KUNJANNI Vs. JACOB

JUDGEMENT

(1.) The plaintiff in O.S. No.72 of 1988, Sub Court, Palakkad is the revision-petitioner. The order passed by the court below dated 27-1-1989 directing the plaintiff to pay advalorem court fee under S.37(2) of the Kerala Court Fees and Suits Valuation Act, is assailed in this revision.

(2.) The suit, O.S. No.72 of 1988, is one for partition. The plaintiff and the first defendant arc the children of one-deceased Ittoop and Kunjila. Defendants 3 to 6 are the children of the said Ittoop born by the second defendant. The plaintiffs case is that defendants 3 to 6 are the illegitimate children of deceased Ittoop and the second defendant. The plaint schedule property was purchased by Kunjila, by sale deed No.2794/ 1942. Subsequent to the death of Kunjila, the properly devolved on the plaintiff and the first defendant (children of Ittoop and Kunjila). Defendants 2 to 6 are in permissive possession of the plaint schedule property. The defendants obstructed the plaintiff from plucking coconuts from the coconut trees. The first defendant agreed to partition the property; but he has not taken any steps therefor. The other defendants are committing waste in the properly. So, the suit was laid for partition and separate possession of 1/2 share of the property. The defendants filed a common written statement. They urged that Ittoop married the second defendant as per the custom of the community. The property was acquired in the name of Kunjila by Ittoop. They also stated that the plaintiff was never in possession of the properly. Defendants 2 to 6 pleaded that they are in exclusive possession of the properly. They also pleaded that the suit for partition and separate possession is not maintainable.

(3.) The court below framed 13 issues in the case. Issue No.9 related to the question as to whether the court fee paid is correct. In considering the question, the court below stated that though the plaintiff averred that she was in joint possession of the plaint schedule property along with the defendants till 1986, from 1986 onwards she is not sharing the profits of the properly. Since she is not sharing the properties, she is not in joint possession of the properly with the defendants and so this is a case where the court fee should be paid under S.37(2) of the Kerala Court Fees and Suits Valuation Act. The court fees paid under S.37(l) of the Act treating the suit as one for partition simpliciter is not maintainable. The plaintiff was directed to pay advalorem court fee under S.37(2) of the Kerala Court Fees and Suits Valuation Act. Aggrieved by the said order of the court below, dated 27-1-1980, the plaintiff has come up in revision.