Holding

Court fee in a partition suit is payable under Section 37(2) when the plaintiff alleges joint possession, and an explicit allegation of exclusion is required to attract Section 37(1).

Summary

The appellants, sisters, filed a suit for partition and separate possession of their share in ancestral joint family property, alleging they were in joint possession. They paid court fee under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act. The trial court directed them to pay fee under Section 37(1) on the market value of their share, dismissed the suit for non‑payment, and the High Court affirmed the fee liability. On special leave, the Supreme Court examined whether the plaint’s allegations amounted to exclusion from possession, which would trigger Section 37(1). It held that the plaintiffs consistently claimed joint possession and that a mere denial of income does not constitute exclusion; an explicit allegation of exclusion is required. Consequently, the fee should be payable under Section 37(2). The Court set aside the trial and High Court orders and allowed the appeal with costs.

Issues considered

Whether the court fee payable in a partition suit should be computed under Section 37(1) or Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act based on the allegations in the plaint.
Whether the plaint contains a clear and specific averment of exclusion from joint possession sufficient to attract Section 37(1).

Legislation cited

Hindu Succession Act, 1956s. 6
Tamil Nadu Court Fees and Suits Valuation Acts. 12, s. 37(1), s. 37(2)

Subjects

court feepartition suitjoint possessionSection 37Tamil Nadu Court Fees ActHindu Succession Actcivil appealspecial leave

Judgment

>

307
,....
~ NEELA VATHI AND ORS.
v.'
'... M. NATARAJAN AND ORS.
"I November 30, 1979
tS. MURTAZA FAZAL ALI, P. s. KAILASAM AND A. D. KosHAL, JJ.J B

Court Fee payable-The question of Court fee payable must be i:on.iidercd
in the light of the allegations made in the plaint.

~~Tamil Nadu Court Fees and Suits Valuation Act-Section 37-Plaint alle-
gation is tliat the plaintiffs were illl joint possession· and the prayer was for parti-
tion and separate possession-The correct court fee payable is governed by c
Section 37 (ii) and not 37 (i).

The plaintiffs, appellants filed a suit for partition and separate possession
of their individual share as per law and paid a court fee at the rates prescribed
under section 37 (ii) of the Tamil Nadu Court Fees ·and Suit Valuation Act.
There was a specific allegation that they were in joint possession. The Trial
Court decreed the suit but directed the plaintiffs appellants to pay the court fee D
under Section 37 (1) of the Act. As the difference in court fee was not paid
the trial Court dismissed the suit. Two appeals were filed by the appellants i11
ttie High Court, one against the decision that they were liable to pay court fee
on the market value of the property under section 37 (1) and another against
the order dismissing the suit. The High Court heard the two appeals together
and disposed of the appeals accepting the contention of the respondents/defen-
dants that the Court fees are payable both on the plaint and on the memoran-
E
dum of appeals under Section 37 (1) of the Act.

Allowing the appeal by special leave, the Court

HELD : 1. It is settled l3w that the question of Court fee must be consi-
dered in thei light of the allegation made in the plaint and its decision cannot be
influenced either by the _pleas in the written st~tement or by the final decision
p
of the suit on merits. AU the material allegations contained in the plaint
should be construed and taken as a whole. [311 D-EJ

In the instant case: (a) on reading of the plaint as a whole, it is clear that
throughout the plaint, the plaintiffs/appellants have asserted that they were in
joint possession and therefore the observation of the High Court that recitals
in all the paragraphs is merely a · formal statement repeating the statutory G
language is not correct. (b) the plea that they were not given their due share
would not amount to dispossession. Reading the plaint at its worst against the
plaintiffs, all that could be discerned is that as the plainitffs were not given their
share of the income, they could not remain in joint possession. The-statement
that they are not being paid their income, would not amount to having been
excluded from possession. The averment in the plaint cannot be understood as
stating that the plaintiffs were not in possession. In fact, the defendants unde1 - R
sklOd the plaint as stating that the plaintiffs are in joint possession of the suit
properties. In varagraph 18 of the written statement the defendants r,lead.:d

T T
308 SUPREME COURT REPORTS [1980] 2 S.C.R.

