Kasi Viswanathan and another vs SM. K. Manickam Chettiar and others

Kailasam, J.—This petition is filed against the order of the Subordinate Judge, Devakottai, directing the plaintiffs to pay additional court-fee.

The petitioners filed a suit for partition and separate possession of all the properties of V.K.R. ST. family in India into two halves and for allotment

of one-half to the first defendant''s branch and the other half to the fifth defendant''s branch and for a partition and separate possession of the one-

fourth share to each of the plaintiffs in the properties that might be allotted to the first defendant''s branch. One Kasiviswanathan Chettiar and

Narayanan Chettiar were brothers. Kasiviswanathan Chettiar''s son is the first defendant. The second defendant is the first defendant''s son by his

first wife. The plaintiffs are the sons of the first defendant by the 2nd wife and the third defendant is the sister of the plaintiffs. The widow of

Kasiviwanathan Chettiar was impleaded as the 4th defendant. The wife of Narayanan Chettiar is the 6th defendant and her son is the 5th

defendant. There were disputes between the first defendant''s branch and the 5th defendant''s branch. There was a reference to arbitration by

defendants 1 and 5. The arbitrators gave a decision effecting division of family properties. The division was oral. According to the plaintiffs, the

award was not valid or operative, as it was unjust, unfair and inequitable. It was also alleged by the plaintiffs that the 5th defendant and his men

took possession of the lands and other assets allotted to their branch by the arbitrators. It was contended that the partition was not valid and

enforceable and that the 5th defendant had no right to rely on the partition. The plaintiffs, therefore, claimed that all the family properties in the

hands of the branches of the first defendant and the 5th defendant should be divided into two halves and one half allotted to the first defendant''s

branch. The plaintiffs also prayed for separate possession of one fourth share to each of the plaintiffs in the properties that might be allotted to the

first defendant''s branch. On the plaint allegations the lower Court held that the plaintiffs should pay court-fee (1) for a declaration that the award

dated 14th June, 1951, is void, (2) for the relief of partitioning each share of the plaintiffs and for delivering separate possession of each such share

to each of the plaintiffs, (3) for the relief of accounting due under S. 35(1) of the Court Fees Act, and (4) under S. 37 (1) of the Court Fees Act, in

respect of the properties in possession of the defendants 5 and 6.

S. 37 of the Madras Court Fees and Suits Valuation Act, 1955, provides for the court-fee payable in partition suits. S. 37 (1) prescribes that in

a suit for partition and separate possession of a share of joint family property 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. S. 37 (2) prescribes that in a suit for partition and separate possession

of joint family property by a plaintiff who is in joint possession of such property, fixed court-fee is leviable. S. 37 (4) prescribes that if the plaintiff

seeks cancellation of a decree, separate fee shall be payable on the relief of cancellation. It was contended by the learned Counsel for the

petitioners that the arbitration reference by their father, the first defendant, and the subsequent oral partition in pursuance of the arbitration are not

binding on them and that they can ignore the partition and need not ask for the relief of setting aside the oral partition. It was also contended that

though the 5th defendant took possession of the properties in pursuance of the partition, their possession should be deemed to be possession of

the family properties, and therefore court-fee is payable only under S. 37 (2) of the Act.

In the Court Fees Act (Act VII of 1870) the provisions that related to partition suits were Ss. 7(iv)(b), 7 (v) and Art. 17-B of Sch. II of the

Court Fees Act, 1870. Under S. 7 (iv) (b), in suits to enforce the right to share in any property on the ground that it is joint family property court-

fee was payable, according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. Under S. 7 (v) court-fee was

payable according to the value of the subject-matter and such value was determined as provided in the sub-section. Under the old Court Fees Act,

the two leading cases relating to court-fee payable in partition suits are Ramaswami v. Rangachariar ILR 1940 Mad. 259 : 51 L.W. 11 (F.B.) and

Sathappa Chetti, In re. (1954) 2 M.L.J. 400 : 67 L.W. 846. The Full Bench decision in Ramaswami v. Rangachariar ILR 1940 Mad. 259 : 51

