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AswaThe Vs. S. Shamiah and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 312 of 1954
Judge
Reported inAIR1955Kant143; AIR1955Mys143
ActsCourt-fees Act, 1870 - Sections 7 - Schedule - Article 17; Mysore Court-fees Act, 1900 - Schedule - Article 11B
AppellantAswathe
RespondentS. Shamiah and anr.
Appellant AdvocateH.V. Narayan Rao, Adv.
Respondent AdvocateB.S. Puttasiddiah, Adv.
Excerpt:
.....and above the rank of a sub-inspector of police and all the revenue officers of and above the rank of a revenue inspector are the persons authorised under section 55 of the act to lodge the complaint. on facts, held, the complainant is the sub-inspector of forest cell who is not the authorised person under section 55 of the act to lodge the complaint. hence, proceedings were quashed. - 3. it is now well settled law that it is the allegation made in the plaint that should be the criterion to decide as to whether a person is entitled to pay a fixed court-fee under article 11-b, schedule ii, mysore court-fees act (which is the same as article 17 of the central act) or is liable to pay ad valorem court-fee on the value of his share......that the petitioner was liable to pay ad valorem court-fee on the value of his share in the suit schedule properties.2. the present petitioner represented by his guardian parvathamma filed a suit against the respondents for partition and possession of his 1/3 share in the suit schedule properties valued at rs. 75,000/- in all. the petitioner alleged in his plaint that he was adopted by parvathamma to her husband chandrasekhariah about 2 or 3 months prior to the date of the suit and as such was a member of the joint family with the defendants and was entitled to claim and get his 1/3 share in all the suit schedule properties which were the joint family properties.the petitioner alleged that he was in constructive possession of the suit schedule properties along with the respondents.....
Judgment:
ORDER

1. This revision petition is directed against an order passed by the District Judge, Civil Station, Bangalore in O. S. No. 37/54 on his file holding that the petitioner was liable to pay ad valorem court-fee on the value of his share in the suit schedule properties.

2. The present petitioner represented by his guardian Parvathamma filed a suit against the respondents for partition and possession of his 1/3 share in the suit schedule properties valued at Rs. 75,000/- in all. The petitioner alleged in his plaint that he was adopted by Parvathamma to her husband Chandrasekhariah about 2 or 3 months prior to the date of the suit and as such was a member of the joint family with the defendants and was entitled to claim and get his 1/3 share in all the suit schedule properties which were the joint family properties.

The petitioner alleged that he was in constructive possession of the suit schedule properties along with the respondents and as such was entitled to pay a fixed court-fee under Article 11-B, Schedule II, Court-fees Act and paid Rs. 100/- as court-fee.

The learned District Judge was of the opinion that since the petitioner had been, according to the plaint allegations, adopted about 2 or 3 months prior to the date of the suit he could not he presumed to be in constructive possession of the joint family properties described in the schedule and as such directed the petitioner to pay ad valorem court-fee calculated on the value of his share.

The learned District Judge gave this ruling even before summonses were issued to the respondents. It is against this order that the present revision petition has been filed by the petitioner.

3. It is now well settled law that it is the allegation made in the plaint that should be the criterion to decide as to whether a person is entitled to pay a fixed court-fee under Article 11-B, Schedule II, Mysore Court-fees Act (which is the same as Article 17 of the Central Act) or is liable to pay ad valorem court-fee on the value of his share. (Vide -- 'Maghanmal v. Tolaram', 16 Ind Cas 778 (A), -- 'Asa Ram v. Jagan Nath', AIR 1934 Lah 563 (FB) (B), and -- in the matter of Nand Lal Mukherjee : AIR1932Cal227 .

Reference in this connection may be made to a decision of this Court reported in -- 'Krishnappa v. Bhashyam Iyengar', 44 Mys HCR 203 (D). It was laid down in that decision that where a co-owner, co-sharer, or co-tenant alleges that ho 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 and that he is not bound to pay ad valorem court-fee on the value of his share in the suit schedule properties.

The several decisions of the Indian High Courts have been reviewed in this decision. The contention that because a member of a joint family is not in actual physical possession of any portion of the suit schedule properties, he is liable or bound to pay court-fee calculated on the value of his share has been repelled in the above decision.

Reference may also be made to a recent decision of this Court reported in -- 'Nagendraiah v. Ramachandriah', AIR 1953 Mys 108 (E), wherein it has laid down that even if the trial Court had found that the plaintiff was not in possession of some of the items of the suit schedule properties, he is entitled to pay a fixed court-fee of Rs. 100/- under Article 11-B of Schedule II, Court-fees Act (Article 17 of the Central Act) on his memorandum of appeal.

Vasudevamurthy J. observed in the course of his judgment that the plaintiff's suit continued to be on the whole a partition suit even after a decision of the trial Court and for purposes of an appeal it will he still an appeal from a partition suit notwithstanding the nature of the findings recorded by the trial Court. In -- 'Premananda v. Dhirendra Nath : AIR1930Cal397 , it was observed as follows :

'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 was further observed in the same case that

'Where in a suit for partition, a fixed court-fee of Rs. 13/- was paid on the plaint on the allegation of joint possession with other co-sharers, that court-fee must be held to be sufficient so long as the plaint is not amended and ad valorem court-fee will not be payable on the value of the property on the ground that it transpired in the evidence that the plaintiff was not in possession.'

It is, therefore, clear from the review of the several decisions cited above that the learned District Judge was not justified in holding that merely because the petitioner was adopted 2 or 3 months prior to the date of the suit he was not in constructive possession of any of the suit schedule properties and as such liable to pay ad valorem court-fee on the value of his share as claimed in the plaint.

Merely because a coparcener is a minor or is quite young and is not. in actual physical possession of the properties or is incapable of being in physical possession of the properties, it cannot he said that he is not in constructive possession of the properties of the joint family. The kartha or the manager of a joint Hindu family is presumed to be in possession of the joint family properties for and on behalf of all the members of the joint family.

If the petitioner's adoption is true, he has become a member of the joint family after his adoption and as such he had a right to contend that ho was in constructive possession of the properties of the joint family.

As already stated, merely because the, petitioner is quite young or he was adopted by Parvathamma a few months prior to the date of the suit it is not reasonable to argue that he is not a member of the joint family or that he is not in; possession of the properties constructively along with other members of the Joint family. The order passed by the learned District Judge directing the petitioner to pay ad valorem court-fee on the value of his share, i.e., Rs. 25,000/- is not sustainable and is liable to be set aside.

4. In the result, therefore, this revision petition is allowed and the order passed by the learned District Judge, Civil Station, Bangalore directing the petitioner to pay court-fee calculated on the value of his share is set aside. The fixed court-fee that has already been paid by the petitioner is sufficient. The learned District Judge, is therefore, directed to proceed with the trial of the case. There will be no order as to costs.

5. Revision allowed.


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