The main legal point established in the judgment is that for the purpose of determining court fee, the averments in the plaint should be prima facie accepted, and exclusion from enjoyment of income does not necessarily indicate exclusion from possession.

1. In this revision petition Mr. V.G. Sankaranarayana Pillai, learned counsel for the petitioner, attacks the finding of the learned Subordinate Judge of Kottayam on issue No.1 regarding the correctness of the court fee paid by the plaintiffs.

2. Issue 1 related to the question as to whether the plaintiffs have paid proper court fee. At the request of the 1st defendant, this issue was tried as a preliminary issue, and ultimately the learned Subordinate judge by his order, which is under attack, has held that the plaintiffs should have paid the court fee upon the market value of their shares as contemplated in S.37(1) of the Kerala Court Fees and Suits Valuation Act, 1959. The correctness of this view expressed by the learned judge is challenged in this revision on behalf of the plaintiff-petitioners.

3. There can be no controversy that for purposes of court fee the averments in the plaint will have to be prima facie accepted. A denial or other controversy raised in the written statement by the defendants has absolutely no bearing on the question of considering the court fee that is payable on the plaint; and for that purpose the court will have exclusively to confine its attention to the averments made in the plaint itself. The truth or otherwise of the allegations in the plaint will not arise at the time of deciding the question of the correct court fee to be paid.

4. In this case it will be seen that the suit itself was for partition and separate possession of the plaintiffs' shares, claiming to be co-tenants along with the defendants. The plaintiffs claim to be the children by the 1st wife - a Nair woman - of deceased Damodaran Nambiathiri. According to the plaintiffs, the properties, which are subject of partition, are the self-acquisitions of deceased Damodaran Nambiathiri. The 1st defendant is said to be the second wife of deceased Damodaran Nambiathiri, a Nambiathiri woman, and defendants 2 and 3 are said to be her children. The 4th defendant has been impleaded as the widow of one Vasudevan Nambiathiri of the said Illom and according to the plaintiffs the 4th defendant will be entitled to her maintenance claim recognised on the B schedule properties. The said Damodaran Nambiathiri died on 9th December 1961 intestate, and the plaintiffs aver that inasmuch as the properties, which are the subject of the litigation, are the self-acquired properties of the deceased, they are entitled to 2 out of 5 shares and that they are in legal possession of the properties jointly along with the other co-owners. The plaintiffs have also stated, no doubt, that ever since the death of Damodaran Nambiathiri, viz., 9th December 1961 the 1st defendant has been appropriating the income accruing from the properties and that she has not been paying the plaintiffs' share, which is fixed at Rs. 150. The plaintiffs have also referred to certain other matters in the plaint. In particular it will be seen in Para.4 of the plaint, they refer to their being entitled in law to 2/5 shares in the properties of the deceased, owned by themselves along with the other co-owners. So far as I could see, the averments in Para.5 of the plaint are that the 1st defendant, ever since the death of Damodaran Nambiathiri, is taking the income from the properties and appropriating it to herself and not paying their share. Ultimately they also recognise the right of the 4th defendant to have her maintenance right declared in respect of the B schedule properties, and subject to that right, they ask for relief by way of partition and separate possession of 2/5 shares, and also pray for directing the 1st defendant to pay their share out of the income that she has collected ever since the death of Damodaran Nambiathiri. On this basis, the plaintiffs have ultimately valued the reliefs claimed in the plaint, under S.37(2) of the Court Fees and Suits Valuation Act, 1959.

5. As I mentioned earlier, objection appears to have been taken on behalf of the defendants that the