NARAYANA IYER Vs. KRISHNAN

JUDGEMENT

(1.) This appeal by defendants I and 4 is against the preliminary decree for partition in O.S. No. 123 of 1974 Sub Court, Trichur. The court fee paid in the Memorandum of Appeal is Rs. 100/- under S.37(3) read with S.52 of the Court Fees and Suits Valuation Act. The Taxing Officer has taken an objection that the court fee payable is under S.37(2) read with S.52 and not under S.37(3).

(2.) The appellants' counsel submits that the appellant had paid Rs. 100/- on the written statement filed by him for claiming partition and separate possession of their share of the property and therefore the court fee payable in appeal by them should also be the same. The Government Pleader disputed this proposition and submitted that this was not correct.

(3.) It was by the Madras Court - Fees and Suits Valuation Act, 1955 that a defendant in a partition suit was required to pay court fee on half of the market value to enable him to claim a share and get it allotted. The said provision is incorporated in the Kerala Court - fees and Suits Valuation Act, 1959, Act 10 of 1960. Neither the Travancore - Cochin Court Fees Act, 1125 nor the Travancore - Cochin Suits Valuation Act, 1125 contained such a provision. The introduction of this provision was purely a revenue collecting process and had nothing to do with the administration of justice. Neither the Courts, nor the Judicial Officers nor the litigant public received any additional benefit. Courts and Judicial Officers have continued to be neglected. This provision only enabled the defendant to claim a share Claiming a share is something different from getting an adjudication about the issues involved in a suit. The suit involved issues relating to the partibility of certain items. These are the questions to be decided in the appeal also. An appeal for an adjudication of these questions should carry with it proper court fee as laid down in S.37(2). S.52 cannot help the appellant for it provides that the fee payable in an appeal shall be same as the fee that would be payable to the court of first instance on the subject matter of the appeal. The fee that would be payable in a partition suit is not what is provided under S.37(3) but the one provided under S.37(2). S.52 cannot therefore be pressed into service to hold that the court fee paid on the written statement will be sufficient for the appeal also. A defendant in a partition suit who does not pay court fee under S.37(3) will not get his share allotted; still he can file an appeal on the question to be adjudicated with proper court fee under S.37(2). A clear distinction has to be borne in mind between the court fee payable in a suit for partition and court fee that a defendant is called upon to pay for claiming the share.