IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 WP(C).No. 26220 of 2010(O) -------------------------- AGAINST THE ORDER IN IA NOS.2460 & 716/2010 IN OS.191/2009 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): --------------- LAL KUMAR GOPI @ GOPINATHAN, PATTATHUVILA 224, BHAVANA NAGAR, KADAPPAKKADA.P.O, VADAKKEVILA VILLAGE, KADAPPAKKADA.P.O., KOLLAM. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT(S): --------------- 1. ARUNDHATHI, W/O.SIVADASAN, KUNNISSERIL VEEDU, KANNIMEL CHERRY, KILIKOLLOOR VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT, PIN-691 004. 2. ANITHA SHANAVAS, D/O.ARUNDHATHI, ROHINI, VETTILATHAZHAM CHERRY, THRIKKOVILVATTOM VILLAGE, DECENT MUKKU.P.O., KOLLAM, PIN-691 577. 3. MEENA ANIL KUMAR, D/O.ARUNDHATHI, GOKULAM, PUNNATHALATHAZHAM, KILIKOLLOOR.P.O., KOLLAM TALUK, KOLLAM DISTRICT, PIN-691 004. 4. YAMUNA SHAJI (JAMUNA), D/O.ARUNDHATHI, KUNNISSERIL, KANNIMEL CHERRY, KILIKOLLOOR.P.O., KOLLAM, PIN-691 004. 5. LISSY RAJEEV, D/O.ARUNDHATHI, THENGGILAZHIKOM VEEDU, KANJAVELI.P.O., KOLLAM, PIN-691 004. 6. SIVADASAN, S/O.NANU, KUNNISSERIL, KANNIMEL CHERRY, KUNNISSERIL, KILIKOLLOOR.P.O., KOLLAM, PIN-691 004. WP(C) NO.26220/2010 2 7. SHANAVAS, S/O.SHANMUKHAM, ROHINI, VETTILATHAZHAM CHERRY, THRIKKOVILVATTOM VILLAGE, DECENT MUKKU.P.O., KOLLAM, PIN-691 577. 8. ANILKUMAR, GOKULAM, PUTHALATHAZHAM, KILIKOLLOOR.P.O., KOLLAM, PIN-691 004. 9. SHAJI, KUNNISSERIL VEEDU, KANNIMEL CHERRY, KILIKOLLOOR VILLAGE, KILIKOLLOOR.P.O., KOLLAM TALUK, PIN-691 004. 10. RAJEEV, THENGGILAZHIKAM VEEDU, KANJAVELI.P.O., KOLLAM, PIN-691 602. 11. P.SUDHAKARAN, ADCOVATE, ARYA WEST OF T.D.TEMPLE, CUTCHERRY WARD.P.O., KOLLAM-691 013. 12. M.MOHANAN, ADVOCATE, AWATHI, SAKTHIKULANGARA.P.O., KOLLAM, PIN-691 581. ADV. SRI.A.SUDHI VASUDEVAN FOR R1 TO 10 SMT.K.PUSHPAVATHI FOR R1 TO 10 SRI.K.NANDAKUMAR FOR R1 TO 10 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.26220 of 2010 -------------------------------------- Dated this the 29th day of September, 2010. JUDGMENT This Writ Petition as amended challenges Exts.P5 and P6, orders passed by the learned Principal Sub Judge, Kollam in O.S.No.191 of 2009 filed by petitioner for partition of suit property referred to in the plaint as A to I schedules. Petitioner claimed that the said property belonged to the late Gopinathan @ Gopi. He claimed to be the son of the said Gopinathan through one Nalini who was allegedly married to said Gopinathan on 21.02.1962 (as originally stated in the plaint). It is his further claim that he, as one of the heirs of the said Gopinathan is entitled to a share in plaint A to I schedules along with respondents/defendants. Petitioner alleged that he learnt that respondents are making a claim over A to H schedule properties as per a registered Will and pleaded that the said Will is neither genuine nor valid. It is contended that the said Will is vitiated by the circumstances stated in the plaint and is invalid. Petitioner prayed for partition of plaint A to I schedules in the manner claimed in the plaint. There is also a prayer for a declaration of half right claimed by petitioner in the properties. In paragraph No.26 of the plaint for the purpose of jurisdiction and court fee, plaint A to I schedules are valued based on its market value and court fee is paid under Section 25(a) of the Court Fees and Suits Valuation Act (for short, “the Act”). For the relief of partition fixed court fee is paid under Section 37(2) of the Act. Respondents resisted the suit contending that petitioner is a total stranger to the family and that his claim that he is born to the late Gopinathan is utter false. They claimed that the registered Will WP(C) No.26220/2010 2 referred to in the plaint is the last Will and testament of the said Gopinathan as per which plaint A to I schedules are bequeathed in their favour as stated in the Will. A further contention is that valuation and payment of court fee stated in the plaint are not correct. Respondent filed Ext.P3, application to hear maintainability of the suit on the ground of non-payment of proper court fee and Ext.P4, application for appoint of an Advocate Commissioner to ascertain the actual market value of the property. Petitioner filed Ext.P2, application for amendment of plaint to incorporate a building not mentioned in the plaint schedule originally and seeking its partition also. The further corrections sought for are regarding certain mistakes allegedly crept in the plaint, including date of the alleged marriage of Nalini with Gopinathan which was sought to be corrected as 19.02.1962. Learned Sub Judge dismissed Ext.P2, application