "excluded" from joint possession  to which they are entitled in law [1313 B. D-F]      In the instant case:           (a) 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. [313 F-G]           (b)  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 interest  by devolution      under the Act. The property to which the plaintiffs are      entitled is  undivided ’joint  family property’, though      not in the strict sense of the term. [313 C-D]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3530 of 1 979.      Appeal by  Special Leave  from the  Judgment and  order dated 2-2-1979 of the Madras High Court in A.S. No. 924/74.      K. S. Ramamurthy, P. N. Ramalingam and A. T. M. Sampath for the Appellant.      K. Rant Kumar and K. Jayaram for the Respondent. 309      The Judgment of the Court was delivered by      KAILASAM, J.-The  appellants in  the appeal  by special leave are plaintiffs 1 to 5 in the suit. The plaintiffs 1 to 5 are  sisters and defendants 1 to 2 are their brothers. The third defendant  is their  unmarried sister.  They  are  the children of  the  late  Muthukumaraswamy  Gounder  who  died intestate  on   20-12-1962  leaving  his  father  Vanavaraya Gounder who  was managing  all the  ancestral  joint  family property as  the head  of the  Hindu Undivided  Joint Family till his  death on  5-3-1972. The plaintiffs claimed that on the death of Muthukumaraswamy Gounder his 1/3rd share in the joint family  property devolved  on his  sons and daughters, his sons,  defendants 1  and 2  taking 1/3rd   share each in l/3rd share  of the  family property  by birth  and  in  the balance all  the  sons  and  daughters  of  Muthukumaraswamy Gounder taking  an equal  share each. The plaintiffs claimed to have been in joint possession of the properties alongwith Vanavaraya Gounder  and his  other sons.  Similarly  on  the death of  Vanavaraya Gounder,  his 1/3rd share in the family properties devolved  upon  his  heirs,  the  plaintiffs  and defendants 1  to 3  being entitled  to certain  shares.  The claim in  the plaint  is that  each  of  the  plaintiffs  is entitled to  a share in the suit properties as heirs to Late Muthukumaraswamy  Gounder   and  also   as  heirs   to  late Vanavaraya  Gounder,   their  grand-father.  Each  plaintiff claimed that  she was  entitled to  1/72 share  in the  suit properties as heirs to their father Muthukumaraswamy Gounder and also  to 1/96  share  as  heirs  to  their  grand-father Vanavaraya Gounder.  It was alleged in the plaint that since the death  of Vanavaraya  Gounder, defendants  nos. 1  to  6 failed to  give the plaintiffs their share of income and the plaintiffs  could   not  remain  in  joint  possession.  The plaintiffs repeatedly  demanded partition and the defendants 1 to 6 were evading. The plaintiffs claimed that each of the plaintiffs as  co-owners are in joint possession of the suit properties and  this action  was laid  to convert  the joint possession into  separate possession so far as the shares of the plaintiffs  are concerned. For the purposes of court fee and jurisdiction,  the plaintiffs  valued their share of the property and paid court fee of Rs. 200 under S. 37(2) of the Tamil Nadu  Court Fees  and Suits  Valuation Act. The relief prayed for  was for  partition of  the  properties  and  for allotment of  their separate  share, for  accounts  and  for other reliefs.      In the  written statement,  the defendants  1 to 2, the brothers, con-  tended that  the properties  were divided in the year  1946 during  the  life  time  of  Muthukumaraswamy Gounder  and   that  Muthukumaraswamy   was   enjoying   the properties separately. Regarding possession of 310 the plaintiffs,  defendants l to 3 the contesting defendants alleged in  paragraph 18 of the written statement as follows :-

