Abdul Latheef vs Musthaf Ali and others

S. Velu Pillai, J.—This Civil Revision Petition is by the plaintiff, and is to revise the finding recorded by the Subordinate Judge at Badagara, on issue 6 raised in the suit, which relates to the proper court-fee payable. Notice was issued to the Government Pleader, who was also heard. The suit is for a partition of the plaintiff''s three-fourth share of the suit property by metes and bounds, and for the recovery of mesne profits, till partition is made. The plaintiff and the 1st defendant are alleged co-sharers of the suit property, being the joint donees thereof. The question for decision is, whether the court-fee has to be computed on the terms of Sub-Section (1) or Sub-Section (2) of Section 37 of the Madras Court Fees and Suits Valuation Act, Act XIV of 1955; Sub-Section (1) is applicable to a suit for partition and separate possession of property, by a plaintiff who has been excluded from possession, while Sub-Section (2) is applicable to a suit for partition and separate possession of property, by a plaintiff who is in joint possession of it. On a reading of the plaint, the learned Subordinate Judge has reached the conclusion, that Sub-Section (1) is applicable.

This provision can apply only, if the case pleaded is one of exclusion of the plaintiff from possession. Mere appropriation of the profits of the peoperty or even exclusive use or possession of the property by one co-sharer, does not amount to "exclusion" of other co-sharers from possession, for which an intention on the part of the co-sharer to keep the others out of possession, such intention manifesting itself in some manner and to the knowledge of the others, is an essential element. A case decided by the Privy Council AIR 1929 231 (Privy Council) under Art. 127 of the Indian Limitation Act, 1908, with respect to a suit for a partition by a person excluded from joint family property, may be referred to by way of analogy. On the other hand, it is elementary, that the possession of joint property by one co-sharer is possession on behalf of all the co-sharers, in the absence of ouster.

Judged by these tests, no case of exclusion of the plaintiff from possession by the 1st defendant, can be properly read into the plaint, as it is. The plaintiff''s complaint was, that the 1st defendant has been in sole enjoyment of the property, without giving him his share of the profits, and that he does not agree to partition the property with him. In Paragraph 8 of the plaint, by way of an amendment, the plaintiff has averred, that being in the possession of a co-sharer, the plaintiff must be deemed to be in joint possession of the property with him, and that therefore court fee is payable under the terms of sub-section (2) Section 37 of the Act. It is not permissible to reject this allegation in paragraph 8 as a "formal" one, as contended by the learned Government Pleader, or as one devoid of any foundation, or on the other hand, to accept the interpretation put upon it by the learned Judge, that it means the opposite of what it is, an interpretation which is somewhat strained and farfetched. The cause of action for the suit was founded, in express terms, upon an alleged demand for partition, said to have been made on a specified date, and not, be it noted, on any ouster or exclusion from possession. True, that the plaintiff has made a claim for "Kaladayam", which may signify mesne profits. The liability, if any, of the 1st defendant to account for profits appropriated by him, may be more in the nature of compensation than of means profits, as held in Konduru Kamalamma v. Koduru Pitchamma AIR 1949 Mad 503; but the claim, if any, as for mesne profits, cannot by itself alter the character of the suit, or afford any justification for reading into the plaint, a case of "exclusion" of the plaintiff from possession, so as to attract Sub-Section (1) of Section 37 of the aforesaid Act. The prayer in the plaint for the recovery of possession is not inconsistent with a case of joint possession, as supposed by the learned Judge, and is really for conversion of the plaintiff''s joint possession of the whole property, into separate possession by him of a part of it. See Shankar Maruti Girme Vs. Bhagwant Gunaji Girme, . There is therefore no warrant for the view of the learned Subordinate Judge, that the case falls under sub-section (1) of Section 37 of Act XIV of 1955.

It may be observed incidentally, that even before the Madras Act XIV of 1955 was enacted, the consensus of judicial opinion in the High Courts in India, was, that a suit for partition by a co-sharer, who was not ousted or excluded from possession, was governed by Schedule II, Art. 17(vi) of the Indian Court Fees Act, 1870, under which a fixed court fee of Rs. 10 is payable, and not by Section 7(iv) (b) of that Act, which had application, only to a suit by a person excluded from possession. It is unnecessary to cite the cases, which have taken this view. The result is, that the finding recorded by the Subordinate Judge on issue 6 is hereby vacated, and the Revision petition is allowed, by declaring, that the court fee paid by the plaintiff is sufficient. No costs of this Revision Petition.