The valuation of a plaint in a suit for partition and separate possession of a share in joint family property depends on whether the plaintiff is excluded from possession of the property or is in joint possession of the property.

1. The above revision petition has been filed against the order of the learned Subordinate Judge, Kumbakonam, dated 26. 1995, on Checkslip in O.S.No.73 of 1991, wherein the Court below has held that the plaint ought to have been valued under section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (hereinafter referred to as “the Act”) and granted time till 17. 1995 to pay the deficit court-fee.

2. Petitioner-plaintiff filed the suit, O.S.No.73 of 1991, claiming partition and separate possession of her 1/4th share in the ‘A’ Schedule property and for the attendant reliefs prayed for, which need no elaborate reference. The fact remains that the plaintiff claims a share in the property as the daughter and as Class I heir of late Subramania Dikshithar, said to have died on 12. 1987. The defendants are other heirs and successors in interest of the original owner. Though the suit was numbered as such, apparently on account of the objection taken in the written statement filed questioning the property and legality of the valuation of the plaint under section 37(2) of the Act as against 37(1) of the Act, the Court below has re-considered the matter and on account of the checkslip put up, passed orders, which are under challenge.

3. The Court below has adverted to the salient features of the plaint and the manner in which the claim has been projected, particularly in paragraphs 4 and 5 and came to the conclusion that the plaint ought to have been valued under section 37(1) of the Act only. Aggrieved, the above revision petition has been filed.

4. Mr.N.Sankaravadivel, learned counsel for the petitioner strongly relied upon the decision in Neelavathi v. N.Natarajan, AIR 1980 SC 691, wherein the apex Court held as follows:

“Section 37 of the Tamil Nadu Court Fees and Suits Valuation Act relates to partition suits. Section 37 provides as follows:

“37(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 plaintiffs share. 37(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 rates prescribed.”

“It will be seen that the court fee is payable under Section 37(1) if the plaintiff is “excluded” from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the mitakshara coparcenary property, acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided ‘joint family property’ though not in the strict sense of the term. The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved.” To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share of some income from the property. So long as his right to a share and the nature of the property as joint is not disputed, the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court-fee under Sec.37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and