Allahabad High Court
Mohd. Yamin And Others vs Mulla Abdul Sattar And Others on 22 May, 2000
Equivalent citations: 2000(3)AWC2219
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. The short question that has been raised in this revision is whether in the facts and circumstances of the present case, the court fee payable by the plaintiffs-revisionists shall be in accordance with the provisions of Section 7(vi-A) of the Court Fees Act, 1870, on one-fourth of the value of the share of the plaintiffs and on the full value of the share of the plaintiffs.
2. The plaintiffs-revisionists filed Suit No. 104 of 1997, alleging that the common ancestor of the plaintiffs and the defendants was one Nanhe who had two sons Abdul Ghani and Abdul Kareem. The plaintiffs are heirs of the daughter of Abdul Ghanl whereas defendants are descendants of Abdul Kareem. Abdul Ghani had no male descendant and on his death, he was survived by his widow and daughter. On the death of widow of Abdul Ghani, his daughter inherited the share of Abdul Ghani and on her death, her heirs and legal representatives, viz. the present plaintiffs succeeded to the share of Abdul Ghani in the suit property. The defendants are grandchildren of the other co-sharer Abdul Kareem. The plaintiffs claim that they had one half share in the suit property being co-owners of the same. The plaintiffs, in the month of April. 1997, asked the defendants to partition the suit property but they refused to partition the same and thereafter the plaintiffs made enquiries from the Municipal Board. Tanda and got extracts from the Assessment Register for the year 1939-40 and 1966-67. On perusal of the same, they learnt that Abdul Gafoor one of the defendants manipulated the entries in the Municipal records and got entries in their names instead of getting entries recorded in the joint names of the plaintiffs' mother and the defendants. The defendants are intending to dispose of the suit property. On these allegations, a suit was filed for the relief with regard to the partition of the suit property after declaring one-half share of the plaintiffs and for delivery of actual possession of the portion of the suit property after its partition and for restraining the defendants from transferring the suit property. They also prayed for a decree of pendente-lite and future mesne profits at the rate of Rs. 400 per month.
3. Defendant Nos. 1 to 3 and 5 to 8 contested the suit alleging that house No. 1339 was self-acquired property of Abdul Kareem which he had purchased from Mohd. Ibrahlm vide registered sale deed dated 26.5.1955. It was further stated that the house had fallen down being a dilapidated one and there was a family settlement between the three sons of Abdu) Kareem. Abdul Jabbar, since dead and Abdul Sattar, defendant No. 1, had surrendered their interest in the said house through a deed dated 10th April. 1966, for a sum of Rs. 99. It was further pleaded that towards east of house No. 1339, there existed house No. 1313. As regards other properties, i.e.. house Nos. 1333, 1334, and Chak No. 1343, it was pleaded that originally the said properties belonged to Nanhe father of Abdul Ghani and Abdul Kareem of whom the plaintiffs and defendants respectively are descendants. It was admitted that both the sons had half share each in the property of Nanhe. On the death of Abdul Ghani, his widow and daughter had 5/16 share only and the nephews of Abdul Ghani had 3/16 share in the property. Abdul Kareem had one half share in the suit property. There was a family settlement in respect of the three houses between the heirs and legal representatives of Abdul Ghani and Abdul Kareem. The plaintiffs maternal grandmother and their mother had surrendered their interest in the above three houses in favour of Abdul Jabbar and Abdul Sattar sons of Abdul Kareem on a consideration of Rs. 700 and had executed a document dated 10th April. 1956, and the said family settlement was acted upon. Under the said agreement Abdul Sattar had become sole owner of House Nos. 1333 and 1334, and on his death his heirs succeeded to the said property. In respect of House No. 1343, also there was a settlement between the co-sharers. This house was allotted to the share of Abdul Jabbar and defendant Nos. 2 and 3, and a document of settlement was executed on 10th April. 1966. The maternal grand-mother and mother of the plaintiffs had surrendered their rights in the said house for a consideration of Rs. 300. Thus, the plaintiffs now have no share or title in the suit property nor they are in possession of the same.
4. The plaintiffs had paid court fee on l/4th of the value of their share in the suit property as claimed by them. The defendants had raised objection as to the valuation of the suit property as well as to the sufficiency of the court fee paid. The trial court decided the issue of valuation of the suit property on a joint statement of the parties and fixed its market value at Rs. 3,50,000. Thereafter the plaintiffs paid court fee on 1/4th of the value of their half share viz, at Rs. 43,750. On the issue of sufficiency of court fee payable by the plaintiffs, the Court held against the plaintiffs and in the above facts and circumstances, the trial court took the view that the court fee was payable on the whole market value of the share of the plaintiffs as claimed by them. It is this order of the trial court which is being challenged in this revision.
5. The submission of Sri Pradeep Saxena, learned counsel for the revisionists is that since the plaintiffs claim that they are co-sharers in the suit property, they will be deemed to be in constructive possession over the suit property. Therefore, the court fee would be payable on l/4th value of the share of the plaintiffs in the suit property and they have rightly paid the court fee on 1/4th value of their share in the suit property. The trial court has, therefore, committed error in directing payment of court fee on the whole value, of the share of the plaintiffs in the suit property.
6. Section 7(vi-A) of the Court Fees Act. 1870, reads as follows :
"7 (vi-A)/or partition.--in suits for partition-according to one-quarter of the value of the plaintiff's share of the property.
and according to the full value of such share if on the date of presenting the plaint, the plaintiff is out of possession of the property of which he claims to be a coparcener or co-owner, and his claim to be a coparcener or co-owner on such date is denied.
