Kerala High Court
Victoria vs Yesuraj Kumar
Bench: K.Surendra Mohan, A.Hariprasad, Mary Joseph
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 25TH DAY OF OCTOBER 2017/3RD KARTHIKA, 1939
RFA.No. 3 of 2017 (A)
---------------------
AGAINST THE JUDGMENT DATED 31.10.2016 IN OS NO. 73/2013 of ADDITIONAL SUB
COURT, PALAKKAD
APPELLANT/3RD DEFENDANT:
--------------------------
VICTORIA
AGED 63 YEARS, D/O.THOMAYAR,
KOOLAMUTHAN VEEDU, KONGANPARA,
KOZHIPPARA, CHITUR TALUK, PALAKKAD.
BYADV. SRI.JACOB SEBASTIAN
RESPONDENTS/SUPPLEMENTAL PLAINTIFFS AND DEFENDANTS 1 TO 7:
------------------------------------------------------------
1. YESURAJ KUMAR
AGED 28 YEARS, S/O.LATE DHANISILAS @ STANISLAS,
KOOLAMUTHAN VEEDU, KANALPIRAVU, PAMPAMPALLAM,
PUDUSSERYAMSOM, PALAKKAD, PIN-678 007.
2. AROGYAMARY VIMALA
AGED 55 YEARS, W/O. DHANISLAS @ STANISLAS,
KOOLAMUTHAN VEEDU, KANALPIRAVU, PAMPAMPALLAM,
PUDUSSERYAMSOM, PALAKKAD, PIN-678 007.
3. PRAVEEN
AGED 25 YEARS, S/O.LATE DHANISLAS @ STANISLAS,
KOOLAMUTHAN VEEDU, KANALPIRAVU, PAMPAMPALLAM,
PUDUSSERYAMSOM, PALAKKAD, PIN-678 007.
4. SEBASTIAN
AGED 69, S/O.LATETHOMAYAR,
KOOLAMUTHAN VEEDU, KANALPIRAVU, PAMPAMPALLAM,
PUDUSSERYAMSOM, PALAKKAD, PIN-678 007.
5. MUTHUSWAMY
AGED 58, S/O.LATETHOMAYAR,
KOOLAMUTHAN VEEDU, KANALPIRAVU, PAMPAMPALLAM,
PUDUSSERYAMSOM, PALAKKAD, PIN-678 007.
RFA.No. 3 of 2017 (A) 2
6. MARIATHRESSIA
D/O.LATE THOMAYAR, AGED 64 YEARS,
KOOLAMUTHAN VEEDU, KONGANPARA,
KOZHIPPARA, CHITTUR TALUK, PALAKKAD,
PIN-678 001.
7. ANNAMMAL
W/O.LATE ALPHONSE,
KOOLAMUTHAN VEEDU, KANALPIRAVU, PAMPAMPALLAM,
PUDUSSERYAMSOM, PALAKKAD, PIN-678 007.
8. A.LISSY
W/O.MAARSAL, SILUVESTHRI VEEDU,
KONGANPARA, KOZHIPPARA, CHITTUR TALUK,
PALAKKAD. PIN-678 001.
9. A.SHINY
W/O.MARTIN @ MATHEWS,
PANDITHAKARAR VEEDU, PUTHUPALAYAM,
PALAKKAD.
R1 TO R3 BY ADVS. SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
R5 BY ADV.SRI.NIDHI BALACHANDRAN
R6 TO R9 BY ADV. SRI.T.U.SUJITH KUMAR
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17.08.2017,
ALONG WITH ZRFA. NO.39/2017, THE COURT ON 25.10.2017 DELIVERED THE
FOLLOWING:
C.R.
K.SURENDRA MOHAN,
A.HARIPRASAD & MARY JOSEPH, JJJ.
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R.F.A.No.3 of 2017
&
Z R.F.A.No.39 of 2017
--------------------------------------
Dated this the 25th day of October, 2017
COMMON JUDGMENT
Hariprasad, J.
These appeals are boarded before us pursuant to a reference by a Division Bench. In the reference order, it has been mentioned that in Valsalan v. Kaumudi (1982 KLT 525), Ramanan v. Chitrasenan (2007 (2) KLT 11) and Sumangala v. Syamala (2013 (1) KLT 485) the view uniformly taken by three Division Benches of this Court that in a suit for partition, where the plaintiff asserts that he is in joint possession of the property along with other sharers, the value of the subject matter for the purpose of determining pecuniary jurisdiction is the value of the plaintiff's share as mentioned in the plaint requires a reconsideration. According to R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 2 the reference order, there is considerable doubt as to what would be the legal position if one of the defendants in such a suit applies for passing a supplementary preliminary decree for partition of his share having a market value exceeding the pecuniary jurisdiction of the trial court? Whether it will be proper to reject such a claim simply for the reason that the court which passed the preliminary decree did not have the jurisdiction to entertain such a relief? What would be the remedy available to a defendant in such a situation?
2. In order to appreciate the contentions raised, it will be useful to take a note of the relevant facts. Supplemental plaintiffs 2 to 4 and 3rd defendant in a suit for partition filed separate appeals challenging the preliminary decree passed in the suit. Immovable properties, situate in Pudussery Village, Palakkad Taluk and District, are the subject matter of the partition suit. The place where the suit property is situate formed part of the erstwhile Madras Province. The suit was instituted on 30.01.2013. Market value of the plaint schedule properties, as shown in the plaint, is `11,25,000/-. Value of the plaintiffs' share is `1,87,500/-. Learned Sub Judge decreed the suit in part. The appeal preferred by the 3rd defendant before this Court was received on file and numbered as R.F.A.No.3 of 2017. The Registry refused to number the appeal filed by supplemental R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 3 plaintiffs 2 to 4 raising an objection that going by the valuation of the plaintiffs' share, the appeal would not be maintainable before this Court.
3. It is pertinent to note that in R.F.A.No.3 of 2017, the defendant has shown value of the schedule properties at `30,00,000/- and valuation of the 3rd defendant's 1/5th share as `6,00,000/-. What is the basis for this valuation is not clear either from the plaint or from the decree in the Suit. In plaintiffs' appeal, valuation of the property is shown as in the plaint, as mentioned above. The Registry therefore took a stand that the appeal has to be filed before the District Court concerned.
4. Heard Sri.P.B.Krishnan, the learned counsel for the appellants in the unnumbered appeal and Sri. Jacob Sebastian, appearing for the appellant in the other case, who is one of the respondents in the unnumbered appeal.
5. Precise question that falls for determination is whether in a suit for partition, when the plaintiff claims to be in joint possession of the property, value of the subject matter for the purpose of jurisdiction should be taken as the value of the fractional share of plaintiff or that of the entire estate sought to be partitioned?
6. We are of the considered view that taking a stock of the relevant statutory provisions will be highly essential for a proper resolution R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 4 of the issues.
