Disposed

Dr. Alexander Thomas v. Mathew Alexander

Kerala HC28 Jul 2016OP(C)/1807/2016

Case brief

AI extract

What is this about?

This order under Article 227 dispositively addressed a writ petition challenging a Sub Court's finding on court fee adequacy in a suit for partition of joint properties and movable items. The court held that prima facie joint ownership remains unaffected by possession status; thus, the lower court correctly applied the ad valorem rate based on plaint allegations. Limitation apprehensions were dism

What did the court decide?

The challenge to the court fee finding was dismissed holding the fee paid was correct based on plaint allegations of joint ownership.

Dr. Alexander Thomas Vs Mathew Alexander — Partition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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THURSDAY, THE 28TH DAY OF JULY 2016/6TH SRAVANA, 1938

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OP(C).No. 1807 of 2016 (O)

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OS 412/2009 SUB COURT, ERNAKULAM.

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PETITIONER:

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DR. ALEXANDER THOMAS, S/O.LATE DR.T.M.ALEXANDER, AGED 63 YEARS, 34/627 AND 38/285, PADIVATTOM, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, EDAPPALLY.P.O., KOCHI - 682 024.

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BY ADVS.SRI.GEORGE KARITHANAM VARGHESE SRI.JOSE KURIAKOSE (VILANGATTIL)

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RESPONDENT(S):

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1. MATHEW ALEXANDER, S/O.LATE DR.T.M.ALEXANDER, AGED 68 YEARS, NOW RESIDING AT FLAT B, ALSA REBECCA, 15, JAYAMMAL STREET, AMINIJKARAI, CHENNAI - 600 029.

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2. MINOO RAJAN PETER, W/O.RAJAN PETER, 35/1892, KAYYATH LANE, PALARIVATTOM, KANAYANNUR TALUK, PALARIVATTOM.P.O., KOCHI - 682 025.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No. 1807 of 2016 (O)

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APPENDIX

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PETITIONERS’ EXHIBITS:

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EXT. P1	: TRUE COPY OF THE PLAINT DATED 31.5.2009 IN
	OS.NO.412/2009 OF THE SUB COURT, ERNAKULAM.

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EXT. P2 :	TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT ON 22.8.2015 IN OS.NO.412/2009 OF THE SUB COURT, ERNAKULAM.
EXT. P3 :	TRUE COPY OF THE IA.NO.2972/2016 IN O.S.NO.412/2009 OF THE SUB COURT, ERNAKULAM.
EXT. P4 :	TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN OS.NO.412/2009 OF THE SUB COURT, ERNAKULAM.
EXT. P5 :	TYPED COPY OF THE ORDER DATED 25.7.2016 PASSED BY THE HON'BLE SUB COURT, ERNAKULAM IN OS.NO.412/2009.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.S. TO JUDGE

mbr/

K.RAMAKRISHNAN, J.

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O.P. (C). No.1807 of 2016

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Dated this the 28^th day of July, 2016

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JUDGMENT

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This petition is filed by the petitioner challenging Ext.P5 order on the question of court fee as finding on issue No.1, in O.S.412/2009 on the file of the II^nd Additional Sub Court, Ernakulam under Article 227 of the Constitution of India.

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It is alleged in the petition that the first respondent filed O.S.No.412/2009 on the file of the Sub Court, Ernakulam for declaring his 1/3^rd share in the plaint 'A' schedule property and also allowing the plaintiff's share on 'A', 'B' and 'C' schedule as such. Thereafter he amended the plaint adding certain claims also. The plaint 'B' and 'C' schedule relates to the amount in deposit and gold ornaments respectively. The case of the plaintiff in the plaint was that, the amount shown as 'B' schedule is the amount obtained by sale of the property jointly belonging to him and his father which was deposited in the bank and the first defendant, the present petitioner, had withdrawn the amount and being a co-owner he is entitled to get share in that amount and recovery of the share due to him and also of the movable properties belonging to the parents and he claims share in that movable properties shown as 'C' schedule as well.

