1. The petitioner and respondents 1 to 3 are the children of one Pattu. The fourth respondent is the wife of the third defendant. Pattu died in 2002. Claiming a 1/4th share in the property owned and possessed by Pattu, the petitioner filed O.S.No.312 of 2009 on the file of the court of the Munsiff of Chittur.

2. The plaintiff valued the plaint schedule property at Rs.2,80,000/- and her share at Rs.70,000/-. Fixed court fee was paid under Section 37(2) of the Kerala Court Fees and Suits Valuation Act (hereinafter referred to as the Court Fees Act).

3. Defendants 3 and 4 contested the suit. They contended that the valuation and court fee are incorrect. An issue was framed regarding the valuation and court fee. The court below held that the plaintiff is liable to pay court fee under Section 37(1) of the Court Fees Act. The order passed by the court below is under challenge in this Writ Petition filed by the plaintiff.

4. In the plaint, it was alleged that the plaintiff and defendants 1 to 3 are the co-owners and they are in joint possession of the plaint schedule property. It is averred in the plaint that the plaintiff came to know that the third defendant got executed some documents by misrepresentation. It is also averred that the third defendant claims to have executed some documents in favour of the fourth defendant in respect of the property. Even if any document was executed by Pattu, the same is vitiated by fraud and misrepresentation. The further averment in paragraph 9 of the plaint is that property is being possessed by defendants 1 to 3 and they are taking the income.

5. In the written statement filed by dependants 3 and 4, they contended that Pattu executed a will in their favour. After the death of Pattu, the third defendant relinquished his rights in favour of the fourth defendant.

6. The court below held that in the light of the averment in the plaint that the third defendant claims to have got executed some documents in favour of the fourth defendant, who is not co-owner, and the averment that the documents were executed due to misrepresentation, it is to be taken that the plaintiff is not in joint possession of the plaint schedule property, in spite of such an averment of joint possession in the plaint. The court below also held that since the plaintiff claims mesne profits from dependants 1 to 3, it cannot be said that the plaintiff is in joint possession of the plaint schedule property. Accordingly, the court below held that the plaintiff is liable to pay court fee under Section 37(1) of the Court Fees Act.

7. It is well settled that the averments in the plaint would be determinative in the matter of payment of court fee. The averments and contentions in the written statement and the truth or otherwise of the same are not guiding factors to decide the question of court fee.

8. Sub Sections (1) and (2) Section 37 of the Court Fees Act read as follows:

“37. Partition suits:- (1) 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 plaintiff’s 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:-

When the plaint is presented to-

(i) a Munsiff’s Court Rupees fifty

(ii) a Sub Court or a District Court Rupees three hundred”

9. In Neelavathi and others vs. N.Natarajan and others (AIR 1980 Supreme Court 691), the Supreme Court considered the scope and ambit of Section 37(1) and 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act, which are similarly worded as Sections 37(1) and (2) of the Kerala Court Fees an Suits Valuation Act. The Supreme Court held thus:

“6. On reading of the plaint as a whole, we are unable to agree