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M.L. Sreenivasa Rao Vs. Harinath Upadyaya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 246 of 1968
Judge
Reported inAIR1971Kant215; AIR1971Mys215; (1971)1MysLJ280
ActsMysore Court-fees and Suits Valuation Act, 1958 - Sections 35(1) and 35(2)
AppellantM.L. Sreenivasa Rao
RespondentHarinath Upadyaya and ors.
Appellant AdvocateG.R. Doreswamy, ;K. Rangaswamy, ;M.R. Narayanaswamy and ;G.S. Venkatachalapathy, Advs.
Respondent AdvocateN.S. Chandrasekhara, Govt. Pleader
DispositionPetition dismissed
Excerpt:
- code of civil procedure, 1908. section 16, proviso,: [k. ramanna, j] territorial jurisdiction immovable property situated beyond jurisdiction of court held, though the court cannot grant relief in rem still it can entertain a suit where relief so sought can be obtained through personal obedience of defendant. -- sections 16(d), 20 territorial jurisdiction partnership firm carrying business of quarrying and selling rough granite situated at bangalore and two of defendants partners are also residents of bangalore held, no doubt courts at chitradurga where quarrying business was obtained had jurisdiction to try suit but in view of section 16(d), cpc read with proviso to section 16 and section 20, courts at bangalore also have jurisdiction to try the suit. .....2. the petitioner-plaintiff purchased in a court auction the undivided interest of a coparcener in suit properties which are joint family properties. in the plaint his main prayer is for a decree for partition of the suit properties by metes and bounds and for possession of his share therein. he has alleged in the plaint that he obtained possession of such undivided share under order 21, rule 96, civil procedure code. he paid a fixed court-fee of rs. 200/- under sub-section (2) of section 35. on an objection raised by the office of the court that the court-fee paid was insufficient, the learned civil judge held that ad valorem court-fee was payable under sub-section (1) of section 35 on the market value of the share claimed by the plaintiffs in the suit properties. 3. feeling aggrieved.....
Judgment:
ORDER

D.M. Chandrashekhar, J.

1. The question that arises for determination in this petition is whether in a suit for partition brought by a purchaser of the undivided interest of a coparcener in joint family property, a fixed court-fee is payable under Sub-section (2) of Section 35 of the Mysore Court-fees and Suits Valuation Act, 1958 (hereinafter referred to as the Act), or whether ad valorem Court-fee is payable under Sub-section (1) of that Section, on the market value of the plaintiff's share.

2. The petitioner-plaintiff purchased in a Court auction the undivided interest of a coparcener in suit properties which are joint family properties. In the plaint his main prayer is for a decree for partition of the suit properties by metes and bounds and for possession of his share therein. He has alleged in the plaint that he obtained possession of such undivided share under Order 21, Rule 96, Civil Procedure Code. He paid a fixed court-fee of Rs. 200/- under Sub-section (2) of Section 35. On an objection raised by the office of the Court that the Court-fee paid was insufficient, the learned Civil Judge held that ad valorem Court-fee was payable under Sub-section (1) of Section 35 on the market value of the share claimed by the plaintiffs in the suit properties.

3. Feeling aggrieved by the Order of the learned Civil Judge, the plaintiff has presented this revision petition.

4. Mr. G. R. Doreswamy, learned counsel for the petitioner contended that after the petitioner purchased in the Court auction the undivided share of a coparcener in the suit properties, he had been put in symbolic possession or such undivided share in the execution proceedings, that consequently he must be regarded as being in constructive possession or the suit properties and that only a fixed court-fee is payable under Sub-section (2) of Section 35.

5. On the other hand, the learned Government Pleader (to whom notice had been issued) contended that the plaintiff being merely the purchaser of the undivided interest of a coparcener in the suit properties, could not be in possession of the suit properties and that hence in a suit for partition, he has to pay ad valorem court-fee under Sub-section (1) of Section 35.

6. The legal position of the purchaser of the undivided interest of a coparcener in a Joint family property, in regard to possession of such property, has been stated thus in Mulla's Hindu Law, (13th Edition, 1970 Re-print, at page 292):

The purchaser of the undivided interest of a coparcener in a specific property.-

(i) at a sale in execution in West Bengal and Uttar Pradesh, or

(ii) at private sale or a sale in execution in Madras, does not acquire the right to joint possession with the other coparceners. Such a purchaser acquires merely the right to compel a partition which the coparcener whose interest he has purchased might have compelled, had he been so minded, before the sale of his interest took place. That right can only be enforced by suit for a general partition to which all the coparceners must be joined as parties. ....

If the purchaser has obtained possession, the non-alienating coparceners are entitled to sue for and recover possession of the whole of the property for the benefit of the joint family including the vendor..'

7. In Siddeswara v. Bhubneswar : [1954]1SCR177 , dealing with the right of such purchaser, to the joint family properties, this is what B. K. Mukherjea, J., (as he then was), said at page 491:

'All that he (the plaintiff) purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour....'

8. In view of the above statement of law, it is clear that the plaintiff could not be in possession of the suit properties which are joint family properties. However, Mr. Doreswamy submitted that the plaintiff had, as a matter of fact, been put in symbolic possession of the suit properties in the execution proceedings and that hence he must be held to be in constructive possession thereof. Even if the executing Court purported to put him in such symbolic possession, such symbolic possession has no legal effect in the eye or law because, he was not entitled to be in joint possession of the suit properties along with the non-alienating coparceners.

9. Hence, I am unable to accept the contention of Mr. Doreswamy that the plaintiff must be regarded as being in constructive possession of the suit property on the date of the suit,

10. However, Mr. Doreswamy sought to derive support from the decision in In re R. K. Ranga Reddy, AIR 1957 Andh Pra 724. There, the plaintiff who was an alienee of a joint family property from a coparcener, was put in actual possession thereof. He brought the suit for a partition and for working out the equity by allotment of the particular property to his share. The question for decision before the Andhra Pradesh High Court was whether Court-fee was payable under Section 7 (v) or under Article 17 (B) of Schedule II to the Court-fees Act, 1870, as amended in Madras. Uma-maheswaran, J., held that only a fixed court-fee was payable under Article 17 (B) of Schedule II and not under Section 7 (v) of that Act.

11. The above decision is distinguishable on facts, because, the plaintiff there was in actual possession of the property purchased from a coparcener. In the present case, the plaintiff did not claim to be in actual possession. Hence, the above decision cannot be of any assistance to Mr. Doreswamy.

12. It was next contended by Mr. Doreswamy that though the plaintiff has asked for the relief of possession, that relief is redundant and that the suit must be regarded as one merely for working out the equity in his favour in a partition between all the coparceners including the coparcener whose undivided interest he has purchased. As the plaintiff is not in possession of the suit properties, he cannot merely ask for a partition without also asking for possession of the share that may be notionally allotted to the coparcener whose interest he has purchased. A suit for partition brought by an alienee of an undivided interest in a Joint family property, is in no way different from a suit for partition brought by a coparcener who is not in possession of the Joint family properties. Where the plaintiff is not in possession, actual or constructive, of a joint family property, he cannot merely ask for a partition without also asking for possession of the share that may be allotted to him in such partition.

13. The view taken by the learned Civil Judge that the plaintiff has to pay court-fee under Sub-section (1) of Section 35 of the Act, is correct and does not call for any interference in revision.

14. In the result, this petition fails and is dismissed. The petitioner is given three months' time from this day to pay the deficit court-fee. In this petition, there will be no order as to costs.


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