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         "The suit  as framed  is not  maintainable in law.      The plaintiffs  have framed the suit as though they are      in  joint   possession  and   enjoyment  of   the  suit      properties. The  plaintiffs are  out of  possession and      they are  living in  different villages. While it is so      the allegation  that they  are in joint possession v of      the suit properties is not correct. The plaintiff ought      to J  have paid  court fee  under S. 37(i) of the Court      Fees Act and not under 37(ii) of the Act. They ought to      have paid the court fee at the market value of the suit      properties and  unless the court fee at the market rate      is paid they arc not entitled to claim any share."      The Subordinate  Judge who tried the suit did not frame any preliminary  issue regarding court fee as required under S. 12  of the  Court Fees  Act but  proceeded to try all the issues together.  The Subordinate  Judge granted preliminary decree for  partition and possession of the plaintiffs’ 1/72 share in  B. Schedule  properties, and  to certain shares in deposit in State Bank of India at Pollachi, and to the share in the  Gnanambika Mills,  on payment  of court  fees by the plaintiffs under  S. 37(i)  of the Court Fees Act. The Court granted time for payment of court fee till 15-2-1973. As the court fee  was not paid, the Trial Court dismissed the suit, by its judgment dated 7-2-1974.      The plaintiffs  filed two  appeals-A.S. No. 811 of 1975 against the  decision of  the Subordinate Judge holding that the plaintiffs  are liable  to pay  court fee  on the market value of  the property  under S. 37(1) of the Court Fees Act and A.S.  No. 924  of 1974  against the order dismissing the suit.      The High  Court heard  both the  appeals  together  and disposed them  of by  a common  judgement. When  the appeals were taken up, the defendants/respondents contended that the court fee  ought to  have been  paid on  the plaint under S. 37(1) and  also on  the memorandum of appeal before the High Court and  as the  proper court  fee has  not keen paid, the appeals ought  to be  dismissed. The High Court accepted the contention raised  by  the  defendants  and  held  that  the plaintiffs arc  liable to pay court fee under S.37(1) of the Tamil Nadu  Court Fees Act. In coming to its conclusion, the High Court  mainly relied  on .  paragraph 12  of the plaint which reads as follows:-           "Since  the   death  of   Vanavaraya  Gounder  the      defendants 1  to 6  failed to give the plaintiffs their      share of income and 311      the plaintiffs  could not  remain in  joint possession.      Therefore, the plaintiffs repeatedly demanded partition      and the  defendants  1  to  6  were  evading.  The  3rd      plaintiff  sent   a  notice   through  her  counsel  to      defendants 1,  2 and  5  to  which  the  3rd  plaintiff      received  replies   containing  false   and   untenable      allegations." The High Court proceeded to observe that while the statement that The  plaintiffs- were  in  joint  possession  with  the defendants occurring  in other  paragraphs of  the plaint is merely a  formal statement repeating the statutory language, the statement  contained  in  paragraph  12  of  the  plaint constitutes a  statement of  fact in  the context  in  which paragraph 12  occurs and  consequently paragraph  12 of  the plaint contains  a clear  averment that the plaintiffs could not remain  in joint  possession and that was the reason why they repeatedly  demanded partition.  If so,  on the date of the suit,  the plaintiffs  were not  in possession. The High Court held  that court  fee is payable under S. 37(1) of the

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Court Fees Act. D      On reading  of the  plaint as a whole, we arc unable to agree with  the view  taken by the High Court. It is settled law that the question of court fee must be considered hl the light of  the allegation made in the plaint and its decision cannot be  the either  by the pleas in the written statement or by  the final  decision of  the suit  on merits.  All the material allegations contained in the plaint should should be construed and taken as a whole vide S. Rm . Ar. S. Sp. Sathappa Chettiar v. S. Ram Ar. Rm. Ramanathan Chettiar. The plaint  in  paragraph  5  states  that  Muthukumaraswamy Gounder died  intestate and undivided and Muthukumaraswamy’s father Vanavaraya  Gounder was  managing all  the  ancestral joint family  property as  the head  of the  Hindu undivided joint family  till his  death. In paragraph 8 the plaintiffs stated that  on the  death of  Muthukumaraswamy Gounder  his 1/3rd share in the joint family properties devolved upon his sons and  daughters. It  further alleged that the plaintiffs were  in   joint  possession  of  the  properties  alongwith Vanavaraya Gounder and his other sons. In paragraph 9, it is stated that each of the plaintiffs is entitled to a share in the suit  properties as  heirs of  the late Muthukumaraswamy Gounder and  also as heir of the late Vanavaraya Gounder. In paragraph  11,   it  is  stated  that  since  the  death  of Vanavaraya Gounder  defendants 1  to  6  are  receiving  the income from  the properties and are liable to account to the plaintiffs. In  paragraph 12,  it is  stated that  since the death of Vanavaraya Gounder defendants 1 to 6 failed to give the 312 plaintiff their share of income and the plaintiffs could not remain  in   joint  possession.   