P.K. RAMALINGAM Vs. RAVINDRAN AND OTHERS

JUDGEMENT

(1.) The admitted facts in so far as this C.R.P. is concerned can be summarised thus. The petitioner is an alienee -stranger who purchased a 3/4th share in the suit property belonging to a coparcener who became an insolvent and which was sold in public auction by the Official Receiver of the Sub -Court, Coimbatore. After he so purchased the property he filed O.S. 427/71 for a declaration of his right to a 3/4th share in the suit property and for the consequential relief of delivery of possession of the 3/4th share therein by dividing the property in metes and bounds, etc. In paragraph 4 of the plaint the plaintiff whilst reiterating the above facts added that he had a conveyance evidencing such purchase from the O.R. on 15th September 1965. He would also state that he obtained symbolic possession of the property on 23rd January 1970 and as co -owner, he was in joint possession of the same. On the presentation of this plaint a court fee slip was issued and the plaintiff -petitioner was asked to value the suit for the purpose of Court Fee and jurisdiction under S.37(1) of the Tamil Nadu Court Fees Act. It was pointed out to him that his claim to value the subject matter of the suit under S.37(2) of the Act was not proper. On notice to the other parties, the learned Subordinate Judge, Coimbatore was of the view that the petitioner should have valued the suit under S.37(1) of the Court Fees Act. He found that the plaintiff cannot in the circumstances be stated to be a person in joint or constructive possession of the 3/4th share, on the only ground that he was an alienee and an alienee to the family not being a coparcener and being factually an alienee he ought to value the subject under S.37(1) and not under S.37(2) of the Act. In the result he directed the plaintiff to pay Court fee on the market value of the property which he fixed at Rs. 8,300/ - and gave time to the petitioner to pay Court fee thereon. It is as against this the present C.R.P. has been filed. The learned Additional Government pleader appearing for the Government supports the order of the Court below. He would rely upon paragraph 5 of the plaint which says that : "It is not possible for the plaintiff to enjoy the properties jointly with the defendants. It is therefore just and necessary to declare the 3/4th right in suit property and direct the defendants to put the plaintiff in possession of the same after division by metes and bounds". On the basis of this allegation it is contended by the learned Government pleader that the plaintiff does not claim joint possession as he is seeking for separate possession and in that view he should be deemed to be a person who has been excluded from possession of the properly in question and that therefore the direction of the Court below that the plaintiff should suffer Court fee under S.37(1) of the Act is right. On the other hand, the learned counsel for the petitioner relying upon the undisputed fact that the plaintiff did obtain symbolic possession of the properly purchased by him in public auction from the Official Receiver says that this is a case in which the plaintiff cannot be said to be a person who has been excluded from possession. He would also add that the predecessor -in -interest of the property, namely, the insolvent being a coparcener was in joint possession of the property and in any event has not been described in the pleadings by the defendants as a person who has been excluded from possession of the property and in that view also S.37(1) is inapplicable.

(2.) The decision revolves round the facts and circumstances of this case. If as is alleged by the plaintiff in paragraph 4 of the plaint he obtained symbolic possession of the 3/4th share in the property and such symbolic possession was obtained by him with the consent and knowledge of the co -sharers of the property, then it is reasonable to conclude that such a person who was symbolically inducted into the property should be deemed to be in constructive possession of the property. Again when a reference has been made to it expressly in paragraph 4 of the plaint, the defendants, it appears, have not taken up a contrary position averring that the predecessor -in -interest was not in joint possession or that no symbolic possession was obtained by the petitioner after the purchase of the 3/4th share in the property in public auction. Our Courts have taken the view that in so for as an alienee is concerned unless there are specific proved circumstances establishing exclusion to show that the property purchased by such an alienee was in possession of a co -sharer or a coparcener who excluded the alienee from joint possession of the property, such alienee would step into the shoes of the alienor and would be deemed to be a person in joint possession of the property. The earliest case on this point is the one by Basheer Ahmed Sayeed, J. in Narayanaswami Ayyar v/s. Kesava Ayyar, 65 L.W. 413 who held that in a suit by an alienee for separate possession of his properties from a cosharer who had become divided several years back, the purchaser is deemed to step into the shoes of the vendor and get all the rights and interests of the cosharer in the properties. In that light the learned judge held that the Court fee fixed under Art. 17 of the Second Schedule to the certain Court Fees Act would apply and not S. 7 (v) thereto. To a similar effect is the decision of a Division Bench of our Court to which Rajamannar, J., was a party, in Nagendram v/s. Appayya, A.I.R. 1947 Mad. 285 :, 60 L.W. 8. I am not selling forth the full facts of the case. One of the principles laid down therein appears to support the contention of the learned counsel for the petitioner. A, a member of a joint Hindu family brought a suit against other members for partition of the joint property of which he was in joint possession. The suit was properly valued and proper court fee paid. During the pendency of the suit, A conveyed his interest in the family property to a stranger B who was joined as second plaintiff. In those circumstances, the learned Judges held that the mere fact that during the pendency of the suit B the transferee from A was added as an additional plaintiff could not entail additional court fee on the ground that the alinee B was not in joint possession of the suit properties along with the defendants.

(3.) Even on a reading of the next of clauses (1) and (2) of S. 37 the same result appears to follow. S. 37 (1) deals with a situation where the plaintiff in an action is one who is excluded from possession of property of which he is seeking separate possession of his share therein in a partition action. In that suit for partition and separate possession of joint family property or property owned by co -sharer the plaintiff if he is one who has been excluded from possession of such property he shall pay court fee on the market value of his share. This is Sec. 37(1). In Sub -S. (2) of S. 37 the position is different. In a similar suit by a plaintiff who is in joint possession of such property a fixed Court fee is payable. In the instant case it is not in dispute that the correct fixed court fee has been paid but what the learned Government pleader says is that S. 37(2) is inapplicable, because the plaintiff cannot be said to be a person who was or who can be said to be in joint possession of the suit properly of which he is seeking for separate possession of in relation to his share, having regard to his purchase in public auction. The ratio decidendi of the two decisions cited above are by themselves sufficient for me to hold that the plaintiff in this action has paid the correct court fee as he should be deemed to be the substitute of his predecessor -in -interest and the possession of his predecessor should enure to his benefit as a co -sharer within the meaning of S. 37(2). In the instant case, there is an additional factor which prompts me to hold that the fixed court fee only is payable under S. 37 (2) and not the court fee as prescribed in S. 37(1). The plaintiff obtained symbolic possession of the property on 2nd March 1970. The term "Symbolic possession" is not an empty phrase without any substances or meaning in law. If the plaintiff alienee has been so inducted, though constructively, into possession of this property through the process of symbolic possession, then he should be deemed to be one, at any rate for the purpose of reckoning of the Court fee under the Court Fees Act under S. 37(2) as a plaintiff who is in joint possession of such property. Under no circumstances can he be considered in the circumstances of this case to be one who has been excluded from possession of that property. In that view, the order of the Court below has to be set aside. The C.R.P. is allowed. There will be no order as to costs. The Court below is directed to proceed with the suit on the Court fee already paid by the parties.