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Documents citing Sm. Mala Devi vs Priyamoni Devi on 6 November, 1952

Palaniandi vs Logambal And Ors. on 3 September, 1985

These principles have been followed by Ramanujam, J., in Manjini Mudaliar v. Karunanidhi by the Andhra Pradesh High Court in S.Z. Zare v. P.V. Muralidhar and by a Division Bench of the Orissa High Court in Mala Devi v. Priyamoni Devi . Learned Counsel for the petitioner also cited certain other judgments which do not take us any farther. However, by the amendment of 1975, even in respect of a case falling under Clause (a) of Explanation I, the subject matter of the suit shall be excluded from consideration. The question, therefore, for consideration is, what is the subject-matter of a suit in the case of a partition suit. Learned Counsel for the respondent strenuously contended that that share which is not disputed could not be considered to be the subject matter of the suit. In other words, according to the learned Counsel, the words "Subject-matter of the suit" in Explanation I should be read as or equated to "a subject-matter of dispute". We could not accede to this contention of the learned Counsel for more than one reason. Firstly, we have to give a meaning to the words, "Subject-matter of the suit" which is applicable uniformly in regard to all the suits and appeals preferred irrespective of the question whether the point to be considered is the plaintiff's means to pay the court-fee or the defendant's means to pay the court-fee when he files an appeal. In the case of a plaintiff, since the question of court-fee will have to be decided at the time of filing of the suit, even before the written statement is filed and the right is disputed or accepted, if the suit is one for partition and separate possession of the plaintiff's share, irrespective of the allegation in the plaint whether the share is admitted or not, the subject- matter of the suit being the entirety of the property, that share of the plaintiff cannot be taken into account for the purpose of considering whether the plaintiff has the means to pay the court-fee. Otherwise, in every case, irrespective of the fact whether the defendant is going to dispute the right or not, he will be liable to pay court-fee in all partition suits. Secondly, in a partition suit, though the share of the plaintiff or the defendant may be admitted, it could not be predicted with certainty as to which item of property belongs to that share. Until the partition is effected with reference to good and bad qualities of the soil and a share is allotted to any individual and possession is given to him, there is no certainty of the property and therefore it is not possible to say that the person is possessed of means to pay the court-fee. It is true that even as an undivided share, it may be possible to dispose of a property and raise money. However, as we have stated, since Explanation 1 (a) definitely excludes the entire subject-matter of the suit from consideration, the admitted share also has to be excluded from consideration as that also forms the subject-matter of the suit. Thirdly, we are also of the view that the words "Subject-matter of the suit" should receive a wider interpretation in the case of a partition suit so as to include the entirety of the property, and not to a case alone where the share is disputed.
Madras High Court Cites 4 - Cited by 1 - V Ramaswami - Full Document

Palaniandi vs Logambal And Ors. on 3 September, 1985

These principles have been followed by Ramanujam J. in Manjini Mudaliar v. Karunanidhi, ; by the Andhra Pradesh High Court in S.Z. Zare v. P. V. Muralidhar, and by a Division Bench of the Orissa High Court in Mala Devi v. Priyamoni Devi, . Learned counsel for the petitioner also cited certain other judgments, which do not take us any further. However, by the amendment of 1976, even in respect of a case failing under clause (a) of Explanation 1, the subject-matter of the suit shall be excluded from consideration. The question, therefore, for consideration is, what is the subject-matter of a suit in the case of a partition suit. Learned counsel for the respondent strenuously contended that that share which is not disputed could not be considered to be the subject-matter of the suit. In other words, according to the learned counsel, the words 'subject-matter of the suit' in Explanation should be read as or equated to 'a subject-matter of dispute". We could not accede this contention of the learned counsel for more than one reason. Firstly, we have to give a meaning to the words 'subject-matter of the suit' which is applicable uniformly in regard to all the suits and appeals preferred irrespective of the question whether the point to be considered is the plaintiffs means to pay the court-fee or the defendant's means to pay the court fee when he files an appeal. In the case of a plaintiff, since the question of court fee will have to be decided at the time of filing of the suit even before the written statement is filed and the right is disputed or accepted, if the suit is one for partition and separate possession of the plaintiffs share, irrespective of the allegation in the plaint whether the share is admitted or not, the subject-matter of the suit being the entirety of the property, that share of the plaintiff cannot be taken into account for the purpose of considering whether the plaintiff has the means to pay the court fee. Otherwise, in every case, irrespective of the fact whether the defendant is going to dispute the right or not, he will be liable to pay court fee in all partition suits. Secondly, in a partition suit though the share of the plaintiff or the defendant may be admitted, it could not be predicted with certainty as to which item of property belongs to that share. Until the partition is effected with reference to good and bad qualities of the soil and a share is allotted to any individual and possession is given to him, there is no certainty of the property and therefore it is not possible to say that the person is possessed of means to pay the court fee. It is true that even as an undivided share, it may be possible to dispose of a property and raise money. However, as we have stated, since explanation 1(a) definitely excludes the entire subject-matter of the suit from consideration, the admitted share also has to be excluded from consideration as that also forms the subject-matter of the suit Thirdly, we are also of the view that the words 'subject-matter of the suit' should receive a wider interpretation in the case of a partition suit so as to include the entirety of the property, and not to a case alone where the share is disputed.
Madras High Court Cites 5 - Cited by 1 - V Ramaswami - Full Document
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