7. Before venturing to deal with the statutes and provisions relevant at present, we shall trace a little bit of history of the erstwhile statutes and pertinent provisions thereof, which can be called the forerunners of the present law. Earlier the legislature in its wisdom had enacted two separate laws for computation of court fees and valuation of suits for jurisdiction purposes. The Court Fees Act, 1870 (in short, "CF Act, 1870") extended to the whole of India, except the territories which, immediately before the 1st November, 1956, were comprised in Part B States. The CF Act, 1870 contains no preamble wherefrom its purpose could be ascertained. One of its main purposes, no doubt, was to levy fees for services to be rendered by the courts and public officers. The said Act not only prescribed fees, but also provided how these fees are to be ascertained. As a fiscal statute, like all other such statutes, it must be interpreted strictly.
8. The Suits Valuation Act, 1887 (in short, "SV Act, 1887") is an Act, going by its preamble, to prescribe the mode of valuing certain suits for the purpose of determining jurisdiction of the court for entertaining suits. The SV Act, 1887 also extended to the same geographical limits as in the case of CF Act, 1870.
R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 5
9. Section 7 of the CF Act, 1870 speaks about computation of fees payable in various types of suits. The Section deals with suits for money, suits for maintenance and annuities and suits for movable property having a market value. Likewise, it deals with suits for possession of lands, houses and gardens, to enforce a right of pre-emption, to set aside an attachment, to redeem or to foreclose a mortgage, for specific performance of a contract of sale, etc. In Section 7(iv)(b) of the CF Act, 1870, we find a provision for computing court fee in respect of a suit to enforce a right to share in joint family property. It reads as follows:
"7. Computation of fees payable in certain suits.-The amount of fee payable under This Act in the suits next hereinafter mentioned shall be computed as follows:-
xxxxxxxx
(iv) In suits-
xxxxxx
(b) to enforce a right to share in joint family property.- to enforce the right to share in any property on the ground that it is joint family property, xxxxxxx according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.
In all such suits the plaintiff shall state the amount at R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 6 which he values the relief sought.
xxxxxxxxxx"
10. Yet another relevant provision is Schedule II, Article 17(vi) of the CF Act, 1870. It reads thus:
Number Proper fee
17.Plaint or memorandum of appeal in each of the following suits:-
xxxxxxx
(vi) every other suit where it is not possible to estimate at a money-value Ten rupees.
the subject matter in dispute, and which is not otherwise provided for by this Act.
On a plain reading, it can be seen that the above provision is residuary in nature for computation of court fee in a suit which is not otherwise provided for in the Act. The provision underwent an amendment in the Madras Presidency and it was specifically brought under Schedule II, Article 17B. The said provision, in its amended version, reads thus: R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 7 Number Proper fee 17-B. Plaint or When the plaint is memorandum of appeal in presented to or the every suit where it is not memorandum of appeal is possible to estimate at a against the decree of- money value the subject- A Revenue Court. Ten rupees. matter in dispute and which A District Munsiff's Court or Fifteen rupees. is not otherwise provided the City Civil Court. for by this Act. A District Court or a Sub One hundred rupees Court.
The provisions contained in Schedule II, Article 17(vi) and those in Article 17B are generally pari materia, except for the fact that different amounts of court fees have been prescribed for suits and appeals depending on the hierarchy of the courts where they were filed.
11. It is pertinent to note that there is no provision in the CF Act, 1870 for determining valuation for the purpose of jurisdiction. This aspect is clear from Sections 8 and 9 of the SV Act, 1887. Section 8 reads thus:
"8. Court-fee value and jurisdictional value to be the same in certain suits.-Where in suits other than those referred to in the Court-fees, Act, 1870, section 7, paragraphs V, VI and IX and paragraph X, R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 8 clause (d), court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same."
12. Section 8 of the above Act provides that in suits, excepting those falling under Sections 7(v), 7(vi), 7(ix) and 7(x)(d) wherein ad valorem court fees are payable under the CF Act, 1870, valuation for the purpose of jurisdiction shall be identical with the valuation for the purpose of court fees. Thus, the suits contemplated under Sections 7(i), 7(ii), 7(iii), 7(iv), 7(vii), 7(viii) and 7(x)(a), (b) and (c) were having the same value for the purpose of jurisdiction as determinable for computation of court fees under the CF Act, 1870. Suits which are excluded from operation of Section 8 of the SV Act, 1887 are those mentioned in Sections 7(v), 7(vi), 7
(ix) and 7(x)(d) of the CF Act, 1870. Those suits are for possession of land, suit to enforce a right of pre-emption, suits relating to mortgages and suits relating to specific performance of awards.
13. Another provision relevant is Section 9 of the SV Act, 1887. It reads thus:
"Determination of value of certain suits by High Court.-When the subject matter of suits of any class, other than suits mentioned in the Court-fees Act, 1870, section 7, paragraphs V and R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 9 VI, and paragraphs X, clause (d) is such that in the opinion of the High Court it does not admit of being satisfactory valued, the High Court may with the previous sanction of the State Government, direct that suits of that class shall, for the purposes of the Court-fees Act, 1870, and of this Act and any other enactment for the time being in force, be treated as if their subject-matter were of such value as the High Court thinks fit to specify in this behalf."
14. Section 8 of the SV Act, 1887 applied to an ad valorem case, where value of the subject matter is satisfactorily ascertainable. Section 9 mentioned above, which is more than an exception to Section 8, applied to all cases, whether ad valorem or not, in which value of the subject matter could not be satisfactorily ascertained. It is clear from Section 9 that determination of value of the subject matter is left to the prerogative of the High Court concerned.
15. Now we shall rivet our attention to the contemporary statutes. Sections 15 to 20 of the Code of Civil Procedure, 1908 (in short, "CPC") deal with places of suing. The Kerala Civil Courts Act, 1957 (in short, "the Civil Courts Act") consolidates and amends the law relating to civil courts in Kerala, subordinate to the High Court of Kerala. Part II of the Civil Courts Act deals with establishment and constitution of subordinate civil courts. R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 10 Section 2 says that in addition to the courts established under any other law for the time being in force, there shall be -
(i) the Court of a District Judge (District Court)
(ii) the Court of a Subordinate Judge (the Subordinate Judge's Court)
(iii) the Court of a Munsiff (Munsiff's Court) established in the State. Part II further deals with the appointment of Principal and Additional Judges for the District Courts and Subordinate Judge's Courts. In Part III of the Civil Courts Act, aspects relating to jurisdiction of the courts are provided. For our purpose, Section 11 of the Civil Courts Act is relevant. Hence it is quoted hereunder:
"Jurisdiction of District Court and Subordinate Judge's Court in original suits.- (1) The jurisdiction of a District Court or a Subordinate Judge's Court extends, subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), to all original suits and proceedings of a civil nature.
(2) The jurisdiction of a Munsiff's Court extends to all like suits and proceedings not otherwise exempted from its cognizance of which the amount or value of the subject matter does not exceed ten lakh rupees."
It is relevant to note that going by the phraseology employed in Section 11 R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 11 (1) of the Civil Courts Act, the jurisdiction of a District Court or a Subordinate Judge's Court extends to all original suits and proceedings of a civil nature, of course subject to the provisions in the CPC. It clearly lays down that both the District Courts and Subordinate Judge's Courts could entertain suits and proceedings of unlimited pecuniary valuation. Section 11(2) of the Civil Courts Act says that the jurisdiction of a Munsiff's Court extends to all like suits and proceedings, not otherwise exempted from its cognizance, of which the amount or value of the subject matter does not exceed ten lakh rupees. This figure was introduced by Act 26 of 2013 with effect from 06.05.2013 and previously it was one lakh rupees. It has to be borne in mind that the suit in question was instituted on 30.01.2013, that is before enhancement of the pecuniary jurisdiction of the Munsiff's Court. This provision clearly indicates that there is a limitation, insofar as a Munsiff's Court is concerned, for taking cognizance of a suit or proceeding and it is subject to the value of the subject matter. The expression "subject matter" has not been defined either in the CPC or Civil Courts Act or in the Kerala Court Fees and Suits Valuation Act, 1959 (in short, "the KCF Act"). We shall consider in the succeeding paragraphs about scope of the expression "subject matter".
