1. Aggrieved by the order of the learned subordinate Judge, Ariyalur, directing the plaintiffs to pay court-fees under Section 37(1) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 (hereinafter referred to as “the Act”), they preferred the present revision before this court. Petitioners 2 to 4 herein are daughters of the first petitioner. 5th petitioner is the grand-daughter of the first petitioner. They filed a suit for partition and separate possession of their 11?18th share in the suit properties which are described in Schedule A to C. The suit came to be filed on account of the fact that after the death of the husband of the first petitioner, namely, Ramalingam, the first respondent herein who is the son through the second wife Logambal did not make any arrangement for partition of the properties of her deceased husband. The said Ramalingam died on 9.2.97, and according to the petitioners who are his Class-1 heirs have filed the suit seeking partition and separate possession of their share in the properties of the deceased Ramalingam. They valued their share at Rs. 17,64,024.13 and having regard to the fact that they are in joint possession and the original owner Ramalingam had died intestate, in the capacity as co-owners the suit was valued under Section 37 (2) of the Act and each of them had paid a court-fee of Rs. 200. The court below had raised some objections regarding the court fee paid and after enquiry, the learned Subordinate Judge by his impugned order dated 21.12.98 came to the conclusion that the court-fee ought to have been paid under Section 37 (1) of the Act and directed them to make good the deficit. Aggrieved by the said order the petitioners have filed the present revision.
2. Heard the learned counsel for the petitioners as well as contesting first respondent.
3. The court below on the basis of certain averments in the plaint, directed the plaintiffs to pay court-fee under Section 37 (1) of the Act. In view of the controversy, learned counsel appearing for the petitioners took me through the plaint averments. It is settled law that the question of court-fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. Further all the material allegations contained in the plaint should be construed and taken as a whole. In the plaint, they prayed for 7?18 share in favour of the first plaintiff and first defendant and 18th share in favour of plaintiffs 2 to 5. A reading of the entire plaint shows that the properties are in joint possession of the sharers concerned. No doubt, in certain paragraphs, the plaintiffs complained regarding the attitude of the first defendant in not maintaining good relationship after the death of Ramalinga Udayar and strained relationship and differences of opinion. It is also true that they made allegations stating that the first defendant appropriated funds from joint family properties. No doubt, in para 6, the plaintiffs initially mentioned that the first defendant had sold lands in item 1 in A Schedule independently without reference to them. It is also true that they have made certain allegations against first defendant holding that he had let out the joint family lands to various tenants and appropriating the same without sharing the income with the other sharers. On the basis of the said averments, the court below came to the conclusion that the plaintiffs were excluded from joint possession and the entire properties are with the control and enjoyment of the first defendant. As stated earlier, after perusing the entire averments, in the plaint, I am of the view that there is no basis for such conclusion. On the other hand, the plaintiffs have expressed their-well in not sharing the income of the joint family properties with the plaintiffs by the first defendant. In this regard, it is useful to refer the relevant provision. Section 37 of the Act reads thus:—
“37. 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 District Munsif s Court
Rupees Thirty
(ii) the City Civil court, Madras, or a sub-court or a District Court.
Rupees Thirty if the value of plaintiff s share is Rs. 5, 000 or less; Rupees one hundred if the value is above Rs. 5,000 but below Rs. 10,000 and Rupees two hundred if the value is Rs. 10, 000 and above.
(iii) the High court
Rupees three hundred,”
In the light of the averments made in the plaint, the petitioners herein had valued their share at Rs. 17,64,024.13 and having regard to the fact that they are in joint possession and in view of the fact that the original owner Ramalingam had died interstate, in the capacity as co-owners, the suit was valued under Section 37 (2) of the Act. They also paid court fee of Rs. 200 in terms of the said provision.
4. Now I shall consider certain decisions on this aspect. In Sankaran v. Varathan, AIR 1961 Ker. 142, C.A Vaidialingam, J., after referring to Article 17B of Schedule n of the Indian Court-Fees Act as amended by Madras Act has concluded thus:—
“23) I may also indicate that the learned Government Pleader to whom notice has been issued contended that in this case there are allegations to the effect that the plaintiffs have been excluded from possession or enjoyment of the suit properties by other sharers and as such the suit comes under Section 3, sub-section (5) of the Travancore-Cochin Court-fees Act. He relied upon the allegations contained in paragraphs 15 and 21 of the plaint. I have gone through the said allegations and those allegations in my opinion do not amount to an averment by the plaintiffs that there has been an ouster by the other co-owners.
Such allegations that the plaintiffs have not been paid their share or that the defendants are appropriating the entire profits, cannot by themselves be considered to mean that there is such exclusive possession on the part of the defendants which the plaintiffs understand to amount to an ouster. Those are all allegations made by the plaintiffs for separating their share from the rest of the parties. I am not able to read more into those allegations so as to Justify me to accept the contention of the learned Government Pleader.”
In Mohamed Ismail v. Khadirsa Rowther, 1982 (II) MLJ 367 a Division Bench of this Court has held that,
“9 The law is well-settled that mere possession however long cannot imply ouster. Equally it is well-settled that the mere non-participation in the income alone would not be enough to constitute ouster…”
The other important decision which is directly on the point is in the case of Neelavathi v. N. Natarajan, AIR 1980 S.C 691. In that decision. Their Lordships have considered the very same provision, viz.. Section 37 (1) of the Act. The following observations and conclusions are relevant:—
“6 On reading of the plaint as a whole, we are unable to agree with the view taken by the High Court. It is settled law that the question of court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole……The plea that they were not given their due share would not amount to dispossession. Reading the plaint at its worst against the plaintiffs, all that could be discerned is that as the plaintiffs were not given their share of the income, they could not, remain in joint possession. The statement that they are not being paid their income, would not amount to having been excluded from possession. The averment in the plaint cannot be understood as stating that the plaintiffs were not in possession.”
After referring to Section 37 (1) and (2) of the Tamil Nadu Court Fees and Suits Valuation Act. Their Lordships have also concluded thus:—
“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 the daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the mitakshara coparcenary property, acquired an interest by devolution under the Act. It is 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 or some income from the property, so long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Sec. 37 (1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been excluded from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiff had been excluded from possession.”
5. All the above decisions support the claim of the plaintiffs. Further, the allegations made in the plaint would show that the plaintiffs have not been paid their share and that the first defendant is appropriated in the entire profits cannot by themselves be considered to mean that there is such exclusive possession of, on the part of the defendants which the plaintiffs understand to amount to an ouster. As rightly observed in the Kerala decision Sankaran v. Varathan, AIR 1961 Ker. 146 those are all allegations made by the plaintiffs for separating their share from the rest of the parties. It is also clear from the 3 Judges Bench decision of the Supreme Court referred to above Neelavathi v. N. Natarajan, AIR 1980 SC 691 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. Further, it is not necessary that they should be getting a share or 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 they are in joint possession unless they are excluded from such possession. In the light of the categorical averments in the plaint and in view of the decisions referred to above, I am unable to sustain the conclusion arrived by the court below.
6. In the result, the civil revision petition is allowed and the direction by the trial court as to payment of court-fees under Section 37 (1) of the Act is set aside. No costs.