Kasi Viswanathan and Another vs S.M.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.S.T. 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 second wife and the third Defendant is the sister of the Plaintiff. The widow of Kasiviswanathan Chettiar was impleaded as the fourth Defendant. The wife of Narayanan Chettiar is the sixth Defendant and her son is the fifth Defendant. There were disputes between the first Defendant''s branch and the fifth Defendant''s branch. There was a reference to 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 fifth Defendant should be divided into two halves and one half allotted to the first Defendant''s branch. The Plaintiffs also prayed for separate possession 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 fifth 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 fifth Defendant n 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 (i) for a declaration that the award, dated 14th June 1951 is void, (ii) for the relief of partitioning each share of the Plaintiffs and for delivering separate possession of each such share to each of the Plaintiffs, (iii) for the relief of accounting due u/s 35(1) of the Court Fees Act, and (iv) u/s 37(1) of the Court Fees Act in respect of the properties in possession of the Defendants 5 and 6.

Section 37 of the Madras Court Fees and Suits Valuation Act, 1955, provides for the Court-fee payable in partition suits. Section 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. Section 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. Section 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 fifth 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 u/s 37(2) of the Act.

In the Court Fees Act (Act VII of 1870), the provisions that related to partition suits were Sections 7(iv)(b), 7(v) and Article 17-Bof Schedule II of the Court Fees Act, 1870. u/s 7(iv)(b), in the 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. u/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, 276 (F.B.) and Sathappa Chettiar. In re. ILR (1955) Mad. 810, 818. The Full Bench decision in Ramaswami v. Rangachariar ILR (1940) Mad. 259, 276 (F.B.) so far as it is relevant for deciding this case may be summarized; (i) Regarding the relief in respect of alienations 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 Section 7(v); (ii) In respect of decrees passed against the Plaintiff in suits in which he had been eo nomine impleaded as a party, he must pay the fee prescribed by Section 7(iv)(a) as such decrees bind the Plaintiff until set aside; (iii) 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. ILR (1955) Mad. 810, 818 a division Bench followed the Full Bench decision in Ramaswami v. Rangachariar ILR (1940) Mad. 259, 276, (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 co-parceners to sue to set aside the decree. When the question of the binding nature of the decree on principles well established in law 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 teems 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 to pay Court-fee u/s 37(1) or u/s 37(2) of the Court Fees Act, 1955. It is alleged in the plaint that the fifth 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, 276, (F.B.) overruled an earlier Full Bench decision in Rangiah Chetty v. Subramania Chetty (1901) 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 Section 7(4)(b) is applicable. The Full Bench in Ramaswami v. Ramachariar ILR (1940) Mad. 259, 276, (F.B.) held:

The language of Section 7(iv)(6) 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 hold that when the Plaintiff was in joint possession, the provision of the Court Fees Act that is applicable is Article 17-B of Schedule II. The Full Bench also held that Section 7(v) can only apply where the Plaintiff is seeking relief in respect of possession of immovable properties when he is out of possession. A distinction was made between the properties which were in possession of third party alienees, for which Section 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 u/s 37(1). There is no provision in the Act of 1955 corresponding to Section 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 u/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 co-parceners 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 Srirama v. Lakshimidevamma AIR 1955 And. 200, 202 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 where under the Plaintiff was allotted A schedule properties and the late A the B schedule properties. It was averred by the Plaintiff 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 has been practiced 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 Defendant 3, who admittedly has been in possession of the same in his own right.

So too, Defendant 1, the widow of Adiseshiah, 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 Article 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 the allegation 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 u/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 u/s 37(2) of the Act. The wording of Section 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:

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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 Rupees Thirty and if it is in the Sub-Court, Rupees Thirty-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 above is Rs. 10,0000, the fee payable is Rupees Two hundred. The fee prescribed is payable on the plaint. It does not require that each of the Plaintiffs should stamp separately. The wording of Section 37(1) may be compared. It provide 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. u/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 accounting 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.