A that the plaintiffs have framed the suit as though they are in joint possession
and enjoyment of the suit properties. Asserting that the plaintiffs were out of
possession, the defendants stated: "While it is so, the allegation that they are
in joint possession of the suit properties, is not correct." The mere fact that ,,
the plaintiffs were not paid their share of the income or were not in actual
possession would not amount to the plaintiffs having been excluded from joint
possession to which they are in law entitled. p 1lD, 312 B-F] ·
B
S. Rm. Ar. S. Sri Catharina Chettiar v. \S. RM. Ar. Rm Raman:atl1en
Chettiar, [1958] SCR 1021 @ PP 1031-32; followed.
2. Under section 37(1) of the Tamil Nadu Court Fees and Suit Valuation
Act, relating to partition suits, the Court fee is payable, if the plaintiff .J.o;i
~·excluded" from possession of the property. The general principle of law is
lhat in the 9.-Se of co-owners, the possession of one is in law possession of all,
c unless ouster or exclusion is proved. To continue to be in joint possession in
la.w if is not necessary that the. plaintiff should be in actual possession of the
whole or part of the property. Equally it is not neces~ry that he ~hould be
getting a share or some itlcome from the prpperty. So long as his right to a
share and the nature of the property as joint is not disputed the law presumes
that he is in joint possession unless he is excluded from such pos.~ession. Be-
fore the pla,intiffs could be called upon to pay court fee under section 37 <I)
D of the Act on the ground that they had been excluded from possession it ia
necessary that there should be a clear and specific averment in the plaint that
they had been "excluded" from joint· possession to which they are entitled in
'law. [313 B, D-F]
In the instant ease :
E (a) The averments in the plaint that the plaintiff could not remain
in joint possession as he was not given any income from the joint
family property would not amount to his exclusion from possession.
[313 F-0]
(b) The plaintiffs who are sisters of the defendants claimed to
be members of the joint family and prayed for partition alleging that
they are in joint possession. Under the proviso to si:ction 6 of the
Hindu Succession Act. 1956 (Act 30 of 1956), the plaintiffs being the
daughters of the male Hindu who died after the commencement of the
ACt, having at the time of the death an interest in the Mitakshara
coparcenary 'property, acquired interest by devolution under the Act.
The property to which the plaiJltiffs are entitled is undivided 'joint
family property', though not in the strict sense of the term.
[313 C-DJ
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3530 of'
1979.
Appeal by Special Leave from the Judgment and Order dated
2-2-1979 of the Madras High Court in A.S. No. 9.24/74.
K. S. Ramamurthy, P. N. Ramalingam and A. T. M. Sampath for
H
the Appellant.
t;r
~:
K. Ram Kumar and K. Tayaram for the Respondent.
NEELAVATID v. M. NATARAJAN (Kailasam, !.) 309

