NEELAVATHI AND ORS. versus M. NATARAJAN AND ORS.

Citation: [1980] 2 S.C.R. 307 · Decided: 30-11-1979 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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307 
NEELA V ATHI AND ORS. 
v.' 
M. NATARAJAN AND ORS. 
November 30, 1979 
tS. MURTAZA FAZAL ALI, P. s. KAILASAM AND A. D. KosHAL, JJ.J 
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 
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 
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-
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 
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 
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 -
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 
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308 
SUPREME COURT REPORTS 
[1980] 2 S.C.R. 
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 1 lD, 312 B-F] · 
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, 
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 di

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