1. The question that falls for determination in this revision petition is whether the case is governed by S. 34(1) or 34(2) of the Court-fees and Suits Valuation Act (hereinafter referred to as the Act.)
2. The plaintiffs who are the petitioners herein, filed a suit for partition of the properties described in the plaint schedules into three equal shares and for allotment of two such shares to them. They paid a fixed court - fee of Rs. 200/- under S. 34(2) of the Act. Thereafter at the time of the inspection of the Subordinate Court the District Judge pointed out that the first defendant in his written statement averred that he alienated items 2 and 3 of the plaint A Sch in favour of defendants 2 and 3 and as the first defendant purchased items 2 to 6 of the plaint B Sch. property with the joint family funds in the name of the second defendant, the plaintiffs have to pay advalorem court - fee under S. 34(1) of the Act. On that notice of theft check slip was issued and objections were filed by the plaintiffs Advocate stating that the facts averred cannot be brought within the ambit of S. 34(1) of the Act. However, the subordinate Court held that in these circumstances it cannot be held that the plaintiffs were in joint possession as tenants in common of items 2 and 3 of plaint A Sch. and items 2 to 6 of B Sch in which case they must pay ad valorem court - fee under S. 34(1) and not a fixed court - fee under S. 34(2). Hence this revision.
3. The learned counsel for the petitioner, Sri Parabrahma Sastry, contends that the lower Court committed an apparent error in coming to the conclusion that the materials as disclosed in the plaint would fall within the ambit of S. 34(1) of the Act. It is further argued that the lower Court has misread in certain respects the plaint averments and also erred in placing reliance on the averments in the written statement as well. In determining the court fee to be paid it is further argued, the averments in the plaint alone would have to be looked into ; if that be so, the case falls within the ambit of Section 34(2). Reliance was placed on the decisions in Sathappa Chettiar V. Ramanathan Chettiar, : 1SCR1021 , N. Kondaiah V. N. Ramana Reddy : AIR1971AP142 , Siba Rani V. Ramendranath : AIR1963Cal46 , R.Basanna V. Adeppa : AIR1951Mad732 and Akhandala V. Damodara : AIR1952Mad810 .
4. It is now well settled that the question of court-fee must be considered in the light of the allegations 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 the merits.
5. In order, however to adjudicate upon the point raised herein the statutory provisions laid down in S. 34 must be noticed. That section reads as under:-
'34 (1). In a suit for partition and separate possession of a share of joint family 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 moveable 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:-
6. What is manifest from the above provisions is that in the case of sub-sec. (1) where partition of the joint possession of the property need not be established, whereas in order to attract the benefit of sub-sec. (2) one has to establish that he is in joint possession of such property.
7. The averments made in the plaint are :-
'The plaintiffs submit that the 1st defendant in collusion with the 4th and 5th defendants allowed item of the plaint A schedule which is a recent building constructed on a site of nearly two acres, and which is worth more than a lakh of rupees, to be sold for a paltry sum of Rs. 15,000/- and the said defendants 4 and 5 are trying to get the plaintiffs their sister and mother evicted from the said item of the property. Likewise the 1st defendant during the course of illegal and immoral activities alienated items 2 and 3 of the A Sch. property in favour of his close relations. But the said alienations are in the joint possession and enjoyment of the plaintiffs as tenants in common .......Items 2 to 6 of plaint plaint B Sch. properties were purchased by the 1st defendant, with the joint family funds in the name of defendants 2 and 3. But the said defendants have no interest in any of the said properties.....Hence the allocations (Alienations) made by the first defendant are not binding on the plaintiffs'.
From the above averments it is quite clear that at any rate item No. 1 of the A Sch property which is a newly constructed building wherein the plaintiffs. their mother and sister are living is joint family property . Of course it is also further averred that the alienations of items 2 and 3 of A Sch have not been acted upon and they are said to be in joint possession and enjoyment of the plaintiffs. If that be so the case squarely falls within the ambit of sub-sec. (2) of S. 34.
8. The Madras High Court in Akhandala V. Damodara : AIR1952Mad810 (supra) held:-
'If the plaintiff here had asserted in the plaint that there was joint possession constructive or otherwise of atleast some portion of the property, Art 17-B would be the proper provision of law. But in the absence of any such allegation, I find it difficult to hold that on the averments in the plaint joint possession can be maintained. It is open to the plaintiff to suitably amend the plaint if so advised and then claim that the Court - fee paid is correct'.
9. In view of this, I hold that the material disclosed in the plaint asserting that the plaintiffs are in joint possession of the property claiming a share in the property by way of partition would enable them to bring the case squarely within the province of sub-sec. (2) of S. 34 of the Act. The lower Court apparently erred in holding that 'there is no specific allegation in the plaint that the plaintiffs are directly or constructively in joint possession of items 2 and 3 of the plaint A Sch properties and items 2 to 6 of the plaint B Sch properties.' This I apprehend is contrary to what is alleged in the plaint, to which reference has already been made earlier. In fact, the lower court has not adverted to the positive assertion made with regard to item No. 1 of the A Sch. property, which is a house and therefore the finding arrived at has resulted in material irregularity and has to be set aside.
10. In the result the revision petition is allowed and the case is sent back to the lower court for trial. No costs.
11. Since the suit pertains to the year 1976, it would be proper if a direction is given to the lower court to dispose of the same expeditiously.
12. Revision petition allowed.