N. Ramachandran vs Munisamy and six others

1 This civil revision petition is directed against the fair and final order passed in O.S.No.343 of 1994 on the file of the Court of Subordinate Judge,

Srivilluputtur on 9.12.1996.

2 The petitioner who is the plaintiff filed the suit in O.S.No.343 of 1994 on the file of Principle Sub Judge, Srivilliputtur seeking for the relief of

reopening of the partition deed dated 11.12.1991 and for effecting a fresh partition in respect of all the suit properties and allotting the petitioner''s

share of 1/7 in the suit properties and for mesne profits.

3 The petitioner paid a fixed court-fee of Rs.200 u/s 37(2) of Tamil Nadu Court-Fees and Suit Valuation Act, 1955 (herein after referred to as

the Act"") and for mesne profits a court-fee of Rs.8 was paid u/s 22 of the Act.

4 The respondents herein resisted the claim by filing a written statement. When the suit was pending, a check-slip was issued for the deficit court-

fee to the tune of Rs.73,373.75 in the suit. The petitioner filed objection to the said check-slip stating that the relief sought for in the suit is only for

re-re-opening of the partition deed and not for cancellation and that therefore. Section 37(4) and 40(1) of the Act would not attract the case in

hand.

5 The trial court having considered the objection and the check-slip produced by the Court-fee Examiner, dismissed the suit on the ground that

there is deficit court-fee. It was also held that there are two separate distinct reliefs and therefore, it attracted separate court fees. Aggrieved over

the same, the present civil revision petition has been filed.

6 Mr. Srinivasan, representing the counsel for the petitioner, would vehemently contend that the order impugned suffers from infirmity, since the

petitioner did not seek any relief for cancellation of the partition deed and hence, it would not attract the provisions of Section 40(1) or 37(4) of

the Act and that therefore, the order passed by the trial Court is liable to be set aside.

7 Per contra, Mr. S. Raveendran, the counsel for the respondents 4 and 6 strenuously opposed this petition by filing a counter inter alia contending

that the said partition deed was duly registered and accepted by all parties even in the year 1991 and that the abovesaid partition deed was fully

acted upon by all the parties. He also contended that some of the respondents has sold away the properties allotted to them covered under the

partition deed. He proceeded to say that the petitioner has not merely asked for re-opening, but he virtually asks for cancellation of the partition

deed, since he alleged that there is a fraud played in effecting the partition by allotting properties to the parties and that therefore, Section 40(1) or

Section 37(4) of the Act would certainly by attracted.

8 I have given my anxious consideration to the respective submissions made on either side and also gone through the petition, counter and other

records.

9 Mr. V. Srinivasan learned counsel for the petitioner would submit, on the strength of the decisions in Sundara Ganapathi Mudali Vs.

Daivasikamani Mudali and Another, ; Ramaiah Thevar Vs. Shanmugavel Thevar and Others, , Lakshmi Ammal Vs. K.M. Madhavakrishnan and

Others, and Varadaraja Pillai Vs. Muthusamy Pillai and Others, that the relief sought for by the plaintiff in the suit is only for partition, that the

Court cannot compel the plaintiff to pray for a relief which he has not chosen to pray in the plaint, and that therefore, the check slip issued u/s

37(4) of the Act is not proper and the order of the lower Court is not tenable one.

10 The relevant observations in the foregoing decisions are as follows: In Sundara Ganapathi Mudali Vs. Daivasikamani Mudali and Another, it is

observed as follows:

What a Court has to see is the substance of the plaint and not the mere form. The presence or absence of a prayer in a particular form is

immaterial when the relief has been substantially claimed in the body of the plaint.

.... .... .... .... .... .... .... .... ....

In substance the plaint is one which seeks to get over the effect of the partition deed and to obtain reliefs as if no such deed existed. Substantially

the plaint is one suing for a declaration that the partition deed is not binding on him and for further reliefs following on such declaration. What we

have to see is the substance of the plaint and not the mere form. The presence or absence of a prayer in a particular form is immaterial.

In Ramaiah Thevar Vs. Shanmugavel Thevar and Others, it is held as follows:

It is well-accepted that in these matters, plaint allegations are the determining factors. It has not been slated anywhere in the plaint that the plaintiff

has been excluded from joint possession.

.... .... .... .... .... .... .... .... ....

It is true the defendants 1 and 4 have filed written statements denying the plaintiff''s joint possession. But the plaintiff has filed reply statements and

he has not given up his case of joint possession. Then it becomes incumbent for the Court at the full-fledged trial of the suit, to consider the

question as to whether there has been an actual ouster as pleaded by the defendants. If after the full-fledged trial, the Court comes to the course to

be adopted is to dismiss the suit of the plaintiff, unless he amends the ''plaint suitably and pays the requisite Court fees u/s 37(4) of the Act.