16. Section 12 of the Civil Courts Act deals with appeals from R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 12 decrees and orders of District Courts and Subordinate Judge's Courts. It says that save as provided in Section 13, regular and special appeals shall, when such appeals are allowed by law, lie from the decrees or orders of a District Court or a Subordinate Judge's Court to the High Court. This Section is subject to Section 13 which reads thus:
"Appellate jurisdiction of District Court and Subordinate Judge's Court.-(1) Appeals from the decrees and orders of a Munsiff's Court and where the amount or value of the subject matter of the suit does not exceed twenty lakh rupees from the original decrees and orders of a Subordinate Judge's Court shall, when such appeals are allowed by law, lie to the District Court:
Provided that whenever a Subordinate Judge's Court is established in any district at a place other than the place where the District Court is stationed, appeals from the decrees or orders of the Munsiff's Courts within the local limits of the jurisdiction of such Subordinate Judge's Court may be preferred in such Subordinate Judge's Court:
Provided further that the District Court may remove to itself from time to time appeals so preferred and dispose of them itself or may, subject to the orders of the High Court, refer any appeals from the decrees and orders of Munsiff's Courts R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 13 preferred in the District Court to any Subordinate Judge's Court within the District.
(2) The provisions of sub-section (1) shall apply to original decrees and orders of a Subordinate Judge's Court passed after the commencement of the Kerala Civil Courts (Amendment) Act, 1959, notwithstanding the facts that the suits in respect of which such decrees and orders have been passed were instituted before such commencement."
It is clear from Section 13(1) that appeals from decrees and orders of a Munsiff's Court, irrespective of its valuation, and appeals from original decrees and orders of a Subordinate Judge's Court, where the amount or value of the subject matter of the suit does not exceed twenty lakh rupees, will lie to the District Court. This figure, viz., twenty lakh rupees, was substituted by Act 26 of 2013 published in the Kerala Gazette dated 06.05.2013. Earlier the figure was two lakh rupees. It is therefore evident that appeals from original decrees and orders of a Subordinate Judge's Court, when such appeals are allowed by law, where the amount or value of the subject matter of the suit exceeds twenty lakh rupees, will lie before the High Court. The questions demanding answers in this particular case are: Which is the forum of appeal? What is the subject matter of the suit? R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 14 Is it the plaintiff's share or the entire property? Is the value of the entire partible property or the plaintiff's share relevant for deciding the pecuniary jurisdiction?
17. Now we shall examine some of the important provisions in the KCF Act. Provisions of the Madras Court Fees and Suits Valuation Act, 1955 and the rates of fees payable thereunder had been initially adopted in the Kerala Act. The liability to pay fee is clearly mentioned in Section 4 of the KCF Act. It says that no document which is chargeable with fee under the Act shall -
(i) be filed, exhibited or recorded in or be acted on or furnished by, any Court including the High Court, or
(ii) be filed, exhibited or recorded in any public office or be acted on or furnished by any public officer unless in respect of such document there be paid a fee of an amount not less than that is indicated in the Act.
18. Section 7 of the KCF Act is contextually very much relevant. Hence it is excerpted:
R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 15 "Determination of market value.-(1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.
(2) The market value of agricultural land in suits falling under Section 25(a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government.
(3) The market value of a building shall in cases where its rental value has been entered in the registers of any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint.
(3A) The market value of any property other than agricultural land and building falling under sub-sections (2) and (3) shall be the value it will fetch on the date of institution of the suit.
(4) Where the subject matter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest and the value of the restricted or fractional R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 16 interest shall bear the same proportion to the market value of the absolute interest in such property as the net income derived by the owner of the restricted or fractional interest bears to the total net income from the property."
19. In the case of a suit for partition, Section 37 of the KCF Act is the charging provision. It reads thus:
"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 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 Munsiff's Court - Rupees fifty
(ii)a Sub-Court or a District Court - Rupees three hundred (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 R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 17 statement 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 40, separate fee shall be payable on the relief of cancellation in the manner specified in that section."
20. On a careful reading of the Section, it will be evident that it visualises two contingencies, viz., when the plaintiff in a suit for partition is excluded from possession of the suit property and when the plaintiff asserts that he is in joint possession of the property along with other sharers. In the first category of cases, fee shall be computed on the market value of the plaintiff's share. In the second category, the expression "market value of the plaintiff's share" is conspicuously absent in Section 37(2) of the KCF Act. It only says that court fee fixed at the rates shown therein will have to be paid by a plaintiff. Sub-section (3) of Section 37 deals with a situation where a defendant claims partition and separate possession of his share in the property. When the defendant claims partition, but says that he is excluded from possession of the property, he will have to pay court fee on R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 18 his written statement computed on half the market value of his share. If the defendant asserts that he is in joint possession, he will have to pay court fee at half the rates specified in Sub-section (2) of Section 37 of the KCF Act. In other words, the liability to pay court fee by a defendant claiming partition will depend on his assertion as to whether he has been excluded from possession or is in joint possession.
21. Another important provision is Section 53 of the KCF Act. It is quoted hereunder for easy reference:
"Suits not otherwise provided for.- (1) In a suit as to whose value for the purpose of determining the jurisdiction of Courts, specific provision is not otherwise made in this Act or in any other law, value for that purpose and value for the purpose of computing the fee payable under this Act shall be the same.
(2) In a suit where fee is payable under this Act at a fixed rate, the value for the purpose of determining the jurisdiction of Courts shall be the market value or where it is not possible to estimate it at a money value such amount as the plaintiff shall state in the plaint."
22. We shall now deal with the specific challenges raised by Sri.P.B.Krishhan against the objection raised by the Registry. Primarily it is R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 19 contended that the subject matter in a suit for partition, where the plaintiff asserts joint possession, should be taken as the entire property and value in its entirety must be taken to determine the pecuniary jurisdiction. It is also contended that if such a course, deviating from the view taken by the aforementioned Division Benches, is not taken, in many cases, it will be difficult to accommodate the demand by contesting defendant/defendants for share in the property. In some cases, it is contended, the real fight may not be about the plaintiff's share, but about remainder of the shares. In such a situation, difficulties may arise unless a pragmatic view is taken in a case where the plaintiff asserts joint possession of the property with other sharers and becomes liable to pay court fee under Section 37(2) of the KCF Act.