L.W. 11 (F.B.) so far as it is relevant for deciding this case may be summarised (1) Regarding the relief in respect of alienation where possession

has passed to the alienees, they must be set aside and the plaintiff placed in possession of his share of the property alienated and the plaintiff should

stamp his relief in accordance with the provisions of S. 7 (v) ; (2) in respect of decrees passed against the plaintiff in suits in which he had been eo

nomine impleaded as as a party, he must pay the fee prescribed by S. 7 (iv) (a) as such decrees bind the plaintiff until set aside; (3) regarding the

other transactions in which possession has not passed to third party alienees or whether the plaintiff is not a party in decrees passed against him eo

nomine, the plaintiff is not bound to sue for a declaration or cancellation in respect of any of them. In Sathappa Chettiar, In re (1954) 2 M.L.J. 400

: 67 L.W. 846 a Division Bench followed the Full Bench decision in Ramaswami v. Rangachariar ILR 1940 Mad. 259 : 51 L.W. 11 (F.B.) and

observed as follows:

If the liability is imposed under the decree against the family in a suit to which the manager alone was made a party, merely because under certain

circumstances the father-manager had a right to represent the other members of the family in suits by or against the family, there is no reason or

justification in law to compel the other coparceners to sue to set aside the decree. When the question of the binding nature of the decree on

principles well established in few could be canvassed in the suit itself without any detriment to the other party to the decree, the necessity and the

need to compel the plaintiff to sue to set aside such decrees and to pay court-fee thereon seems to us not justified on the principles enunciated in

the Full Bench decision and considered at pages 279 and 280.

On the authority of the decisions mentioned above it is clear that the minors, who were not parties to the arbitration and the oral partition, need

not ask for the relief of setting aside the partition and therefore they cannot be called upon to pay the court-fee for a declaration that the award

dated 14th June, 1951, was void and not binding on them.

It has now to be considered whether the plaintiffs are liable of pay court-fee under S. 37 (1) or under S. 37 (2) of the Court Fees Act, 1955. It

is alleged in the plaint that the 5th defendant and his men took possession of the lands allotted to the fifth defendant''s branch, but claimed that the

plaintiffs as members of the joint family are in law and in fact in joint possession of all the family properties. It has been repeatedly held that for

ascertaining the court-fee payable on the plaint, the terminology used in the plaint is not of much relevance but it is the substance that matters. The

plaintiff cannot be allowed by clever device and camouflage to evade the court-fee.

The Full Bench decision in Ramaswami v. Rangachariar ILR 1940 Mad. 259 : 51 L.W. 11 (F.B.) overruled an earlier Full Bench decision in

Rangiah Chetti v. Subramania Chetti 21 M.L.J. 21 (F.B.), where it was held that in a suit for partition of joint family property where the plaintiff is

in joint possession with the coparceners S. 7 (4) (b) is applicable. The Full Bench in Ramaswami v. Rangachariar ILR 1940 Mad. 259 : 51 L.W.

11 (F.B.) held:

The language of S. 7 (iv) (b) is however incompatible with a claim for partition when the plaintiff is in joint possession with the other members of his

family. A suit to enforce a right to share in any property on the ground that it is a joint family property is a suit of a different nature from a suit to

enforce the right to a share. Where the claim is to share, it implies that the plaintiff is not in possession ; whereas a suit to obtain possession of a

share is compatible with the plaintiff being in joint possession of the whole.

It was held that when the plaintiff was in joint possession the provision of the Court Fees Act that is applicable is Art. 17-B of Sch. II. The Full

Bench also held that S. 7 (v) can only apply where the plaintiff is seeking relief in respect of possession of immoveable properties when be is out of

possession. A distinction was to made between the properties which were in possession of third party alienees, for which S. 7 (v) was made

applicable and to properties which the plaintiff was not in joint possession with the other members of the family when he sought to enforce a right

to share which implied that the plaintiff was not in possession. After the passing of the Court Fees Act, 1955, in a suit for partition and separate

possession of the joint family properties by the plaintiff, who has been excluded from possession, the court fee payable is under S. 37 (1). There is

no provision in the Act of 1955, corresponding to S.7 (iv) (b) of the old Act, which was for enforcing a right to share in a property on the ground

that it is joint family property. That provision was applicable in the case of plaintiffs, who were out of possession but sued for a right to share.

