ORDER
B. Seshasayana Reddy, J.
1. This civil revision petition is directed against an order dated 8.8.2006 passed in I.A. No. 1863 of 2006 in O.S. No. 182 of 2006 on the file of Chief Judge, City Civil Court, Hyderabad, whereby and whereunder the learned Chief Judge directed the plaintiffs to pay Court fee under Section 34(1) of the Andhra Pradesh Court Fee and Suits Valuation Act, 1956 (for short Act).
2. The petitioners are the plaintiffs and whereas R1 and R2 are Dl and D2 respectively in O.S. No. 182 of 2006. The plaintiffs filed the suit seeking the following reliefs:
(i) That a preliminary decree may be passed to the effect that the plaintiffs are entitled for half share in the suit schedule properties along with defendant Nos. 1 and 2;
(ii) Directing the division of the item No. 1 of plaint schedule property into four equal shares and allotment of one such share to the plaintiff No. 1 and another to the plaintiff No. 2 and put them in separate possession;
(iii) Directing the defendant Nos. 1 and 2 to provide half share in the item Nos. 2 to 5 of the plaint schedule properties towards the share of the plaintiffs;
(iv) Directing the defendant No. 1 to settle the share of the plaintiffs from the rental income of item No. 1 of the plaint schedule and from income of item No. 5 business for the period from 28.6.2005 till the filing of suit and for the period subsequent to the filing of the suit till the date of realization;
(v) Grant injunction against the defendant No. 1 or anybody acting and claiming under her from alienating or transferring item No. 1 of the suit schedule property;
(vi) Directing the defendants to pay costs of the suit and
(vii) Granting such other and further reliefs to which the plaintiffs are entitled in the circumstances of the case.
3. It is averred in the plaint that plaintiffs and D2 are daughters of late Shyam Sunder Tippanna Naneker and Dl. Sri Shyam Sunder Tippanna Naneker during his lifetime established three businesses (a) M/s. Suresh Textiles, (b) M/s. H.A. Advertisers (Hindustan Advertise) both at Tilak Road, Hyderabad and (c) M/s. Mens Bazar, at New Marketing Complex, Tilak Road, Hyderabad and earned name and fame in the business circles. He purchased the house bearing H.No. 1-2-234/13, admeasuring and comprising an area of 400 square yards situated at Gagan Mahal, Domalguda, Hyderabad, with his own earnings and funds, nominally in the name of his wife Smt. Vedavathi (Dl) under a registered Sale Deed dated 30.4.1987. At the time of purchasing the said property, it was only consisting of ground floor and after purchasing the same, first floor was constructed by Sri Shyam Sunder Tippanna Nanekar. Item No. 1 of the plaint schedule is the said building. Sri Shyam Sunder Tippanna Nanekar during his lifetime invested amounts in various banks, deposited money with different persons and also obtained insurance policies etc. The particulars of the amounts invested and policies taken by him have been detailed in item No. 2 of the plaint schedule. During his lifetime, he desired to partition movable and immovable properties among the plaintiffs and defendants to avoid any misunderstandings in future. In that direction he gave second floor portion of item No. 1 to the plaintiff No. 1 tentatively towards her share. The plaintiff No. 1 in order to respect the feelings of her father occupied the said portion and started residing in the same along with her family during the lifetime of her father and rendered selfless service to her father. Sri. Shyam Sunder Tippanna Naneker died on 27.6.2005 leaving behind him the plaintiffs and defendant Nos. 1 and 2. Dl encashed the FDR’s left by Sri Shyam Sunder Tippanna Naneker to the tune of Rs. 12,38,319/- much before the maturity date. D2 also took away the said amounts along with cash, gold and silver items. The plaintiffs through friends of their father tried to persuade Dl to settle the properties. But their efforts did not yield any fruitful results. Therefore, they resorted to file the suit for partition with the prayers indicted supra.
4. D2 filed I.A. No. 1863 of 2006 under Order VII Rule 11 CPC to reject the plaint for non-payment of proper Court fee. The plaintiffs filed counter resisting the said application. The learned Chief Judge, on considering the material brought on record and on hearing Counsel for the parties, came to the conclusion that the plaintiffs have to pay the Court fee under Section 34(1) of the Act and accordingly directed them to pay the deficit Court fee within 30 days by an order dated 8.8.2006. The said order is under challenge in this revision.
5. Heard learned Counsel appearing for both the parties.
6. Learned Counsel appearing for the petitioners contended that when the property is in possession of the joint tenants, tenants in common, or co-owners, the provision of law for payment of fixed Court fee is Section 34(2) of the Act. He also contended that while deciding whether the Court fee is payable under Section 34(1) or 34(2) of the Act in a partition suit, the allegations made in the plaint alone have to be looked into. To buttress his submissions reliance has been placed on the following decisions:
(1) Popat and Kotecha Property v. State Bank of India Staff Association 2005 (6) ALD 27 (SC)
(2) K. Venkata Rangadass v. K. Venltata Krishna Rao .
(3) A. Divakrupamani and Anr. v. A. Sakuntala Devi and Ors.