23. Sri.P.B.Krishnan vehementally argued that the views taken by various Courts, especially the Madras High Court, at a time when there was no specific provision for paying court fee in a partition suit, wherein the plaintiff claimed to be in joint possession, was followed blindfoldedly by the above mentioned Division Benches even after enacting a specific provision to compute fees in such cases. In other words, when there was a vacuum in the matter of payment of court fee in such suits in the erstwhile statutes, the Courts stepped in to fill it up by judicial pronouncements. But, after the R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 20 advent of KCF Act in the year 1959, following the scheme in the Madras Court Fees and Suits Valuation Act, 1955, there is no scope for an interpretation that in a suit for partition, where the plaintiff claims joint possession, the subject matter should be treated as the plaintiff's share in the property and court fee has to be computed on the value of his share. In fact, this view is against the existing statutory provisions, contended the learned counsel.
24. We shall analyse these contentions in the light of the statutory scheme borne out from the pre-existing Central Court Fees Act and the present State Act. As shown above, Section 7(iv)(b) of the CF Act, 1870 dealt with enforcement of a right to share in any property on the ground that it is a joint family property. There was a controversy in the interpretation of the expression "to enforce a right to share in joint family property". According to some High Courts, this clause applied to a suit for joint possession by a co-parcener excluded from possession. In other words, the suit contemplated therein is not a suit for partition and possession of a definite share of joint property, but only a suit to enforce a right to share in the joint family property. Some other High Courts took a view that the provision takes in suits for partition of the joint family property as well. Madras High Court in a catena of decisions had held that where R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 21 the plaintiff is in joint possession of the properties sought to be partitioned, whether the suit is for partition and separate possession by a co-parcener of his share in the joint undivided properties or by a member divided in status in respect of any family properties or by a co-sharer in respect of any common properties the suit is regarded as incapable of valuation and a fixed court fee is payable under Schedule II Article 17B. (see R.P.Gill v. Lingamallu Varada Raghavayya and others - (1920) ILR 43 Madras 396; Minor C.R.Ramaswami Aiyangar, represented by his mother and next friend Lakshmi Ammal v. C.S.Rangachariar and others - (1940) ILR Madras 259:(1940) 1 MLJ 32 (FB) and Chandra Bhogi and another v. Guddappa Bhandary - (1953) 1 MLJ 662).
25. Insofar as the jurisdiction value in a suit for partition claiming joint possession is concerned, the Madras High Court took a view that it should be the market value of the plaintiff's share on the date of suit. (see Ponnada Mallayya and another v. Ponnada Jagannadhamma and others - (1941) 2 Madras LJ 567; Kolluri Venkataratnamma v. Maradugula Narasimha Rao and others - 1944 MWN 719 and Ramaswamy Gurukkal v. Sivasubramania Gurukkal and others - (1943) 2 MLJ 106). But, it should be remembered that such a view was taken before the advent of Section 37 of the Madras Court Fees and Suits R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 22 Valuation Act, 1955. Earlier, in a suit for partition by an excluded co-sharer, court fee had to be paid under Section 7(v) of the CF Act, 1870. According to the Bombay High Court, a suit for partition and separate possession of joint family property consisting of land, houses and movables would fall under the said clause. (see Dagdu Valad Sakharam Kunbi v. Totaram Valad Narayan Kunbi - ILR 33 Bombay 658) If a person out of possession should bring a suit for recovery of possession and partition, he must pay court fee as in a suit for possession (see In Re:Nanda Lal Mukherjee (Lunatic) - AIR 1932 Calcutta 227). Nagpur High Court in various cases took a view that Section 7(iv)(b) of the CF Act, 1870 did not apply where the plaintiff alleged joint possession, actual or constructive, of the whole of the estate. The reason is, there is no need to enforce the right, only the mode of enjoyment has to be changed and therefore Schedule II Article 17B would apply to such cases.
26. Sri.P.B.Krishnan relied on the Full Bench decision of the Madras High Court in Minor C.R.Ramaswami Aiyangar, represented by his mother and next friend Lakshmi Ammal v. C.S.Rangachariar and others (1940) 1 MLJ 32) (supra). The facts show that a Hindu minor, through his mother as next friend, filed a suit for partition against his father, three brothers and impleading 22 strangers, either as alienees or as R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 23 creditors of the family. The prayers included taking an account of the family properties, partition of the properties by metes and bounds and possession of the plaintiff's share among other reliefs. The Full Bench held that in respect of the general relief for partition and delivery to the plaintiff of his share, if the words in Section 7(iv)(b) of the CF Act, 1870 were to be given their ordinary meaning, they cannot apply to a suit for partition by a member of a joint family who is still in joint possession. The provision applicable was found to be Article 17B of Schedule II.
27. Full Bench of the Bombay High Court in Shankar Maruti Girme v. Bhagwant Gunaji Girme and others (AIR 1947 Bombay 259) considered the applicability of Section 7(v) of CF Act, 1870 (according to the Bombay amendment) and held thus:
"A partition suit, where the plaintiff under accepted principles of Hindu law is in constructive joint possession of the whole property, is not a suit in ejectment in the ordinary sense of the term. The plaintiff in constructive possession of the whole seeks that the mode of enjoyment of the property by himself and by other members of his family shall be changed, and that, instead of enjoying joint possession of the whole, his possession shall be altered to separate possession of a part. Hence a suit for partition of joint family property, when the R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 24 plaintiff is in constructive possession, is not a suit for the possession of property within the meaning of para. (v) of S.7, Court-fees Act. Such a suit falls under Sch.II, Art.17, cl.(vii) (according to the Bombay amendment) and the court-fee payable is the fixed fee, which under the present Act is Rs.15. .........."
28. A Constitution Bench of the Supreme Court in Sathappa Chettiar v. Ramanathan Chettiar (AIR 1958 SC 245) laid down the following proposition:
"15. What would be the value for the purpose of jurisdiction in such suits is another question which often arises for decision. This question has to be decided by reading S. 7 (iv) of the Act along with S. 8 of the Suits Valuation Act. This latter section provides that, where in any suits other than those referred to in Court-fees Act, S. 7, paras. 5, 6 and 9 and para. 10, Cl. (d), court-fees are payable ad valorem under the Act, the value determinable for the computation of court-fees and the value for the purposes of jurisdiction shall be the same. In other words, so far as suits falling under S. 7, sub-s. (iv) of the Act are concerned, S. 8 of the Suits Valuation Act provides that the value as determinable for the computation of court-fees R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 25 and the value for the purposes of jurisdiction shall be the same. There can be little doubt that the effect of the provisions of S. 8 is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of court- fees and that is natural enough. The computation of court-fees in suits falling under S. 7 (iv) of the Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim for the purpose of court-fees, that determines the value for jurisdiction. The value for court-fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for court-fees stated by the plaintiff that is of primary importance. It is from this value that the value for jurisdiction must be determined. The result is that it is the amount at which the plaintiff has valued the relief sought for the purposes of court-fees that determines the value for jurisdiction in the suit and not vice versa. Incidentally we may point out that according to the appellant it was really not necessary in the present case to mention Rs. 15,00,000 as the valuation for the purposes of jurisdiction since on plaints filed on the Original Side of the Madras High Court prior to 1953 there was no need to make any jurisdictional valuation.
