IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 38430 of 2003(Y)
1. T.HAMEED, S/O.THAYAL MOHAMMED,
... Petitioner
4. T.MOOSA, S/O.THAYAL MOHAMMED,
5. M.P.FATHIMA, W/O.T.ABDULRAHIMAN,
6. FAUSIA, D/O.T.ABDUL RAHIMAN,
7. MUMTHAS, D/O.T.ABDULLE,
8. ITTAMMAL ABDULLA, ALIAS MOLLKIRIYETH
9. ITTAMMEL HASSAN K.AHAMMED ALIAS
10. ITTAMMAL HAMSA ALIAS MOLLAKIRIYATH HAMSA
11. ITTAMMAL ABOOBACKER ALIAS MOLLAKIRIYATH
12. MOHAMMED SALIHA, S/O.T.ABDULLA,
Vs
1. T.ABDULLA HAJI, S/O.THAYAL MOHAMMED,
... Respondent
2. T.ABDURAHIMAN, S/O.THAYAL MOHAMMED,
3. T.HASSAIN, S/O.THAYAL MOHAMMED,
For Petitioner :SRI.D.KRISHNA PRASAD
For Respondent :SRI.S.V.BALAKRISHNA IYER (SR.)
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :15/06/2007
O R D E R
PIUS C. KURIAKOSE,J.
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W.P.(C) No.38430 of 2003
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Dated: 15th June, 2007
JUDGMENT
The plaintiff in a suit for partition impugns Ext.P2 findings
entered by the learned Subordinate Judge on issue No.10 which was
one regarding the propriety of the valuation of the suit for the
purpose of court fee. Ext.P1 is copy of the plaint which will show that
the suit has been valued under Section 37(2) of the Court Fees and
Suits Valuation Act on the allegation that the suit properties are in the
joint possession and enjoyment of the plaintiff and the defendants.
There were altogether 26 items of properties sought to be partitioned
and as regards item Nos.1 to 8 and 11 to 26 the claim of the plaintiff
was that the entire consideration for acquisition of those items was
paid by the plaintiff and the defendants 1 and 2 out of their joint
funds. As against item Nos.9 and 10 the claim was that those items
belonged to the plaintiff and defendants 1, 2 and 8 to 11, having
been acquired with their joint funds. Several contentions were raised
by the respondents including the contention that the suit has not
been properly valued and issue No.10 was raised on the basis of that
contention. Even though several decisions of this court laying down
that it is the allegations in the plaint which are to be considered for
W.P.C.No.38430/03 – 2 –
the purpose of determining the payable court fee were cited before
the learned Subordinate Judge and the Subordinate Judge did
consider those decisions, ultimately relying on the judgment of a
learned Single Judge of this court in Ayisha v. Kunhimayan Haji
(ILR 1966 Kerala 17), the learned Subordinate Judge inferred that in
respect of plaint schedule item Nos.3 to 10 and 12, 15 and 24 the
defendants are in possession and concluded that the suit will have to
be valued under Section 37(1) of the Court Fees and Suits Valuation
Act, since it was conceded that documents in respect of those items
stand in the name of the defendants.
2. Heard Mr.D.Krishna Prasad, learned counsel for the petitioner
and Mr.S.V.Balakrishna Iyer, Senior Counsel for the contesting
respondents.
3. Making submissions on the basis of the grounds raised in the
Writ Petition, my attention was drawn by Mr.Krishna Prasad to
various decisions including those reported as Kunjanni v. Jacob
(1992(2) KLT 232), Abdul Razack v. Anjaneyan (2002(2) KLT
670), Thankamma v. Unniama Antharjanam ( 1964 KLJ 546).
4. Learned Senior counsel for the respondent would support the
impugned order on the basis of the judgment in Ayisha’s case
W.P.C.No.38430/03 – 3 –
(supra).
