Sarojinivalli Vimala Nivas v. Ramachandra Shenoy Puthenkad Madom and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934** ## **OP(C).No. 293 of 2013 (O)** **-------------------------** **PETITIONER(S)/1ST CR. PETITIONER/PLAINTIFF:** **------------------------------------------------------------------------** **SAROJINIVALLI VIMALA NIVAS, ANANTHANARAYANAPURAM, ALAPPUZHA.** **BY ADV. SRI.K.V.SADANANDA PRABHU** ## **RESPONDENT(S)/PETITIONERS 1 TO 3 & &6, CR.PETRS 2TO 9 &Lrs OF PETR.NO.4 :** **------------------------------------------------------------------------** **1. RAMACHANDRA SHENOY PUTHENKADU MADOM ANDHAKARANAZHI P.O.PADINJATTUMKARA THEKKUM MURI CHERTHALA 688 531.** **2. RAVEENDRANATHA SHENOY, PUTHENKADU MADOM, ANDHAKARANAZHI P.O., CHERTHALA 688 531.** **3. SUNANDA BAI, SANTHI NAGAR, KOCHI - 682 002.** **4. SATHEESHCHANDRA SHENOY, PUTHEN MADOM, THIRUMALABHAGAM P.O., CHERTHALA 688 540.** **5. RAMESHCHANDRA SHENOY, PUTHEN MADOM, TIRUMALABHAGAOM P.O CHERTHALA 688 540.** **6. KRISHNA SHENOY, PUTHENKADU MADOM, PADINJATTUMKARA THEKKUM MURI, CHERTHALA 688 524.** **7. RATNA, SRINGAPURAM, KODUNGALLOOR - 680 664.** **8. NIRMALA BAI, HARI NIVAS, THIRUMALABHAGAOM P.O. THURAVOOR 688 540.** **9. NANDAKUMAR SHENOY, HARI NIVAS, THURAVOOR 688 532.** **10. PREMKUMAR SHENOY, HARI NIVAS, THURAVOOR 688 532.** **11. JAYAKUMAR SHENOI, HARI NIVAS, THURAVOOR 688 532.** **(...2/-)** **OP(C).293/13-O** **2** **12. SREEMATHI BAI, HARI NIVAS, THURAVOOR 688 532.** **13. CHANDRALEKHA, HARI NIVAS, THURAVOOR 688 532.** **14. DEEPAK, S/O.KANCHANA BAI, KANCHANA LAYAM, CHERALAI** - **KOCHI - 682 002.** **15. KANCHANA PRABHA, KANCHANA LAYAM, CHERALAI N. KOCHI - 682 002** **16. KRISHNAKUMARI, KANCHANA LAYAM, CHERALAI N. KOCHI - 682 002** **17. NARASIMHA PAI, KANCHANA LAYAM, CHERALAI N. KOCHI - 682 002.** **R1 BY ADV. SRI.ROY CHACKO** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OPC.293/13-O** ## APPENDIX **PETITIONER(S) EXHIBITS** **EXT.P-1 PLAINT COPY IN OS 19/09 OF CHERTHALA SUB COURT. EXT.P-2 A TRUE COPY OF THE IMPUGNED ORDER DT.15-1-12 IN IA 46/13 IN OS 19/09 OF SUB JUDGE, CHERTHALA.** ## **RESPONDENTS' EXHIBITS :NIL** **okb.** **//TRUE COPY//** **P.A. TO JUDGE** ## **THOMAS P. JOSEPH, J. ===================== Original Petition (civil) No.293 of 2013 ============================== Dated this the 13[th] day of February, 2013** ## **JUDGMENT** Respondents are served either personally or as ordered by this court through their counsel in the trial court. 2. First respondent appears through counsel. 3. Challenge in this original petition is to Ext.P2, finding on issue No.6 in O.S. No. 19 of 2009 of the Sub Court, Cherthala. Learned Sub Judge, by the impugned finding directed petitioner/plaintiff to pay court fee on the market value under Sec.37(1) of the Kerala Court Fees and Suit Valuation Act (for short “the Act”). 4. Issue regarding sufficiency of court fee arose in a suit for partition filed by the petitioner. Petitioner and respondents 1 to 6 are the children of late Kamalammal (who died in March, 1991). Item Nos. 1 to 8 of the plaint schedule sought to be partitioned were outstanding with the said Kamalammal on lease. She obtained purchase certificate. On her death the said items devolved on petitioner and respondents 1 to 8. Petitioner claimed 1/9 share in the suit properties and share in mesne profits. Petitioner paid a fixed court fee under Sec.37(2) of the **O.P.(C) No.293 of 2013** -: 2 :- Act. Contesting respondents claimed that petitioner is liable to pay court fee under Sec.37(1) of the Act on the market value of the share of the petitioner since it was not specifically pleaded in the plaint that petitioner is in joint possession of the suit properties along with respondents 1 to 8. 5. Since petitioner claimed mesne profits from the respondents and on the impression that joint possession was not pleaded in the plaint, learned Sub Judge, by the impugned finding directed petitioner to pay court fee on the market value of the share under Sec. 37(1) of the Act. 6. Learned counsel for petitioner has contended that learned Sub Judge has not given due consideration for the averments in the plaint and in particular, valuation portion of plaint that petitioner and respondents 1 to 8 are in joint possession of the property. It is contended that nowhere in the plaint, petitioner who claimed to be a joint owner of the suit property by succession as per the Hindu Succession Act consequent to the death of Kamalammal has stated that she was excluded from possession of property and hence it must be presumed that petitioner is in joint possession which is an **O.P.(C) No.293 of 2013** -: 3 :- incidence of joint ownership. Learned counsel has placed reliance on the decisions in **Mariumma V. Kunhambu Nair** (1967 KLT 1017), **Abu and other V. Thithikutty Umma and others** (1968 KLJ 549), and **Chacko V. Ayissumma and others** (1966 KLJ 1111). It is further contended that at any rate, the Act being a fiscal statute, interpretation must be in favour of the person liable to pay court fee. Hence interpretation given by the learned Sub Judge is not legally justifiable. 