R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 26
16. The plaintiff's failure to state the amount at which he values the relief sought is often due to the fact that in suits for partition the plaintiff attempts to obtain the benefit of Art. 17-B of Schedule II in the matter of payment of court-fees. Where the plaintiff seeks to pay the fixed court-fee as required by the said article, he and his advisers are apt to take the view that it is unnecessary to state the amount for which relief is sought to be claimed for the purposes of court-fees and the valuation for jurisdiction purposes alone is, therefore, mentioned. Often enough, it turns out that the plaint does not strictly attract the provisions of Art. 17-B of Schedule II and that the court-fee has to be paid either under S. 7 (iv) (b) or under S. 7 (v) of the Act. If the court comes to the conclusion that the case falls under S. 7 (iv) (b) or S. 7 (iv) (c) ordinarily liberty should be given to the plaintiff to amend his plaint and set out specifically the amount at which he seeks to value his claim for the payment of court-fees. It would not be reasonable or proper in such a case to hold the plaintiff bound by the valuation made by him for the purposes of jurisdiction and to infer that the said valuation should be also taken as the valuation for the payment of court-fees. ........" R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 27
29. Learned counsel relying on Veeremma v. Butchiah (AIR 1927 Madras 563) contended that only in the absence of a statutory provision the plaintiff can put his own value for the subject matter for deciding the jurisdiction. According to the learned counsel, this freedom will not be available to a plaintiff when there are clear cut guidelines for computing value of the subject matter for the purpose of determining pecuniary jurisdiction.
30. Before moving to resolve the issues raised, we shall interpret meaning of the term "subject matter", which is relevant in this context. Black's Law Dictionary (8th Edition) defines "subject matter" in the following terms:
"subject matter. The issue presented for consideration; the thing in which a right or duty has been asserted; the thing in dispute;"
The Law Lexicon by Sri.P.Ramanatha Aiyar (2nd Edition) defines "subject matter" in the following words:
"Subject-matter. The "subject-matter"
involved in a litigation is the right which one party claims as against the other and demands the judgment of the Court upon it.
The matter in a dispute; matter presented for consideration (S.18(1), Indian Evidence Act). R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 28 "SUBJECT-MATTER" is equivalent to the phrase "cause of action."
The subject matter of a suit cannot be equated with the property in respect of which the parties quarrel. The term 'subject-matter' includes the cause of action also. (Civil Procedure Code O.23 R.1)"
Whether a particular thing is the subject matter of a suit is primarily a question of fact depending upon the circumstances in each case. Even though a matter is not strictly the subject matter of a suit, it may relate to or have a reference to the suit and then it would form part of the consideration.
31. In Vallabh Das v. Madanlal (AIR 1970 SC 987), which was later followed by the Supreme Court in N.R.Narayan Swamy v. B.Francis Jagan ((2001) 6 SCC 473), the apex Court held thus:
" ........... The expression "subject-matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. .........."
32. A Full Bench of this Court in A.Z.Mohd. Farooq v. State Govt. (AIR 1984 Kerala 126) interpreted the expression "subject matter of the R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 29 suit" while considering the scope of Order VIII Rule 6A CPC. Reliance was placed on Chell Engineering v. Unit Tool & Eng. Co. ((1950) 1 All ER
378) wherein it has been held that the subject matter of the suit itself becomes rolled up and inflated as the aggregate of the claims put forward in the suit and in the counter claim. In the light of those observations, in A.Z.Mohd. Farooq's case it was held thus:
"Having regard to the aforesaid provisions, it is possible to hold that the 'subject-matter' of the suit would be the aggregate of the amounts claimed on the plaint and in the written statement by way of counter-claim. ........"
33. To sum up this point, we are of the clear view that subject matter of a suit is not the property in respect of which the suit is laid. It may be the cause of action in some cases. It may be the right which one party claims against the other, demanding a pronouncement by the court. In general, the expression has a reference to a right in the property, which the plaintiff seeks to enforce and, therefore, it includes the cause of action and the relief claimed.
34. Moving to the other aspects, Sri.P.B.Krishnan forcefully argued that statutory schemes under the CF Act, 1870 and SV Act, 1887 are entirely different from those under the KCF Act, insofar as it relates to the R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 30 claim of a plaintiff asserting joint possession in a partition suit. According to him, in the earlier acts there was no equivalent to the present Section 37 (2) of the KCF Act. It is also contended that there was no equivalent provision in the erstwhile enactments which is akin to Section 53(2) of the KCF Act. Further, no provision parallel to Section 37(3) in the KCF Act could be seen in the earlier enactments.
35. On a careful scrutiny of Section 7(iv)(b) and Schedule II Article 17(vi) of CF Act, 1870, it can be seen that Section 7(iv)(b) contemplated payment of court fee in respect of a suit to enforce the right to share in the property on the ground that it was joint family property. In such suits, the plaintiff was having a liberty to state the amount at which he valued the relief sought for. As stated in the previous paragraphs, it has been judicially interpreted that the said provision related to suits filed by persons who were excluded from possession of the property. It can therefore be safely concluded that Schedule II Article 17B was the provision applicable to a suit for partition by a person in joint possession of the property. As mentioned above, the Act underwent an amendment in the Madras Presidency and Article 17B had been brought into Schedule II. With the aforementioned modification, a provision for paying court fee in a suit not otherwise provided for came into being.
R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 31
36. Learned counsel contended that in relation to the claims by a plaintiff who is out of possession, there is considerable similarity in the scheme enunciated by the earlier Acts and the schemes put in place by the present Act. According to him, Sections 37 (1) and 53(1) of the KCF Act are almost equal in extent and magnitude to the provisions in Section 7(iv)
(b) of the CF Act, 1870 and Section 8 of the SV Act, 1887. We have already pointed out that Section 7(iv)(b) of CF Act, 1870 applied to suits instituted by a plaintiff who was kept out of possession of the property. Present provision relating to a suit by such a person can be seen in Section 37(1) of the KCF Act. Section 8 of the SV Act, 1887 indicates the instances where court fees are payable ad valorem under the CF Act, 1870 and it states that the value as determinable for computation of the court fees and value for the purpose of jurisdiction shall be the same. The scheme in the above provisions agrees with that in Section 53(1) of the KCF Act.
37. It is further contended by the learned counsel that a scheme in respect of a plaintiff in joint possession of the partible property specifically was not contemplated under the pre-existing law. It is true that such suits were handled under the residuary clause mentioned above. According to the learned counsel, Section 53(1) of the KCF Act engrafts a legal fiction R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 32 equating valuation of the plaintiff's share to the jurisdiction value. Section 53(2) of the said Act does not contain such a fiction. It is therefore forcefully argued that a fiction contained in one provision cannot be imported to another provision. In otherwords, legal fiction in Section 53(1) of the KCF Act cannot be applied to Section 53(2) as they are kept in water-tight compartments.
38. In order to appreciate these contentions, we conducted a thorough search in the Proceedings in the Kerala Legislative Assembly relating to introduction of the Kerala Court Fees and Suits Valuation Bill, 1958. First time it was introduced in the Legislative Assembly on 29.03.1958. The Minister for Law, Sri.V.R.Krishna Iyer (as His Lordship then was) introduced the Bill. In the introductory address, the Minister made the following observations:
"I move that the Kerala Court Fees and Suits Valuation Bill be referred to a Select Committee. The report may come in due course. There is no particular hurry. The Bill is rather complicated in law but it follows largely the Madras Act. Where have been all kinds of law in regard to Court Fees in various States, but in Madras recently the whole thing was rationalised to some extent and that is taken as a model for the Bill. In Travancore- R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 33 Cochin and Malabar areas there has been different provisions in force, and one of the purposes of this Bill is to unify them."
