Civil Appeal No 3530 of 1 979
Appeal by Special Leave from the Judgment and order dated 2 2 1979 of the Madras High Court in AS No 92474
K section Ramamurthy P N Ramalingam and A T M Sampath for the Appellant
K Rant Kumar and K Jayaram for the Respondent
309 The Judgment of the Court was delivered by KAILASAM J
The appellants in the appeal by special leave are plaintiffs 1 to 5 in the suit
The plaintiffs 1 to 5 are sisters and defendants 1 to 2 are their brothers
The third defendant is their unmarried sister
They are the children of the late Muthukumaraswamy Gounder who died intestate on 20 12 1962 leaving his father Vanavaraya Gounder who was managing all the ancestral joint family property as the head of the Hindu Undivided Joint Family till his death on 5 3 1972
The plaintiffs claimed that on the death of Muthukumaraswamy Gounder his 13rd share in the joint family property devolved on his sons and daughters his sons defendants 1 and 2 taking 13rd share each in l3rd share of the family property by birth and in the balance all the sons and daughters of Muthukumaraswamy Gounder taking an equal share each
The plaintiffs claimed to have been in joint possession of the properties alongwith Vanavaraya Gounder and his other sons
Similarly on the death of Vanavaraya Gounder his 13rd share in the family properties devolved upon his heirs the plaintiffs and defendants 1 to 3 being entitled to certain shares
The claim in the plaint is that each of the plaintiffs is entitled to a share in the suit properties as heirs to Late Muthukumaraswamy Gounder and also as heirs to late Vanavaraya Gounder their grand father
Each plaintiff claimed that she was entitled to 172 share in the suit properties as heirs to their father Muthukumaraswamy Gounder and also to 196 share as heirs to their grand father Vanavaraya Gounder
It was alleged in the plaint that since the death of Vanavaraya Gounder defendants nos
1 to 6 failed to give the plaintiffs their share of income and the plaintiffs could not remain in joint possession
The plaintiffs repeatedly demanded partition and the defendants 1 to 6 were evading
The plaintiffs claimed that each of the plaintiffs as co owners are in joint possession of the suit properties and this action was laid to convert the joint possession into separate possession so far as the shares of the plaintiffs are concerned
For the purposes of court fee and jurisdiction the plaintiffs valued their share of the property and paid court fee of Rs 200 under section 372 of the Tamil Nadu Court Fees and Suits Valuation Act
The relief prayed for was for partition of the properties and for allotment of their separate share for accounts and for other reliefs
In the written statement the defendants 1 to 2 the brothers con tended that the properties were divided in the year 1946 during the life time of Muthukumaraswamy Gounder and that Muthukumaraswamy was enjoying the properties separately
Regarding possession of 310 the plaintiffs defendants l to 3 the contesting defendants alleged in paragraph 18 of the written statement as follows  The suit as framed is not maintainable in law
The plaintiffs have framed the suit as though they are in joint possession and enjoyment of the suit properties
The plaintiffs are out of possession and they are living in different villages
While it is so the allegation that they are in joint possession v of the suit properties is not correct
The plaintiff ought to J have paid court fee under section 37i of the Court Fees Act and not under 37ii of the Act
They ought to have paid the court fee at the market value of the suit properties and unless the court fee at the market rate is paid they arc not entitled to claim any share The Subordinate Judge who tried the suit did not frame any preliminary issue regarding court fee as required under section 12 of the Court Fees Act but proceeded to try all the issues together
The Subordinate Judge granted preliminary decree for partition and possession of the plaintiffs  172 share in B Schedule properties and to certain shares in deposit in State Bank of India at Pollachi and to the share in the Gnanambika Mills on payment of court fees by the plaintiffs under section 37i of the Court Fees Act
The Court granted time for payment of court fee till 15 2 1973
As the court fee was not paid the Trial Court dismissed the suit by its judgment dated 7 2 1974
The plaintiffs filed two appeals AS No 811 of 1975 against the decision of the Subordinate Judge holding that the plaintiffs are liable to pay court fee on the market value of the property under section 371 of the Court Fees Act and AS No 924 of 1974 against the order dismissing the suit
The High Court heard both the appeals together and disposed them of by a common judgement
When the appeals were taken up the defendantsrespondents contended that the court fee ought to have been paid on the plaint under section 371 and also on the memorandum of appeal before the High Court and as the proper court fee has not keen paid the appeals ought to be dismissed
The High Court accepted the contention raised by the defendants and held that the plaintiffs arc liable to pay court fee under S371 of the Tamil Nadu Court Fees Act
In coming to its conclusion the High Court mainly relied on 
paragraph 12 of the plaint which reads as follows Since the death of Vanavaraya Gounder the defendants 1 to 6 failed to give the plaintiffs their share of income and 311 the plaintiffs could not remain in joint possession
Therefore the plaintiffs repeatedly demanded partition and the defendants 1 to 6 were evading
The 3rd plaintiff sent a notice through her counsel to defendants 1 2 and 5 to which the 3rd plaintiff received replies containing false and untenable allegations
