1. This revision petition is directed against an order passed by the District Judge, Shimoga in O.S. No. 22 of 1951-52 on his file holding on issue No. 7 raised in the case that the present Petitioner was not in possession of the suit schedule properties and directing him to pay an additional Court fee of Rs. 800/-.
2. The Petitioner filed a suit for a declaration that he was entitled 1/3 share in all the plaint schedule- properties on the ground that he was it member of the joint family along with defendants 1 to 5 and claimed delivery of possession of his share after division by metes and bounds with mesne profits and costs. He paid a fixed Court fee of Rs. 100/- only under Article 11-B, Schedule II, Court Fees Act on the ground that he was in constructive possession of the suit schedule properties, being a member of the joint family.
The Respondents alleged in,' their written statement that the Petitioner had wantonly inflated the value of the suit schedule properties with a view to file the suit in the Court of the District Judge, Shimoga and that his statement that he was in joint possession of the suit schedule properties was false and that he was bound to pay ad valorem Court fee on 'the value of his share. The learned District Judge, Shimoga raised issues about the valuation of the suit schedule properties and about the Court-fee. After recording the evidence adduced by the parties, the learned District Judge, Shimoga, held that the properties described in the schedule were worth Rs. 46,734-13-2 and that the value of the share of the Petitioner was Rs. 15,578-4-4.
Therefore, on issue No. 6 raised in the case, the learned District Judge held that the suit' was not below the pecuniary jurisdiction of the District Court, Shimoga. But the learned District Judge held that the Petitioner was in possession of only a house described in the suit schedule and was 'not in possession of any other Items of the suit schedule properties either actual or constructive and as such directed the petitioner to pay an additional Court fee of Rs. 800/- calculated on the value of the share claimed by him. It is against this Order that the present revision petition has been filed by the Petitioner.
3. The short question that arises for consideration in this revision petition is whether a member of the joint family who files a suit fur a declaration that he is entitled to a share in the joint family properties and seeks for division of the properties by metes and bounds and alleges that he is in constructive possession of the properties described in the schedule is liable to pay ad valorem Court fee or fixed Court fee under Article 11-B, Schedule II. Mysore Court Fees Act (Article 17 of the Central Act).
The Petitioner had alleged in his plaint in unequivocal terms that he was in joint possession of the properties along with Defendants 1 to 5. What the Petitioner wanted was division of the properties by metes and bounds and delivery of his 1/3 share. The question whether the Plaintiff is in possession of the joint family propertied constructively or otherwise for the purposes of levying Court fee should be determined oh the allegations made in the plaint.
Merely because the defendants deny that the Plaintiff was in joint possession of the suit schedule properties, the nature of the suit i3 not altered. (Vide -- 'Asa Bam v. Jagan Nath,' AIR 1934 Lah 563 (FB) (A), and In the matter of Nand Lal Mukherjee : AIR1932Cal227 . It is fairly well settled law that it is the allegation in the plaint that should be looked into and that the denial of the allegation by the defendants does not in any way take away the suit out of of the scope of Article 11-B, Schedule II Court Fees Act (Vide --- 'Manghamnal v. Tolaram,' 16 Ind Cas 773 (Sind) (C).
Therefore the learned District Judge was not justified in taking into, consideration the statements made by the Defendants in their written statement that the Petitioner was not in actual or constructive possession of any of the suit schedule items and proceeding to hold an enquiry as to whether he was in possession of all the suit items and whether the Court fee paid by him was sufficient. The learned District Judge has been entirely influenced by the fact that the Defendants denied that the Plaintiff was in constructive possession of any of the items and by the evidence adduced by them to establish that the Petitioner was In possession of only a house belonging to the joint family and was not in actual physical possession of the other items.
He seems to have been further influenced by the fact that the Petitioner had omitted to give a full description of the suit schedule items attached to the plaint in his suit that he had filed before the Munsiff, Tarikere at the first instance.
The fact that it is the substance of the plaint and not to the mere shape given to it in the plaint that has to be looked into for purposes of assessment of Court-fee has been decided in --'Aswathanarayana Rao v. Makam Suriya Setty,' 56 Mys. H. C. R. 67 (D). The fact that the order passed by the learned District Judge directing payment of ad valorem Court fee on the value of the 1/3 share of the Petitioner is erroneous is clear from the decision of this Court reported in -- 'Krishnappa v. Bhasyam Iyengar,' 44 Mys H. C. R. 203 (E).
It was held in that case that where a co-owner, co-sharer or co-tenant alleges that he is in joint possession of the property in suit and wants his share to be separated and put into his possession, a fixed Court-fee under Article 11-B is sufficient. The several decisions of the other High Courts in India have all been reviewed in the above case and this Court has laid down that when a suit is for partition by a Plaintiff who is in possession of the property, there is no question that Article 17 (11-B of our Act) would apply. It has been further held that even when the property is not joint family property and the Plaintiff is not a coparcener, is only a co-sharer he is entitled to maintain a suit for partition without paying ad valorem Court-fee, if his possession of the Joint property is admitted or can be gathered by the allegations made in the plaint. To the same effect is the decision reported in -- 'Nagendriah v. Ramachandriah,' AIR 1953 Mys 108 (F).
It is laid down by this Court in this case that if a Plaintiff alleges himself to be a co-sharer and to be in joint possession of the plaint schedule properties with the defendants and brings a suit for partition and possession of his snare he is entitled to pay a fixed Court fee under Article 11-B, Court Pees Act (Article 17 of the Central Act). It has been further laid down that even after the trial Court found that the Plaintiff was not in possession of some of the items of the suit schedule properties and was not entitled to claim or get any share in them and the suit in respect of those properties is dismissed the Plaintiff is entitled to pay a fix Court fee on the memorandum of appeal against the decree.
The several decisions of the other High Courts in India including a decision of this High Court reported in 44 Mys HCR 203 (E), have all been reviewed in the above case. In the light of the above decisions, the order passed by the learned District Judge that because the Defendants had denied that the Plaintiff was in possession of the properties or that the evidence recorded by him disclosed that the Plaintiff was not in actual physical possession of the suit schedule properties he is liable to pay ad valorem Court fee on the value of his share is untenable.
Reference in this connection may also ba made to a decision reported in -- 'Premananda v. Dhirendra Nath,' : AIR1950Cal397 (G) Wherein it has been observed:
'The question as to what Court fees are payable on a plaint has to be decided on the allegation in the plaint and the nature of the relief claimed, whatever may transpire in the evidence, the plaint remains the same until and unless it is amended'.
It has been further held in this Calcutta case that so long as the plaint is not amended, no ad valorem Court fee is payable. All that the Defendants pleaded, in their written statement was that they had given away a share to the Petitioner in all the suit schedule properties. They had not disclosed what items of the suit schedule properties had actually fallen to the share of the Petitioner and were in his actual physical possession.
On a consideration, therefore, of the severalauthorities, I am of opinion that the Order passedby the learned District Judge, Shimoga directingthe Petitioner to pay ad valorem Court fee calculated on the value of his share cannot be supported and is liable to be set aside. The Petitioner is entitled to pay a fixed Court fee underArticle 11-B of Schedule II, Court Fees Act and maintainhis suit.
4. In the result, therefore, this revision petition is allowed and the order passed by the learned District Judge, Shimoga on issue No. 7 is set aside. The Petitioner will get his costs from,the Respondents.
5. Revision allowed.