Karnataka High Court
Reliance Prolific Traders Pvt. Ltd., vs Purandara Shetty on 20 February, 2018
Equivalent citations: AIR 2018 KARNATAKA 172
Author: B.Veerappa
Bench: B. Veerappa
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2018
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.5508/2018(GM-CPC)
BETWEEN:
1. RELIANCE PROLIFIC TRADERS PVT. LTD.,
BY ITS MANAGING DIRECTOR,
OFFICE AT RAMAN RATI APARTMENTS,
NEAR ASHAPURA HOTEL
SARU SECTION ROAD,
JAM NAGAR,
GUJRAT-361 001.
2. RELIANCE PROLIFIC TRADERS PVT. LTD.,
LOCAL OFFICE AT 62/2,
RICHMOND ROAD,
BANGALORE-560 025.
BOTH PETITIONERS NO.1 & 2 ARE
REPRESENTED BY GPA HOLDER
A. K. VISHWANATH
(GPA DEED PRODUCED ALONG
THE VAKALATHAMMA) ... PETITIONERS
(BY SRI SAMPAT ANAND SHETTY, ADVOCATE)
AND:
1. PURANDARA SHETTY
AGED ABOUT 44 YEARS,
S/O KITTANNA SHETTY,
RESIDING AT NO.12,
B1 WING,
ISH KRIPA HOUSING SOCIETY,
NANCYWADI, MULGOAN,
VASAI,THANA DISTRICT
MUMBAI-401 201.
2
2. SMT. VASANTHI G. SHETTY,
AGED ABOUT 46 YEARS,
S/O KITTANNA SHETTY,
RESIDING AT SHANTHA HOUSE,
ROOM NO.28,
NANCYWADI, MULGOAN,
TOMTALAO,VASAI (W),
MUMBAI-401 201.
3. CHANDRASHEKAR SHETTY,
AGED ABOUT 44 YEARS,
S/O KITTANNA SHETTY,
RESIDING AT
GREEN GARDEN C0-OPERATIVE
HOUSING SOCIETY LTD,
GROUND FLOOR, NO.3,
SUTARALL,TOMTALAO,
VASAI (W),
MUMBAI-401 201.
4. PREMA K SHETTY,
AGED ABOUT 64 YEARS,
W/O KITTANNA SHETTY,
RESIDING AT KUCHI HOUSE,
SANTHOOR VILLAGE,
POST HALSINAKATTE,
SANTHOOR,
UDUPI DISTRICT-574 111.
5. KARUNAKAR SHETTY,
AGED ABOUT 36 YEARS,
S/O LATE KITTANNA SHETTY,
RESIDING AT KUCHI HOUSE,
SANTHOOR VILLAGE,
POST HALSINAKATTE,
SANTHOOR,
UDUPI DISTRICT-574 111.
6. JAGADEESHACHARA R SHETTY
S/O K. R. SHETTY,
PARTNER
M/S J.B.ASSOCIATES
PARTNERSHIP FIRM,
OFFICE AT RADHA MOHAN
3
5TH CROSS,WEST ATTAVAR,
MANGALORE-575 001.
7. K. BALAKRISHNA SHETTY,
S/O K. P. VISHWANATH SHETTY,
PARTNER,
M/S J. B. ASSOCIATES
PARTNERSHIP FIRM,
RESIDING AT NEELAKSHI,
THRIMURTHY LAYOUT,
DOOMAPPA COMPOUND,
PANDESHWARA,
MANGALORE-575 001. ... RESPONDENTS
...
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
JUDGMENET AND ORDER DATED 30.11.2017 PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE, UDUPI IN O.S.53/2010 VIDE
ANNEXURE-A;
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Defendant Nos.3 and 4 have filed the present writ petition against the order dated 30.11.2017 passed on preliminary issues framed on 3.11.2015 answering the additional issue with regard to the Court fee as negative holding that the suit has been properly valued for court fee and jurisdiction.
