Canniappan and Others vs Baguirday and Others

K. Kalyanasundaram, J—This revision arises out of the order passed by the III Additional District Judge, Puducherry in I.A. No. 289 of 2014 in O.S. No. 85 of 2010. The first respondent instituted the suit against the petitioners and the respondents 2 to 5 claiming partition and separate possession of their respective shares. The petitioners who are the defendants 5 & 6 in the suit filed I.A. No. 289 of 2014 under Section 11(2) of the Puducherry Court Fees and Suit Valuation Act to decide the court fee as preliminary issue. In the affidavit filed in support of the petition, they have contended that they are in exclusive possession of the suit property and therefore the plaintiff has to pay the court fee on the actual market value of the suit property.

The application was resisted by the first respondent by filing her counter. The trial court dismissed the application holding that the plaintiff is a co-sharer and therefore physical possession is not necessary. Challenging the order, the present revision is filed.

Mr.T.D. Ravichander, learned counsel for the petitioner submitted that when the application is taken out to decide the court fee as a preliminary issue, the court is bound to decide the same as preliminary issue; that the plaintiff is not in possession of the suit property and hence the court fee has to be paid on the market value of the suit property; that the court has to consider for proper jurisdiction of the court, the court fee has to be decided as a preliminary issue and it cannot be tried alongwith other issues. In support of his contention, the learned counsel has relied upon the judgment reported in S.N.S. Sukumaran and Others Vs. C. Thangamuthu and Others etc. etc., (2012) 5 CTC 705 : (2012) 5 LW 197 .

The case of the plaintiff is that she and the defendants 1 to 4 are the daughters and defendants 5 and 6 are the sons of Balasubramanian @ Somasundaram and Radhabaye @ Balambal and all are in legal joint possession of the suit property. The suit was filed on 04.10.2010 and the defendants / petitioners herein filed their written statement on 20.07.2011 and chose to file this application on 27.02.2014.

Similar question came up for consideration before the Hon''ble Supreme Court In Neelavathi and Others Vs. N. Natarajan and Others, AIR 1980 SC 691 : (1980) 2 SCC 247 : (1980) 2 SCR 307 : (1980) 12 UJ 246 , wherein it has held as follows -

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(tm)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.

In a judgment reported in 2011 (4) CTC 307 [Balasubramaniam v. Masilamani], this Court has observed as follows -

Admittedly, the petition has been filed both under the Court Fees Act and Order 14 Rule 2 CPC. In so far as the Court Fees Act is concerned, no discretion is vested with the courts and the courts have to decide the issue if an application is filed to determine the court fee paid or payable. However, the court has no other alternative excepting to decide the Court Fee issue if the application is filed before the commencement of the trial and not thereafter. I have already referred to the dates and I have already mentioned that the trial has already commenced in this case and only thereafter, the application has been filed under Sec. 12(2) of the Court Fees Act. In such circumstances, I have no hesitation in holding that the issue of the court fee cannot be gone into at this juncture.

In so far as Order 14 Rule 2 CPC is concerned, an issue can be taken up as a preliminary issue, if it is purely a question of law. Admittedly, in the present case, the facts as stated by the plaintiff and the facts as put forth by the defendants are disputed facts and only on the basis of these disputed facts, the question of payment of correct court fee is to be determined. In such circumstances, i do not find any illegality or infirmity in the order passed by the trial court holding that to decide the valuation of the court fees as a preliminary issue does not arise at this stage. Therefore, on this score also, i do not find any infirmity in the order passed by the trial court.

In S.N.S. Sukumaran and Others Vs. C. Thangamuthu and Others etc. etc., (2012) 5 CTC 705 : (2012) 5 LW 197 , the Division Bench of this Court has held as under -

After giving our anxious consideration to the matter and having regard to the law discussed hereinabove, the reference is answered as under :-

(1) The Tamil Nadu Court Fees and Suits Valuation Act, 1955 (Section 12) enacted by the State Legislature on a subject covered by the Concurrent List, albeit inconsistent with the provisions of the Code of Civil Procedure (Order XIV, Rule 2) and being in compliance with the requirement of Article 254 of the Constitution of India, having been given assent by the President of India, shall prevail over the provisions of the Code of Civil Procedure.

(2) When a defendant comes forward with a case pleaded in the written statement questioning the correctness of the valuation of the suit property and payment of court fee and asks the Court, by an application, to decide it first before deciding the suit on merits, then a duty is cast upon the Court under Section 12(2) of the State Act to first decide the objection before deciding the suit on merits.

(3) However, before proceeding to decide the objection with regard to valuation and court fee as provided under Section 12(2) of the State Act, the Court shall prima facie satisfy itself, on perusal of the pleadings of the parties and the materials brought on record, that the objection raised by the defendant has substance.

(4) Such objection with regard to improper valuation of the suit and insufficiency of court fee shall be entertained by the Court only before the hearing of the suit on merits commences and witnesses are examined. Section 12(2) of the State Act makes it clear that such objection shall be heard and decided before evidence is recorded on the merits of the case.

(5) Exercise of right by the defendant as contained in Section 12(2) of the Act must be bona fide and not with an ulterior motive of dragging the suit on this issue. Hence, the Court shall not grant unnecessary adjournments in hearing of such application, and in the event the Court finds that the defendant is not diligent or co-operating with the Court in the disposal of such objection expeditiously, then the Court shall proceed with the hearing of the suit on merits and decide all issues, including the one relating to the valuation of the suit and the adequacy or otherwise of court fee, together.

In the instant case, the first respondent has filed the suit for partition categorically asserting that the suit property is an ancestral property and the plaintiff and the defendants are sisters and brothers and they have been in legal joint possession of the property. The plaintiff has not specifically pleaded in the plaint that she has been excluded from joint possession. The defendants / petitioners herein, in their written statement have admitted the relationship of the parties however, contesting the case on other grounds.

The Hon''ble Supreme Court in Neelavathi and Others Vs. N. Natarajan and Others, AIR 1980 SC 691 : (1980) 2 SCC 247 : (1980) 2 SCR 307 : (1980) 12 UJ 246 , cited supra, has taken a view that if the plaintiff is entitled to a share, the possession of one is in law possession of all, unless ouster or exclusion is proved. It is further held that it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. The Division Bench of this Court in S.N.S. Sukumaran and Others Vs. C. Thangamuthu and Others etc. etc., (2012) 5 CTC 705 : (2012) 5 LW 197 , has observed that when the defendants come forward with an application to decide the court fee, before deciding the suit on merits, then the duty is cast upon the Court to first decide the objection before deciding the suit on merits. It is further held that the Court shall prima facie satisfy itself, on perusal of the pleadings of the parties and the materials brought on record, that the objection raised by the defendant has substance and if the application lacks bona fide, then the Court shall proceed with the hearing of the suit on merits and decide all issues, including the one relating to the valuation of the suit and the adequacy or otherwise of court-fee together.

In view of the specific averments in the plaint and the decisions of the Hon''ble Supreme Court and this Court, I am of the opinion that the trial court has rightly rejected the application. Hence, I do not find any reason to interfere with the order impugned in this revision.

In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.