The Bill was later referred to a Select Committee. Thereafter, on various dates, detailed discussions touching upon the provisions in the Bill were held. It can be seen from the debates in the Legislative Assembly that each and every provision in the Bill was considered threadbare. We have seen from the proceedings that discussions had taken place in respect of Clauses 7, 37 and 53 of the Bill, which later became the provisions in the KCF Act.
39. Suggestions by the members were considered and the Bill was passed by the Legislative Assembly on 17.04.1959. It got the assent of the President of India on 27.07.1960. Date of commencement of the statute is 01.02.1962.
40. In our quest to find out the legislative intendment, we probed deep into the legislative discussions on the Bill. But, we could not find any material to support the contentions raised by Sri.P.B.Krishnan that in a suit for partition filed by a person asserting joint possession, the subject matter for the purpose of jurisdiction value should be the value of the whole property. On an anxious consideration of the erstwhile and present laws touching on the subject and the precedential principles, which can be R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 34 taken as the bedrock of the present enactment, we are unable to accept the arguments raised by Sri.P.B.Krishnan. We shall hereinafter narrate the reasons for differing with him.
41. We are in agreement with the argument that there was no specific provision in the CF Act, 1870 for charging court fee in a suit for partition where the plaintiff claimed joint possession. As mentioned above, Section 7(iv)(b) of the CF Act, 1870 only provided for a suit to enforce a right to share in the joint family property. What could have been contemplated therein must be a suit in respect of a Hindu joint family property, as the system of joint family, unique under pristine Hindu Law, was very much prevalent at that time. Hindu joint families are governed by the principles of joint tenancy. For the same reason, we are of the view that the above provision could not have applied to a case involving tenancy-in- common (commonly known as co-ownership).
42. Distinctions between joint tenancy and tenancy-in-common are well known in law. Joint tenants form one body owning the properties. A joint tenancy is said to be distinguished by four unities, viz., unity of possession, unity of interest, unity of title and unity of the time of commencement of such title. In the case of a tenancy-in-common, it does not require all the four requisites of joint tenancy. Between a joint tenancy R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 35 and tenancy-in-common, there is one similarity, viz., unity of possession. In order to constitute a tenancy-in-common, there must be an equal right to possession of every part and parcel of the subject matter of the tenancy; joint possession is not essential. Other three unities mentioned in the case of joint tenancy need not be there in tenancy-in-common, so that the interest of the tenants-in-common may be unequal; their title may be different and such title might have commenced at different times. A tenant- in-common, as to his own share, is precisely in the position of owner of the entire and separate estate. He can transfer his share during his life time or make a bequest so as to take effect after his death. On his death intestate, his estate would devolve on his heirs. Whereas a joint tenant cannot dispose of his share by Will because the rule of survivorship applied on the death of a joint tenant. But a joint tenant can dispose of his interest by a transfer inter vivos. Upon a transfer inter vivos by a joint tenant, the transferee does not become a joint tenant as he holds his share transferred to him under a title different from the other joint tenants of his transferor. These are some of the peculiar features relating to joint tenancy and tenancy-in-common.
R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 36
43. It is clear from the aforementioned provision in the CF Act, 1870 that it applied only to enforce a right to share in any property on the ground that it is a joint family property.
44. In the peculiar circumstances prevailing in the State of Kerala, after 01.12.1976, ie., after the commencement of Kerala Joint Hindu Family (Abolition) Act, 1975, there cannot be any joint family in existence in the State. It is therefore clear that the expression "joint family property"
occurring in Section 37 of the KCF Act has no significance on account of the disruption of Hindu joint families by the aforementioned Act. Although marumakkathayam law prevails among Muslims living in some part of the State, they do not hold property as joint tenants. In any view of the matter, the expression "joint family property" occurring in Section 37 of the KCF Act has become superfluous in the State.
45. As mentioned earlier, Section 37 of the KCF Act is not only pari materia, but also ipsissima verba with Section 37 of the Madras Court Fees and Suits Valuation Act, 1955. Acclaimed authors Sri.K.Krishnamurthi and R.Mathrubutham on "Guide to the law of court-fees (Madras State)" 4th edition, 1955, have observed thus regarding Section 37 of the Madras Act:
"S.37 of the new Act makes special provision R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 37 for partition suits, but the principles embodied in it are nothing new, as even under the old Act court-fee is leviable on the same principles according to decisions. Thus under the old Act, where the plaintiff is in joint possession of the properties sought to be partitioned, a suit for partition and separate possession of his share is regarded as incapable of valuation, chargeable with a fixed fee under Sch.II, Art.17-B. In this respect there is no difference between a suit for partition of joint family properties and a suit for partition of other common properties. I.L.R. (1940) Mad.259: (1940) 1 M.L.J. 32 (F.B.); 43 Mad. 396: 38 M.L.J. 92 (F.B.). Thus the fixed fee under the old Act is Rs.15 in the District Munsiff's Court and Rs.100 in the Superior Court. This principle is incorporated in S.37(2) of the new Act which provides 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 fixed rates mentioned in the sub- section which vary according to the forum and the value of the plaintiff's share. .........".
46. In many decisions under the CF Act, 1870 and the Madras Court Fees and Suits Valuation Act, 1955, it has been held that where the plaintiff is not in joint possession of all or any of the common properties, R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 38 the suit in respect of the plaintiff's share in them should be valued as one for possession. A claim for partition by a plaintiff excluded from possession of co-ownership property should be presumed to take in a claim for recovery of his share as well. In such a situation, a simple suit for partition may be insufficient for the reason that the plaintiff should firstly secure joint possession of the co-ownership property and then only partition can be effected between the sharers. It has to be viewed in the backdrop of the legal principle that a suit for partition mandatorily requires pre-existing title in all the sharers. It is a well settled principle that possession is one of the essential facets of title. It is therefore indubitable that a suit for partition can be filed only by a person having a pre-existing title over the property, which includes possession - either actual or constructive. Hence, it is clear that a plaintiff who alleges that he is kept out of possession of the partible property should be claiming joint possession for effectuating a partition. That is why the expression "market value of the plaintiff's share" occurring in Section 37(1) of the KCF Act assumes significance. R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 39
47. At this juncture, we shall consider the scope of Section 7 of the KCF Act which deals with determination of market value. Sub-section (1) specifically says that where the fee payable under the Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.
48. Sub-section (2) of Section 7 shows that suits for declaration falling under Sections 25(a) and 25(b), suits for injunction falling under Section 27(a), suits for possession under the Specific Relief Act, suits for possession not otherwise provided for (for eg. a suit for possession on the strength of title) falling under Section 30, suits for partition where the plaintiff avers that he is out of possession of the partible property falling under Section 37(1) and a claim by the defendant for partition, whether he be in joint possession or not, falling under Section 37(3), suits for joint possession of joint family property, etc. coming under Section 38, suits for Survey and Boundaries Act under Section 45 and interpleader suits coming within Section 48 are dealt with thereunder. Sub-section (2) of Section 7 of the KCF Act says that in the above suits market value of agricultural land shall be deemed to be ten times the gross annual profits of such land, where it is capable of yielding annual profits, minus assessment, if any, made to the Government.
