Court Fees – Determination – Basis Court fee payable must be determined solely on the basis of the averments in the plaint and not on the written statement or the ultimate decision on merits. The plaint must be read as a whole and its material allegations construed together.

advocatemmmohan

Apex Court 

Court Fees – Determination – Basis

Court fee payable must be determined solely on the basis of the averments in the plaint and not on the written statement or the ultimate decision on merits. The plaint must be read as a whole and its material allegations construed together.
(Paras 30–31; relying on S. Rm. Ar. S. Sathappa Chettiar v. Ramanathan Chettiar)

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Partition Suit – Joint Possession – Exclusion – Meaning

In a suit for partition, court fee under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act is payable only when the plaintiff is clearly and specifically pleaded to have been ‘excluded’ from possession. Absence of income or non-receipt of share does not amount to exclusion from possession.
(Paras 37–41)

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Joint Possession – Presumption in Law

In the case of co-owners, possession of one is in law possession of all, unless ouster or exclusion is proved. Actual physical possession or receipt of income is not necessary to constitute joint possession in law.
(Paras 38–40)

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Plaint Averments – Interpretation

An averment that the plaintiffs “could not remain in joint possession” due to non-payment of income does not amount to an admission of dispossession or exclusion. Such a statement cannot override consistent assertions of joint possession elsewhere in the plaint.
(Paras 33–36)

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Court Fees – Section 37(1) vs Section 37(2), Tamil Nadu Court Fees Act

Where the plaint consistently asserts joint possession and does not contain a clear and specific averment of exclusion, court fee is payable under Section 37(2) and not under Section 37(1).
(Paras 41–43)

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Hindu Succession Act, 1956 – Daughters’ Rights

Daughters of a male Hindu dying after the commencement of the Hindu Succession Act, 1956 acquire an interest by devolution in Mitakshara coparcenary property, and such property continues to be joint family property though not in the strict sense.
(Paras 37–38)

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ANALYSIS (Paragraph-wise)

1. Paras 30–31
   The Court reiterates the settled principle that court fee is a jurisdictional issue to be decided only on plaint allegations. Written statement pleas or findings on evidence are irrelevant. The plaint must be read as a whole, not by isolating one paragraph.
   
   

2. Paras 32–36
   The High Court’s approach is rejected. The Supreme Court holds that paragraph 12 of the plaint, relied upon by the High Court, cannot be read in isolation. Throughout the plaint, the plaintiffs consistently assert joint possession. The statement regarding non-payment of income merely explains the demand for partition.
   
   

3. Paras 37–40
   The Court clarifies the legal concept of joint possession. Joint possession in law does not require:
   
   

• physical possession,
  
  

• enjoyment of income, or
  
  

• residence on the property.
  
  

4. So long as the right to a share and the joint character of the property is undisputed, joint possession is presumed.
   
   

5. Paras 41–42
   Section 37(1) applies only where the plaint clearly admits exclusion. The Court emphasises the words “excluded from possession” as decisive. In the absence of a specific averment of exclusion, Section 37(2) must govern.
   
   

6. Paras 43–45
   Applying these principles, the Court holds that the Trial Court and High Court erred in directing payment of court fee under Section 37(1). The preliminary decree for partition is restored.
   
   

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RATIO DECIDENDI

In a suit for partition, court fee is payable under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act only when the plaint contains a clear and specific averment that the plaintiff has been excluded from possession; mere non-receipt of income or absence of physical possession does not constitute exclusion, and consistent assertions of joint possession in the plaint attract Section 37(2).