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2. The plaintiffs filed the original suit for partition and separate possession of plaint 'A' schedule properties into five equal shares by metes and bounds with reference to good and bad soil and allotment of three such shares to them. The value of the properties was for a sum of Rs.15,00,000/- both for the purpose of court fee and jurisdiction and accordingly, Rs.200/- was paid as court fee under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958; for declaration that the alleged registered sale deed dated 29.10.2010 alleged to have been executed before the Sub-Registrar Office, Mulki in favour of defendant Nos. 3 and 4 on the strength of alleged General Power of Attorney Deed dated 24.10.2007 is void, illegal and not binding on the plaintiffs; that the plaintiffs father Kittanna Shetty was enjoying the plaint 'A' schedule property in his individual capacity on the strength of occupancy rights granted by the Land Tribunal, Udupi 5 on 25.8.1981 and after his death, the plaintiffs and defendants are his legal heirs and representatives.
3. It was further contended by the plaintiffs that the defendants were looking after and managing the affairs of the Plaint 'A' schedule properties on behalf of all the members of the family i.e., the plaintiffs and defendants, as the plaintiffs were residing at Mumbai. After the death of their father Kittanna Shetty, the RTCs., relating to the plaint 'A' schedule properties were all mutated in the name of defendant No.1 - Prema Shedthi being the manager of the family. The plaintiffs further submit that all of them and defendants are having equal 1/5th share in the plaint 'A' schedule properties and all are having joint and constructive possession of the plaint 'A' schedule properties. The plaintiffs further contended that they are willing to take their legitimate share in the Plaint 'A' schedule properties and expressed their willingness with the 6 defendants during the 1st week of July 2010, but the defendants regretted their willingness on 5.7.2010 and gave an evasive answer that during the life time of defendant No.1 such occasion did not arise and in case of partition, they would inform the plaintiffs at appropriate time. By the regret answer of the defendants, the plaintiffs got some doubt and suspicion and immediately applied for grant of true extract of record of rights.
4. After obtaining the RTCs relating to the plaint 'A' schedule properties, they were surprised to note that all the plaint schedule properties have been converted for non-agricultural purposes and the defendants had neither informed nor obtained any permission from the plaintiffs to do so. The plaintiffs reliably came to know that the defendants are illegally and unlawfully planning to alienate the plaint 'A' schedule properties without their knowledge and if the defendants are 7 illegally doing so, they would be put to heavy loss, injustice and hardship. Hence, the defendants, who are residing in their native place are misusing their absence by alienating or entering into an agreement of Sale Deed illegally behind their back . As the defendants never intended to give up the proportionate shares to them, suit was filed for partition of the plaint 'A' schedule properties and to allot proportionate share to them, etc.
5. Though defendant Nos. 1 and 2 filed the original written statement denying the plaint averments, have admitted that the 'A' schedule properties were granted by the Land Tribunal in favour of Kittanna Shetty on 25.8.1981. They have also contended that their father was enjoying the plaint 'A' schedule properties in his individual capacity till his death and after the death of their father Kittanna Shetty, the RTCs relating to the plaint 'A' schedule properties were all mutated in the name of defendant No.1 - Prema 8 Shedthy being the Manager of the family and the plaintiffs and they are having equal 1/5th share in the plaint 'A' schedule properties and all are having joint and constructive possession of the plaint 'A' schedule properties. They have denied that the plaintiffs were willing to take their legitimate share in the plaint 'A' schedule properties and that they have expressed their willingness with them during the first week of July 2010. The defendants further contended the one Sri A.K. Vishwanath, representing a M/s Himadri Enterprises Pvt. Ltd., having its registered office at Jamnagar, Gujarath and having its local office at Richmond Road, Bangalore, met them several times and showed an interest to purchase the 'A' schedule properties for their company, for which they informed that the plaint schedule properties are belonging to five members of their family including them and the plaintiffs. The defendants further contended that the plaintiffs are residing at Bombay and if the plaintiffs 9 agree for sale, they will also agree for the same. As the plaintiffs were not in goods terms with them, they never discussed about the sale of their property directly with them.