Therefore  the  plaintiffs demanded partition  and the  defendants 1 to 6 were evading. Again in  paragraph 13,  it is  claimed  that  each  of  the plaintiff as  co-owners is  in joint  possession of the suit properties? and  this action  is laid  to convert  the joint possession into  separate possession so far as the shares of the plaintiffs  are concerned.  Throughout the  plaint,  the plaintiffs have  asserted that they are in joint possession. We are  unable to agree with the High Court that recitals in all the  paragraphs is  merely a formal statement repeating. the statutory  language. The  plea in paragraph 12 which was relied on  by the High Court states that the defendants 1 to 6 failed  to give  the plaintiffs  their share of the income and the plaintiffs could not remain in joint possession. The plea that  they were  not given  their due  share would  not amount to  dispossession. Reading  the plaint  at its  worst against the  plaintiffs, all that could be discerned is that as the  plaintiffs were not given their share of the income, they could  not remain  in joint  possession. The  statement that they  arc not being paid their income, would not amount to having been excluded from possession. The averment in the plaint cannot  be understood  as stating that the plaintiffs were not  in possession.  In fact, the defendants understood the plaint  as stating  that the  plaintiffs  are  in  joint possession of  the suit  properties. In  paragraph 18 of the written  statement   the  defendants   plaintiff  that   the plaintiffs have  framed the suit as though they are in joint possession and  enjoyment of  the suit properties. Asserting that the  plaintiffs were  out of possession, the defendants stated: "While  it is  so the  allegation that  they are  in joint possession of the suit properties, is not correct."      The Trial  Court has  not placed  any reliance  on  the recitals in  para 12  of the plaint on which the judgment of the High  Court is  based. The Trial Court found on evidence

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that the plaintiffs never enjoyed the suit properties at any time. This finding is not enough for, the mere fact that the plaintiffs were  not paid  their share of the income or were not in  actual physical  possession, would not amount to the plaintiff.; having  been excluded  from joint  possession to which they  arc in  law entitled.  On a consideration of the plaint as  a whole and giving it its natural meaning, we are unable to  agree with  the conclusion arrived at by the High Court.      S. 37  of the  Tamil Nadu Court Fees and Suit Valuation Act  n  relates  to  Partition  Suits.  S.  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 313      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(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      rates prescribed.      It will  be seen that the court fee is payable under S. 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 S.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 S. 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 in  law.  The  averments  in  the  plant  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 the  result the  appeal is  allowed with cost. As we have found  that the  Trial Court  was in error in directing the plaintiffs  to pay  the court  fee under  S. 37(1),  the preliminary decree  for partition  and  possession  of  1/72 share in the B. Schedule properties and the shares in 314

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deposit in State Bank of India at Pollachi, and in the share in the  Gnanambika Mills, is confirmed. The direction by the Trial Court as to payment of Court Fee under S. 37(1) of the Court Fees  Act and  the judgment  of the High Court in A.S. No. 924/1974 and A.S. 811 /75 are set aside. S.R.                                         Appeal allowed. 315