Madras High Court
S. Balambal vs Sundaresan And Nine Ors. on 5 February, 1996
Equivalent citations: 1996(1)CTC420
ORDER Raju, J.
1. The above revision petition has been filed against the order of the learned Subordinate Judge, Kumbakonam, dated 29.6.1995, on Checkslip in O.S. No. 73 of 1991, wherein the Court below has held that the plaint ought to have been valued under section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (hereinafter referred to as "the Act") and granted time till 14.7.1995 to pay the deficit court-fee.
2. Petitioner-plaintiff filed the suit, O.S. No. 73 of 1991, claiming partition and separate possession of her 1/4th share in the 'A' Schedule property and for the attendant reliefs prayed for, which need no elaborate reference. The fact remains that the plaintiff claims a share in the property as the daughter and as Class I heir of late Subramania Dikshithar, said to have died on 14.2.1987. The defendants are other heirs and successors in interest of the original owner. Though the suit was numbered as such, apparently on account of the objection taken in the written statement filed questioning the property and legality of the valuation of the plaint under section 37(2) of the Act as against 37(1) of the Act, the Court below has re-considered the matter and on account of the checkslip put up, passed orders, which are under challenge.
3. The Court below has adverted to the salient features of the plaint and the manner in which the claim has been projected, particularly in paragraphs 4 and 5 and came to the conclusion that the plaint ought to have been valued under section 37(1) of the Act only. Aggrieved, the above revision petition has been filed.
4. Mr. N. Sankaravadivel, learned counsel for the petitioner strongly relied upon the decision in Neelavathi v. N. Natarajan, , wherein the apex Court held as follows:
"Section 37 of the Tamil Nadu Court Fees and Suits Valuation Act relates to partition suits. Section 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. 37(2). In a suit for partition and separate possession of joint family property or property owned, jointly or in common by a plaintiff* who is in joint possession of such property, fee shall be paid at the rates prescribed."
"It will be seen that the court fee is payable under 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 Section 6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the mitakshara coparcenary property, acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided 'joint family property' though not in the strict sense of the term. The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved," To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share of some income from the property. So long as his right to a share and the nature of the property as joint is not disputed, the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court-fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that 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 plaintiff a clear and specific admission that the plaintiff had been excluded from possession."
It may be seen from the narration of facts set out in the earlier part of the said judgment that there were sufficient plaint averments in that case that the plaintiffs were in joint possession of the properties along with the defendants. But, inspite of the said position, the Courts below have taken into account the averments in the written statement and finally come to the conclusion that the plaint therein requires to be valued under section 37(1). It is in that context, having regard to the peculiar facts of the case, the observations and conclusions referred to supra came to be made, particularly in view of the plaint averments.
5. In so far as the present case is concerned, it could be seen that the plaintiff is residing at Madras, that the property is situate at Kumbakonam Taluk, Thanjavur District, that the defendants above are admittedly in possession of the suit property even as per the plaint averments and also enjoying exclusively the income from the property. Instead of any positive averment of joint possession, the claim by the plaintiff in paragraph 7 is only a constructive possession as a co-owner. To a case of the nature, in my view, the decision of a Division Bench of this Court in Sridharan v. Arumugam, 1993 II MLJ 428 would squarely apply. The allegations in the plaint to which specific reference has been adverted to both by the Court below and by me in this order would go to show that the plaintiff has failed to make specific and categorical plea of joint possession along with the defendants and the materials available on the plaint itself that she has been living in Madras all along and was not in the family, would go to show that to a case of the nature the principles laid down in Sridharan's case 1993 II MLJ 428 Supra, would be attracted and the Court below was right in holding that the plaint ought to have been valued under section 37(1) of the Act. Consequently, I do not sec any infirmity or error of law in the exercise of jurisdiction by the Court below. The revision petition, therefore, faile and shall stand dismissed.
6. Since the time granted by the Court below has expired and the matter has been pending in this Court, I consider it appropriate to give further time to enable the plaintiff to pay the deficit court-fee, The petitioner plaintiff shall have 60 (sixty) days' time from today to pay the deficit court fee. CMP. No. 1498 of 1996 is also dismissed.