6. It was further case of the defendants that Sri A.K. Vishwanath met them and told them that they have already discussed about the purchase of plaint 'A' schedule properties with the plaintiffs who were residing in Bombay and they had agreed for the same, they executed the General Power of Attorney in favour of the Company for sale of property if their share in the sale price would be paid to them. Accordingly, they executed General Power of Attorney in favour of A.K. Vishwanath of M/s. Hemadri Enterprises on 17.10.2007 before the Sub-Registrar Office, Mulki at Udupi District. Thereafter they were under the impression that the above named M/s. Himadri Enterprises will also take the General Power of Attorney Deed from the plaintiffs 10 and try to purchase the whole plaint 'A' schedule properties in their names. At the time of registration of GPA Deed at Mulki, the Himadri Enterprise paid a sum of Rs.13 ½ lakhs in total to both the defendants as their share by way of advance amount and they further promised to pay the balance sale consideration at the time of registration of Sale Deed and the share of the plaintiffs would be paid to them separately at Bombay. Therefore, these defendants were under the impression that M/s Himadri Enterprises will come for the registration of sale of 'A' schedule properties.
7. It was further contended that when things stood thus, defendants were shocked and surprised to receive the Court notice and an injunction order passed by the Court in the suit filed by the plaintiffs against these defendants seeking the relief of partition before the Court of Principal Civil Judge (Sr. Dn.) Udupi. These defendants were fully aware that on the strength 11 of GPA Deed dated 17.10.2007 executed by them in favour of A.K. Vishwanath, who is representing M/s. Himadri Enterprises and also on the strength of GPA Deed likely to be executed by the plaintiffs in favour of M/s. Himadri Enterprises, plaint 'A' schedule properties were ready for the sale and registration.
8. It was further contended that after receipt of the Court notice, these defendants got some doubt and enquired the matter before the Sub-Registrar Office at Mulki and they were shocked to understand that the plaint 'A' schedule properties were already sold to one Reliance Prolific Traders of Bangalore from M/s. Himadri Enterprises on the strength of GPA Deeds were executed by the plaintiffs as well as defendants, etc. Hence, they sought for dismissal of the suit.
9. After amendment of the plaint, defendant Nos. 3 and 4 filed additional written statement denying the entire averments made in the amended plaint 12 contending that they are false, vexatious and not maintainable. The valuation of the plaint schedule properties for the purpose of court fees and jurisdiction is not proper and the court fee paid on the plaint is totally insufficient including the amended plaint. The plaintiffs ought to have paid the court fee on the relief of partition under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958. Further the relief of declaration claimed in the amended plaint ought to have been valued under Section 24(a) of the said Act and the plaintiffs ought to have paid the court fee on the said relief on the actual market value of the plaint 'A' schedule properties. The intention of the plaintiffs is to litigate their so-called legal rights cheaply and speculatively to defraud the state of huge revenue. They further contended that the plaintiffs have not filed any valuation slip as required under Rule 11(2) of the Karnataka Civil Rules of Practise, 1967 as amended and the relief of declaration as claimed is clearly barred by 13 law of limitation under Article 58 of the Limitation Act, 1963. Defendant Nos.3 and 4 further stated that as per the averments made in the plaint, the right to sue for the said relief had if at all first accrued to the plaintiffs much prior to the date of institution of the suit, the suit is barred by the provisions of Section 34 of the Specific Relief Act, 1963 as the plaintiffs have not claimed any consequential relief. Therefore, they sought for dismissal of the suit.
10. The trial Court based on the original pleadings of the plaintiffs and defendants framed issues on 18th April, 2015 which read as under:
i) Whether the plaintiffs prove that the GPA dated 24.10.2007 and Sale Deed dated 29.1.2010 are forged, illegal document and has no binding effect on plaintiffs?14
ii) Whether the plaintiffs prove the Suit Property is entitled to be divided into 1/5th share?
iii) What order or decree?
11. Based on the said issues and additional issues which were framed at the instance of defendant Nos. 3 and 4, additional issue No.2 was framed on 3.11.2015 i.e., Whether defendant 3 and 4 proves, suit has not been properly valued for court fee and jurisdiction? and the said issue was treated as preliminary issue and considering the rival contentions urged, the trial Court by the impugned order held that the defendant Nos.3 and 4 have failed to prove that the suit has not been properly valued for the purpose of Court fee and jurisdiction. Hence, the present writ petition is filed.