The Judgment of the Court was delivered by A

KAILASAM, J .-The appellants in the appeal by special leave are
plaintiffs 1 to 5 in the suit. The plaintiffs 1 to 5 are sisters and defen-
d ants 1 to 2 are their brothers. The thiid defendant is their unmarried
sister. They are the children of the late Muthukumaraswamy Gounder
who died intestate on 20-J2-1962 leaving his father .Vanavaraya B
Gounder who. was managing all the ancestral joint family property as
the head of the Hindu Undivided Joint Family till his death on
· 5-3-1972. The plaintiffs claimed that on the death of Muthukumam-
swamy Gounder his 1/3rd share in the joint family property devolved
~n his sons and daughters, his sons, defendants 1 and 2 taking 1/3rd
snare each in 1/3rd share of the family property by birth and in the
c
balance all the sons and daughters of Muthulcumaraswamy Gounder
taking an equal share each. The plain~ claiwed to have been in joint
possession of the properties alongwith Vanavaraya Gounder and his
other sons. Similarly on the death of Vanavaraya Gounder, his 1/3rd
share in the family properties devolved upon his heirs, the plaintiffs D
in
and defendants 1 to 3 being entitled to certain shares. The claim the
plaint is that each of the plaintiffs is entitled . to a share in the suit
properties as heirs to Late Mutbukumaraswamy Gounder and also as
heirs to late Vanavaraya Gounder, their grand-father. Each plaintiff
claimed that she was entitled to 1/72 share in the suit properties as
heirs to their father Muthukumaraswamy Gounder and also to 1/96 E . ,
share as heirs to their grand-father Vanavaraya Gounder. It was
alleged in the plaint that since the death of Vanavaraya Gounder,
defendants nos. 1 to 6 failed to give the plaintiffs their share of income
and the plaintiffs could not. remain in joint possession. The plaintiffs
repeatedly demanded partition and the defendants 1 to 6 were
F
evading. The plaintiffs claimed that each of the plaintiffs as co-owners
are in joint possession of the suit properties and this action was laid
to convert the joint possession into separate possession so far as the
shares of the plaintiffs are concerned. For the purposes of court fee
and jurisdiction, the plaintiffs valued their share of. the property and
paid court fee of Rs. 200 under S. 37(2) of the Tamil Nadu Court. G
Fees and Suits Valuation Act. The relief prayed for was for partition
of the properties and for allotment of their separate share, for account~
and for other reliefs.

In the written statement, the defendants 1 to 2, the brothers, con-
tended that the properties were divided in the year 1946 during the H.
life time of Muthukumaraswamy Gounder ·and that Muthukumara-
swamy was enjoying the properties separately. Regarding possession of
310 SUPREMP COUlll REPORTS [1980] 2 S.C.R.

the plaintiffs, defendants 1 to 3 the contesting defendants alleged in
paragraph 18 of the written statement as follows : -
"The suit as framed is not maintainable ·m law. The
plaintiffs have framed the suit as though they are in joint pos-
session and enjoyment of the suit properties. The plaintiffs
are out of possession and they are living in different v.illages.
While it is so the allegation. that they are in joint possession . \_
of the suit properties is not correct. The plaintiff ought to
have paid court fee under S. 37(i) of the Court Fees Act ·
. and not under 3 7 (ii) of the Act. They ought to have paid the
court fee at the market value of the suit properties and unless
the court fee at the market rate is paid they are not entitled ,.,.
to claim any share." .

The Subordinate Judge who tried the suit did not frame any preli-
minary issue regarding court fee as required under S.12 of the Court
Fees Act but proceeded to try all the issues together. The Subordinate
>D Judge granted preliminary decree for partition and possession of the
plaintiffs' 1/72 share in B. Schedule properties, and to certain shares
in deposit in State Bank of India at Pollachi, and to the share in the
Gnanambika Mills, on payment of court fees by th~ plaintiffs under S.
37(i) of the Court Fees Act. The Court granted time for payment of
court fee till 15-2-1973. As the cowt fee was not paid,- the Trial
·E Court dismissed the suit, by its judgment dated 7-2-1974.
The plaintiffs filed two appeals-AS. No. 811 of 1975 against the
decision of the Subordinate Judge holding that the plaintiffs are liable
to pay cou~ fee _on the market value of the property under S. 37(1)
of the Court Fees Act 'and A.S. No. 924 of 1974 against the order ,,.
·F dismissing the suit.

