ORDER

The defendant Nos.4 and 5 in O.S.No.66/2013 on the file of the Court of the Senior Civil Judge and JMFC at Virajpet have filed this petition challenging an order dated

04.04.2019, by which, the Court answered preliminary issue No.6 in the Affirmative and held that Court fee paid on the suit was proper.

2. The suit in O.S.No.66/2013 was filed for partition and separate possession of the plaintiff’s share in the suit schedule properties. The plaintiff claimed that she was a child in the womb as on 08.07.1999 when the suit properties were sold by her parents to defendant Nos.4 and 5. She therefore claimed that she was entitled for an undivided share in the suit schedule properties. She claimed that she was in joint possession of suit property and hence valued the suit under Section 35 (2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as ‘the Act’ for short). The defendant No.1 being the grandfather, defendant No.2 being the father and defendant No.3 being the aunt of the plaintiff did not contest the suit. The defendant Nos.4 and 5 contested the suit and claimed that the sale proceeds from the sale of the suit properties was utilized to purchase other valuable properties and therefore, a suit for partition in respect of the alienated property did not survive. They also contended that the suit was improperly valued under Section 35 (2) of the Act while it should have been valued under Section 35 (1) of the Act.

3. Based on these contentions, the trial Court framed issues. One of the issues framed in the suit was whether the Court fee paid in the plaint was proper and sufficient. The defendant Nos.4 and 5 were examined and they contended that they were in possession of the suit properties pursuant to the sale deed executed in their favour on 08.07.1999. The plaintiff did not lead any evidence. Based on the evidence adduced, the trial Court held that the plaintiff was in constructive possession of suit properties as she was in the womb as on the date of the alienation of the suit properties in favour of the defendant Nos.4 and 5. Consequently, it held that the suit was properly valued under Section 35 (2) of the Act and hence answered the said issue in the Affirmative. Being aggrieved by the said order, this petition is filed.

4. Learned counsel for the petitioners/defendant Nos.4 and 5 contended that it is incumbent upon the plaintiff to plead and prove that she was in joint possession of the suit properties to invoke Section 35 (2) of the Act. He submits that the trial Court held that the plaintiff was in constructive possession which does not mean that she was in joint possession of the suit properties. He submits that the suit properties were alienated to the defendant Nos.4 and 5 on 08.07.1999 i.e., much prior to birth of plaintiff on 12.02.2000 and the possession of the suit properties were delivered under the sale deed dated 08.07.1999. He therefore contends that plaintiff would not be in joint possession of the suit properties as her parents had already parted with possession of suit properties. Therefore, he contends that suit ought to have been valued under Section 35 (1) of the Act.

5. Per contra, learned counsel for the plaintiff contended that if the plaintiff was conceived as on the date of the sale of the suit properties and if she is born alive, she is entitled to challenge the alienation made by her parents on the ground that the sale was not for her benefit. He contended that once she is conceived and is in the womb, she is construed that she is in joint possession of the suit properties through her parents. He referred to Section 20 of the Hindu Succession Act, 1956 and contended that an unborn child is entitled to sue for partition, to claim her right and interest. In this regard, he relied upon the judgment of the Division Bench of this Court in the case of M.S.Subbukrishna and others vs. Smt.Parvathi and another reported in ILR 2007 KAR 3939. He therefore contended that s