 The High Court proceeded to observe that while the statement that The plaintiffs were in joint possession with the defendants occurring in other paragraphs of the plaint is merely a formal statement repeating the statutory language the statement contained in paragraph 12 of the plaint constitutes a statement of fact in the context in which paragraph 12 occurs and consequently paragraph 12 of the plaint contains a clear averment that the plaintiffs could not remain in joint possession and that was the reason why they repeatedly demanded partition
If so on the date of the suit the plaintiffs were not in possession
The High Court held that court fee is payable under section 371 of the Court Fees Act
D On reading of the plaint as a whole we arc unable to agree with the view taken by the High Court
It is settled law that the question of court fee must be considered hl the light of the allegation made in the plaint and its decision cannot be the either by the pleas in the written statement or by the final decision of the suit on merits
All the material allegations contained in the plaint should should be construed and taken as a whole vide section Rm 
section Sp
Sathappa Chettiar vs section Ram Ar
Ramanathan Chettiar
The plaint in paragraph 5 states that Muthukumaraswamy Gounder died intestate and undivided and Muthukumaraswamy s father Vanavaraya Gounder was managing all the ancestral joint family property as the head of the Hindu undivided joint family till his death
In paragraph 8 the plaintiffs stated that on the death of Muthukumaraswamy Gounder his 13rd share in the joint family properties devolved upon his sons and daughters
It further alleged that the plaintiffs were in joint possession of the properties alongwith Vanavaraya Gounder and his other sons
In paragraph 9 it is stated that each of the plaintiffs is entitled to a share in the suit properties as heirs of the late Muthukumaraswamy Gounder and also as heir of the late Vanavaraya Gounder
In paragraph 11 it is stated that since the death of Vanavaraya Gounder defendants 1 to 6 are receiving the income from the properties and are liable to account to the plaintiffs
In paragraph 12 it is stated that since the death of Vanavaraya Gounder defendants 1 to 6 failed to give the 312 plaintiff their share of income and the plaintiffs could not remain in joint possession
Therefore the plaintiffs demanded partition and the defendants 1 to 6 were evading
Again in paragraph 13 it is claimed that each of the plaintiff as co owners is in joint possession of the suit properties and this action is laid to convert the joint possession into separate possession so far as the shares of the plaintiffs are concerned
Throughout the plaint the plaintiffs have asserted that they are in joint possession
We are unable to agree with the High Court that recitals in all the paragraphs is merely a formal statement repeating
the statutory language
The plea in paragraph 12 which was relied on by the High Court states that the defendants 1 to 6 failed to give the plaintiffs their share of the income and the plaintiffs could not remain in joint possession
The plea that they were not given their due share would not amount to dispossession
Reading the plaint at its worst against the plaintiffs all that could be discerned is that as the plaintiffs were not given their share of the income they could not remain in joint possession
The statement that they arc not being paid their income would not amount to having been excluded from possession
The averment in the plaint cannot be understood as stating that the plaintiffs were not in possession
In fact the defendants understood the plaint as stating that the plaintiffs are in joint possession of the suit properties
In paragraph 18 of the written statement the defendants plaintiff that the plaintiffs have framed the suit as though they are in joint possession and enjoyment of the suit properties
Asserting that the plaintiffs were out of possession the defendants stated While it is so the allegation that they are in joint possession of the suit properties is not correct The Trial Court has not placed any reliance on the recitals in para 12 of the plaint on which the judgment of the High Court is based
The Trial Court found on evidence that the plaintiffs never enjoyed the suit properties at any time
This finding is not enough for the mere fact that the plaintiffs were not paid their share of the income or were not in actual physical possession would not amount to the plaintiff having been excluded from joint possession to which they arc in law entitled
On a consideration of the plaint as a whole and giving it its natural meaning we are unable to agree with the conclusion arrived at by the High Court
section 37 of the Tamil Nadu Court Fees and Suit Valuation Act n relates to Partition Suits
section 37 provides as follows 371 In a suit for partition and separate possession of a share of joint family property or of property owned jointly 313 or in common by a plaintiff who has been excluded from possession of such property fee shall be computed on the market value of the plaintiff s share
372 In a suit for partition and separate possession of joint family property or property owned jointly or in common by a plaintiff who is in joint possession of such property fee shall be paid at the rates prescribed
It will be seen that the court fee is payable under section 371 if the plaintiff is excluded from possession of the property
The plaintiffs who are sisters of the defendants claimed to be members of the Joint Family and prayed for partition alleging that they are in joint possession Under the proviso to S6 of the Act 30 of 1956 the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act having at the time of the death an interest in the Mitakshara coparcenary property acquired an interest by devolution under the Act
It is not in dispute that the plaintiffs are entitled to a share
The property to which the plaintiffs are entitled is undivided joint family property  though not in the strict sense of the term
The general principle of law is that in the case of co owners the possession of one is in law possession of all unless ouster or exclusion is proved