The High Court heard both the appeals together and disposed them
of by a common judgement. When the appeals were taken up, the
defendants/respondents contended that the court fee ought to have
been paid on the plaint under S. 37 ( 1) and also on the ntemorandtim
·G of appeal before the High Court and
as the proper court fee has not
been paid, the appea1s ought to be dismissed. The High Court accepted
the contention raised by the defendants and held that the plaintiffs are
liable to pay court fee under S.37(1) of the Tamil Nadu Court Fees
Act. In coming to its conclusion, the High Court mainly relied on
paragraph 12 of the plaint which reads as follows:-

"Since the death of Vanavaraya· Gounder tl1e defendants
1 to 6 failed to give the plaintiffs their share of. income and
NEELAVATHI v. M. NATARAJAN (Kailasam, !.) 311

the plaintiffs could not remain· in joint possession. Therefore,
the plaintiffs repeatedly demanded partition and the
defendants 1 to 6 were evading. The 3rd plaintiff sent a
notice through her counsel to defendants l, 2 and 5 to
which the 3rd plaintiff received replies containing false and
'' untenable a)legations."
B
' The High Court proceeded to observe that while the statement that
the plaintiffs· were in joint possession with the defendants occurring
in other paragraphs of the plaint is merely a formal statement repeat-
i. ng the statutory language, the statement contained in paragraph 12
of the plaint constitutes a statement of fact in the context in which C
paragraph 12 occurs and consequently paragraph 13 of the plaint
contains a clear avcrment that the plaintiffs could not remain in joint
possession and that was the reason why they repeatedly demanded
partition. If so, on the date of the suit, the plaintiffs were not in pos-
session. The High Court held that court fee is payable under S. 37(1)
of the Court Fees Act. D

On reading of the plaint as a whole, we are unable to agree with
the view taken by the High Court. It is settled law that the question
of court fee must be considered in the light of the allegation 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 merits. E
All the material allegations contained in t11e plaint should be construed
and taken· as a whole vide S. Rm. Ar. S. Sp. Sathappa Chettiar v.
S. Ram Ar. Rm. Ramanathan Chettiar('). The plaint in paragraph 5
states that Muthuknrnaraswamy Gounder died intestate• and undivided
and Muthuknmaraswamy's father Vanavaraya Gounder was managing
all the ancestral joint family property as the head of the Hindu· F
undivided joint family till his death. In paragraph 8 the plaintiffs stated
that on the death of Muthukumaraswamy Gounder his 1/3rd share in
the joint family properties devolved upon his sons and daughters. It
further alleged that the plaintiffs were in joint possession of the pro-
perties alongwith Vanavaraya Gounder and his other sons. In para-
G
graph 9, it is stated that each of the plaintiffs is entitled to a share in
the suit properties as heirs of the late Muthukumaraswamy Gounder
and also as heir of the late Vanavaraya Gounder. In paragraph 11, it
is stated that since the death of Vanavaraya Gounder defendants 1 to
6 are receiving the income from the properties and are liable to
account to the plaintiffs. In paragraph 12, it is stated that since the H
death of Vanavaraya Gounder defedants I to 6 failed to give the
.,, (1) [1958] S.C.R. 1021 at pp. 1031 32 .
312 SUPREME COU.RT REPORTS [1980] 2 S.C.R.

A plaintiffs their share of income and the plaintiffs cou!d not remain in
joint possession. Therefore the plaintiffs demanded partition and the
defendants 1 to 6 were evading. Again in paragraph .l 3, it is claimed
that each of the plaintiffs as co-owners is in joint possession of the suit
properties, and this action is laid to convert the joint possession into
separate .possession so far as the shares of the plaintiffs are concerned.
,,l
B Throughout the plaint, the plaintiffs have asserted that they are in
joint possession. We are unable to agree with the High Court that •
recitals in all the paragraphs is merely a formal statement repeating
the statutory language. The plea in paragraph 12 which was relied
on by the Hi~ Court states that the defendants I to 6 failed to. give~
the plaintiffs their share of the income and the plaintiffs could not
c remain in joint possession. The plea that they were not given their dUe' '·
share would not amount to dispossession. Reading the plaint at its '· ·
worst against the plaintiffs, all that could be discerned is that as the
plaintiffs were not given their share of the income, they could not
remain in joint possession. The statement that they are not being paid
D their income, would not amount to having been excluded from posses-
sion. The averment in the plaint cannot be understood as stating that
the plaintiffs were not in possession. In fact, the defendants understood
the plaint as stating that the plaintiffs are 'in joint possession of the
suit properties. In paragraph 18 of the written statement the defendants
. pleaded that the plaintiffs have framed the suit as though they are in
E joint possession and enjoyment of the suit properties. Asserting that
the plaintiffs were out of possession, the defendants stated : "While it
is so, the allegation that they are in joint possession of the suit pro-
perties, is not correct."

