IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 24462 of 2008(K) -------------------------- AGAINST THE ORDER IN IA 1590/08 IN OS.935/2005 of PRL.SUB COURT,THRISSUR .................... PETITIONER: ------------ INDIRA, W/O.KUNDANINGAD KRISHNANKUTTY, VELLATTU LANE, THRISSUR VILLAGE AND TALUK. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENTS: ------------- 1. KAMALAM, W/O.HARIHARA SUBRAMANYA IYER, KRISHNA GARDENS, VELLATTU LANE, THRISSUR. 2. MAHADEVAN, S/O.HARIHARA SUBRAMANYA IYER, KRISHNA GARDENS, VELLATTU LANE, THRISSUR. 3. SEEMA, D/O.HARIHARA SUBRAMANYA IYER, KRISHNA GARDENS, VELLATTU LANE, THRISSUR. 4. ARAVINDAKSHAN NAIR, KURUVATTASSERRY HOUSE, VELLATTU LANE, THRISSUR. 5. A.R.RAMANATHAN, KRISHNA GARDENS, VELLATTU LANE, THRISSUR. 6. NARASIMHAN, KRISHNA GARDENS, VELLATTU LANE, THRISSUR. 7. RAJAN, S/O.THAZHATHU SANKARAN EZHUTHASSAN, VELLATTU LANE, THRISSUR. 8. KRISHNANUNNY, S/O.THAZHATHU SANKARAN EZHUTHASSAN, VELLATTU LANE, THRISSUR. WP(C) 24462/2008 : 2 : 9. UNNIKRISHNAN, S/O.THAZHATHU SANKARAN EZHUTHASSAN, VELLATTU LANE, THRISSUR. 10. MEENA RAJAN, D/O.THAZHATHU SANKARAN EZHUTHASSAN, VELLATTU LANE, THRISSUR. 11. MALATHY KRISHNAKUMAR, D/O.THAZHATHU SANKARAN EZHUTHASSAN, VELLATTU LANE, THRISSUR. 12. GEETHA, D/O.THAZHATHU SANKARAN EZHUTHASSAN, VELLATTU LANE, THRISSUR. 13. P.K.BABU, PARVATTANI HOUSE, PLAKKATTU LANE, THRISSUR. 14. JAYADEVAN, S/O.VATTAPPILLIYIL SAROJINI AMMA, KODUNGALLUR P.O., 15. JAIMI ANOOP, D/O.VADAKEDATH KIZHAKKETHIL RADHIKA, KODUNGALLUR P.O. 16. HAMSA, S/O.BAPPUTTY, MANJALINGAL HOUSE, KORANDATTIL LANE, THRISSUR. 17. AISHA HAMSA, W/O.HAMSA, MANJALINGAL HOUSE, KORANDATTIL LANE, THRISSUR. 18. NARASIMHAN, VRINDAVAN, KRISHNA GARDEN, THRISSUR. 19. VIJAYAN, S/O.PUZHANKARA REMANI, POONKUNNAM, THRISSUR. 20. BABU, PANDARAPARAMBIL HOUSE, ANJU NIVAS, KRISHNA GARDEN, THRISSUR. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.24462 of 2008 ------------------------------- Dated this the 13th August, 2008. J U D G M E N T This petition is filed under Article 227 of the Constitution of India challenging Ext.P6 order passed by Sub court, Thrissur, directing payment of court fee under sub-section (1) of Section 37 of Kerala Court Fees and Suits Valuation Act. 2. Learned counsel appearing for the petitioner was heard. 3. Learned counsel vehemently argued that court fee has to be paid on the plaint allegations and in paragraph 1 of the plaint, it was specifically contended that after the death of his father and mother, their children are in joint possession of the property which devolved on them from the parents, and though additional properties were sought to be divided by amending the plaint and incorporating the said properties as plaint B to I schedule properties, it is the specific case of the petitioner that W.P.(C) No.24462 of 2008 2 the alienations made by first defendant are not valid and binding on other co-owners and learned Sub Judge was not justified in directing payment of court fee under sub-section (1) of Section 37 of Kerala Court Fees and Suits Valuation Act, instead of the fixed court fee, as provided under sub-section (2) of Section 37 of Kerala Court Fees and Suits Valuation Act. Learned counsel also argued that in any case learned Sub Judge by the order validated the alienations, and, therefore, Ext.P6 order is to be set aside. 4. On hearing the learned counsel, I do not find any reason to interfere with Ext.P6 order with regard to the direction to pay court fee under sub-section (1) of Section 37 of Kerala Court Fees and Suits Valuation Act. True, while considering the court fee payable in a suit, the plaint allegations alone need to be looked into. If the plaint contains an allegation that properties sought to be divided in the suit are in the joint possession of the co-owners, only a fixed court fee as provided under sub-section (2) of Section 37 of Kerala Court Fees and W.P.(C) No.24462 of 2008 3 Suits Valuation Act need be paid. But if the plaint allegations do not show that plaintiff claimed that he or she is in joint possession of the property sought to be divided, and instead plaintiff is excluded from possession of the property, court fee has necessarily to be paid, as provided under sub-section (1) of Section 37 of Kerala Court Fees and Suits Valuation Act. 5. It is true that in paragraph 1 of the plaint, there is a specific allegation that after death of the parents, their properties devolved on their children and they have been in joint possession and enjoyment of the properties. But in paragraph 2, there is a specific allegation that first respondent misusing the power of attorney, alienated a portions of the properties and also transferred possession of the properties so alienated to the alienees. The argument of the learned counsel is that in paragraph 2A, which was subsequently inserted by amendment, whereunder partition of plaint B to I schedule properties were sought, it was specifically contended that alienations are not valid and binding on the petitioner and other co-owners. It was argued W.P.(C) No.24462 of 2008 4 that therefore, court fee need be paid only under sub-section (2) of Section 37 of Kerala Court Fees and Suits Valuation Act. But in the light of the statement in paragraph 2 that portions of the properties were alienated by the first defendant and the alienees were put in possession of the properties by the first defendant, in the absence of an allegation in paragraph 2A of the plaint that the alienated properties are also in the joint possession of the plaintiff or that they could only be in joint possession of the properties along with the other co-owners, it cannot be said that there is no statement in the plaint that plaintiff is not excluded from possession of those properties. If that be so, as rightly found by learned Sub Judge, court fee has to be paid as provided under sub-section (1) of Section 37 of Kerala Court Fees and Suits Valuation Act, and to that extent, I do not find any illegality or irregularity warranting interference in the impugned order. However, the finding in Ext.P6 with regard to the validity of the alienations is to be ignored while considering the question in the suit whether plaint schedule properties are W.P.(C) No.24462 of 2008 5 available for partition or not. Petitioner is granted one month's time to file a valuation statement and to pay necessary court fee under the Kerala Court Fees and Suits Valuation Act. Writ petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.