P S Jameela Vs Muhammed Sherif

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OPC 932/25

2025:KER:29101

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE BASANT BALAJI

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WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947

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OP(C) NO. 932 OF 2025

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IN OS NO.32 OF 2016 OF ASSISTANT SESSIONS COURT/SUB COURT /
COMMERCIAL COURT, THODUPUZHA

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PETITIONER/S:

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P S JAMEELA
AGED 69 YEARS

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W/O MUHAMMED BAHSEER, VENGALLOOR KARA, KUMARAMANGALAM
VILLAGE, TODUPUZHA TALUK, PIN - 685608

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BY ADVS.

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ESM.KABEER
C.SHEEBA

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RESPONDENT/S:

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1 MUHAMMED SHERIF, S/O MUHAMMED ALI, CHARUVILPURAYIDATHI HOUSE,VAKAYAR P.O, KONNIT TALUK, VALLIKODE, PATHANAMTHITTA, PIN - 689698

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2 AISHA SAJI, W/O SAJI GEORGE, MANJATTETHU HOUSE, VAKAYAR P.O, KONNI TALUK, VALLIKODE, PATHANAMTHITTA, PIN - 689869

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3 SULEKHA M, AGED 62 YEARS W/O SHAJAHAN, CHARUVILPURAYIDATHIL HOUSE, VAKAYAR P.O, KONNI TALUK, VALLIKODE, PATHANATHITTA, PIN - 689698

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BY ADVS.
ABDUL SALAM T I
C.K.VIDYASAGAR(V-207)
K.R.MONISHA(K/915/2013)

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OTHER PRESENT:

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SRI VIDYASAGAR C K

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2025, THE COURT

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ON THE SAME DAY DELIVERED THE FOLLOWING:

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OPC 932/25

2025:KER:29101

JUDGMENT

(Dated this the 2^nd day of April 2025)

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The petitioner is the defendant and respondents are the plaintiffs in O.S.No.32 of 2016 on the files of the Sub Judge, Thodupuzha. The suit is filed claiming partition and separate possession of ¾ share in plaint A schedule property.

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The plaint schedule property belongs to the husband of the petitioner, who passed away on 24.7.2015. The respondents claimed that they are the mother and siblings of late Mohammed

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Basheer. The petitioner herein filed I.A. No.1 of 2025 contending that fixed court fee remitted by the plaintiffs/respondents herein, is insufficient and they are liable to remit court fee u/s 37(1) of the Kerala Court Fees and Suit Valuation Act, 2016 (for short ‘the Act’), as the respondents are not the legal heirs of the deceased husband of the petitioner.

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The respondents filed a counter affidavit to the petition

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3

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OPC 932/25

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2025:KER:29101 as Ext.P4. The averments in the counter affidavit are that on the

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death of the petitioner’s husband, the respondents became co-

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owners of the property and in joint possession, along with the petitioner. The Sub Judge dismissed the application as per Ext.P5. Petitioner prays to set aside Ext.P5 and for a direction to

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keep in abeyance all proceedings in the suit till the relationship of

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the respondents with the petitioner’s husband is proved through documentary evidence.

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Sri.Vidyasagar entered appearance for all the

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respondents.

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The question to be decided is whether the court fee remitted by the respondents is proper or not and whether the court fee has to be calculated u/s 37(1) of the Act.

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The suit is filed by the plaintiffs against the petitioner

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herein, claiming that they are the mother and siblings of late Muhammed Basheer, but admits the fact that the petitioner is the

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4

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OPC 932/25

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2025:KER:29101 wife of the deceased. The claim in the plaint is that on the death of Muhammed Basheer, the plaintiffs became co-owners of the plaint A schedule property having an extent of 20.750 cents and the building. The petitioner’s contention is that the plaintiffs are not the legal heirs of late Muhammed Basheer and therefore, the

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court fee has to be under section 37(1) of the Act.

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The petitioner and Muhammed Basheer had a litigation

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before the Family Court, Thodupuzha as O.P.No.83 of 2007 in respect of plaint A schedule property. The petitioner’s husband filed the petition seeking declaration of his ownership over A Scheule property and B schedule movables. The family court decreed the O.P. in respect of A schedule and rejected B schedule items. The petitioner filed M.A.T.Appeal No.580 of 2010 before this court and the case was remanded to decide the title in respect

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of B schedule. The petitioner filed Civil Appeal Nos.14269 of 2013 and 14217 of 2013 before the Supreme court, which were

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5

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OPC 932/25

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2025:KER:29101 also dismissed. The said plaint A schedule is now sought to be partitioned.

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As per Mohammaden law, when a mohammedan dies, the wife, mother and siblings are entitled to fixed shares. The market value of A schedule is valued and fixed at Rs.1,50,00,000 crores and B schedule at Rs.5,45,000/-. Since the suit is valued under section 37(2) of the Act, a fixed court fee of Rs.50/- is remitted.

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The contention raised by the petitioner is that the since the respondents are not the legal heirs of late Muhammed Basheer, seeking partition and separate possession, the court fee has to be paid under section 37(1) of the Act, as they are excluded from possession of the property and it has to be computed on the market value of plaint schedule property.

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The court below relied on a judgment of this court in Janaki v. Chandran and others (2012 KHC 78), wherein it was

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6

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OPC 932/25

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2025:KER:29101 held that the co-owners need not physically occupy and cultivate

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in respect of a co-ownership property. Mere enjoyment of the use of property by some co-owners is not sufficient to establish exclusion of possession from others. Unless ouster is pleaded and proved, joint possession is presumed.

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As mentioned earlier, the only contention raised is that respondents are not the legal heirs of late Muhammed Basheer. That is a matter for evidence. On a perusal of the plaint, the issue is regarding determination of the court fee to be paid and not the contention raised by the defendant. Having gone through Ext.P5, I am satisfied that the trial court is justified in dismissing the petition, more particularly, when the said application is filed at a highly belated stage, as the suit is of the year 2016.

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For the above reasons, the O.P.(C) is dismissed.

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sd/ BASANT BALAJI, JUDGE

dl/

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OPC 932/25

2025:KER:29101

APPENDIX OF OP(C) 932/2025

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PETITIONER EXHIBITS

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Exhibit P1 TRUE COPY OF THE TRANSFERRED OP NO. 53/2016 OF
THE HON'BLE FAMILY COURT, THODUPUZHA TO SUB
COURT, THODUPUZHA AND RENUMBERED AS OS.NO.32/2016
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE
DEFENDANT/PETITIONER
Exhibit P3 TRUE COPY OF THE IA NO. 1/2025 IN OS NO. 32/2016
OF THE HON'BLE SUB COURT, THODUPUZHA
Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A NO,
1/2025 FILED BY THE RESPONDENTS
Exhibit P5 TRUE COPY OF THE ORDER IA NO. 1/2025 IN OS NO.
32/2016 OF THE HON'BLE SUB COURT, THODUPUZHA
DATED 11-03-2025

P S Jameela v. Muhammed Sherif

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P S Jameela v. Muhammed Sherif

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