12. I have heard the learned Counsel for the petitioners.
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13. Sri Sampat Anand Shetty, learned Counsel for the petitioners contended with vehemence that by reading of the entire plaint averments, the substantive prayer is for cancellation of sale deed and not for partition. He would further contended that the plaintiffs have to pay Court fee under the provisions of Section 24(a) and (b) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, hereinafter referred to as 'the Act'); that the plaintiffs ought to have paid ad- valorem court fee on the market value based on the sale deeds for which the declaration is sought by the plaintiffs. He further contended that the trial Court has not applied its mind to the pleadings and issues framed and thereby erroneously passed the impugned order.
14. In support of his contentions, the learned Counsel relied upon a judgment of this Court in the case of Mr. V. Prabhakar -vs- Mr. K. Raja and Others reported in ILR 2012 Kar. 3558 wherein it was a case 16 that while dealing with the payment of court fee, the prayer was to declare that the sale deed in question is null and void and not binding on the plaintiffs. The trial Court held that the Court fee has to be paid on the assertion of substantial relief sought for in the plaint and in a multifarious suit while determining the proper court fee payable on the plaint, the Court has to see the nature of the suit and the relief claimed.
15. He also relied upon the judgment of this Court in the case of Mr. S. Sheshappa -vs- Mrs. Hilda Manorama Devadatta & Another reported in ILR 2011 Kar. 4044 wherein the suit was for declaration and recovery of possession and the trial Court held that the value of the land for the purpose of determining the jurisdiction of the Court shall be the market value of such land under Section 24(a) of the Karnataka Court Fees and Suits Valuation Act, 1958. Therefore, he 17 sought to quash the impugned order by allowing the present writ petition.
16. Sri Sampat Anand Shetty, learned Counsel further contended with vehemence that in view of the subsequent amendment, there is no pleading with regard to joint or constructive possession of the joint family member and therefore, the plaintiffs have to pay the court fee under the provisions of Section 35(1) and not under Section 35(2) of the Act and there was no cause of action to file the suit.
17. In view of the aforesaid contentions urged by the learned Counsel for the petitioners, the points that arise for consideration in the present writ petition are:
i) Whether the impugned order passed by the trial Court negating issue No.2 holding that the Court Fee paid by the plaintiffs is just and proper?18
ii) Whether the Court Fee paid by the plaintiffs on the reliefs sought for in the plaint is sufficient in the facts and circumstances of the present case?
18. I have given my anxious consideration to the arguments advanced by the learned Counsel for the petitioners.
19. It is an undisputed fact that originally the plaintiffs filed a suit for partition and separate possession in respect of the suit schedule properties contending that the suit schedule properties are the joint family properties of plaintiffs and defendant Nos. 1 and 2 and there was no partition. It was also specifically pleaded that the cause of action arose on 5.7.2010 when the defendants refused to give their share to the plaintiffs in Yelloor village of Udupi Taluk and District where the plaint schedule properties are situated which is within the jurisdiction of the Court 19 and there was no partition in the joint family by metes and bounds.
20. The original defendants filed written statement admitting that the occupancy rights in respect to the suit schedule 'A' properties were granted to the father of the plaintiffs and defendants Kittanna Shetty by the Land Tribunal and also that the plaintiffs and defendants are entitled to equal share. It was further contended that defendant Nos. 1 and 2 were under the impression that A.K. Vishwanath who represented M/s. Himadri Enterprises was also on the strength of GPA Deed likely to be executed by the plaintiffs in respect to the suit schedule 'A' properties but they were at some doubt and hence enquired the matter before the Sub-Registrar Office at Mulki and came to know that the plaint 'A' schedule properties were already sold to Reliance Prolife Traders of Bangalore from M/s. Himadri Enterprises. 20
21. By reading of the plaint averments and written statement filed by defendant Nos. 1 and 2, clearly indicates that the suit schedule 'A' properties are the joint family properties of plaintiffs and defendants and defendants also are entitled to their 1/5th share in the plaint 'A' schedule properties and there is no dispute with regard to relationship and that there was no partition in the joint family properties.