5. Ext.P1 is copy of the plaint and a perusal of paragraphs 3, 6
and 9 therein will clearly show that it is specifically averred by the
plaintiffs that the suit properties including plaint A schedule item
Nos.3 to 10, 12, 15 and 24 are in joint possession of the parties and
that consideration for the acquisition of those properties was paid by
the plaintiff and the defendants 1 and 2 out of their joint funds.
However, it is conceded in paragraphs 5 and 6 that the title deeds in
respect of items 3, 4,5, 6 to 10, 12 and 15 to 24 stand in the names
of the defendants. It is noticing this aspect of the matter that the
learned Judge relied on the judgment of this court in Ayisha’s
case(supra) and held that it has to be presumed that the plaintiff is
out of possession.
6. It is trite that for the purpose of determination of the payable
court fee, all that is required is to look into the averments in the
plaint. The contentions raised by the defendants in the written
statement are not to be considered at all. Unless it is possible to say
on the allegations in the plaint itself that the plaintiff is out of
possession of the plaint schedule properties or any portion thereof, in
a suit for partition valuation under Section 37(2) by the plaintiff
W.P.C.No.38430/03 – 4 –
paying fixed court fee will have to be accepted. Learned Subordinate
Judge has observed that the facts which obtain in the present suit are
comparable to those in Ayisha’s case (supra). A careful reading of
the judgment in Ayisha’s case would show that, that was a case for
partition of the properties of a Moplah Marumakkathayam tharavad.
In that case the court noticed that it had been virtually conceded that
the plaintiff was out of possession as regards certain items which
stood in the names of the sons-in-law of the karanavar of the
tharavad. The court found that it had been admitted by the plaintiff
himself through the averments in the plaint that the acquisition of
those items by the sons-in-law of the karanavar of the tharavad
though they were junior members of the tharavad, was to defeat the
interest of the other members of the tharavad. The court also found
on the basis of the averments in the plaint itself that the plaintiff did
not have a case that at any point of time the plaintiff had been given
any share in the income from those properties. It was on a
cumulative appreciation of all the averments in the plaint that this
court found in that case that the suit in so far as it related to those
items had to be valued under Section 37(1). It is true that at more
than one place in the judgment the learned Judge has highlighted the
W.P.C.No.38430/03 – 5 –
fact that the title documents in relation to those properties stand in
the name of the sons-in-law of the karavanavar. But the decision
turned not on the circumstance that the title documents admittedly
stood in the names of those defendants, but on the reason that it is
admitted in the plaint itself that purchases were made by the
karanavar in favour of those defendants in their capacities as his
sons-in-law and not in their capacities as junior members of the
tharavad. Had there been averments in the plaint in that line in the
suit, perhaps the decision would have been different. It is significant
to note that in respect of properties which stood in the individual
name of the karanavar it was found under the same decision, in spite
of an admission by the plaintiff that he had not been paid any share
of income for the past 12 years prior to the institution of the suit, that
the relief of partition of those properties can be valued under Section
37(2) itself. It has been reiterated in Ayisha’s case itself that the
question of court fees must be considered in the light of the
allegations in the plaint and that a decision on the matter cannot be
influenced either by the pleas in the written statement or by the
impressions of the court on the merits of the matter. The averments
in the plaint have to be accepted prima facie for determining the
W.P.C.No.38430/03 – 6 –
payable court fee. Just because it is conceded that the document
stands in the name of a stranger, the plaintiff shall not be insisted
upon to pay ad valorem court fee under Section 37(1), if the
plaintiff avers that the stranger is a name lender without possession
and that the document is the result of fraud or collusion between the
stranger and somebody who is co-owner along with the plaintiffs.
7. Thus, in my view, the facts in Ayisha’s case (supra) decided
by Vaidialingam,J. were different from the facts and pleadings which
obtain in this case. The impugned order accordingly has to be set
aside. I do so. It is held that the valuation of the suit under Section
37(2) of the Act as presently done by the plaintiff is proper.
The Writ Petition is allowed as above. No costs.
srd PIUS C.KURIAKOSE, JUDGE