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The case of the defendant was that, as regards item 'B' and

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O.P. (C). No.1807 of 2016

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'C' are concerned, it cannot be said to be in joint possession and even as per the allegations in the plaint, the plaintiff is out of possession of those articles and as such the court fee will have to be paid as regards those items under section 37(1) of Kerala Court Fees and Suit Valuation Act or at ad valorem rate on the basis of the value of the articles. The issue was raised regarding the question as to whether the court fee paid is correct or not and after hearing both sides, as per the present impugned order, court below found that the court fee paid is correct, that is being challenged by the petitioner.

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Considering the nature of question raised, this court felt that this can be disposed of at the time of admission stage itself after hearing the counsel for the petitioner Sri.George K. Varghese.

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The counsel for the petitioner submitted that even as per the allegations, the property jointly belonging to the plaintiff and their father was sold and the amount obtained and deposited was withdrawn by the first defendant. So it is virtually a suit for recovery of amount and as such the suit ought to have been for the recovery of the amount and court fee ought to have been paid on that basis.

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He has also submitted that as regards the movables are concerned, even according to him 'C' schedule properties are with the petitioner herein which was denied by him. So he is out of possession

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O.P. (C). No.1807 of 2016

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of those items. So he will have to pay court fee under section 37(1) of the Court Fees Act on the basis of the value of the amount to be recovered and the value of the articles shown.

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The suit was one filed by the plaintiff for partition of the plaint 'A', 'B' and 'C' schedule properties. Plaint 'A' schedule property is an immovable property which belonged to their mother and the first defendant and he want to declare his 1/3^rd share in the property. As regards plaint 'B' schedule amount is concerned, the allegation was that the amount represents the sale proceeds of the joint property held by him and his father which was sold and deposited in the bank and he wants his half share in the amount and also 1/3^rd share from his share of the father in the amount.

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As regards the 'C' schedule movables are concerned, his case was that the movable properties belonging to the parents and after their death, he is also entitled to get his share in these movable properties. It is true that the amount was withdrawn by the first defendant and the ornaments are with the first defendant according to the plaint allegations itself. But the allegation in the plaint is that all these properties are joint properties and the plaintiff is having right in the property which has to be partitioned among the legal heirs of the siblings. So the purpose of payment of the court fee is under section

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O.P. (C). No.1807 of 2016

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37(1) or 37(2), the allegations in the plaint have to be taken as paramount consideration. So the court below was perfectly justified in coming to the conclusion that though the property was said to be in the possession of the first defendant, that will not change the character of a joint ownership and for the purpose of paying court fee, the plaint allegations alone need be considered. If that be the case, the plaintiff's case was that, all these properties are joint properties and he wants his share to be obtained through court. Whether the properties out of possession etc., are matter for evidence. So prima facie , the court below was perfectly justified in coming to the conclusion on the basis of the allegations in the plaint that the court fee paid is correct under section 37(2) of the Kerala Court Fees and Suit Valuation Act and that finding does not call for any interference at this stage.

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Ultimately on the basis of evidence, the grievance of the petitioner was that, if it is found the plaintiff is out of possession and the suit ought to have been filed for realization of the amount, the question of limitation will arise and in view of the finding on issue No.1, court below will not consider the same. All those matters are to be considered by the court on the basis of evidence and independent finding has to be arrived at on that basis, especially when the defendant had raised the question of limitation regarding recovery of

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O.P. (C). No.1807 of 2016

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the amount, which is said to be withdrawn by him in the written statement. So the apprehension of the petitioner at this stage is without any merit.

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With the above observation the petition is disposed of. Office is directed to communicate this judgment to the court below at the earliest.

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Sd/- (K. Ramakrishnan, Judge)

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//True Copy//

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P.A. to Judge

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Dr. Alexander Thomas v. Mathew Alexander

Case brief

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Dr. Alexander Thomas v. Mathew Alexander

Case brief

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