22. On the application filed by the plaintiffs for amendment of plaint with regard to prayer for declaration, defendant Nos. 3 and 4 filed additional written statement denying the entire plaint averments and contended that the suit was not maintainable. It was specifically contended that the valuation of the plaint property relief for the purpose of court fee and jurisdiction was not proper and the court fee paid on the plaint is totally insufficient having regard to the plaint averments including the amended plaint. The 21 plaintiffs ought to have paid the court fee on the relief of partition under Section 35(1) of the Act and in view of the relief of declarations claimed under the amended plaint, the value of the suit has to be made under Section 24(a) of the said Act, but the fact remains that originally the suit was filed for partition and after the written statement was filed by defendant Nos. 1 and 2, amendment was sought for declaration which is consequential to the main relief. When defendant Nos. 1 and 2 have not disputed the entitlement and joint family properties of plaintiffs and defendant Nos. 1 to 4, defendant Nos. 3 and 4 except filing additional written statement have not stated anything about joint possession or entitlement. They have further contended that the suit was not properly valued and Court fee paid is not sufficient. Except the said averments, the defendants have not taken any specific defence in the additional written statement with regard 22 to joint family properties and entitlement of the plaintiffs.
23. The general principles of law is that in the case of co-owners, the possession of one is in lawful possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiffs should be in actual possession of the whole or part of the property. Equally, it is not necessary that they 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 they are excluded from such possession. Admittedly, in the present case, defendant Nos. 1 and 2 by filing written statement have admitted the joint possession. Though in the additional written statement filed by defendant Nos. 3 and 4 that they 23 have pleaded exclusion of joint possession by the plaintiffs, cannot be accepted without any material.
24. With the above admitted facts, it is relevant to consider the provisions of Section 10 of the Karnataka Court Fees and Suits Valuation Act, 1958 which reads as under:
"10. Statement of particulars of subject matter of suit and plaintiff's valuation thereof.- In every suit in which the fee payable under this Act on the plaint depends on the market value of the subject-matter of the suit, the plaintiff shall file with the plaint, a statement in the prescribed form, of particulars of the subject-matter of the suit and his valuation thereof unless such particulars and the valuation are contained in the plaint."
A plain reading of the said provisions makes it clear that the determination of the Court fees has to be decided on 24 the basis of the averments in the plaint alone which shall be accompanied by the valuation slip should accompanying the plaint and not with reference to allegations made in the written statement, even though the averments in the written statement showed that possession of some of the properties were with the alienees.
25. The provisions of Section 35 of the Karnataka Court Fees and Suits Valuation Act deals with the partition and separate possession which reads as under:
35. Partition suits.- (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share.25
(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 following rates:--
Rupees fifteen if the value of plaintiff's share is Rs. 3,000 or less;
Rupees thirty if the value is above Rs. 3,000 but not more than Rs. 5,000.
Rupees one hundred if the value is above Rs. 5,000 but below Rs. 10,000 and Rupees two hundred if the value is Rs. 10,000 and above.
(3) Where, in a suit falling under sub- section (1) or sub-section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement 26 computed on half the market value of his share or at half the rates specified in sub-section (2), according as such defendant has been excluded from possession or is in joint possession.
(4) Where, in a suit falling under sub-
section (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in section 38 separate fee shall be payable on the relief of cancellation in the manner 22 specified in that section
26. The above said provisions make it clear that Sub-Section (1) of Section 35 of the Act deals with partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market 27 value of the plaintiff's share. Sub clause (2) of the said Section deals that 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 following rates;
Rupees fifteen if the value of plaintiff's share is Rs. 3,000 or less;
Rupees thirty if the value is above Rs. 3,000 but not more than Rs. 5,000.
Rupees one hundred if the value is above Rs. 5,000 but below Rs. 10,000 and Rupees two hundred if the value is Rs.
10,000 and above.
Sub-clause (3) of the said Section deals with where, in a suit falling under sub-section (1) or sub-section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in sub-section (2), 28 according as such defendant has been excluded from possession or is in joint possession. Sub-clause (4) of the said Section deals with where, in a suit falling under sub-section (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in section 38 separate fee shall be payable on the relief of cancellation in the manner 22 specified in that section.