by Ext.P6, order and on Exts.P3 and P4, applications preferred by the respondents a common order (Ext.P5) was passed as per which learned Sub Judge found that valuation of property under Section 25(a) of the Act is not correct and that prayer No.1 (relating to a declaration as to the validity of the Will in question) ought to have been valued under Section 40 of the Act and, the relief of partition under Section 37(1) of the Act. Petitioner was directed to value the plaint accordingly and remit required court fee failing which plaint was liable to be rejected. Learned Sub Judge appointed an Advocate Commissioner to ascertain actual market value of the property and accordingly, allowed I.A.No.3446 of 2009 (Ext.P4). In the light of what is stated above Ext.P3, WP(C) No.26220/2010 3 application (I.A.No.2460 of 2009) was disposed of. Exts.P5 and P6, orders are under challenge. Learned counsel for petitioner contended that Ext.P5, common order passed by the learned Sub Judge is not correct. According to the learned counsel it is not a case whether petitioner was required to pay court fee either under Sections 40 or 37(1) of the Act. According to the learned counsel when due execution and attestation of the Will are disputed responsibility is on the propounder to prove the same and no declaration is required. Learned counsel states that the prayer for declaration is redundant and even without that plea petitioner is entitled to seek relief of partition. It is contended that payment of court fee under Section 37(1) of the Act is not warranted in view of the averments in the plaint that petitioner is in constructive or joint possession of plaint schedule items A to I with the respondents and what is required was to pay fixed court fee under Section 37(2) of the Act. Learned counsel argues that in deciding valuation and court fee what is to be looked into is averments in the plaint and not contention raised by respondents in the written statement. So far as Ext.P6, order is concerned it is contended that the purpose of seeking amendment was to incorporate certain buildings including a bar attached hotel as part of the property already scheduled as plaint A to H schedules. It is contended that Ext.P6, order rejecting the application for amendment is erroneous. Learned counsel for respondent Nos.1 to 10 (I am told by learned counsel for petitioner that respondent Nos.11 and 12 are executors in the Will) contends that on the averments in the plaint and relief - A prayed for, petitioner WP(C) No.26220/2010 4 was required to pay court fee under Section 40 of the Act to set aside the registered Will. It is contended that court fee paid under Section 37(2) of the Act is improper since even on the plaint averments petitioner has no joint or constructive possession atleast over plaint A to H schedules. 2. It cannot be disputed that for the purpose of valuation to decide jurisdiction and payment of court fee, what is to be looked into is the averments in the plaint though, based on the contention raised by contesting respondents as to correctness of the market value it is within the power of court to conduct an enquiry as provided under Section 19 of the Act. Basically the court is concerned with averments in the plaint to decide these matters. Though respondents have a case that petitioner is a total stranger to the family and not the son of the late Gopinathan and hence he has no right to seek partition of the property, I am afraid that is not a matter required to be looked into at this stage. Petitioner has denied due execution and attestation of the Will relied on by respondents. In such a situation it is the responsibility of the propounders to prove that the Will relied on by them is the last Will and testament of the late Gopinathan. I am therefore to think that the prayer for setting aside the Will in relief-A made by petitioner/plaintiff and declaration of right are redundant and unnecessary, for, unlike in the case of other documents which if challenged on vitiating circumstances are required to be set aside by person entitled to do so on payment of court fee under Section 40 of the Act, in the matter of a Will when WP(C) No.26220/2010 5 its genuineness is disputed, responsibility to prove its genuineness is on the propounder. Hence notwithstanding that in relief-A petitioner had claimed that Will has to be set aside and his right is to be declared, there was no necessity for the petitioner to pay court fee under Sections 25(a) or 40 of the Act. The view taken by the learned Sub Judge that petitioner has to pay court fee under Section 40 of the Act cannot be sustained. Issue regarding valuation and payment of court fee cannot be decided merely based on the relief portion. The reliefs prayed for alone cannot control the plaint and the nature of litigation. That part of the order passed by learned Sub Judge directing petitioner to pay court fee under Section 40 of the Act cannot be sustained and is liable to be set aside. 