The Trial Court has not placed any reliance on the recitals in para
F 12 of the plaint on which the judgment of the High Court is based. The
Trial Court found on evidence that the plaintiffs never enjoyed the
suit properties at any time. This finding is not enough for, the mere
fact that the plaintiffs were not paid their share of the income or were
not in actual physical possession, would not amount to the plaintiffs
having been excluded from joint possession to which they are in law •
G
entitled. On a consideration of the plaint as a whole and giving it its
natural meaning, we are unable to agree with the conclusion arrived ·
at by the High Court.
S. 37 ofthe Tamil Nadu Court Fees and Suit Valuation Act
relates to Partition Suits. S. 37 provides as follows :--
H
37 ( 1) In a suit for partition and separate possession of
a share of joint family property or of property owned, jointly
NEELAVATHI v. M. NATARAJAN (Kailasam, I.) 313

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 plaintiff's share.

37(2) In a suit for partition and separate possession of
joint family property or property owned, jointly or in com-
mon by a plaintiff who is in joint possession ·of such pro- 8
perty, fee shall be paid at the rates prescribed .
•
· II will be seen that the court fee is payable under S. 37 ( 1) if the
.plaintiff is 'excluded" from possession of the property. The plaintiffs
who are sisters of the defendants, claimed to be members of the. Joint c
Family, and prayed for partition alleging that they are in joint por.-
sesion. Under the proviso to S.6 of the Hindu Succession Act, 1956
(Act 30 of 1956) the plaintiffs being the daughters of the male Hindu
who died after the commencement of the Act, having at the time of
the death an interest in the Mitakshara coparcenary property, acquired
an interest by devolution under rhe Act. It is not in dispute that the D
plaintiffs are entitled to a share. The property to which the plaintiffs
are entitled is undivided. 'joint family property!'; though not in the
strict sense of the term. The general principle of law is that in the case
of co-owners, the possesion of one is in law possession of all, unless
ouster or exclusion is proved. To continue to be in jolnt possession in
E
law, it is not necessary that the plaintiff should be in actual possession
of the whole or part of the property. Equally it is not necessary that
he should be getting a share or Some income from the, property. So
long as his right to a share and the nature of the property as joint is not
disputed the law presumes that he is in joint possession unless he is
excluded from such possession. Before the plaintiffs could be called F
npon to pay court fee under S. 37(1) of the Act on the ground that /

they had been excluded from possession, it is necessary that on a read-
ing of the plaint, there should be a clear and specific av&ment in the
plaint that they had been "exclnded" from joint possession to which
•
. they are entitled in law. The averments in the plaint that the plaintiff
could not remain in joint possession as he was not given any income G
from the joint family property would not amount to his exclusion from
possession. We are unable to read into the plaint a clear and specific
admission that the plaintiff had been excluded from possession.
In the result the appeal is allowed with cost. Ae we have found
that the Trial Court was in error in directing the plaintiffs to pay the ff
court fee under S. 37(1), the.preliminary decree for partition and pos-
session of 1/72 share in the B. Schedule properties and the shares in
21-868SCI/79

_________ , ~ -,.,,-
-··,..., -
314 SUPREMR COURT REPORTS [i980] 2 S.C.R.

A deposit in State Bank of fodia at Pollachi, and in the share in the
Gnanambika Mills,. is confirmed. The direction by the Trial Court as
to payment of Court Fee under S. 37(1) of the Court Fees Act and
the judgment of the High Court in A.S. No. 924/1974 and A.S.
811/75 are set aside.

B
S.R. Appeal allowed.
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