Under the new Act, where the plaintiff is claiming possession from a third party alienee or from a member of the family, so long as he cannot claim

joint possession, he is liable to pay court fee under S. 37 (1). The question whether he is in joint possession of the property or not will depend on

the facts of the case. In this case, even according to the plaintiffs, in pursuance of the oral partition the fifth defendant obtained possession and

continued to be in possession adverse to the plaintiffs. The status of the plaintiffs as coparceners and the existence of a joint family itself is being

questioned by the defendants. Therefore, the plaintiffs cannot allege that they are in joint possession with the defendants.

The decision in Sri Rama Sastri v. Lakshmidevamma (1955) An. W.R. 348 : 68 L.W. 290, is more or less on similar facts. The plaintiff in that

case filed a suit alleging that he was the adopted son of late A, that the first defendant was his widow and that the second defendant was the

alleged adopted son of A taken in adoption subsequent to the plaintiff''s adoption. The plaintiff alleged that there was a partition between him and

A whereunder the plaintiff was allotted A schedule properties and the late A, the B schedule properties. It was averred by the plaintiffs that all the

items in B-1 Schedule except two were bequeathed by A in favour of the second defendant and that A purchased A. 1 schedule properties

benami in the name of the first defendant. On the allegation that the partition was brought about fraudulently by A it was prayed by the plaintiff for

bringing into the hotchpot A-1 and B-1 schedule properties and for partition of one half share to him. It was stated that the defendants were in

possession of A-1 and B-1 schedule properties and were setting up adverse claim. The plaintiff did not allege that he Was directly and

constructively in possession of A-1, or B-1 schedule properties. On the facts Subba Rao C.J., held as follows:

According to the plaintiff a fraud had been practised on him by his adoptive father by allotting to his share the A-1 schedule properties and by

settling the rest of the properties in favour of the 2nd defendant, who admittedly has been in possession of the same in his own right. So too the first

defendant, the widow of Adiseshaih, in whose name the properties were purchased, is admittedly in possession of the same to the exclusion of the

plaintiff claiming absolute rights therein. As the plaintiff is not directly or constructively in possession of B-1 schedule properties, Art. 17-B of the

Court Fees Act cannot apply.

As the defendants were in actual possession claiming rights adverse to the plaintiff, it was held that the plaintiff was not directly or constructively

in possession. The facts are similar in the present case, for according to allegations in the plaint the fifth defendant obtained a partition by fraud and

is in possession in pursuance of the partition. Whether the partition is valid or not, the possession of the fifth defendant is adverse to the plaintiffs,

and the plaintiffs cannot claim joint possession with the fifth defendant. The plaintiffs are, therefore, liable to pay court fee under S. 37 (1) of the

Court Fees Act.

The next question that has to be considered is whether each of the plaintiffs had to pay fixed court-fee of Rs. 200 under S. 37 (2) of the Act.

The wording of S. 37 (2) is as follows:

In a suit for partition and separate possession of joint family property by a plaintiff who is in joint possession of such property, fee shall be paid at

the following rates:

The court fee is payable on the plaint and it varies according to the Courts and the value of the shares. If it is in the Court of the District Munsif,

it is Rs. 30 and if it is in the Sub Court, Rs. 30, one hundred or two hundred according to the value of the plaintiff''s share and if it is the High Court

it is Rs. 300. If the plaint is presented to a Sub Court, and if, the value is above Rs. 10,000, the fee payable is Rs. 200. The fee prescribed is

payable on the plaint. It does not require that each of the plaintiff should stamp separately. The wording of S. 37 (1) may be compared. It provides

that in a suit for partition and separate possession of a share of the joint family property 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. Thus the fee is payable on the market value of the plaintiff''s

share. If there are several plaintiffs and each of them pray for separate possession of their share, the fee is payable on the market value of the

plaintiff''s share. Under S. 37 (1), therefore, fee is payable on the market value of each of the plaintiff''s share, who pray for separate possession of

their respective shares.

The plaintiffs have asked for a relief of accounts of the monies received from Ceylon and income of the properties from 1951, and also for

accounts against defendants 2, 4 and 6 for all the properties with them. The accounting claimed for, is only incidental to the relief of partition and is

intended for ascertaining the family properties that are available for partition. No court-fee is therefore payable on the relief of accounting prayed

for. In the result, the petition is allowed to the extent indicated above. There will be no order as to costs.