T HAMEED Vs. T ABDULLA HAJI

JUDGEMENT

(1.) The plaintiff in a suit for partition impugns Ext. P2 findings entered by the learned Subordinate Judge on issue No. 10 which was one regarding the propriety of the valuation of the suit for the purpose of court-fee. Ext. P1 is copy of the plaint which will show that the suit has been valued under S.37(2) of the Court Fees and Suits Valuation Act on the allegation that the suit properties are in the joint possession and enjoyment of the plaintiff and the defendants. There were altogether 26 items of properties sought to be partitioned and as regards item Nos. 1 to 8 and 11 to 26 the claim of the plaintiff was that the entire consideration for acquisition of those items was paid by the plaintiff and the defendants 1 and 2 out of their joint funds. As against item Nos. 9 and 10 the claim was that those items belonged to the plaintiff and defendants 1, 2 and 8 to 11, having been acquired with their joint funds. Several contentions were raised by the respondents including the contention that the suit has not been properly valued and issue No. 10 was raised on the basis of that contention. Even though several decisions of this Court laying down that it is the allegations in the plaint which are to be considered for the purpose of determining the payable Court fee were cited before the learned Subordinate Judge and the Subordinate Judge did consider those decisions, ultimately relying on the judgment of a learned Single Judge of this Court in Ayisha v. Kunhimayan Haji, 1966 KHC 354 : ILR 1966 (2) Kerala 17, the learned Subordinate Judge inferred that in respect of plaint schedule item Nos. 3 to 10 and 12, 15 and 24 the defendants are in possession and concluded that the suit will have to be valued under S.37(1) of the Court Fees and Suits Valuation Act, since it was conceded that documents in respect of those items stand in the name of the defendants.

(2.) Heard Mr. D. Krishna Prasad, learned counsel for the petitioner and Mr. S. V. Balakrishna Iyer, Senior Counsel for the contesting respondents.

(3.) Making submissions on the basis of the grounds raised in the Writ Petition, my attention was drawn by Mr. Krishna Prasad to various decisions including those reported as Kunjanni v. Jacob, 1992 KHC 335 : 1992 (2) KLT 232 : 1992 (2) KLJ 250 : ILR 1992 (3) Ker. 510., Abdul Razack v. Anjaneyan, 2002 KHC 494 : 2002 (2) KLT 670 : 2002 (2) KLJ 89 : AIR 2003 Ker. 4, Thankamma v. Unniama Antharjanam, 1964 KHC 143 : 1964 KLJ 546 : 1964 KLT 529 : ILR 1964 (1) Ker. 619 : 1964 (1) KLR 315.