T N SHARATH Vs. UJWAL

JUDGEMENT

(1.) Petitioner is Defendant 3 in the Trial Court. Respondents 1 to 3 are the Plaintiffs in O.S. No. 119 of 2005. They have filed a suit for partition and separate possession of their 3/4th share in the suit schedule properties and also for declaration that the registered settlement deed dated 10.09.1985, sale deed dated 09.10.1986 null and void not binding on the Plaintiffs and consequential perpetual injunction.

(2.) Case of the Plaintiffs is that, Plaintiffs 1 to 3 are the heirs of Sundar, the second son of N.K. Rudrappa. The suit schedule properties belongs to the propositus and there has been no partition in the joint family and as such claimed for partition and separate possession inter alia alleging that, without there being a partition and separate possession, the sale deed executed by Defendant 1 and settlement deed executed by Defendant 1 in favour of the other Defendant being not binding on the Plaintiff.

(3.) The said suit was opposed by filing a written statement. Amongst the other contentions the Defendants alleged that, the Court fees paid is not proper, as the Plaintiffs are seeking for cancellation of settlement deed as well as the sale deed and as such the suit should have valued under Section 34 of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as the 'Act'). Considering the contentions of both the sides by the impugned order rejected I.A. No. 7 filed by the Defendant 3 holding that, suit is one for partition and separation possession that there is presumption of joint family. Unless it is shown that there was a severance and in view of the same the consequential relief sought for by the Plaintiff would not attract the provisions of Section 38 of the Act. It is also observed that, Plaintiff is not party to the transaction and as such it does not amount to cancellation of the deed to attract the provisions of Section 38 of the Act.