To continue to be in joint possession in law it is not necessary that the plaintiff should be in actual possession of the whole or part of the property
Equally it is not necessary that
he should be getting a share or some income from the property
So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession
Before the plaintiffs could be called upon to pay court fee under section 371 of the Act on the ground that they had been excluded from possession it is necessary that on a reading of the plaint there should be a clear and specific averment in the plaint that they had been excluded from joint possession to which they are entitled in law
The averments in the plant that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession
We are unable to read into the plaint a clear and specific admission that the plaintiff had been excluded from possession
In the result the appeal is allowed with cost
As we have found that the Trial Court was in error in directing the plaintiffs to pay the court fee under section 371 the preliminary decree for partition and possession of 172 share in the B Schedule properties and the shares in 314 deposit in State Bank of India at Pollachi and in the share in the Gnanambika Mills is confirmed
The direction by the Trial Court as to payment of Court Fee under section 371 of the Court Fees Act and the judgment of the High Court in AS No 9241974 and AS 811 75 are set aside
SR Appeal allowed


Summary:
The plaintiffs appellants filed a suit for partition and separate possession of their individual share as per law and paid a court fee at the rates prescribed under section 37 ii of the Tamil Nadu Court Fees and Suit Valuation Act
There was a specific allegation that they were in joint possession
The Trial Court decreed the suit but directed the plaintiffs appellants to pay the court fec under Section 37 ii of the Act
As the difference in court fee was not paid the trial Court dismissed the suit
Two appeals were filed by the appellants in the High Court one against the decision that they were liable to pay court fee m the market value of the property under section 37 1 and another against the order dismissing the suit
The High Court heard the two appeals together and disposed of the appeals accepting the contention of the respondentsdefendants that the Court fees are payable both on the plaint and on the memorandum of appeals under Section 37 I  of the Act
Allowing the appeal by special leave the Court  HELD 1
It is settled law that the question of Court fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits
All the material allegations contained in the plaint should be construed and taken as a whole
311 D E In the instant case a on reading of the plaint as a whole it is clear that throughout the plaint the plaintiffsappellants have asserted that they were in joint possession and therefore the observation of the High Court that recite in all the paragraphs is merely a formal statement repeating the statutory language is not correct
b the plea that they were not given their due share would not amount to dispossession
Reading the plaint at its worst against the plaintiffs all that could be discerned is that as the plaintiffs were not given their share of the income they could not remain in joint possession
The statement that they are not being paid their income
would not amount to having been excluded from possession
The averment in the plaint cannot be understood as stating that the plaintiffs were not in possession
In fact the defendants understood the plaint as stating that the plaintiffs are in joint possession of the suit properties
In paragraph 18 of the written statement the defendants pleaded 308 that the plaintiffs have framed the suit as though they are in joint possession and enjoyment of the suit properties
Asserting that the plaintiffs were out of possession the defendants stated while it is so the allegation that they arc in joint possession of the suit properties is not correct The mere fact that the plaintiffs were not paid their share of the income or were not in actual possession would not amount to the plaintiffs having been excluded from joint possession to which they are in law entitled1311D 312 B F section Rm
section Sri Cathanna Chettiar vs section RM
Ramanathen Chettiar  PP 1031 32 followed
Under section 371 of the Tamil Nadu Court Fees and Suit Valuation Act relating to partition suits the Court fee is payable if the plaintiff is excluded from possession of the property
The general principle of law is that in the case of co owners the possession of one is in law possession of all unless ouster or exclusion is proved
To continue to be in joint possession in law it is not necessary that the plaintiff should be in actual possession of the whole or part of the property
Equally it is not necessary that he should be getting a share or some income from the property
So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession Before the plaintiffs could be Called upon to pay court fee under section 37 1 of the Act on the ground that they had been excluded from possession it is necessary that there should be a clear and specific averment in the plaint that they had been excluded from joint possession to which they are entitled in law 1313 B D F In the instant case a The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession
313 F G b The plaintiffs who are sisters of the defendants claimed to be members of the joint family and prayed for partition alleging that they are in joint possession
Under the proviso to section 6 of the Act 30 of 1956 the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act having at the time of the death an interest in the Mitakshara coparcenary property acquired interest by devolution under the Act
The property to which the plaintiffs are entitled is undivided joint family property  though not in the strict sense of the term
313 C D