Case Note & Summary
The High Court of Karnataka at Dharwad, by its single judge, entertained a writ petition under Articles 226 and 227 of the Constitution of India filed by the plaintiff in a partition suit. The plaintiff had instituted O.S. No. 291/2013 before the III Additional Senior Civil Judge and CJM, Belagavi, seeking partition and separate possession of the suit schedule property. The property was purchased in 1967 in the name of one Raghunath, but the plaintiff pleaded that it was acquired from joint family nucleus and that Raghunath was only the Karta holding it for all coparceners, including the plaintiff. The plaintiff asserted that he continued to be in joint possession. During trial, the defendants (legal representatives of Raghunath) filed I.A. No. XII under the Karnataka Court Fees and Suits Valuation Act, 1958, contending that the plaintiff was not in possession and, relying on certain admissions elicited in cross-examination, sought a direction for payment of court fee on the market value of the property under Section 35(1) of the Act. The Trial Court allowed the application and directed the plaintiff to pay ad valorem court fee. The plaintiff challenged this order by way of the present writ petition. The High Court framed the core issue: whether the Trial Court was justified in directing payment of court fee under Section 35(1) solely on the basis of the defendants’ plea and cross-examination admissions. The court observed that in a partition suit, valuation must be determined by the plaint averments, not the defence. It reiterated the settled principle that possession of one co-owner is possession of all, and constructive joint possession is presumed unless there is clear evidence of ouster. Mere exclusive occupation by one member does not amount to ouster. The court noted that the plaintiff had specifically pleaded joint possession, and the suit fell squarely under Section 35(2) of the Act, which prescribes a fixed court fee. The Trial Court erred by treating the registered sale deed and certain answers in cross-examination as sufficient to conclude that the plaintiff was excluded from possession—a heavily disputed question of fact that can only be decided after full trial. The High Court held that the impugned order was unsustainable and, following the ratio of earlier Division Bench and Full Bench decisions of the same court, set it aside. The writ petition was allowed, and the Trial Court’s order was quashed, thereby restoring the valuation of the suit under Section 35(2) with fixed court fee.
Headnote
A) Court Fee - Suit for Partition - Valuation Principles - Karnataka Court Fees and Suits Valuation Act, 1958, Sections 35(1), 35(2) - In a partition suit, valuation and court fee must be determined based on plaint allegations; the plaintiff's claim of joint possession determines applicability of Section 35(2) for fixed court fee, and the court cannot rely on defence contentions or admissions in cross-examination to direct payment of ad valorem court fee under Section 35(1) at an interlocutory stage (Paras 6, 8, 12, 14). B) Partition - Constructive Possession - Joint Family Property - Hindu Law - In a suit for partition among coparceners, possession of one co-owner is deemed possession of all; constructive joint possession is presumed unless there is clear evidence of ouster, hostile assertion of exclusive title, or complete exclusion; mere exclusive management or long physical occupation by one member does not constitute ouster (Paras 9, 13). C) Court Fee - Interlocutory Application - Disputed Possession - Karnataka Court Fees and Suits Valuation Act, 1958, Sections 35(1), 35(2) - The question whether the plaintiff has been excluded from possession is a seriously disputed question of fact that requires full trial; the court cannot decide it while considering a court fee application, as that would amount to deciding merits without trial (Paras 13, 14). D) Transfer of Property - Coparcener's Alienation - Stranger Purchaser - Hindu Law - A coparcener can transfer only his undivided interest in joint family property; a stranger purchaser acquires only that undivided interest and cannot assert exclusive possession over the whole property; his remedy is to seek general partition (Para 10). E) Precedent - Court Fee in Partition Suits - Karnataka Court Fees and Suits Valuation Act, 1958 - The Division Bench in Smt. Nanjamma v. Smt. Akkayamma, 2015 (2) KCCR 1437, and the Full Bench in Venkatesh R. Desai v. Smt. Pushpa Hosmani, ILR 2018 KAR 5095, hold that court fee must be decided on plaint averments, not defence (Paras 9, 15).
Issue of Consideration
Whether the Trial Court was justified in directing the plaintiff to pay court fee under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958, solely on the basis of the plea of the contesting defendants and certain admissions elicited during the cross-examination of the plaintiff?
Final Decision
The High Court allowed the writ petition, quashing the Trial Court's order dated 08.01.2020. It held that in a partition suit, constructive joint possession is presumed, and the question of ouster requires full trial. The court fee must be determined by plaint allegations, not by defence or cross-examination admissions. The suit was to be valued under Section 35(2) with fixed court fee.
Law Points
- In a partition suit
- possession of one co-owner is deemed possession of all
- ouster must be proved
- not presumed
- court fee valuation determined by plaint averments
- not by defence
- admissions in cross-examination not decisive at interlocutory stage
- stranger purchaser from coparcener acquires only undivided interest and cannot assert exclusive possession
- Section 35(2) applies when plaintiff asserts joint possession
- Section 35(1) applies only when plaintiff admits exclusion