In Lakshmi Ammal Vs. K.M. Madhavakrishnan and Others, it is held as follows:

In this particular case there is hardly any difficulty in holding that the plaintiff in para 14 of the plaint has clearly alleged that she is in joint

possession and is seeking partition and separate possession of her half-share in the suit properties as heir of deceased Paramayee. Obviously, the

Court fee that is payable is as she has claimed, namely u/s 37(2) of the Act.

The Supreme Court in Commissioner of Income Tax Vs. Ambat Echukutty Menon, referred in Varadaraja Pillai Vs. Muthusamy Pillai and Others,

would specifically hold that the court-fee has to be considered on the basis of allegations in the plaint and that its decision cannot be influenced

either by the plea in the written statement or by the final decision of the suit on merits. Following this judgment, this Court gave a finding in

Varadaraja Pillai Vs. Muthusamy Pillai and Others, which is a case with similar facts as fallows:

The prayer in the suit is for partition on the ground that the plaintiff even though is a signatory to the partition deed is still in joint possession of the

property along with the defendants and his signature has been obtained in the document exercising undue influence, fraud etc.,

It is not as if without a relief for cancellation of the partition deed, the plaintiff cannot succeed in getting a decree for partition if he is able to prove

his allegations in the plaint that he had no power of discrimination and his signature has been obtained fraudulently by the defendants, in exercising

undue influence. In other words, as to the allegations in the plaint, the partition deed does not affect in any manner, since be continues to be in

possession. Therefore, the plaintiff cannot be compelled to ask for the relief which he has not chosen to ask in the plaint. It is only if he seeks a

relief of cancellation of the partition deed Section 37(4) comes into operation.

.... .... .... .... .... .... .... .... ....

I am of the opinion that the benefit must go to him since the plaintiff has alleged that he being in possession of the property along with the

defendants and he having signed the partition deed without any intention to execute it along with others, the lesser court-fee paid by him is proper.

So, in view of the above observations the perusal of the plaint filed in this case makes it clear that the case of the plaintiff that the partition deed

which is sought to be reopened, was never acted upon. The relevant averment in para 6 of the plaint is as follows:

But the partition deed was never acted upon and it never come into force. A sheer perusal of the partition deed will disclose that the partition is

unequivocal and the sharers are not treated as per the allocation of the properties. All the properties covered in the partition deed and mentioned in

the schedule hereunder are still in the common enjoyment without a division on ground. A great fraud has been played which has left unnoticed by

the plaintiff.

Arguing contra, Mr. Raveendran, learned counsel appearing for the respondent would state that the averments contained in the plaint are not

correct and that the respondent filed a written statement stating that already partition deed has been effected to and in pursuance of the said deed,

the property has been allotted to the sharers and they in turn sold the same to the third parties. So, in view of the written statement, it is strenuously

argued by the counsel appearing for the respondent that Section 37(2) of the Court-Fees Act will not be applicable and as such the impugned

order directing to pay the court-fee as per Section 37(4) read with 40 of the Act is valid in law.

I am not able to subscribe my view to the submission made by the learned counsel for the respondent. As quoted above, this Court and the

Apex Court, while considering the question whether to apply 37(2) or 37(4) of the Court-Fee Act, the Court has to go into the averment of the

plaint alone and it need not be influenced by the averment in the written statement.

In the light of the above observation, this Court is constrained to hold that the petitioner is liable to pay the Court-fee only u/s 37(2) of the Act.

No doubt, it is true that the prayer made in this plaint seeking for the reopening of the partition deed and for effecting a fresh partition deed, but as

this Court has held in Sundara Ganapathi, Daiva Sikamani AIR 1931 Mad. 34 the Court has to see the substance of the plaint and not the mere

form. The presence or the absence of the prayer in a particular form is immaterial when the relief has been substantially claimed in the body of the

plaint, virtually seeking for a partition.

Therefore, in my view, the impugned order suffers from serious illegality which is liable to be set aside, and is accordingly set aside. In that view

of the matter, I am of the opinion that the civil revision petition has to be allowed. The trial Court is directed to permit the plaintiff to proceed with

the trial of the suit on the Court-fee paid u/s 37(2) of the Court-Fee Act, on the plaint.

In the result, the civil revision petition is allowed. However, there is no order as to costs. Consequently, C.M.P.No.4489 of 1997 is closed.