(4) Shanta Bai v. Trilok Chand and Ors.
(5) Mirza Raheem Baig v. Mirza Mahamood Baig and Ors.
(6) B. Anusha and Ors. v. B. Laxmikanth Reddy and Ors.
(7) Hiranand and Anr. v. T.N. Kahmbati and Ors. 2006 (2) ALD (NOC 58)
(8) Kishore Kumar Khaitan and Anr. v. Praveen Kumar Singh .
7. Learned Counsel appearing for 2nd respondent submits that the Court fee is payable under Section 34(2) of the Act if the plaintiffs prove their joint possession or ownership, otherwise the Court fee payable is under Section 34(1) of the Act. He further submits that the plaint averments are very clear that the properties came to be divided during the lifetime of Sri Shyam Sunder Tippanna Naneker and in the said partition second floor of item No. 1 fell to the share of plaintiff No. 1 and plaintiff No. 1 accepted the said partition and occupied the said portion during the lifetime Sri Shyam Sunder Tippanna Naneker and therefore the plaintiffs are (sic) to pay the Court fee under Section 34(1) and not 34(2) of the Act. A further submission has been made that FDRs mentioned in item No. 2 of the plaint schedule came into the hands of the nominee and it is no more the property of Sri Shyam Sunder Tippanna Naneker and in which case the plaintiffs have to pay the Court fee.
8. It is well settled that when partition of the joint family property is claimed, the joint possession of the property need not be established to attract the provisions of Sub-section (1) of Section 34 but in order to attract the benefit of Sub-section (2) one has to establish that he is in joint possession of such property. It is also well settled that the question of Court fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. In order to adjudicate upon the point raised herein, the statutory provisions laid down in Section 34 of the Act must be noted which reads as under:
34. (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 movable property or three fourths of the market value of the immovable property included in 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-
(i) a District Munsif Court Rupees fifty
(ii) a Subordinate Judge’s
Court or a District Court
Rupees one hundred if
the value of plaintiff’s
share is less than
Rs. 10,000/-, rupees
two hundred if the value
is not less than
Rs. 10,000/-.
(3) Where in a suit falling under Sub-section (1) or Sub-section (2) the plaintiff or the defendant seeks also cancellation of decree or other document of the nature specified in Section 37, separate fee shall be payable on the relief of cancellation in the manner specified in that section.
9. What is manifest from the above provisions is that in the case of Sub-section (1) where partition of the joint family property is claimed, the joint possession of the property need not be established, whereas in order to attract the benefit of Sub-section (2) one has to establish that he is in joint possession of such property.
10. It is pertinent to note that while deciding whether the Court fee is payable under Section 34(1) or 34(2) of the Act in a partition suit, the allegations made in the plaint alone may have to be looked into at the stage of the numbering of the plaint.
11. D2 filed the application under Order VII Rule 11 read with Section 151 CPC to reject the plaint for non-payment of proper Court fee. Order VII Rule 11 CPC reads as under:
11. Rejection of plaint-The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law:
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9.
(g) where the plaintiff fails to comply Sub-rule (3) of Rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
12. In the present case, D2 has relied upon Clause (b) of Rule 11 CPC. It is trite law that not any particular plea has to be considered, and the whole plaint has to be considered. As was observed by Supreme Court in Rooplal Sathi v. Nachhattar Singh Gill 1982 (3) SCC 487, the only part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. The Supreme Court in Popat and Kotecha Property v. State Bank of India Staff Association (supra), has held as under:
There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair splitting technicalities.
13. The real object of Order VII Rule 11 of CPC is to keep out of Courts irresponsible law suits. Therefore, the Order 10 of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the Court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised.
14. The plaint pleadings as extracted in the aforesaid paragraphs do not give any scope for ambiguity to the fact that Sri Shyam Sunder Tippanna Naneker divided his properties during his lifetime and allotted second floor of item No. 1 to the plaintiff No. 1. Of course the plaintiffs pleaded that the partitions are tentative and plaintiff No. 1 accepted the 2nd floor portion of item No. 1 to her share to respect the feelings of her father. Whatsoever it may be, there was a division of property of Sri Shyam Sunder Tippanna Naneker during his lifetime and the said division of second floor of item No. 1 fell to the share of plaintiff No. 1. With regard to movable properties mentioned in item No. 2, the properties of Sri Shyam Sunder Tippanna Naneker are no more, since they passed on to the hands of 1st defendant as a nominee for various FDRs and insurance policies. In similar circumstances our High Court in Parvathamma v. Y. Tulsiram , held that the Court fee payable is under Section 34 of the Act. The trial Court considered the material brought on record in right perspective and came to the conclusion that the plaintiffs are liable to pay the Court fee under Section 34(1) of the Act. The order impugned in the civil revision petition does not suffer from any illegality or impropriety warranting interference of this Court in exercise of the powers under Article 226 of the Constitution of India.
15. For the foregoing reasons, this civil revision petition fails and the same is dismissed. The petitioners shall pay the deficit Court fee within six weeks from today.
