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2019 Supreme(Online)(KER) 35951
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY ,THE 22ND DAY OF JANUARY 2019 / 2ND MAGHA, 1940
OP(C).No. 2063 of 2018
AGAINST THE ORDER IN OS 242/2016 of PRINCIPAL SUB COURT,ERNAKULAM
PETITIONER/PETITIONER/PLAINTIFF:
DR.MRS.RACHEL ZACHARIAH ALIAS RAHEL
AGED 76 YEARS, D/O LATE MR.PAILY,
W/O DR.ZACHARIAH THOMAS, PRESENTLY
RESIDING AT VILLA NO 6, MERDIAN REGENT SQUARE,
V.P PETER ROAD, MARADU PO, 682304. MARADU VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT.
BY ADV. SRI.M.N.MATHEW
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1
DR M.P.KORAH, AGED 80 YEARS, S/O LATE MR.PAILY,
PRESENTLY RESIDING AT MANJUMMEKUDIYIL
(CHELAKKULAM),KEERAMBARA PO,686681,KEERAMPARA
VILLAGE,KOTHAMANGALAM TALUK,ERNAKULAM DISTRICT.
2
DR.KURUVILA,
AGED 77 YEARS,S/O LATE MR.PAILY,MANUJUJUMMEKUDIYIL,
(CHELAKKULAM)KEERAMPARA ,P.O,KEERAMPARA
VILLAGE,KOTHAMANGALAM TALUK,ERNAKULAM DISTRICT OF
KERALA STATE PRESENTLY RESIDING AT 15,CEDAR RIDGE
LANE,DIX HILLS, LONG ISLAND,NEW YORK, 11746,USA
3
MR.M.P.VARGHESE,
AGED 62 YEARS,S/O LATE MR.PAILY MANJUMMEKUDIYIL,
(CHELAKKULAM)PRESENLY RESIDING AT G-348,PANAMPILLY
NAGAR,P.O,KOCHI,ELAMKULAM VILLAGE,KANAYANNUR
TALUK,ERNAKULAM DISTRICT 682036
4
MRS.ANIMOL
AGED 77 YEARS,WIFE OF DR.M.P.KORAH,PRESENTLY RESIDIN
G AT MANJUMMEKUDIYIL(CHELAKKULAM)KEERAMPARA
P.O,KEERAMPARA VILLAGE,KOTHAMANGALAM TALUK,ERNAKULAM
DISTRICT 686681
BY ADVS.
SRI.S.SHYAM
SRI.KIRAN PETER KURIAKOSE
SRI.V.K.BALACHANDRAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.01.2019, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
OP(C).No. 2063 of 2018
2
An order directing payment of court fee towards
the claim for mesne profits in a suit for partition,
is under challenge by the plaintiff.
2. The claim for partition is laid on the
allegation that the properties sought to be
partitioned are co-ownership properties. The court
below held that, when the plaintiff has assessed the
quantum of mesne profit, the court fee as prescribed
under Section 44 of the Kerala Court Fees and Suits
valuation Act is to be paid.
3. The court fee payable in a suit for partition
is governed by Section 37 of the Court Fees and Suit
Valuation Act. A claim for partition pre-supposes
joint ownership of the property. A co-owner not in
possession seeks for division and separate allotment
of his share which was till then held jointly. He is
a co-sharer along with the others. He is entitled to
his share of the assets. Necessarily the income from
the properties are also liable to be partitioned in
the same proportion.
4. The right of a co-owner to claim for share of
the profits is inherent in his right of ownership
over the property. The income from the property gets
added to the corpus and is thus liable to be
partitioned. This Court has taken the said view in
Mariyumma v. Kunhambu Nair (1967 KLT 1017) and Abu
And Another v. Thithikutty Umma And Another (1968
KLJ 549). The claim for partition takes within its
sweep a claim for division of the income from the
properties also. The claim for profits being
inherent in a claim for partition, and Court fee
having been paid under Section 37 of the Court Fees
Act, separate court fee is not liable to be paid for
the claim for mesne profits.
5. In the result, the orders in I.A No.5892 of
2016 and R.P No. 2 of 2017 in O.S 242 of 2016 of the
Sub Court, Ernakulam are set aside.
Original petition is allowed as above.
Sd/-
SATHISH NINAN
vdv
JUDGE
5
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1
TRUE COPY OF I.A.5892 OF 2016 FILED
BY THE 3RD RESPONDENT NO.242 OF 2016
ON 28.11.2016 SEEKING TO EJECT IN
PLAINT.
EXHIBIT P2
TRUE COPY OF THE COUNTER AFFIDAVIT
DATED 19.1.2017 FILED BY THE
PETITIONER IN IA. NO.5892/2016 IN OS
NO.242 OF 2016
EXHIBIT P3
TRUE COPY OF ORDER DATED 19.1.2017 OF
THE PRINCIPAL SUB JUDGE,ERNAKULAM IN
IA. NO 5892 OF 2016 IN OS NO 242 OF
2016
EXHIBIT P4
TRUE COPY OF THE REVIEW PETITION NO 2
OF 2017 IN I.A NO.5892 OF 2017 IN O.S
NO.242 OF 2016
EXHIBIT P5
TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE 3RD RESPONDENT IN REVIEW
PETION NO 2 OF 2017 IN IA. NO 5892 OF
2017 IN O.S NO.242 OF 2016
EXHIBIT P6
TRUE COPY OF ORDER DATED 20.7.2018 OF
THE PRINCIPAL SUB JUDGE ERNAKULAM IN
REVIEW PETITION NO.02/2017 IN IA
NO.5892 OF 2016 IN OS NO.242 OF 2016
EXHIBIT P6
TRUE COPY OF ORDER DATED 20.07.2018
OF THE PRINCIPAL SUB JUDGE, ERNAKULAM
IN REVIEW PETITION NO.02/2017 IN I.A
NO.5892/2016 IN O.S 242/2016.
