R. Appajappa vs A. Rangaswami and others

N. Sreenivasa Rau, J.—This is an appeal against the order of the learned District Judge, Civil Station, Bangalore, rejecting the plaint. The order of rejection followed the plaintiff''s failure to file a valuation memo and pay adequate Court-fee in accordance with the order passed by the Court on Issue No. 1, namely, whether the suit is properly valued and adequate Court-fee paid. The suit was one for declaration that the plaintiff was entitled to a share in the suit schedule items of property unaffected by the several alienations made by his father defendant 1 and unaffected by the orders on some claim petitions referred to in the plaint and for partition and possession.

Defendant 2 was plaintiff''s mother and defendants 3 to 10 were his sisters. The other defendants, i.e., defendants 11 to 26, were the alienees. The alienees contended that in respect of items of property which were not in the possession of the plaintiff or defendant 1 the relief prayed for was possession of the plaintiff''s share by setting aside the alienation to the extent of his interest and that he had therefore to pay appropriate Court-fee in respect of that relief.

The learned Judge after hearing both the parties held that the plaintiff had to pay ad valorem Court-fee on the value of his share which had gone to the possession of the alienees. In regard to the mortgages he held that no separate Court-fee other than what had already been paid was payable and that in cases where there had been decrees against the members of the family including the plaintiff he had to pay Court-fee if he wanted to get rid of the decrees. He directed that a fresh valuation slip on the basis of the order be filed and adequate Court-fee paid on that valuation.

The main contention urged by the learned-advocate for the appellant-plaintiff is that, as according to the; stand taken by the plaintiff his interest was not conveyed by the various alienations-effected by his father, the possession of the alienees in respect of his interest in those items was really possession on his behalf. In other words he was in constructive possession in respect of such interest. The relief sought was really one of partition-and allocation of items of property of which he-was In such constructive possession and therefore no-Court-fee was payable on the footing that he sought recovery of possession of his share.

He has referred to decisions which hold that in suits for partition a fixed court-fee is payable under Art. 11(b) of Sch. II of the Court-fees Act whether the items of property are in the actual possession of the plaintiff or in his constructive possession. But the constructive character of the possession referred to in those decisions arises when the person actually in possession holds or is alleged to hold on behalf of the plaintiff as in the case-of a tenant, mortgagee or co-owner.

In the case of an alienee who is in possession in consequence of an alienation by the father or manager of a Joint Hindu Family he is in possession in his own right and it is only by the plaintiff getting the alienation set aside that the latter can reduce his share to his possession. In other words, he has to obtain possession from a person who claims his right to possession of the alienated property adversely to the plaintiff. Indeed when the plaintiff challenges the alienation his allegation itself amounts to saying that the alienee is in unauthorised possession.

Hence Court-fee has to be paid on the basis that the plaintiff is seeking recovery of possession of his share of the alienated property. The view taken by the Court below is therefore right and when the plaintiff did not comply with the order that he should file a fresh memo of valuation on the basis of the Court''s order and pay the requisite Court-fee the Court below rightly rejected the plaint.

This appeal is accordingly dismissed with, costs of the contesting Respondents who were represented by Counsel in separate sets. Advocate''s fee for each contesting Respondent, Rs. 25/-.