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1976 Supreme(AP) 65
Andhra Pradesh High Court
Judges : V.MADHAVA RAO
Bendapudi Veera Venkata subbarao - Appellant
Versus
Kakarlapudl Venkatasubbaraju - Respondent
Decided On : 04-07-76
A purchaser of an undivided interest of a co-parcener is not a co-owner or joint owner entitled to joint possession along with other members of the family, and therefore cannot pay fixed court fee under Section 34(2) of the Court Fees Act, but must pay ad valorem court fee.
Headnote:
COURT FEES ACT - SECTION 34 - PARTITION SUIT - ADVALOREM COURT FEE PAYABLE BY PURCHASER OF UNDIVIDED INTEREST OF CO-PARCENER - NOT A CO-OWNER OR JOINT OWNER ENTITLED TO JOINT POSSESSION - PRINCIPLE OF CO-PARCENERY NOT APPLICABLE - NAGENDRAM VS. APPAYYA (1947 (1) M. L. J. 15) FOLLOWED.
Fact of the Case:
Plaintiffs, who purchased an undivided 1/5th share in the suit properties in a court auction, filed a suit for partition and separate possession of their share. The court below held that ad valorem court fee was payable on the plaint. Plaintiffs challenged this order in revision.
Finding of the Court:
The court held that the plaintiffs, as purchasers of an undivided interest of a co-parcener, were not co-owners or joint owners entitled to joint possession along with other members of the family. The principle of co-parcenary, which applies only among members of a Hindu undivided family, was not applicable in this case. Therefore, the plaintiffs were not entitled to pay fixed court fee under Section 34(2) of the Court Fees Act, but had to pay ad valorem court fee.
Issues: Whether the plaintiffs, as purchasers of an undivided interest of a co-parcener, were entitled to pay fixed court fee under Section 34(2) of the Court Fees Act.
Ratio Decidendi: The court relied on the decision in Nagendram vs. Appayya (1947 (1) M. L. J. 15), which held that an alienee from a co-parcener could not be described as a person in joint possession actually or even constructively along with the other members of the family. Therefore, the alienee had to pay ad valorem court fee.
Final Decision: The revision petition was dismissed, but without costs. Time for payment of court fee was granted till one week after the re-opening of the court after summer vacation.
( 1 ) THE petitioners herein are the plaintiffs in an unregistered suit (S. R. No. 1236/74) on the file of the sub-ordinate judge s Court, Amalapuram. The plaintiffs filed the suit for partition of the plaint scheduled properties Into 5 equal shares and for delivery of separate possession of one such share to the plaintiffs and for other reliefs.
( 2 ) THE case of the plaintiffs is that defendants I to 5 are brothers who jointly own the properties described in the plaint schedule each having an undivided I/5th share. The plaintiffs obtained a money decree, against the 3rd defendant and in execution of the said decree, brought his 1/5th undivided share to sale. In the Court auction the plaintiff purchased his undivided 1/5th share for a sum of Rs. 7060/ -. Thus the plaintiffs have become the owners of the undivided 1/5th share in the suit scheduled properties. Under these circumstances the plaintiffs alleged that they are co-owners in respect of the plaint scheduled propertle; along with defendants 1,2,4, and 5 having an undivided 1/5th share and they are in joint possession of the said property. Though they have been demanding defendants 1,2,4, and 5 they agreed to partition and to give separate possession of the 1/5th share. The defendants have been postponing. Hence the plaintiffs are obliged to file this suit.
( 3 ) THE plaintiffs paid a fixed Court fee under section 34 (2) of the Court fees Act. An objection was raised by the office that the plaintiffs had to pay the Court fee on advalorem basis. This question was considered by the learned subordinate Judge, who by his order dated 11-7-1974 held that the plaintiffs had to pay advalorem Court fee. The plaintiffs have preferred this revision petition against the said order.
( 4 ) THE Court below relied upon the decision of the Bench of the Madras high Court in Nagendram Vs, Appayya (1) (1947 (1) M. L. J. 15 ). When this revision petition was heard by Justice raghuvlr the petitioners relied upon a decision of this Court in S. R. No. 9533/1968, where it was held thac a fixed court fee had to be paid. Justice raghuvlr, therefore directed that this matter may be heard by a Division bench.
( 5 ) THE only question for consideration before us is whether advalorem court fee is payable on the plaint or a fixed court fee. The relevant section of the Court fees Act is Section 34 which is as follows :"34 Partition Suits : (I ). In a suit for partition and separate possession of a share of joint family property or of property owned, jointly 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 movable property or three fourths of the market value of the immovable property included in the plaintiffs share. (2 ). 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 following rates : ".
( 6 ) THE contention of the petitioners is that the present suit comes within section 34 (2) as the plaintiff is in joint possession of the property along with the defendants 1,2,4 and 5. in our view this contention is untenable. It is settled law that a purchaser of an undi vided Interest of co-parcenery is neither a co-owner nor a joint owner entitled to joint possession along with other members of the family. Co-parcenery can only subsist among the members of a hindu undivided family and the principle is that the possession of one co-parcener is the possession of all. This principle has no application as between a purchaser from one of the co-parceners and other members of the family The purchaser cannot in any sense be described as a person in loint possession actually or even constructively along with the members of the family. He cannot be regarded as a tenant in common. In Nagendram vs. Appayya (1) 1947 (1) M. L. J. 15) during the pendency of a suit for par
