V. PECHIAMMAL Vs. MURUGAN

JUDGEMENT

(1.) The petitioners are the plaintiffs in O.S. No. 31 of 2010 on the file of the Subordinate Court, Srivilliputhur. This is a suit for partition. The dispute is with respect to 2nd schedule of the suit property. In the suit, they have prayed for a decree of partition of their 5/7th share and also for declaring that the sale executed by the defendants 1 and 2 to the third defendant vide Document No. 517 of 1999 in the office of the Sub-Registrar's Office, Srivilliputhur is null and void. The Subordinate court, Srivilliputhur has issued directions to the effect that even though this is a suit for partition, by virtue of the sale deed in favour of the third defendant, the third defendant is in possession of the property and the plaintiffs have been excluded from possession and hence, proper Court Fee payable is under Section 37(1) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 and not Section 37(2) of the Act. The Court below has considered the value and directed to pay Court Fee under Section 37(1) of the Act at Rs. 30,000.50. Since Rs. 750/- was already paid under Section 37(2) of the Act and that after deducting the same, the plaintiffs have to pay Deficit Court Fee of Rs. 29,250.50.

(2.) They submitted objections to the same by stating that in view of the stranger is in possession of the joint family property until the plaintiffs are proved to be ousted from the possession, it is to be treated that they are in constructive joint possession of the property. However, the Court below did not accept the said contention and rejected the same stating that the possession of one family member can operate as constructive possession and when a third party is in possession as the purchaser, no constructive possession can be presumed. Hence, the plaintiffs were directed to pay the balance Court Fee by 18.1.2012. This is the order challenged before this Court.

(3.) Learned counsel appearing for petitioners, Mr. T.S.R. Venkat Ramana, would contend that inasmuch as this is a suit for partition filed by the joint family members of H.U.F. and a stranger is stated to be in possession, even if the Court Fee is to be fixed under Section 37(1) of the Act, since the second schedule of the suit property is ryotwari land, its value should have been calculated on that basis.