SUBHADRAMMA Vs. PALAKSHA REDDY

JUDGEMENT

(1.) This revision petition is filed by the 2nd defendant against the finding given by the court of Subordinate Judge, Adoni, in O. S. No. 27 of 1972 on application filed by her to try the issue framed in the suit on the question of court-fee. Whether the court fee paid by the plaintiffs is not correct as a preliminary issue, that the court fee already paid by the plaintiffs valuing the suit properties under Section 34 (2) of the Andhra Pradesh Court-Fees and Suits Valuation Act, 1956 (hereinafter referred to as the Court-Fees Act) is proper. The suit was filed for partition of joint family properties by two minor plaintiffs against their paternal grand-father defendant No. 1, paternal grand-mother defendant No. 2 paternal uncle defendant No. 3, the sister of the plaintiffs, defendant No. 4, their mother defendant No. 5 and the widow of the late brother of the plaintiffs, defendant No. 6. The second defendant filed a written statement taking a plea that some of the items of the suit property are her Stridhana properties and she has been in exclusive possession and enjoyment of the same.

(2.) Section 34 of the Court-Fees Act relates to partition suits. It is provided under Sub-section (1) of Section 34 that in a suit for partition and separate possession of a share of joint family property or of property owned jointly, by a plaintiff who has been excluded from possession of such property, fee shall be computed ad valorem on the market value if it is movable property or 3/4ths of the market value if it is immovable property on the plaintiffs share. As per Sub-section (2) of Section 34 if the plaintiff is in joint possession of the joint family or property owned jointly, fixed court-fee is provided, the maximum being Rs. 200.00 if the value of the plaintiffs share is not less than Rs. 10,000.00. On the basis that the plaintiffs are in joint possession of the entire suit property the suit was valued as provided under Section 34 (2) of Court-fees Act and a fixed Court-fee of Rs 200/- was paid. The 2nd defendant took a plea that so far as the suit properties which are in her exclusive possession and enjoyment are concerned, the plaintiffs have to pay court-fee as provided under Section 34 (1) of the Court-fees Act. On the plea taken by the 2nd defendant that some of the items are her self acquired properties and she has been in exclusive possession and enjoyment of the same, an issue as to whether the fixed court-fee paid by the plaintiffs on the plaint is not correct was framed by the lower court. It is on this issue framed on the plea taken by the 2nd defendant, the lower court save the finding that the court-fee paid by the plaintiffs is proper. In giving that finding, the lower court took into consideration the fact that the 1st defendant who is the husband of the 2nd defendant was in management of the family properties, the contention made on behalf of the plaintiffs that being in management of the family the 1st defendant took some sale deeds in favour of his wife, the 2nd defendant though they were purchased with the joint family funds and also the claim of the 2nd defendant that the lease deeds end tax receipts for those items of property are in her name and she has been in possession and enjoyment of the same.

(3.) Sri N. Ramamohan Rao, the learned counsel for the petitioner, has argued that the lower Court has committed an error of jurisdiction within the meaning of Section 115 of the Code of Civil Procedure in deciding the preliminary issue without following the procedure laid down in Section 11 (2) and (4) of the Court-Fees Act. It is provided therein that any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient and all questions on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order 18 in the First Schedule to the Code of Civil Procedure. Under Order 18 C. P. C. procedure is laid down with regard to hearing of suits and examination of witnesses. What all is mentioned in Sub-sections (2) and (4) of Section 11 is that the questions relating to the value, for the purpose of determining the jurisdiction of court and to find out whether the fee paid by the plaintiff is sufficient or not, should be heard and decided before hearing of the suits as provided under Order 18, C. P. C. which means before the actual trial of the suit. The argument of the learned counsel is that what is laid down under Sub-sections (2) and (4) of Section 11 of the Court-fees Act is that, the questions relating to the value of suits for the purpose of determining the jurisdiction of Court and the fee payable on the plaint should be heard and decided after following the procedure as laid down under Order 18 C. P. C. i. e. they should be hoard and decided in the same manner as trying a suit. I do not think the learned counsel is correct in putting such an interpretation on the language used in Sub-sections (2) and (4) of Section 11 of the Court-fees Act. The words "as contemplated by Order 18 in the First Schedule to the Code of Civil Procedure" in both the sub-sections are in relation to hearing of suit mentioned therein and not in relation to hearing of the questions relating to the proper valuation of the suit or court-fee paid on it. With regard to hearing and deciding the questions relating to proper valuation of suits and court-fee paid in suits, provision is made under Section 17 of the Court Fees Act for enquiry. It is provided therein that for the purpose of deciding whether the subject-matter of a suit or other proceeding has been properly valued or whether the fee paid is sufficient, the court may hold such inquiry as it considers necessary and may, if it thinks fit, issue a commission to any person directing him to make such local or other investigation as may be necessary and to report thereon to the Court. In the Full Bench case C. C. Reddy v. K. C. Reddy, (1968) 2 Andh. W. R. 616 (FB) it was clearly laid down by this court that the investigation contemplated under Sections 11 (2) and 11 (4) of the Court-fees Act must not encroach upon the principal issue to be decided in the suit. It was observed therein that the investigation extends to all materials furnished by the plaintiff, all admissions wherever and whenever made by the plaintiff including admissions made in interlocutory matters in the suit all documents produced by the plaintiff or to which a reference is made in the plaint, all undisputed facts brought to the courts notice by the defendant, and all other facts which may be established without going into the main controversy between the parties. It was further observed that it is not possible or desirable to further define the scope of the investigation, but suffice it to say that the investigation must not encroach upon the principal issue to be decided before the trial begins within the meaning of Order 18 as enjoined in Section 11 (2) and 11 (4) of the Court-fees Act. Therefore it is clear that the interpretation sought to be put by the learned Counsel is not warranted.