R. Sathiyamurthi vs R. Munusamy and Others

S. Nagamuthu, J.—The Petitioner is the sole Defendant in O.S. No. 126 of 2010 on the file of the learned Subordinate Judge,

Sathyamangalam. The Respondents are the Plaintiffs in the said Suit. The Respondents have filed the said Suit for Partition and for separate

possession of 3/4th share in the suit properties to them. The Suit was originally valued u/s 37(1) of the Tamil Nadu Court Fees and Suits Valuation

Act, 1955. In the Written Statement filed by the Petitioner/Defendant, in Paragraph No. 14, it was contended that the Suit had not been properly

valued and the Court-fee paid was also not correct. According to the further averments, the suit property is not a Ryotwari land and it is only a

commercial site. Therefore, according to the Defendant, the Plaintiffs ought to have paid the Court-fee on the market value of the suit property as

required u/s 7(2)(g) r/w Section 37(1) of the Act. The market value of the suit property according to the Defendant is more than Rs. 50 lakhs on

the date of filing of the Suit. Hence, according to the Defendant, the Suit as valued by the Plaintiffs is not correct.

Subsequent to the filing of the Written Statement, the Plaintiffs filed I.A. No. 306 of 2010 seeking to amend the Plaint so as to value the Suit

property u/s 37(2) of the Act. The said Interlocutory Application was allowed by the Trial Court. Thereafter, the Plaintiffs valued the suit property

at Rs. 13,02,000/- and the value of the 3/4th share is Rs. 9,76,000A. However, as provided in Section 37(2) of the Act, the Plaintiffs paid a fixed

Court-fee of f750/-.

Thereafter, the Petitioner/Defendant filed LA. No. 264 of 2010 requesting the Trial Court to decide the valuation of the suit properties and the

Court-fee as a preliminary issue. In the said Application, it was contended by the Petitioner that Court-fee ought not to have been paid u/s 37(1)

r/w Section 7(2)(g) of the Act. But, it was contended by the Plaintiffs before the Trial Court that Section 7(2)(g) of the Act is not the appropriate

provision under which, the valuation is to be made. It is also contended that as provided in Section 37(2) of the Act, the Plaintiffs is bound to pay

the Court-fee and accordingly, they have also paid Rs. 750/-. Thus, according to the Plaintiffs, the valuation made in the Plaint for the 3/4th share

of the Plaintiffs is a correct valuation and the Court-fee paid by them is also appropriate Court-fee.

Having considered the rival submissions, the Trial Court by order dated 13.9.20U, dismissed LA. No. 264 of 2010. Challenging the same, the

Petitioner/Defendant is before this Court with this Civil Revision Petition.

I have heard the learned Counsel for the Petitioner and the learned Counsel for the Respondents and also perused the records carefully.

Before going into the facts of the case, let us have a cursory look into Section 37 of the Act and the same is extracted below:

Partition Suits.-- (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 Plaintiffs 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 following rates;

when the Plaint is presented to--

(3) Where, in a Suit falling under sub-section (1) or sub-section (2), a Defendant claims partition and separate possession of his share of the

property, fee shall be payable on his Written Statement computed on half the market value of his share or at half the rates specified in sub-section

(2), according as such Defendant has been excluded from possession or is in joint possession.

(4) Where, in a Suit falling under sub-section (1) or sub-section (2), the Plaintiff or the Defendant seeks cancellation of decree or other document

of the nature specified in Section 40, separate fee shall be payable on the relief of cancellation in the manner specified in that Section.

Now, let us also have a look into Section 7(2)(g) of the Act which reads as follows:

7(2)(g) Where the land is a house-site whether assessed to full revenue or not, Poramboke land, or is land not falling within the foregoing

description-its market value.

A comprehensive reading of Section 37(2) r/w Section 7(2)(g) of the Act would make it clear that Section 7(2)(g) of the Act is relatable to the

Suits falling under Sections 25(a) & (b), 27(a), 29, 30, 37(1) & 37(3), 38, 45 & 48 of the Act. Therefore, the said provision namely Section 7(2)

(g) of the Act is not applicable to Section 37(2) of the Act. It is crystal clear that, so far as the Suit falling u/s 37(1) of the Act, the market value

shall be deemed to be as provided in Section 7 of the Act. But Section 37(2) of the Act has not been included in Section 7(2)(g) of the Act. Thus,

it is ipso facto clear that Section 7(2)(g) of the Act has got nothing to do with the valuation of the property to be made for the purposes of Section

37(2) of the Act. A reading of Section 37(2) of the Act would make it abundantly clear that it prescribes payment of fixed Court-fee only,

irrespective of the market value. It states that if the value of the property exceeds Rs. 1 lakh, i.e., the share claimed by the Plaintiffs, then fixed

Court-fee to be paid is only Rs. 750/-. Here, the legislature has consciously omitted the language ""the market value"" instead it has used the

language ""the value"". It has been held in a number of judgments that the term ""value"" differs from the term ""market value"".

If we have a look into Section 27(c) of the Act, there also the language used is ""the value"". Thus, irrespective of the market value of the

property, for the purposes of Section 37(2) of the Act, it is only the notional value of the suit property that matters and not the market value.

Therefore, in my considered opinion, the Trial Court was right in holding that payment of Rs. 750/- as fixed Court-fee u/s 37(2) of the Act in the

instance case is a correct Court-fee.

But, the learned Counsel for the Petitioner would submit that the valuation should have been made only u/s 37(1) of the Act for the market

value. He would further submit that the market value for the said properties should have been determined as provided in Section 7(2)(g) of the

Act. In this regard, I may state that what makes difference between Sections 37(1) & 37(2) is as to whether the Plaintiffs have been excluded from

the possession or they are in common possession along with the Defendant in the property. If the Plaintiffs claim in the Plaint that they have been

excluded from the possession of such property, then they have to pay Court-fee as per Section 37(1) of the Act. If they claim that they are in joint

possession of the property, then fixed Court-fee as provided u/s 37(2) of the Act has to be paid.

In the case on hand, in Paragraph No. 2 of the Plaint, the Plaintiffs have stated that they are in joint possession and enjoyment of the suit

property along with the Defendant, Thus, according to the Plaint allegation itself, the possession is joint and therefore, the valuation made u/s 37(2),

is the correct valuation.

The learned Counsel for the Petitioner would submit that though there was no objection raised by the Defendant challenging the order made by

the Trial Court in I.A. No. 306 of 2010 wherein, the Trial Court allowed the amendment of the Plaint, even then, it is the duty of the Court to see

whether the Plaint has been valued properly. Regarding this legal proposition, no one can have any quarrel. In this case, applying the said principle,

if we look into the Plaint valuation it is crystal clear that in the Plaint, there is an averment that the Plaintiffs have been in joint possession along with

the Defendant, Thus, the Plaintiffs have not been excluded from the possession. Therefore, the appropriate provision under which the Court-fee is

to be paid is only u/s 37(2) of the Act and not u/s 37(1) of the Act.

As I have already concluded, the valuation of the property cannot be made u/s 7(2)(g) of the Act for the purposes of Section 37(2) of the Act

and instead, it would be suffice if the Suit claim is valued notionally. In such view of the matter, I do not find any merit at all in this Civil Revision

Petition. In the result, the Civil Revision Petition is dismissed and the order passed by the learned Subordinate Judge, Sathyamangalam in LA. No.

264 of 2010 in O.S. No. 126 of 2010 dated 13.09.2011 is confirmed. However, there shall be no order as to costs. Consequently, connected

Miscellaneous Petition is closed.