Andhra HC (Pre-Telangana)
Md. Saleha And Ors. vs Md. Yunus And Ors. on 17 December, 1993
Equivalent citations: 1994(1)ALT365
JUDGMENT Y. Bhaskar Rao, J.
1. The plaintiffs in un-numbered suit are the appellants herein. They filed this appeal aggrieved by the order of the lower Court in rejecting the plaint on the ground that proper Court fee is not paid.
2. The facts of the case that plaintiffs filed the suit in O.S.(SR) No. 2303 of 1991 in the Court of Subordinate Judge, Eluru for division of the plaint schedule properties and allotment of two shares to the plaintiffs 1 to 3, two shares to plaintiffs 4 to 7 and one share to the plaintiff No. 8 and for rendition of accounts. The suit was valued at Rs. 5,36,714-28 for the purpose of jurisdiction and a fixed Court fee of Rs. 200/- is paid under Section 34 (2) of A.P. Court Fees & Suits Valuation Act. The office of the lower Court took objection for payment of Court fee under Section 34 (2) of the A.P. Court Fees & Suits Valuation Act. The Court below after considering the objection and hearing the Advocate for the plaintiffs passed the order under appeal to the effect that under Muslim law there is no joint family system and therefore joint possession will not attract and rejected the plaint upholding the office objection. Against that present appeal is filed.
3. This appeal was admitted and notice was ordered to be issued to the Government Pleader as the matter involves payment of Court fee.
4. The learned Counsel for the appellants contended that when the property is in possession of joint tenants, tenants-in- common or co-owners, the provision of law for payment of fixed Court fee is Section 34 (2) of the A.P. Court Fees & Suits Valuation Act. He also contended that when the suit is filed by some of the co-owners claiming co-ownership or joint possession and irrespective of the fact that they are Hindus or Muslims, they are entitled to pay the Court fee under Section 34 (2) of the A.P. Court Fees & Suits Valuation Act. In this regard, he relied on a number of decisions.
5. The learned Government Pleader contended that the plaintiffs have to prove that they are co-owners or in joint possession or tenants-in-common or joint tenants and Court fee can be paid under Section 34 (2) of the A.P. Court Fees & Suits Valuation Act irrespective of the fact that they are Muslims or Hindus.
6. In view of the above said contentions, the point to be decided is in a suit filed for partition by the Muslims claiming that the property is jointly or commonly owned whether Court fee can be paid under Section 34 (2) of the A.P. Court Fees & Suits Valuation Act or not.
7. It is relevant to refer to the provisions of Sub-sections (1) and (2) of Section 34 of the A.P. Court Fees & Suits Valuation Act. They read as under:
"34. 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 who has been excluded from possession of such property, fee shall be computed on the market value of the movable property, or three-fourths of the market value of the immovable property included in 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 following rates:-
When the plaint is presented to:-
(i) a District Munsiff's Court Rupees Fifty
(ii) A Subordinate Judge's Court or Rupees one hundred
a District Court if the value of plaintiff's
share is less than
Rs. 10,000.
Rupees two hundred if
the value is not less than
Rs. 10,000."
8. From a reading of Sub-sections (1) and (2) of Section 34 of the Act it is clear that when the plaintiff being in joint possession of joint family property seeks relief of partition, he has to pay Court fee in accordance with Sub-section (2) of Section 34 and when the plaintiff not being in possession of such property seeks relief of partition, he has to pay Court fee in accordance with Sub-section (1) of Section 34 of the Act.
9. It is also relevant to refer to some of the decisions dealing with similar point. In Mt. Rakhi vs. MT. Khairan, AIR 1932 Lahore 421 the question was when the plaintiffs in possession of part of family house sue for its partition, under what provision they have to pay the Court fee. After considering the rival contentions and authorities on the said point, Harrison, J., held that where the plaintiffs being in possession of a part of the family house sue for its partition, the Court fee is to be assessed under Section 7 (4) (b) of Court Fees Act 7 of 1870 and not under Schedule 2 Article 17, Clause 6. Section 7 (4) (b) of Act 7 of 1870 is equivalent to present Section 34 (2) of the A.P. Court Fees & Suits Valuation Act.
10. In Mt. Hajran vs. MD. Shaft, AIR 1933 Lahore 780 the High Court of Lahore upheld the decision of the trial Court in holding that as the plaintiff was in joint possession of part of the property in dispute a Court fee stamp of Rs. 10 was sufficient.
11. In view of the above, irrespective of the fact that the party is a Mohammadan or Hindu, once he proves that he is in joint possession or is a co-owner, the Court fee is payable under Section 34 (2) of the A.P. Court Fees & Suits Valuation Act.
12. The Appeal is accordingly allowed and the order of the Lower Court is set aside. The Lower Court is directed to receive the plaint, number the suit and proceed with according to law.