27. Admittedly in the present case, it is the specific case of the plaintiffs that the suit schedule properties are the joint family properties of plaintiffs and defendants and there was no partition. It is specifically contended in para-4 of the plaint (amended) that the defendants are looking after and managing the affairs of the plaint 'A' schedule properties on behalf of all the members of the family i.e., the plaintiffs and the defendants as the plaintiffs are residing at Mumbai. After the death of their father Kittanna Shetty, the RTCs 29 relating to the plaint 'A' schedule properties are all mutated in the name of the 1st defendant Prema Shedthy being the Manager of the family. They further contended that all of them and the defendants are having equally 1/5th (one fifth) share in the plaint 'A' schedule properties and all are having joint and constructive possession of the plaint 'A' schedule properties and therefore, the present case falls under the provisions of Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 since the defendants have neither produced nor pleaded the exclusion of the plaintiffs from the joint family.
28. The Division Bench of this Court in the case of B.S. Malleshappa -vs- Koratagigere B. Shivalingappa reported in ILR 2001 Kar. 3988 while considering the provisions of Sections 11, 26(3), 35 and 49 of the Karnataka Court Fees and Suits Valuation Act, 1958 at paragraphs 9, 9.1 and 9.2 has held as under: 30
"9. It is also useful to refer to a few decisions of other High Courts on this aspect.
9.1) In C.R. Ramaswami Ayyangar v C.S. Rangachariar , a Full Bench of the Madras High Court considered the provisions of Article 17(vi) of Schedule II and Section 7(iv)(b) of the Court Fee Act, 1870. It was held that the joint owner who is in possession does not need to sue for possession and the fact that his possession is shared by others does not affect his possession. It was further held that Section 7(v) will apply only where the plaintiff is seeking relief of possession by stating that he is out of possession.
9.2) In Premanand v Dhirendranath Ganguly, a Division Bench of the Calcutta High Court held as follows:
"The question as to what Court fee are payable on a plaint has to be decided on the allegation in the plaint and the nature of relief 31 claimed. Whatever may transpire in the evidence, the plaint remains the same until and unless amended..... If and when a Court comes to the conclusion that allegation of joint possession in the plaint is not borne out by the evidence, the obvious result would be that the plaintiffs suit would fail unless the petition is suitably amended and further Court fee paid".
It was held that where a fixed Court fee is paid in a suit for partition on the allegation of joint possession, ad-
valorem Court fee will not be payable on the value of the property on the ground that the evidence showed that the plaintiff was not in possession.
29. The provisions of Section 35(1) of the said Act, there is no doubt that the word 'plaint' is not mentioned, but there is no reference therein to the 32 pleadings of the defendants either. Merely because the expression 'denied' is used in sub-section (1) of Section 35, there is no justification to say that the 'denial' of the title contemplates denial in the written statement of the defendants. It is reasonable to construe the expression 'denied' used in sub-section (1) of Section 35 of the Act as denial of plaintiffs' title before the institution of the suit. Therefore, the true meaning to be attached to the words 'whose title to such property is denied' is that whose title to such property is denied prior to the institution of the suit or filing of the plaint. That being so, it is only the allegations in the plaint that will have to be looked into. Therefore, there is no valid reason to deviate from the fairly well settled principle laid down by decisions that it is the allegation in the plaint that has to be looked into'.
30. Taking into consideration the provisions of Sections 11, 26(3), 35 and 49 of the said Act, the Court 33 may now conveniently summarise the principles relating to Court fee in regard to suits for partitions and appeals therefrom:
(i) Payment of Court fee will depend on plaint averment alone. Neither the averments in the written statement, nor the evidence nor the final decision have a bearing on the decision relating to Court fee.
(ii) The scope of investigation under Section 11 is confined practically to determine two points: (i) Undervaluation of the subject-
matter of the suit; and (ii) category under which the suit falls, for the purpose of Court fee.
Once the category of suit is determined with reference to plaint averments, the Court cannot subsequently change the category on the basis of the averments in the written 34 statement or on the basis of evidence and arguments. In short, if the suit is found to fall under Section 35(2) of the Act on the plaint averments, the Court has no power to convert the suit as one falling under Section 35(1) of the Act, at any point of time, much less while rendering judgment. The only exception is when the plaint is amended.
(iii) The plaintiff in a suit being dominus litis has the choice of filing a suit of a particular nature or seek a particular relief. Neither the defendant nor the Court can alter the suit as one for a different reliefer as a suit falling in a different category and require the plaintiff to pay Court fee on such altered category of suit.
