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
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
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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
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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
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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.
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