1. This Revision Petition is filed by the plaintiff against the order of the District Munsiff of Ramachandrapuram demanding payment of ad valorem court-fee on the value of the plaintiff's share under Section 7, Clause (v) of the Court-fees Act (Act VII of 1870).
2. The plaintiff is the widow of one Rama-krishna Rao who died some time after 1-5-1937 after bequeathing under a will of that date all his properties to the plaintiff with absolute rights. It is alleged in the plaint that Ramakrishna Rao was entitled to a l/4th share in the family properties. The averment in the plaint is that Ramakrishna Rao got divided in status in 1932 and was in enjoyment of Ac. 0-76 cents of land which was tentatively put in his possession pending the partition which was complete even till the date of the filing of the plaint.
A further averment is made to the effect that the attempts of the defendants to recover possession of these Ac. 0-76 cents of land from the plaintiff by filing O. S. No. 138 of 1949 alleging that the plaintiff trespassed into this piece of land proving futile as that suit was dismissed and A. S. No. 62 of 1951 filed against the decision in that suit also failed. These allegations in the plaint are unqualified, in that her possession as a co-owner of the family properties along with the defendants is asserted. The plaintiff therefore sought to pay a fixed court fee of Rs. 15/- under Article 17 B of Schedule II of the Court fee Act (Act VII of 1870).
3. But in the plaint, the plaintiff goss on also to repudiate such contentions of the defendants as may possibly be raised against her. The plaintiff states that she demanded partition and possession of her l/4th share, but the defendants denied her right and contended that her husband Pamakrishna Rao died undivided with them. The claim of defendants to adverse possession is also denied by the plaintiff. In doing so the plaintiff attempted to forestall the defence to the action. Her object is to expose the defendants in regard to the lame excuses or false defences which the defendants according to her are bent upon putting forth as is evident by their conduct. But the learned District Munsiff has construed this protest by the plaintiff as an acknowledgment by her of the 'hostile title' of the defendants and therefore concluded that, the plaintiff cannot he taken to have averred that she is a co-owner along with the defendants. The learned District Munsiff poses the question for his consideration in the following words :
'The real test to determine this question is this : Can the plaintiff who admits that her title to the suit properties was denied by the defendants to her knowledge in the year 1947, file a suit for partition and separate possession of her share in the suit properties, say in the year 1960, i.e., beyond 12 years from the date of the denial of her title and plead constructive possession, for getting over the bar of limitation?
and he answers it in the negative.
4. To my mind, this line of reasoning of the learned District Munsiff is not only fallacious but is obviously incorrect. From 1947 when according to the court, there was a denial of plaintiff's right by defendants who later filed O. S. No. 138 of 1949 to the date of passing the order under revision which is on 5-4-1955, more than 8 years could not have elapsed. But when the court further adds also the period till 1960, it surpasses one's understanding why he should do so. While the dismissal of O. S. No. 138 of 1949 and also A. S. No. 62 of 1951 should be construed as substantiating the plea of the plaintiff that any claim of defendants to 'hostile title' is negatived, the lower court wrongly infers an acceptance by plaintiff of an adverse animus on the part of defendants, The learned District Munsiff, it cannot but be remarked, has therefore been speculative without even making sure of the substrata of substance for this assumption. On the facts as alleged in the plaint, the demand of court-fee under Section 7, Clause (v) is not warranted on the allegations in the plaint, when properly understood.
5. Before discussing the decisions bearing upon [he point relating to the payment of court-fees where a widow sues for recovery of her husband's share in the Joint family properties, alter a division tn status has taken place, the position of this plaintiff after the passing of the Hindu Women's rights to Property Act may be taken note of. The plaintiff's husband died leaving a will dated 1-5-1937 in her favour, It would therefore be a case to which Act XVIII of 1937 might apply, as that Act came into force on 14-4-1937. The plaintiff's right therefore to partition could be enforced if she chose so under the provisions of this Act; but this relief has not been specifically sought for in the plaint, as the plaintiff depended upon her rights under the will executed by her husband as a divided member of the family.
