Kerala High Court
P S Jameela vs Muhammed Sherif on 2 April, 2025
1
OPC 932/25
2025:KER:29101
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
OP(C) NO. 932 OF 2025
IN OS NO.32 OF 2016 OF ASSISTANT SESSIONS COURT/SUB COURT /
COMMERCIAL COURT, THODUPUZHA
PETITIONER/S:
P S JAMEELA
AGED 69 YEARS
W/O MUHAMMED BAHSEER, VENGALLOOR KARA, KUMARAMANGALAM
VILLAGE, TODUPUZHA TALUK, PIN - 685608
BY ADVS.
ESM.KABEER
C.SHEEBA
RESPONDENT/S:
1 MUHAMMED SHERIF, S/O MUHAMMED ALI, CHARUVILPURAYIDATHI
HOUSE,VAKAYAR P.O, KONNIT TALUK, VALLIKODE, PATHANAMTHITTA,
PIN - 689698
2 AISHA SAJI, W/O SAJI GEORGE, MANJATTETHU HOUSE, VAKAYAR P.O,
KONNI TALUK, VALLIKODE, PATHANAMTHITTA, PIN - 689869
3 SULEKHA M, AGED 62 YEARS
W/O SHAJAHAN, CHARUVILPURAYIDATHIL HOUSE, VAKAYAR P.O, KONNI
TALUK, VALLIKODE, PATHANATHITTA, PIN - 689698
BY ADVS.
ABDUL SALAM T I
C.K.VIDYASAGAR(V-207)
K.R.MONISHA(K/915/2013)
OTHER PRESENT:
SRI VIDYASAGAR C K
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2025, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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OPC 932/25
2025:KER:29101
JUDGMENT
(Dated this the 2nd day of April 2025)
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.
2. 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
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.
3. The respondents filed a counter affidavit to the petition
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as Ext.P4. The averments in the counter affidavit are that on the
death of the petitioner's husband, the respondents became co-
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
keep in abeyance all proceedings in the suit till the relationship of
the respondents with the petitioner's husband is proved through
documentary evidence.
4. Sri.Vidyasagar entered appearance for all the
respondents.
5. 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.
6. The suit is filed by the plaintiffs against the petitioner
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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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
court fee has to be under section 37(1) of the Act.
7. The petitioner and Muhammed Basheer had a litigation
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
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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also dismissed. The said plaint A schedule is now sought to be
partitioned.
8. 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.
9. 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.
10. 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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held that the co-owners need not physically occupy and cultivate
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.
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.
For the above reasons, the O.P.(C) is dismissed.
sd/
BASANT BALAJI, JUDGE
dl/
2025:KER:29101
APPENDIX OF OP(C) 932/2025
PETITIONER EXHIBITS
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
