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Sunday, October 2, 2016

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 = 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.

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
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]



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
:-
 "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
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
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
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



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