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Jagannath Amin v. Seetharama (Dead) By Lrs. And Others
Factual and Procedural Background
The appellant’s mother instituted a suit for partition of certain agricultural property, seeking division of the scheduled land into two equal shares. She valued the suit under Section 7(2)(d) of the Karnataka Court Fees and Suits Valuation Act, 1958 and paid a fixed court fee of Rs 200 in terms of Section 35(2) of the Act, asserting constructive joint possession as a co-owner. The defendants contended that the land was a house-site, not agricultural, and that the plaintiff was out of possession, thereby attracting Section 35(1) which requires ad valorem court fee on the actual market value.
During trial, additional issues were framed at the defendants’ behest, and the High Court twice intervened on revision petitions, ultimately directing the trial court to treat the court-fee question as a preliminary issue. The First Additional Civil Judge, Junior Division, Mangalore, ruled that Section 35(1) applied. The appellant’s revision to the Karnataka High Court was dismissed, leading to the present appeal before the Supreme Court.
Legal Issues Presented
- Whether, in a partition suit filed by a co-owner claiming constructive joint possession, court fee is payable under Section 35(1) (market-value basis) or under Section 35(2) (graded fixed fee) of the Karnataka Court Fees and Suits Valuation Act, 1958.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| T.K. Srinivasamurthy v. T. Seetharamaiah, AIR 1990 Kant 149 | Followed Neelavathi; in a partition suit a plaintiff in joint possession pays court fee under Section 35(2). | Cited as persuasive Karnataka authority mirroring the present facts. |
| Neelavathi v. N. Natarajan, (1980) 2 SCC 247 | Unless specifically excluded from possession, a co-owner is presumed in joint possession; court fee therefore under statutory provision akin to Section 35(2). | Formed the primary ratio adopted to negate the trial court’s reliance on Section 35(1). |
| Commercial Aviation & Travel Co. v. Vimla Pannalal, (1988) 3 SCC 423 | Difficulties in precisely valuing partition relief justify plaintiff’s option/fixed fee mechanism. | Reinforced that ad valorem valuation is inappropriate where share conversion cannot be precisely quantified. |
| S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar, 1958 SCR 1024 | In partition claims under Section 7(iv)(b) of the Court Fees Act, the plaintiff’s valuation is ordinarily accepted because precise valuation is impracticable. | Quoted to illustrate legislative intent behind optional/fixed-fee provisions that parallel Section 35(2). |
Court's Reasoning and Analysis
The Supreme Court held that the trial court and High Court misapplied Section 35(1). Drawing on Neelavathi and the line of authorities that treat co-owners as being in joint possession unless a clear plea and proof of exclusion exists, the Court emphasised:
- No averment in the plaint demonstrated that the plaintiff had been “excluded” from possession.
- Under the general law of co-ownership, possession of one is possession of all, negating the necessity to prove actual physical control or receipt of income.
- Commercial Aviation and Sathappa Chettiar establish that partition relief cannot be valued with precision; the legislature therefore permits a graded or optional fee, reflected in Section 35(2).
Because the prerequisites for invoking Section 35(1) were absent, the correct provision was Section 35(2). Consequently, the concurrent findings of the courts below were legally unsustainable.
Holding and Implications
Order of the Karnataka High Court set aside; appeal allowed; no order as to costs.
Direct Effect: The partition suit will proceed with court fee computed under Section 35(2) rather than Section 35(1).
Broader Implication: The judgment reaffirms that, in Karnataka, plaintiffs in partition suits who plead joint possession need only pay the graded fee unless their exclusion from possession is clearly pleaded and proved, thereby aligning state practice with the Supreme Court’s decisions in Neelavathi and Commercial Aviation cases. No new legal precedent was created, but existing principles were clarified and reinforced.
Arijit Pasayat, J.— Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Karnataka High Court dismissing the civil revision petition filed by the appellant.
3. Challenge before the High Court was to the order passed by learned First Additional Civil Judge, Junior Division, Mangalore, holding that Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958 (in short “the Act”) was applicable and not Section 35(2) of the said Act in a suit for partition relating to agricultural land. Originally the suit was filed by the appellant's mother. She had filed the suit for partition of the scheduled property claiming that the same should be divided into two equal shares by metes and bounds through the process of court. The plaintiff had filed suit under Section 7(2)(d) of the Act and paid court fee of Rs 200 under Section 35(2) of the Act. Four defendants filed written statement. Defendants 2 and 3 also filed written statement separately. After hearing the appellant, learned First Additional Civil Judge framed several issues on 19-12-1998. The appellant contended before the trial court that being a co-owner under the law she is presumed to be in constructive possession of the property and as such court fee is to be paid on the deemed market value and not on actual market value. Plaint scheduled property being agricultural property as such court fee is valued under Section 7(2)(d) of the Act and she cannot be compelled to value the said property under Section 35(1) of the Act being a co-owner in respect of the plaint scheduled property along with the defendants. The defendants took the stand that the property is not agricultural property and is a house site and as such court fee under Section 35(1) of the Act is to be paid on the actual market value and not on deemed market value.