R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 40
49. Sub-section (3) of the said Section deals with market value of a building and it says that in all cases, where its rental value has been entered in the registers of a local authority, it shall be ten times such rental value and in other cases the actual market value of the building as on the date of plaint.
50. Section 7(3A) of the KCF Act, introduced by Act 6 of 1991 with effect from 05.12.1990, deals with market value of any property other than agricultural land and building falling under Sub-sections (2) and (3). Market value of such property shall be the value it will fetch on the date of institution of the suit.
51. Now, the significance of Sub-section (4) of Section 7 of the KCF Act can be considered. It says that where the subject of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest and the value of the restricted or fractional interest shall bear the same proportion to the market value of the absolute interest in such property as the net income derived by the owner of the restricted or fractional interest bears to the total net income from the property. It is, therefore, clear that in the case of a restricted or fractional interest, the market value of the subject matter shall be deemed to be the value of R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 41 restricted or fractional interest. Such value of restricted or fractional interest shall bear the same proportion of the market value of such property, which has to be computed in terms of the aforementioned provisions.
52. If we juxtapose various provisions in Section 7 with Section 37 (1) of the KCF Act where the expression "market value of the plaintiff's share" occurs, it can be seen that depending on the nature of property involved in a suit for partition, where the plaintiff is excluded from possession, computation of market value shall be done as mentioned above. But, it is very important to note that a suit filed by a plaintiff asserting joint possession falling under Section 37(2) has not been dealt with in any of the Sub-sections in Section 7 of the KCF Act. Obvious reason is that the expression "market value of the plaintiff's share" is absent in Section 37(2) of the KCF Act.
53. On a close look at Section 53 of the KCF Act, it can be seen, as contended by the learned counsel, that Section 53(1) creates a legal fiction where in a suit as to whose value for the purpose of determining the jurisdiction of courts, specific provision is not otherwise made in the Act or in any other law, value for that purpose and value for the purpose of computing the fee payable under the Act shall be the same. We agree R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 42 with the argument that Section 53(1) of the KCF Act does not deal with a case falling under Section 37(2) of the said Act.
54. Section 53(2) of the KCF Act has two limbs. First limb says that in a suit where fee is payable under the Act at a fixed rate, the value for the purpose of determining jurisdiction of the courts shall be the market value. Pertinent aspect to be noted here is "market value" of what has not been specifically mentioned in the first limb of the Section. We are of the considered view that "market value" mentioned in Section 53(2) can only be the market value of the subject matter. There cannot be any doubt about this, because contextually the expression "market value" cannot have a different shade of meaning and it cannot relate to anything else other than the subject matter. We have already seen that subject matter in a suit for partition is not the property involved in the suit. As stated above, it can be the right of the plaintiff in the property, which the plaintiff seeks to enforce. It includes the cause of action and the reliefs claimed.
55. Second limb of Section 53(2) of the KCF Act says that where it is not possible to estimate the value for the purpose of determining jurisdiction of the court at a money value, such amount as the plaintiff shall state in the plaint.
56. Judicial pronouncements made during the currency of CF Act, R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 43 1870 and SV Act, 1887 had struck a uniform note that the relief of partition claimed by a joint owner in joint possession of the property is one which cannot be estimated at a money value. It should be remembered that then there was no provision in existence akin to Section 53(2) of the KCF Act. The above said view was shared by a learned Single Judge of this Court while dealing with another question under Section 53(2) of the KCF Act in Kunju Mohammed Kunju v. Kunju Auwa Ummal (1968 KLT 967). Of course, the observation by the learned Single Judge in the context of that case was only an obiter dicta.
57. A learned Single Judge in Maimu v. Beebi (1971 KLT 741) declared the law correctly that it is hardly contestable that Section 53(2) and not Section 53(1) which applies to a suit falling under Section 37(2) of the KCF Act. Learned Single Judge further held that Section 7(2) of the KCF Act is not applicable in a suit falling under Section 37(2) of the said Act. According to him, Sub-section (4) of Section 7 of the KCF Act applied to a suit for partition falling under Section 37(2) of the KCF Act. We respectfully disagree with this view. From the discussions made in the Kerala Legislative Assembly, it can be seen that when the Kerala Court Fees and Suits Valuation Bill, 1958 was moved, originally Clause 7(4) was intended to deal with suits in which restricted interest in a property was R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 44 involved. In the discussion held on 02.03.1959 in the Assembly, then Minister for Law explained what was meant by "restricted interest" in the Bill. It was only a limited interest, where the subject is restricted in interest and not "fee simple", as is known in English law or the ownership in entirety. If that was the intention of the legislature when Section 7(4) of the KCF Act was enacted, the expressions therein as "restricted or fractional interest in a property" can only refer to a limited interest. It is all the more clear from the final resolution that in Section 7(4) wherever the words "restricted interest" occurred, they should be substituted with the words "restricted or fractional interest". Legislative history shows that the expression "restricted or fractional interest" in a property was not intended to mean a joint ownership in any form. Not only that neither a joint ownership nor a co-ownership can be regarded legally a limited interest for the aforementioned reasons. Therefore, the observation in Maimu's case that a suit wherein court fee is payable under Section 37(2) of the KCF Act will be governed by Section 7(4) of the said Act is not the correct proposition of law. We therefore overrule that declaration of law.
58. As mentioned above, Section 53(2) of the KCF Act applies to a suit for partition where the plaintiff asserts joint possession. It is clear that the value for the purpose of determining jurisdiction of the court shall be R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 45 the market value of the subject matter. We have already seen that the subject matter is not the property involved in the litigation. It takes in the reliefs claimed and cause of action. As pointed out earlier, in a suit for partition by a person claiming joint possession the real issue involved is regarding the adjustment of rights between the joint owners. It is a fundamental principle that every co-owner has a right over each and every part and parcel of the joint property. In a suit falling under the first limb of Section 53(2) of the KCF Act, determination of the market value is not possible with reference to Section 7 of the said Act. Market value visualized herein is the actual or real market value. If a defendant in a case raises a dispute that the plaintiff's share has been undervalued, Section 19 of the KCF Act takes care of the situation, where the court can ascertain whether the subject matter of the suit has been properly valued or not. There cannot be a dispute regarding quantum of the court fee in a partition suit falling under Section 37(2) of the KCF Act.
59. Eventual outcome of the above discussion lead us to an irresistible conclusion that the contention raised by the learned counsel that a suit coming under Section 37(2) of the KCF Act should be valued on the basis of the value of the entire partible property cannot be accepted. Provisions in Section 7 of the KCF Act are not applicable to such suits. R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 46 From the provisions in Section 53(2) of the KCF Act, it will be clear that where fee is payable in a suit at a fixed rate under the provisions of the Act, value for the purpose of jurisdiction can be determined by two different methods. Firstly, value for the purpose of jurisdiction shall be the market value of the subject matter. Market value shall be the actual market value existed as on the date of institution of the suit. Subject matter, as stated above, could be the right in the property which the plaintiff seeks to enforce or the cause of action or the reliefs claimed. So, the legal logic that value of the plaintiff's share determines the value for the purpose of jurisdiction of the court is sound and rests on the foundation of established legal principles.