(iv) If the plaintiff claims that he is in joint possession of a property and 35 seeks partition and separate possession, he categorises the suit under Section 35(2) of the Act. He is therefore liable to pay Court fee only under Section 35(2). If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay the Court fee under Section 35(1) of the Act does not arise. Even after written statement and evidence (which may demonstrate absence of possession or joint possession), if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court fee applicable thereto, he takes the 36 chance of suit getting dismissed or relief being denied.
(v) On appreciation of evidence, if the Court disbelieves the claim of plaintiff regarding joint possession, it can only hold that the case does not fall under Section 35(2) and therefore plaintiff is not entitled to relief. It cannot, in the judgment, hold that the case of plaintiff should be categorised under Section 35(1) nor direct the plaintiff to pay Court fee on market value under Section 35(1) of the Act.
(vi) The Court fee payable on an appeal is the same as the Court fee payable on the suit.
Therefore, even if the Trial Court holds that plaintiff was not in joint possession or that plaintiff had been excluded from possession, there will he no change in the Court fee payable 37 in an appeal by the plaintiff against such decision. The Court fee on the appeal will still be the same as the Court fee paid on the plaint in the Court of first instance.
31. The Hon'ble Supreme Court while considering the provisions of Section 35(1) and (2) of the said Act in the case of Jagannath Amin -vs- Seetharama (Dead) by L.Rs., and Others reported in (2007) 1 SCC 694 at paragraph-9 has held as under:
"Reference was also made to the decision in Neelavathi and Ors. v. N. Natarajan and Others reported in AIR 1980 SC 691. In para 8 this court while considering the identical provision of the Tamil Nadu Court Fee and Suits Valuation Act, 1955 stated as follows:
"8. Section 37 of the Tamil Nadu Court Fees and Suits Valuation Act 38 relates to Partition Suits. Sec. 37 provides as follows:
"37 (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share.
(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 nay-
able under Section 37 (1) if the plaintiff is "excluded" from possession of the 39 property. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family, and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being the 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 40 whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Sec. 37 (1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admission 41 that the plaintiff had been excluded from possession."
32. The Hon'ble Supreme Court in the case of Neelavathi And Others -vs- M. Natarajan And Others reported in AIR 1980 SC 691 while considering the provisions of Section 37 of the Tamilnadu Court Fees and Suits Valuation Act, 1955 at para-8 has held as under:-
"8. 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 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.42
(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 Section 37(1) if the plaintiff is 'excluded" from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of the Joint Family, and prayed for partition alleging that they are in joint possession Under the proviso to 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 43 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 44 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."
33. While considering the provisions of Section 7(iv)(c) of the Court Fees Act (7 of 1870) in a suit for declaration that sale deed executed by plaintiff's father is null and void and for joint possession in the case of Suhrid Singh @ Sardool Singh -vs- Randhir Singh and Others reported in 2010 AIR SCW 3308 , the Hon'ble Supreme Court at paragraphs 6 and 7 has held as under:
"6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non- executant seeks annulment of a deed, 45 he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in 46 possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.47
7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery"
and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds."
34. Therefore, the contention of Sri Sampat Anand Shetty, learned Counsel for the petitioners that the suit is filed for cancellation and the plaintiffs have to pay the court fee under Section 24(a) and (b) and 38 of the said Act cannot be accepted. By a reading of the plaint averments as a whole, it clearly indicates that the plaintiffs have specifically pleaded in the plaint that the 48 plaintiffs and defendants are members of the joint family and are in joint possession of the suit schedule properties and there was no partition. Therefore, the provisions of Section 35(2) of the Karnataka Court Fees and Suits Valuation Act attracts and not Section 35(1) or under Section 24(a) of the said Act as contended by the learned Counsel for the petitioners.
35. The material on record clearly depicts that though the defendants earlier filed written statement as already stated supra they have not stated about the ouster or exclusion of the plaintiffs in the joint family properties and the plaint averments and written statement filed by defendant Nos. 1 and 2 clearly depicts that the plaintiffs have been in constructive possession of the joint family properties. Therefore, the court fee has to be paid under Section 35(2) of the said Act since the suit is filed for partition of the joint family properties and the consequential relief is only for a 49 declaration that the alleged registered Sale Deed is not binding on the plaintiffs' share. Therefore, it cannot be accepted that it amounts to cancellation. In view of the aforesaid reasons, the points raised in the writ petition have to be held in the affirmative holding that the impugned orders of the Trial Court negating the Additional Issue No.2 is just and proper and the court fee paid by the plaintiffs for the reliefs sought for is sufficient.