But if the plaintiff could fall back on the rights given to the widow under that Act, her rights to enforce partition as a family member depending upon co-ownership would be undeniable. Mockct J., has considered in Rosamma v. Chenchiah, AIR 1943 Mad 654: 1943-2 Mad LJ 172, the case of a suit for partition under Act XVIII of 1937 by a widow. The question whether a widow could be treated as a coparcener excluded from possession was determined by the learned Judge. Construing the words, 'that the widow shall have the same right of claiming partition as a male owner', in Sub-section (3) of Section 3 of that Act, it was held that the widow acquired full status such as a deceased co-parcener and or the purpose of filing a suit, and that any exclusion from possession of property cannot be inferred unless 'there is an allegation that she has been kept out of possession or was out of possession in some other way'.
The court-fee which a widow has to pay in filing a suit under Act XVIII of 1937 has been held to be the same as that payable by a co-parcener who sues for partition. It may further be noted that in regard to court-fee payable by a co-parcener suing for partition the Full Bench in Ramaswami Ayyangar v. Rangaehariar, ILR (1940) Mad 259: (AIR 1940 Mad 113), has set at naught ail controversy by laying down that Article 17-B of Schedule II will apply.
6. What then are the considerations which ought to weigh with the court in determining the question relating to court-fee? It is now well-settled that for the purpose of ascertaining the court-fee payable, one must have regard to the allegations in the plaint and it is not the function of the court to ask itself whether those allegations are true or probable: vide Secy, of State v. Lakhanna, AIR 1933 Mad 430; and applying this principle, the averments in the instant plaint cannot be regarded as supporting any case that the plaintiff is suing to recover from defendants who have prescribed a title against her for her husband's share. On the other hand, alleging the division in status and claiming under the will, the plaintiff sets up that she is a co-owner and only asserts that the defendants' efforts to claim hostile title have proved futile. As has been already observed, it is a misreading of these averments by the learned District Munsiff that is responsible for misinterpreting the real import of the allegations found in the plaint.
7. It is next necessary to examine the question whether the division in status of the plaintiffs husband which hag been alleged in the plaint makes Article 17-B of Schedule II inapplicable. The law in regard to this cannot be said to be uncertain, especially having regard to what has been decided by the Division Bench in AIR 1933 Mad 430, and the application of it in Manikkam Pillai v. Murugesain Pillai, AIR 1933 Mad 431. There it has been held that Art. 17-B of Schedule II will be applicable in spite of a division in status, if only there is no actual division by metes and bounds.
8. There remains therefore the further question whether when the widow sued by virtue of the eight derived by her under the will for partition of her husband's snare it could be said that she is not suing as a co-owner. But when it is remembered that thereby she is in the shoes of her husband, as it were, and even otherwise she could effect her right to division or partition under Act XVIII of 1937, her possession as a co-owner becomes more than obvious.
9. For the aforesaid reasons, I am of the view that the Court-fee payable on this plaint is only under Article 17-B of Schedule II of the Court-fees Act (VII of 1870).
10. Before taking leave of this case, it is necessary to have to remark that the suit filed in 1955 is still unregistered. This is not even a case where the trial of the suit has been stayed; but the proceeding of the court resulting in an objection taken suo motu by the court in regard to court-fee even at the S. R. stage has been responsible for keeping the piaint without being registered. Further the filing of the Revision Petition has added to the delay in numbering the suit. Therefore, Revision. Petition against such orders of courts at S. R. stage needs therefore to be disposed of with all expedition. The other aspect of the matter that a question of court-fee could always be agitated at the instance of any party affords, in my opinion, good reason for the trial court not determining the question of court-fees as a preliminary point, especially at the S. R. stage.
11. In the result, the petition is allowed but without costs.
12. This case having been set down this day for being mentioned, in pursuance of the letter of the Advocate for the petitioner, the court made the following order ;
13. It is pointed out by Mr. Venkatramana thatsince his client succeeded, the petitioner is entitledto costs. But inasmuch as none appeared for the respondents in this court but only the GovernmentPleader on being given notice by this court, I consider the proper order is not to allow costs, In theorder dated 2-4-1959, the direction is accordinglymaintained.