The entitlement to a share in ancestral property and the proper valuation of court fee under the Tamil Nadu Court-Fees and Suits Valuation Act, 1965.

JUDGMENT

(Prayer: Appeal filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 14.12.2009 made in A.S.No.72 of 2006 on the file of the Sub Court, Sivagangai, reversing the judgment and decree dated 28.07.2006 made in O.S.No.158 of 2008 on the file of the Principal District Munsif Court, Manamadurai.)

1. The plaintiff, who was successful before the trial court in his suit for partition in O.S.No.158 of 2002, but having suffered a reversal in the first appeal in A.S.72 of 2006, has approached this Court in Second Appeal.

2.1 The Brief facts, which are essential for the present purpose may be stated: The suit property is an agricultural property, and it is an ancestral property in the hands of the first defendant, the father of the plaintiff and the karta of the coparcenary. Defendants 2 and 3 are the brothers of the plaintiff. While so, defendants 1 to 3 had sold the entire property including the share of the plaintiff to the defendants 4 and 5 Vide Ext.B1 sale deed, dated 17.05.2001. Asserting his share in the property as a coparcener, the plaintiff has laid the suit for partition ignoring Ext.B-1 sale deed, which defendants 1 to 3 have executed in favour of defendants 4 and 5.

2.2 The defendants 1 to 3, the executants of Ex.B1-sale deed, remained ex-parte, and the suit was contested by defendants 4 and 5 alone. They alleged in their written statement that Ex.B1-sale deed was executed by defendants 1 to 3 only to raise necessary finance to support the plaintiff for securing him a job abroad and justified the sale.

3.1 The dispute went to trial and during trial, the plaintiff examined himself as P.W.1 while the fifth defendant examined himself as D.W.1. The defendants had examined two other independent witnesses D.W. 2 and D.W.3. On the side of the plaintiff Ext.A1 to Ext.A3 were marked, whereas the defendants 4 and 5 produced Ext.B1 to Ext.B7 documents.

3.2 After considering the evidence before it, the trial court decreed the suit. In an appeal preferred by the defendants 4 and 5, the first appellate Court had literally concurred with the finding of the trial court, yet chose to dismiss the suit on the ground that the suit ought to have been valued under Section 37(1) of Tamilnadu Court-Fees and Suits Valuation Act, 1965. This is now under challenge.

4. This Second Appeal is admitted for considering the following questions of law:

a) Whether the courts below are right in rejecting the document of Ex.B5 marked on the side of the defendants?

b) Whether the Courts below are right in holding that the original suit is not barred by limitation warrants interference?

5. The learned counsel for the appellant would submit that: If the first appellate Court had considered that the suit was undervalued, and that a higher court-fee is required to be paid, it ought to have directed the plaintiff to pay the differential court-fee, after proper enquiry, more so when the defendants have not raised any objection to the suit valuation. Indeed, no issue was framed by the trial court on this aspect. This goes against Section 12(4)(a) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955. At any rate, the plaintiff has fixed the court-fee at Rs.200/- as per Section 37(2) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, and even if Section 37(1) of the said Act were to be applied, as per the provisions of the Act at the relevant point of time market value has to be assessed at 30 times the kist payable on the land. As per Ext.B3 tax receipt, dated 22-08-2006 the kist paid for the entire property was Rs.1,050/- per fasli and if so, the market value of the property would be (Rs.1050/- X 30) Rs.31,500/- and the plaintiff is required to pay court fee for the market value of his ¼ share of Rs.7,875.50/- The plaintiff has paid a fixed court fee of Rs.200/- under Sec. 37(2) of the TNCF & SV Act, 1955. This has to be deducted and the balance court fee payable is Rs.7,675.50/- and submitted that the