36. In so far as the judgment relied upon by the Counsel for the petitioners in the case of Mr. S. Sheshappa -vs- Mrs Hilda Manorama Devadatta and Another reported in ILR 2011 Kar. 4044, it was a case where the suit for declaration and recovery of possession and computation of Court fee, the plea of insufficiency of Court fee and jurisdiction was raised by the petitioners and the trial court answered the preliminary issues against the petitioners holding that 50 when the prayer is for the recovery of possession too, no Court fee whatsoever is paid on the said prayer or relief. Therefore, it was held that under Section 50 of the Act, the value of the land for the purpose of determining the jurisdiction of the Court shall be the market value of such land under Section 24(a) of the Karnataka Court Fees and Suits Valuation Act, 1958 since the suit filed was for declaration. There is no quarrel with regard to the law laid down by this Court in the said case, which relates declaration and recovery of possession. Admittedly in the present case, the suit is for partition and consequential relief is for declaration that the Sale Deeds are not binding. Therefore, the said judgment has no application to the facts and circumtances of the present case.
37. In so far as another judgment relied by the petitioners, this Court in the case of Mr. V. Prabhakar - vs- Mr. K. Raja and Others reported in ILR 2012 Kar 51 3558, while considering the provisions of Section 38 of the Act, it was held that in order to determine the proper Court fee payable by the plaintiffs, the Court has to first ascertain the substantial relief sought for in the plaint. In a multifarious suit, while determining the proper Court fee payable on the plaint, the Court has to see the nature of the suit and the reliefs claimed. If a substantive relief is claimed, though clothed in the garb of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief and if satisfied, that it is not a mere consequential relief but a substantive relief, it can be deemed the proper Court fee on that relief, irrespective of the arbitrary valuation put by the plaintiffs in the plaint on the ostensible consequential relief. It was also held that the plaintiffs has to value the suit for the purpose of Court fee under Section 38 and not under Section 24 of the Act. It was a suit for cancellation of particular Sale Deed and declare thereafter that the Sale Deed in 52 question was null and void and not binding on the plaintiffs. Though this Court held that Section 38 of the Act applies to the suit for cancellation of decree, the facts of the said case and present case are entirely different. Admittedly, in the present case, the suit is for partition and consequential relief of declaration that the Sale Deed in question is null and void and is not binding on the plaintiffs' share and the said decision is not applicable to the facts and circumstances of the present case.
38. The trial Court considering the entire material on record has recorded a finding that as already stated, the plaintiffs have sought for partition and separate possession based on the averment that after Kittanna Shetty acquired the property by virtue of the order passed by the Land Tribunal and since he died intestate, the properties devolved upon the plaintiffs and defendants equally. It is also the assertion of the 53 plaintiffs that, based on forged and fabricated General Power of Attorney dated 24.10.2007, the defendants have sold the property by a registered Sale Deed dated 29.1.2010. Therefore, the same is not binding on the plaintiffs. It has further held that the plaintiffs are not signatories to the Sale Deed dated 29.1.2010. Therefore the trial Court has come to the conclusion that the Court fee paid and valuation made by the plaintiffs is proper and correct. Accordingly, it negative the additional issue and the same is in accordance with law.
39. The material on record also clearly depicts that it is not the case of the present petitioners that the plaintiffs have executed the Sale Deed dated 29.1.2010 registered on 29.1.2010 who are signatories to the said document. In the absence of any material to prove that the plaintiffs have been excluded from the joint family and in the absence of any document to prove that they 54 were signatories to the Sale Deed, the contention of the learned Counsel for the petitioners-defendants cannot be accepted and the impugned order passed by the trial Court holding that the plaintiffs have paid the Court fee under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act is just and proper. The petitioners have not made out any ground to interfere with the impugned order in exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
Accordingly, writ petition is dismissed with costs of Rs.10,000/-.
Sd/-
Judge Nsu/-