3. So far as the issue relating to payment of court fee under Section 37(1) of the Act is concerned that relates to cases where plaintiff is out of possession of the property sought for partition. I have been taken though the averments in plaint in particular paragraph No.17. It is seen from paragraph No.17 that petitioner has specifically stated that on the strength of the disputed Will and misleading authorities concerned respondents have taken possession of A to H schedule properties and are taking the profits therefrom. Petitioner has no case that he is in joint or constructive possession of plaint A to H schedules. It follows that so far as those items are concerned petitioner is liable to pay court fee under Section 37(1) of the Act on the basis of the market WP(C) No.26220/2010 6 value of the said items as held by the learned Sub Judge. 4. So far as the property referred to in plaint I schedule is concerned, averments in paragraph No.17 of the plaint is that the said property is in the possession of petitioner. If that be so, he cannot be asked to pay court fee for that item under Section 37(1) of the Act. Fixed court fee has to be paid for that item under Section 37(2) of the Act. 5. What remained is whether learned Sub Judge was correct in dismissing Ext.P2, application for amendment vide Ext.P6, order. I have been taken through the affidavit in support of Ext.P2, application and Ext.P6, order. It is seen that what is required to be amended are certain mistakes (as the petitioner would say) which crept in the details provided including the date of marriage of the late Gopinathan and Nalini, mother of petitioner. The further amendment is to incorporate certain buildings including a bar attached hotel as part of plaint A to H schedules stating its market value. I am not inclined to think that amendment if permitted would alter the nature and character of the suit. Having regard to the nature of amendment I am persuaded to think that learned Sub Judge ought to have allowed the same. 6. So far as Ext.P5, common order to the extent it concerned Ext.P3, application for appointment of an Advocate Commissioner is concerned, learned Sub Judge thought that there must be a proper assessment of market value and for the said purpose appointed the Advocate Commissioner. It was within the power of the court under Section 19 of the Act. That power having WP(C) No.26220/2010 7 been exercised by learned Sub Judge, I do not find reason to interfere. Hence the challenge to the order appointing the Advocate Commissioner has to fail. But I make it clear that what the Advocate Commissioner has to assess is market value of plaint A to H schedules. Resultantly this Writ Petition is allowed in part in the following lines: i. Ext.P6, order dismissing Ext.P2, application is set aside and Ext.P2, application will stand allowed. Petitioner shall carry out amendment in the plaint as prayed for in Ext.P3, application within fourteen days of receipt of a copy of this judgment in the court below. ii. Ext.P5, common order to the extent it concerned Ext.P3, application is set aside and the following directions are issued: (a) Petitioner shall pay court fee for relief of partition in respect of plaint A to H schedules under Section 37(1) of the Act on the basis of its market value. (b) Petitioner is liable to pay fixed court fee in respect of partition prayed for regarding plaint I schedule under Section 37(2) of the Act. (c) Advocate Commissioner appointed by learned Sub Judge shall assess the market value of plaint A to H schedules for the purpose of determination of court fee payable for those items under Section 37(1) of the Act. (d) Learned Sub Judge shall issue necessary directions to the Advocate Commissioner to expedite his proceedings and submit the WP(C) No.26220/2010 8 report so that the trial and disposal of the suit could be expedited. (e) Based on the report of the Advocate Commissioner learned Sub Judge shall hear the parties as to the market value assessed by the Advocate Commissioner and issue necessary orders to the petitioner to pay court fee under Section 37(1) of the Act for partition sought for regarding plaint A to H schedules. THOMAS P.JOSEPH, Judge. cks