4. When PW 1 was examined during the cross-examination of the said witness Defendant 4 filed an IA under Order 14 Rule 2(2) of the Code of Civil Procedure, 1908 (in short “CPC”) for framing additional issues and the same was allowed. Accordingly, three additional issues were framed. Thereafter, Defendant 4 again filed an IA under Order 14 Rule 2(2) CPC for taking up additional Issue 3 i.e regarding payment of court fee as preliminary issue. The trial court was of the view that additional Issue 3 cannot be tried as a preliminary issue and posted the matter for consideration of all issues. Challenging the said order revision was filed before the High Court which disposed of the application stating that the defendant will be at liberty to adduce evidence on the court fee issue as permissible under law. Thereafter the matter proceeded. Again four defendants preferred revision before the High Court questioning direction of the trial court to adduce evidence on all issues. The High Court directed the trial court to treat additional Issue 3 as a preliminary issue and that is how the said issue was framed as preliminary issue. The trial court held that Section 35(1) of the Act was applicable and not Section 35(2) of the Act. The same was challenged by the appellant before the High Court. As noted above, the High Court dismissed the revision petition. The High Court held that though it is true that there is a graded scale under Section 35(2) of the Act which applies to partition suits, etc. the trial court had “perhaps” rightly gone into special requirements and has concluded that Section 35(1) would apply to the facts of the present case.
5. Learned counsel for the appellant submitted that the approach of the High Court is clearly erroneous.
6. Learned counsel for the respondents on the other hand supported the judgments of the trial court and the High Court.
7. Identical issues came for consideration before the same High Court in T.K Srinivasamurthy v. T. Seetharamaiah AIR 1990 Kant 149, (1989) 2 Kant LJ 31. In para 4 of the judgment it was noted as follows: (AIR p. 150)
“4. That question came up for consideration in CRP No. 309 of 1987 disposed of on 2-12-1988 by one of us. Following the decision of Supreme Court in Neelavathi v. N. Natarajan (1980) 2 SCC 247, AIR 1980 SC 691, (1980) 1 Kant LJ (SN) Item 126 concerning Section 37 of the Tamil Nadu Court Fees and Suits Valuation Act, which is in pari materia with Section 35 of the Act, it was held that in a partition suit, plaintiff or plaintiffs were only required to set out the joint family properties in respect of which she or they sought partition and separate possession and pay court fee in accordance with sub-section (2) of Section 35 of the Act. The Supreme Court had expressed the following view in Neelavathi case (1980) 2 SCC 247, AIR 1980 SC 691, (1980) 1 Kant LJ (SN) Item 126:
‘126. Court fee is payable under Section 37(1), T.N Act, if the plaintiff is ‘excluded’ from possession of the joint property. The general principle of law is that in the case of co-owners, possession of one is 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 is not disputed, the law presumes that he is in joint possession. To apply Section 37(1) there should be a clear and specific averment in the plaint that plaintiff has been excluded from joint possession. An averment that plaintiff could not remain in joint possession would not amount to exclusion from possession.' ”
(emphasis in original)
8. Similar provisions were examined by this Court in Commercial Aviation and Travel Co. v. Vimla Pannalal (1988) 3 SCC 423, AIR 1988 SC 1636 and it was noted as follows:
“11. In this connection, we may refer to a five-Judge Bench decision of this Court in S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar 1958 SCR 1024, AIR 1958 SC 245 (SCR at pp. 1036-37 : AIR at pp. 251-52) Gajendragadkar, J. speaking for the Court observed as follows:
‘If the scheme laid down for the computation of fees payable in suits covered by the several sub-sections of Section 7 is considered, it would be clear that, in respect of suits falling under sub-section (iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court fees. The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property. The basis of the claim is that the property in respect of which a share is claimed is joint family property. In other words, it is property in which the plaintiff has an undivided share. What the plaintiff purports to do by making a claim for partition is to ask the court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the conversion of the plaintiff's alleged undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness. That is why legislature has left it to the option of the plaintiff to value his claim for the payment of court fees. It really means that in suits falling under Section 7(iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the court in computing the court fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to consider whether, under the provisions of this section, the plaintiff has been given an absolute right or option to place any valuation whatever on his relief.’
12. In the above decision, this Court took the view that the conversion of the plaintiff's undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness. It is true that the court did not consider whether the plaintiff had been given an absolute right or option to place any valuation whatever on his relief under the provision of Section 7(iv) of the Court Fees Act, but the difficulty that would be felt by the court in exercising its power under Order 7 Rule 11(b) of the Code of Civil Procedure is that if it is unable to determine the correct value of the relief, it cannot direct the plaintiff to correct the valuation. Order 7 Rule 11(b) contemplates correct valuation and not approximate correct valuation and such correct valuation of the relief has to be determined by the court. If the court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and, consequently, Order 7 Rule 11(b) will not be applicable.”
9. Reference was also made to the decision in Neelavathi v. N. Natarajan (1980) 2 SCC 247, AIR 1980 SC 691, (1980) 1 Kant LJ (SN) Item 126. In para 8 this Court while considering the identical provision of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 stated as follows:
“8. 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.
(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 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 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 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 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 in law. The averments in the plaint that the plaintiffs could not remain in joint possession as they were not given any income from the joint family property would not amount to their exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiffs had been excluded from possession.”
10. In view of what has been stated in Commercial Aviation case (1988) 3 SCC 423, AIR 1988 SC 1636 and Neelavathi case (1980) 2 SCC 247, AIR 1980 SC 691, (1980) 1 Kant LJ (SN) Item 126 the view of the trial Judge as affirmed by the High Court cannot be sustained.
11. The order of the High Court is set aside. The appeal is allowed but without any order as to costs.
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