7. In response, learned counsel for the Ist respondent contends that in deciding whether court fee is payable under Sec.37(1) or (2) of the Act, due regard must be had to all the averments in the plaint and the reliefs prayed for. It is argued that nowhere in the plaint it is stated that petitioner is in joint possession of the property along with respondents 1 to 8. Along with that, relief “a” in the plaint would indicate that petitioner is out of possession of the property. 8. Ext.P1 is the plaint. There, petitioner has claimed that item Nos. 1 to 8 belonged to the late Kamalammal on lease and she had obtained purchase certificate. On her death the said properties devolved on petitioner and respondents 1 to 8 in **O.P.(C) No.293 of 2013** -: 4 :- accordance with the provisions of the Hindu Succession Act. In the valuation portion, petitioner has stated that since 'a' relief is for partition and plaint schedule item Nos. 1 to 8 are in the joint possession of petitioner and respondents 1 to 8, court fee of Rs. 300/- is payable under Sec. 37(2) of the Act. True that in paragraph 11 of plaint, petitioner has averred that defendants 1 to 3 and 13 are now taking income from the plaint schedule items and in paragraph 12, it is stated that respondents/defendants are making hasty preparation to induct strangers into plaint schedule item Nos. 1 to 8 and that respondents have no right to do so. It is also averred that petitioner is now residing far away from the suit property. In paragraph 15, relief 'a' is that a decree for partition be passed allowing petitioner to “recover” 1/9 share over tems Nos. 1 to 8 with “mesne profits” at the rate of Rs.20,000/- per annum. 9. It is based on the above averments that learned counsel for first respondent has contended that in the absence of specific averment in the body of plaint that petitioner is in joint possession of property and in the light of the above said observations in paragraph 11 and 12 of the plaint and relief 'a', it **O.P.(C) No.293 of 2013** -: 5 :- must be presumed that petitioner is out of possession of the property. Learned counsel also contends that though in **Janaki V. Chandran** (2012(1) KLT 481 (paragraph 13)) this court held that exclusion from enjoyment of joint property is different from exclusion from possession of joint property, that finding is made on the face of specific averments in the plaint. 10. The decisions in **Mariyumma v. Kunhambu Nair** (1967 KLT 1017) and **Abu and other V. Thithikutty Umma and others** (supra) are to the effect that mesne profits is only an incidence of partition of joint property. May be, the more appropriate word to be used could have been 'share of profits'. In **Chacko V. Ayissumma and others** (supra) and Kunjunni v. Jacob (1992(2) KLT 232) it is stated that in deciding question of court fee payable, what is relevant is the averments in the plaint. 11. I must notice that though not specifically stated in the rest of body of plaint, in the valuation portion petitioner has claimed that she is in joint possession of the suit property with the respondent. As per Rule 1(i) of Order VII the Code of Civil Procedure, statement of valuation of subject matter is part of the plaint averments. Hence it is idle to contend that there is no **O.P.(C) No.293 of 2013** -: 6 :- specific averment in the plaint that petitioner is in joint possession of properties with respondents 1 to 8. 12. Nor I am impressed by the contention that because petitioner has claimed mesne profits or instead of praying that 1/9 share of the petitioner in the suit property be “allotted”, she stated that 1/9 share be “recovered”, I should hold that petitioner is out of possession of the property. To interpret so, will be unrealistic. I must also notice that when petitioner claimed that she is a joint owner of the properties along with respondents 1 to 8 consequent to the death of their predecessorin-interest as the properties devolved on them by the law of Succession, that indicated that according to the petitioner, she is in joint possession of the property which is an incidence of joint ownership unless it is admitted by the petitioner that she has been excluded from possession. Unless it is possible to say on the allegations in the plaint itself that petitioner is out of possession of the schedule properties or any portion thereof, valuation and payment of court fee under Section 37(2) of the Act has to be accepted. There is no such plea or situation in this case. Viewed in that way, I am inclined to hold that finding of learned Sub **O.P.(C) No.293 of 2013** -: 7 :- Judge that petitioner is out of possession of the property and hence she is liable to pay court fee under Sec.37(1) is erroneous and is liable to be set aside. 13. Having regard to the averments in the plaint I hold that valuation and payment of fixed court fee as done in this case under Sec.37(2) of the Act is sufficient. Resultantly, this original petition is allowed as under:- - 1) Ext.P1, order/finding dated 15.01.2013 on I.A No.46 of 2013 in O.S. No. 19 of 2009 of the Sub Court, Cherthala is set aside. - 2) It is held that as per averments in the plaint, petitioner was liable to pay only fixed court fee as done in this case under Sec.37(2) of the Act. - 3) Learned Sub Judge is directed to expedite the trial and disposal of the case after completing preliminary steps. smv Sd/- **THOMAS P.JOSEPH, JUDGE** //True copy// P.A. To Judg