JAGANNATH AMIN versus SEETHARAMA (DEAD) BY LRS. AND ORS.

Citation: [2006] SUPP. 8 S.C.R. 778 · Decided: 09-11-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
JAGANNA TH AMIN 
v. 
SEETHARAMA (DEAD) BY LRS. AND ORS. 
NOVEMBER 9, 2006 
B 
[ARIJIT PASAYA T AND LOKESHW AR SINGH PANTA,JJ.] 
Karnataka Court Fee and Suit Valuation Act, 1958-Sections 7(2)(d) 
and 35(1) & (2)-Suit for partition-Computation of court fees-Piea of 
C plaintiff that property is agricultural property and being co-owner, presumed 
to be in constructive possession, court fees under section 35(2) payable on 
deemed market value-Defendant's plea that prop~rty is a house site and 
court fees under section 35(1) payable on actual market value-Courts 
below holding that section 35(1) applicable-Sustainability of-Held: Court 
fees is payable under section 35(1) when there is a clear and specific 
D averment in the plaint that the plaintiff is in 'excluded' possession of the joint 
property--Jn the case of co-owners, possession of one is possession of all 
unless ouster or exclusion is proved-Unless right to a share and nature of 
the property is not disputed, law presumes that he is in joint possession-
Thus, order of courts below cannot be sustained. 
E 
Plaintiff-appellant's mother filed suit for partition of the scheduled 
property. It was contended that being a co-owner, under the law she is 
presumed to be in constructive possession of the property and as sue~ court 
fee under section 35(2) of the Karnataka Court Fee and Suit Valuation Act, 
1958 is to be paid on the deemed market value and not on actual market value; 
F and that the property being agricultural property, suit was valued under section 
7(2)(d) of the .Act and court fee of Rs.200/- was paid under section 35(2) of 
the Act. Defendants contended that the property is a house site and as such 
court fee is to be paid under section 35(1) of the Act on the actual market 
value. Trial court held that section 35(1) was applicable. In revision petition, 
High CQurt held that though it is true that there is a graded scale under 
G section 35(2) which applies to partition suits etc. trial court rightly went into 
special requirements and held that section 35(1) would apply to the facts of 
the instant case. Hence the present appeal. 
Allowing the appeal, the court 
H 
778 
JAGANNATH AMIN v. SEETHARAMA (DEAD) BY LRS. 
779 
HELD: 1.1 In view of *Neelavathi's case and **Mis Commercial A 
Aviation's case, the order of trial court as affirmed by the High Court cannot 
be sustained. [785-A-B) 
1.2 In *Neelavathi 's case this court held that the court fee is payable 
under section 37(l) of the Tamil Nadu Court Fee and Suit Valuation Act, 1958, 
which is pari materia with section 35(1) of the Karnataka Court Fee and Suit B 
Valuation Act, 1958, if the plaintiff is 'excluded' from possession of the 
property. In the case of co-owners, the possession of one is in law possession 
of all, unless ouster or exclusion is proved. To continue to be in joint possession 
in law, it is not necessary that the plaintiff should be in actual possession of 
the whole or part of the property. So long as his right to a share and the nature C 
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 upon to pay court fee under section 37(1) of the Act, it is 
necessary that on a reading of the plaint, there should be a clear and specific 
averment in the plaint that they had been 'excluded' from joint possession to 
which they are entitled to in law. [784-D-G) 
D 
1.3 In **Mis Commercial Aviation's case this Court held that the 
conversion of the plaintifrs undivided share in the joint family property into 
his separate share cannot be easily valued in terms of rupees with any 
precision or definiteness. The legislature left it to the option of the plaintiff 
to value his claim for the payment of court-fees and the same has ordinarily E 
to be accepted by the court in computing the court-fees payable in respect of 
the said relief. The Court did not consider whether the plaintiff had been given 
an absolute right or option to place any valuation whatever on his relief under 
the provision of Section 7(iv) of the Tamil Nadu Court Fee and Suit Valuation 
Act, 1958, but the difficulty that ,-,ould be felt by the Court in exercising its p 
power under Order VII, Rule l l(b) of the CPC is that if it is unable to 
determine the correct value of the relief, it cannot direct the plaintiff to correct 
the valuation. Order VII, Rule ll(b) contemplates correct valuation and

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