OUSEPH CHACKO Vs. AYISSUMMA

JUDGEMENT

(1.) In this Civil Revision Petition filed by the plaintiff, the question that arises for consideration is whether he has valued the suit, for the purpose of payment of court fee properly.

(2.) The suit is for partition and recovery of his one half share in a coownership property belonging to the plaintiff and the first defendant. The plaintiff valued the suit under S.37 clause (2) of the Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960), and paid the fixed fee of Rs. 20/- as the suit was instituted in the Munsiff's Court. An objection regarding the valuation of the suit was taken by the Court fee Superintendent. The learned Munsiff held that the plaintiff is not in actual possession of the property, and therefore he has to pay court fee for recovery of possession under S.37 clause (1) of the Court Fees Act.

(3.) I am of the view that the finding of the learned Munsiff cannot be sustained. For the purpose of finding out whether a plaint has been properly valued or proper court fee has been paid, we are only concerned with the allegations in the plaint and the substance of the suit. It has been definitely alleged in the plaint that in respect of the coownership property belonging to the plaintiff and the first defendant, the plaintiff is in joint possession along with the first defendant. At this stage of the consideration of the question regarding the proper valuation to be adopted by the plaintiff, it is not necessary to consider whether that statement in the plaint is true or not. It is also stated by the plaintiff that though he is in joint possession of the property along with the first defendant, the first defendant is appropriating the income of the entire property to himself. This does not mean that the plaintiff admits exclusive possession of the property with the first defendant. In these circumstances, I am of the view that the valuation adopted by the plaintiff is correct and the view taken by the learned Munsiff cannot be sustained. I am supported in my view by the decisions in Abdul Latheef v. Musthaf Ali 1959 KLT 412 and Thankamma v. Unniamma Antharjanam 1954 KLT 529 where it was held that S.37 sub-s.(1) of Kerala Act 10 of 1960 can apply only if the case pleaded is one of exclusion of the plaintiff from possession. Exclusion from enjoyment of receipt of income is totally different from exclusion from possession. Mere appropriation of the profits of the property, or even exclusive use of the property by the cosharer, does not amount in law to 'exclusion' of other cosharers from possession. In view of the above decisions, I set aside the order sought to be revised, and allow the Revision Petition. I make no order as to costs.