RATNA BAI Vs. VASANTHA KUMARI

JUDGEMENT

(1.) DEFENDANTS 1 and 2 in O. S. 172 of 1979 of the Additional Sub Court, Cochin , are the appellants. The suit was one for partition. A preliminary decree was passed, declaring that the plaintiff is entitled to 1/4 share in the suit property, the 1st defendant is entitled to half share and the 2nd defendant is entitled to 1/4 share. The value of improvements was directed to be investigated in the final decree proceedings. DEFENDANTS filed I. A. No. 1953 of 1981 for passing a final decree. The court below rendered the final judgment on 22-10-1983. One of the directions given, was that the plaintiff would be entitled to realise Rs. 41,707. 50 from the defendants towards owelty amount. DEFENDANTS 1 and 2 have filed an appeal from the aforesaid final judgment. In the memorandum of appeal, in ground No. (5), the appellants have objected to the direction of the court below in allowing Rs. 41,707. 50 as owelty to the plaintiff. The court-fee has been paid under S. 52 read with S. 37 (2) of the kerala Court-Fees Act. A court-fee of Rs. 200/- was paid on the memorandum of appeal. The taxing officer had noticed a defect stating that court-fee on Rs. 41,707. 50 should be paid. According to the appellants, no court-fee on owelty amount is payable. Notice was issued to the Advocate General. Counsel for the appellants, Mr. Brahmanandan, as also Mr. N. N. Venkatachalam, Government pleader, were heard.

(2.) THE contention of the appellants that no court-fee on the owelty amount is payable is justified. THE suit was one for partition. Court-fee was paid in the court below under S. 37 (2) (ii) of the Court-fees Act. Under S. 52 of the Court-fees Act, the fee payable in appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal. As stated, the suit was one for partition. As stated by the Supreme Court in T S Swaminatha Odayar v. Official Receiver (AIR 1957 SC 577) at p. 581 (paragraph 14): "while effecting such a partition it would not be possible to divide the properties by metes and bounds there being of necessity an allocation of properties of unequal values amongst the members of the joint family. Properties of a larger value might go to one member and properties of a smaller value to another and therefore there Would have to be an adjustment of the values: by providing for the payment by the former to the latter by way of equalisation of their shares. This position has been recognized in law and a provision for such payment is termed "a provision for owelty or equality of partition. " So also in Veluchami Pillai v. Sankaralingam Pillai (1949 (II) M. L. J. 782) at p. 783, Krishnaswami Nayudu J. held: "the subject-matter of the appeal is the amount which the plaintiff is entitled to receive for equalisation of the shares, i. e. , owelty payable to him on partition, as also the amount of share of profits consequent on his being declared entitled to a share in the profits. THE payment of owelty and of share of profits arise by reason of the effect of the partition and declaration of the right of being entitled to a share and are ordinary incidents in a suit for partition. It cannot be said that they are outside the scope of a partition suit as in a partition suit, the plaint has been held to be one incapable of valuation even though there are additional prayers, besides asking for division, such as for share of profits, accounts, receiver, etc. . which otherwise have to be valued independently under the court-' Fees Act if they are not included in a suit for partition I am therefore of opinion that in any view the appeal against either a preliminary or a final decree, arising out of a suit for partition, must be treated as one incapable of valuation and Art. 17-B of Schedule II is the only Article that would be applicable. "