60. According to the learned counsel, the principle that value of the plaintiff's share will determine the jurisdiction of the court was evolved on the basis of pronouncements made in the absence of a provision like Section 53 of the KCF Act. He would further contend that in the present statutory scheme such a view is impossible. This contention is also not correct because the said provision itself is a statutory recognition of the law laid down in a long line of decisions. In other words, the said provision reflects stare decisis, even-handedly and predictably applied for a long time.
R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 47
61. Secondly, in certain other cases, where it is not possible to estimate it at a money value, then the plaintiff shall estimate the value in the plaint. This estimation is amenable to a challenge by the opposite party and if it is established that the basis of estimation was wrong, the plaintiff will be liable to pay proper court fee.
62. We shall now consider the question posed as to what will happen when value of the share of a defendant claiming partition exceeded the pecuniary limits of the court which took cognizance of the case?
63. It is a well settled law that question of pecuniary jurisdiction should be taken up as a preliminary factual question and that too at the first opportunity. Section 21(2) CPC reads as follows:
"21. Objections to jurisdiction.-
xxxxxxx (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
xxxxxx"
R.F.A.No.3 of 2017
& Z R.F.A.No.39 of 2017 48 On a plain reading of the above provision, it will be evident that question regarding pecuniary jurisdiction should be taken in the court of first instance and that too at the earliest possible opportunity.
64. Assume a case where the defendant takes up a contention of lack of pecuniary jurisdiction. Certainly he can rake up that issue at the initial stage of the suit itself because in such a suit, as per Section 37(3) of the KCF Act, fee shall be payable on his written statement computed on half the market value of his share, when he is excluded from possession or at half rates specified in Section 37(2), if he is in joint possession.
65. In this context, it is to be borne in mind that claim by a defendant for separation of his share in a suit for partition can never be equated to a counter claim. Basic principle in a suit for partition that all the parties should be regarded as sharers or joint owners or co-owners, as the case may be, leads us to a proposition that the defendant seeking partition and separate possession should be identically placed with the plaintiff. In other words, he does not join issue with the plaintiff in the suit as long as he does not dispute partibility of the property. In such a suit, the accrual of cause of action as mandated under Order VIII Rule 6A CPC is irrelevant. Further, such a claim by a defendant cannot be regarded as a cross-suit as provided in Order VIII Rule 6A(2) CPC because he also seeks adjustment R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 49 of a pre-existing right in the property. By allowing the defendant's prayer for separation of his share, no new relief is granted to him. In fact that relief flows from the pleadings and reliefs claimed in the plaint.
66. We notice that a Division Bench of the Karnataka High Court in Gowramma v. Nanjappa (AIR 2002 Karnataka 76) has also taken a view that a defendant's claim for partition cannot be viewed as a counter claim. We are in agreement with the following observations:
"When a defendant in a suit for partition seeks his or her share in property by paying Court- fees such a defendant is not making a 'Counter claim' against a plaintiff alone. He is virtually joining the plaintiff in seeking the relief. He is seeking relief for himself not only against the plaintiff, but also the other defendants. The order of Court treating the written statement in a suit for partition seeking separate possession of the defendant's share as a counter-claim against the plaintiff is therefore not proper."
67. Another axiomatic legal principle is that valuation for the purpose of jurisdiction and court fee shall be determined on the basis of the plaint averments. Of course, the defendant has every right to challenge the plaint averments. Unless that course is adopted, at a later point of time, neither the court nor the contesting parties can dispute the pecuniary R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 50 jurisdiction. Further, in a partition suit where the defendant also claims separation of his share, both the parties get the reliefs in one stroke because essentially what is granted therein is the separation of their shares from rest of the partible property. As the parties must have had a pre-existing right over the property, by effecting a partition their rights will be confined to a particular part of the property. Viewed in that perspective, no different relief is granted to such a defendant; so much so value of his share is not a determinative factor for deciding the pecuniary jurisdiction. Therefore we find no difficulty in a case of this nature where the defendant claims partition and separate possession even if he holds a greater share than the plaintiff.
68. In the light of the above findings, we shall examine the correctness of the principles in the Division Bench decisions mentioned in the reference order.
69. In Valsalan's case, the Division Bench followed the decisions rendered by the Madras High Court and held that in a suit for partition, it is the value of the share which the plaintiffs claims in the joint family property or the property of which partition is sought, which determines the pecuniary jurisdiction of the court and not the value of the entire property. The Madras Court Fees and Suits Valuation Act, 1955 and the KCF Act, which R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 51 followed the footsteps of the other Act, statutorily recognised the principles of law laid down in various decisions that in a suit of this nature, the pecuniary jurisdiction is dependant on the value of share the plaintiff claims in the joint property. No material is available before us to hold that the draftsmen intended to deviate from the stare decisis. It is clear, in the said statutes the maxim stare decisis et non quieta movere (to stand by previous decisions and not to disturb settled matters) has been meticulously observed. The above mentioned principle in Valsalan's case was considered in a different context and followed in Ramanan's case. In Sumangala's case, the same question directly arose and the Division Bench applied the principle in Valsalan's case. From the discussions made above, we find the ratio in the decisions are correct and we approve the same.
70. We therefore answer the reference by finding that in a suit for partition where the plaintiff asserts that he is in joint possession of the property along with other sharers, value of the subject matter for the purpose of determining pecuniary jurisdiction is the value of the plaintiff's share mentioned in the plaint. Primarily the plaint averments should decide the valuation for the purpose of jurisdiction. In a suit wherein court fee has to be paid under Section 37(2) of the KCF Act, jurisdiction value shall be R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 52 decided in accordance with the provisions in Section 53(2) of the said Act and Section 7 of the KCF Act has no application in such a suit. The defendant in such a suit is entitled to challenge the jurisdiction value as provided in Section 21 CPC and also in Section 19 of the KCF Act. If no challenge is made by a defendant regarding the pecuniary jurisdiction at the first opportunity, the court cannot at a later point of time entertain such a contention. So much so, it cannot refuse a relief to the defendant, who claims partition and separate possession, if he takes steps required for granting the reliefs, regardless of his share.
71. Having laid down the principles as above, we are of the considered view that both the appeals are not maintainable before this Court. Therefore, we shall dispose the appeals without sending them back to the Division Bench concerned. As pointed out earlier, total value of the property as per the plaint averment is `11,25,000/- and the plaintiff's share is valued at `1,87,500/-. The suit was laid on 30.01.2013. As on the date of institution of the suit, as per Section 13 of the Civil Courts Act, the District Court concerned was having jurisdiction to entertain an appeal from the decree in this case. The valuation adopted by the appellant in R.F.A.No.3 of 2017 is without any legal or factual basis. No party to a suit can show a valuation of his choice, different from that is shown in the R.F.A.No.3 of 2017 & Z R.F.A.No.39 of 2017 53 decree, in order to file an appeal before a forum of his convenience or liking. Therefore, the Registry shall return both the appeals to the respective parties for filing before the appropriate court.
We dispose of the reference and the cases accordingly. All pending interlocutory applications will stand dismissed.
K.SURENDRA MOHAN, JUDGE.
A.HARIPRASAD, JUDGE.
MARY JOSEPH, JUDGE.
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