Explanation--The value of the property for the purposes of this sub-section shall be the market value which in the case of immovable property shall be deemed to be the value as computed in accordance with sub-section (v), (u-A), or (u-B) as the case may be."
7. The payment of court fee on l/4th of the value of the plaintiffs share in the property in a suit for partition is the normal rule. This is. however, subject to the exception that where on the date of presenting the plaint, the plaintiff is out of possession of the property and his claims to be co-owner in such property on the date of presentation of suit is dented, then the court fee payable shall be on the full value of the share.
8. There is no dispute that the plaintiffs have claimed one half share in the suit property though according to the defendants on the death of Abdul Ghani, the share of widow of Abdul Ghani and his daughter would be only 5/16. The plaintiffs in their plaint have made an averment that the plaintiffs throughout remained in Haldwani. There is no averment in the plaint that they are in possession of any portion of the disputed property. The submission of Sri Pradeep Saxena is that possession of co-sharer in the suit property is deemed to be possession on behalf of all the co-sharers and thus the plaintiffs were in constructive possession of the suit property. The constructive possession shall be presumed only when there is no dispute with regard to the plaintiffs being co-sharers in the suit property-in a case where the title of the plaintiffs is denied on the date of the suit and the plaintiffs are not in possession of the suit property, then the plaintiffs are required to pay court fee on the full value of their share as claimed by them. The admitted fact in the instant case is that in the years 1939-40 and 1966-67 itself, some of the defendants got the names of the plaintiffs deleted from the Assessment Register kept by the Municipal Board and on the strength of alleged family settlement, the defendants claimed that they were exclusive owners of the suit property. The title of the plaintiffs in the suit property or their claims of being co-owners was denied much before filing of the suit. In these circumstances.
the factual position that comes out is that on the date of filing of the suit, the plaintiffs were not in possession of the suit property and title or claim to be a co-owner was denied by the defendants. In these circumstances, the normal rule of payment of court fee on 1/4th of the value of share of the plaintiffs was not applicable and the exception to normal rule shall apply and the plaintiffs shall be required to pay court fee on the full value of the share claimed by them. Therefore. In my view, the trial court has not committed any error in holding that the plaintiffs are required to pay court fee on the full value of one half share in the suit property as claimed by them.
9. Learned counsel for the revisionists has placed reliance on a decision of the Apex Court in Chief inspector of Stamps v. Indu Prabha Vachaspati (Smt.) and others. ARC 1998 (2) SC 615 and on another decision of this Court in Lakhan Singh v. Sultan Singh and others, AIR 1951 AH 571.
10. So far as the decision of the Apex Court is concerned, the controversy in hand was not subject-matter in the decision of the Hon'ble Supreme Court. That was a case in which the plaintiff claimed partition claiming to be the co-sharer and further claimed relief that she be put in separate possession of her share. It does not transpire from the Judgment if defendants in that suit disputed the claim of the plaintiff of being co-owner in the suit property. The Apex Court therefore, held that the plaintiff has clearly stated that the immovable properties in question are at present in the occupation of tenants and the plaintiff has got constructive possession of the same. The High Court has rightly held that the plaint does not disclose anywhere that the plaintiff had divested herself on the possessory right in the said properties or that she was out of possession after the execution of the documents which are impugned in the plaint. Her case is that she is in constructive possession through her tenants. The Apex Court, therefore, held that the High Court has rightly held that the court fee would be payable on the l/5th value of her share as has been done by her. In the instant, case as already pointed out above, according to the plaint averments itself on the date of the filing of the suit, the defendants appear to have claimed divestment of the title of the plaintiffs in the suit property from much before by getting their names deleted from the Assessment Register of the Municipal Board. In respect of one of the properties, i.e.. House No. 1339, the claim of the defendants was that the same was purchased by their ancestor Abdul Kareem in his own rights by registered sale deed dated 26.5.1955.
11. The decision in Lakhan Singh's case (supra), is also not applicable to the facts of the present case. On consideration of the fact in that case the High Court had come to the conclusion that it is admitted that the plaintiff is in possession of Hartoll properties. The plaintiff is, therefore, in possession of a portion of the properties alleged to be jointly owned by the parties. If he is in possession of a part of the joint properties, then unless he has been ousted from the rest of the properties, or has, in some other way, lost his title thereto, e.g., by previous partition, exchange, etc., he must be deemed to be in possession of all the joint properties for the simple reason that the possession of the other co-sharers over those properties will be construed as being not only on behalf of himself but also on behalf of all the other co-sharers. The High Court has held that we may presume that in the present case, the plaintiffs claim to be a coparcener or co-owner on the date of presentation of the plaint has been denied by the defendants. But since the Court had come to the conclusion that the plaintiff was in possession over a portion of the joint properties, she will be deemed to be in constructive possession over other properties also unless she has been ousted from rest of the properties or has, in some other way, lost her title thereto. In the above decision, since, one of the two conditions provided in the second part of Section 7(vi-A).
was not fulfilled, hence the High Court held that the court fees payable would be on 1/4th of the value of the plaintiff's share in the property claimed. In the instant case. It is found that both the conditions that the plaintiffs-revisionists are out of possession of the suit property of which they claim to be co-owners and that their claiming to be co-owners is denied on the date of the presentation of the plaint, are fulfilled.
12. In view of the above facts and circumstances, I find that the trial court has committed no error in passing the impugned order. The revision is therefore, finally decided at the admission stage and It is hereby dismissed.