Back
2025 Supreme(Online)(Mad) 33760
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.VIJAYAKUMAR, J
Saliha Beevi – Appellant
Versus
M.N.Kamalutheen – Respondent
C.R.P.(PD)(MD).No.717 of 2025 | CMP(MD).No.3822 of 2025
For the Appellants/Petitioners: Mr.J.Barathan | Mr.M.Rajarajan
For the Respondents: Mr.H.Lakshmi Shankar
Court fee liability in partition suits hinges on the validity of foundational gift and partition deeds, and possession status must be determined post-trial, not preliminarily.
Headnote:(A) Tamil Nadu Court Fees and Suits Valuation Act, 1995 - Sections 12(2), 25(d), and 37(1), 37(2) - Court fee payable on suits involving partition and property possession - Validity of gift deeds affecting Court fee liability.
(B) Mohammedan Law - Validity of gift deeds - Acceptance and delivery of possession as essential ingredients - Guardian appointment constraints under Mohammedan Law.
Facts of the case:
The plaintiff filed a suit for partition and separate possession challenging the validity of four registered gift deeds and two partition deeds executed by their father in favor of siblings, contending that the gift deeds were void due to invalid guardianship and lack of possession delivery, making the partition deeds consequently void. Dispute arose over proper Court fee payment under the Act based on whether the plaintiff was in joint possession.
Findings of Court:
The trial Court allowed the application under Section 12(2) directing the plaintiff to pay Court fee under Section 37(1) presuming lack of joint possession. This decision was set aside on revision as the validity of the gift and partition deeds was yet to be determined, making joint possession a question for trial.
Issues: Whether the correct Court fee was paid considering the disputed validity of gift and partition deeds; whether joint possession can be presumed before trial findings on possession;
Ratio Decidendi: The Court held that the determination of joint possession and consequent Court fee liability depends on the ultimate validity of the gift and partition deeds challenged in the suit and cannot be decided as a preliminary issue. Until trial conclusion, plaintiff must be presumed in joint possession, sustaining payment of Court fee under Section 37(2). (Paras 20 to 29)
Result: Revision petition allowed. The impugned order is set aside and the trial Court is directed to dispose of the suit according to law.
| Table of Content |
|---|
| 1. factual background and case foundation (Para 2 , 3 , 4 , 5 , 6) |
| 2. defendants' procedural and substantive objections (Para 7 , 8 , 9 , 10 , 11) |
| 3. orders relating to court fee issue and remand (Para 12 , 13) |
| 4. plaintiff’s contentions challenging validity of gift and partition deeds (Para 14 , 15 , 16 , 17) |
| 5. defendants’ contentions on possession and validity of deeds (Para 18 , 19 , 26 , 27) |
| 6. court’s analysis on possession, validity of gifts and partition deeds (Para 20 , 21 , 22 , 23 , 24 , 25) |
| 7. court’s reasoning on impact of evidentiary trial on possession and court fee (Para 28 , 29) |
ORDER
The plaintiff in O.S.No.283 of 2019 on the file of the Additional District Court/Fast Track Court, Palani has filed the present revision petition challenging the order passed by the trial Court allowing the application under Section 12(2) of Tamil Nadu Court Fees and Suits Valuation Act, 1995.
2.The revision petitioner herein has filed the above said suit for the relief of partition and separate possession. The plaintiff has also prayed for a declaration that the registered gift deed dated 18.01.1966, 11.01.1974 and 09.12.1981 are null and void. The plaintiff has also prayed for a declaration that the registered partition deed dated 03.06.1991 and 16.10.1992 are null and void.
3.A perusal of the plaint reveals that the suit schedule properties are self-acquired properties of one M.K.Mohammed Nainar @ Abban Rowther. The plaintiff and the defendants are siblings. One of the brothers namely Jamal Mohammed had died on 16.03.2018 leaving behind three daughters and five sons. It is further contended in the plaint that during his life time, the father of the plaintiff and the defendants are said to have executed a registered gift deed in the year 1966, 1974, 1981 and 1986. All those gift deeds are conditional gifts. They were gifted while the donees were minors by appointing their mother as guardian. However, the possession was not granted in favour of the donees. Though the mother is said to have been appointed as a guardian of the minor sons, under Mohammedan Law , mother cannot be appointed as a guardian. Therefore, the gift was not accepted either by the minor or by the guardian. Hence, the gift deeds are not valid in the eye of law and they are void under Mohammedan Law .
4.Based upon the four gift deeds, the brothers have effected partition under Document dated 03.06.1991 and 09.03.1992. Since the gift deeds are not valid, consequently the partition deeds are also void.
5.It is the further contention of the plaintiff that their father had died intestate and therefore, the plaintiff and the defendants are tenants in common. The plaintiff and the defendants are in constructive joint possession in the schedule of properties. Since the defendants have disputed the right to claim partition, the present suit for partition has been filed.
6.A perusal of the plaint further reveals that the plaintiff has paid the Court Fee under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act.
7.The defendants had filed a written statement admitting that the suit schedule properties are self-acquired properties of their father. However, they contended that all the four gift deeds were executed and accepted and the possession was granted to the donees. Based upon the said gift deeds, the partition deeds have been executed among the beneficiaries of the gift deed. Since the properties have been alienated during the life time of their father by way of various gift deeds, the plaintiffs are not in constructive joint possession of the suit schedule properties. Therefore, the Court Fee under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act is not correct and they have to pay ad-valorem Court fee on the basis of the market value.
8.The defendants have further contended that the claim of the plaintiff is also ousted by long, continuous and absolute possession and enjoyment of the suit schedule properties by the defendants
