Madras High Court
N.Paramasivam vs Sivabaggiam on 3 February, 2023
CRP.No.2904 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRP.No.2904 of 2016 and
CMP.No.14776 of 2016
N.Paramasivam ... Petitioner
Vs.
1.Sivabaggiam
2.N.Duraisamy
3.Nallammal ... Respondents
PRAYER: Civil Revision petition is filed under Article 227 of the Constitution
of India to set aside the fair and decretal order dated 25.09.2015 in IA.No.172
of 2014 in OS.No.4 of 2014 on the file of the Principal District Court,
Namakkal.
For Petitioner : Mr.S.Kalyanaraman
For Respondents
For R1 : No appearance
ORDER
This civil revision petition has been filed to set aside the fair and
decretal order dated 25.09.2015 in IA.No.172 of 2014 in OS.No.4 of 2014 on
the file of the Principal District Court, Namakkal, thereby dismissed the
application to decide the issue on court fee on merits as preliminary issue.
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CRP.No.2904 of 2016
2. Though notice was served, no one appeared on behalf of the first
respondent before this Court in person or through pleader.
3. The petitioner is the first defendant in the suit filed by the first
respondent herein for partition and separate possession. The case of the first
respondent is that she is in constructive possession of the schedule properties
and valued the suit under Section 37(2) of the Court Fees Act. While pending
the suit, the petitioner filed application to decide the issue on court fee on merits
as preliminary issue for the reason that the first respondent got married in the
year 1959 and she is living with her husband after her marriage. The specific
averments made in the plaint is that the suit properties are the ancestral
properties of one, Nalliya Gounder i.e. the father of the petitioner and the first
respondent herein. He died intestate on 12.12.1995. While he was alive, he had
executed registered Will dated 07.02.1990 in favour of the petitioner herein and
some of the property in favour of the second respondent herein. After his
demise, the petitioner and the second respondent herein acquired the properties
as per the Will dated 07.02.1990 and 25.10.1995 and they are in possession and
enjoyment of the said property. Therefore, the first respondent is never in
possession of the suit properties. When the first respondent is not in possession
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CRP.No.2904 of 2016
and enjoyment of the suit property, she has to value the suit property under
Section 37(1) of Tamilnadu Court Fees and Suits Valuation Act, 1955 for the
purpose of paying the court fees. However, the court below dismissed the
application for the reason that the issue on court fee cannot be decided at this
initial stage since the first respondent herein is denying the Will and stated that
unless the Will stands proved as not true, only then, the first respondent will be
entitled to her share.
4. In this regard, the learned counsel for the petitioner relied upon the
judgment of this Court in the case of S.N.S.Sukumaran Vs. C.Thangamuthu
reported in 2012 (5) CTC 705, in which this Court held as follows:
20. Section 12 of the Tamil Nadu Court Fees and Suits
Valuation Act, 1955 reads as under :-
“12. Decision as to proper fee in other courts.
(1) In every suit instituted in any court other than the
High Court, the Court shall, before ordering the plaint to be
registered, decide on the materials and allegations contained in
the plaint and on the materials contained in the statement, if
any, filed under Section 10, the proper fee payable thereon, the
decision being however subject to review, further review and
correction in the manner specified in the succeeding sub-
Sections.
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CRP.No.2904 of 2016
(2) Any defendant may, by his written statement filed
before the first hearing of the suit or before evidence is recorded
on the merits of the claim but, subject to the next succeeding
sub-Section, not later, plead that the subject matter of the suit
has not been properly valued or that the fee paid is not
sufficient. All questions arising on such pleas shall be heard and
decided before evidence is recorded affecting such defendant, on
the merits of the claim. If the court decides that the subject
matter of the suit has not been properly valued or that the fee
paid is not sufficient, the court shall fix a date before which the
plaint shall be amended in accordance with the courts decision
and the deficit fee shall be paid. If the plaint be not amended or
if the deficit fee be not paid within the time allowed, the plaint
shall be rejected and the court shall pass such order as it deems
just regarding costs of the suit.
5. Thus, it is clear that before the first hearing of the suit or before
evidence is recorded, in respect of the valuation of the suit property and
payment of court fee shall be heard before evidence is recorded. In the case on
hand, the specific stand of the petitioner is that already the suit properties were
bequeathed by his father in favour of him and the second respondent herein by
the registered Wills dated 07.02.1990 and 25.10.1995. Further the first
respondent also got married and she is living with her husband. Therefore, in
order to provide valuation of the suit and proper payment of court fees, the issue
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CRP.No.2904 of 2016
has to be decided as preliminary issue as per Section 12 of the Tamilnadu Court
Fees and Suits Valuation Act.
6. In view of the above, this Court finds infirmity in the order passed
by the court below and the same is liable to be set aside. Accordingly, the fair
and decretal order dated 25.09.2015 in IA.No.172 of 2014 in OS.No.4 of 2014
on the file of the Principal District Court, Namakkal is set aside and this civil
revision petition is allowed. The application in IA.No.172 of 2014 is allowed
and the trial court is directed to decide “the valuation of the suit property and the
court fees issue” as preliminary issue on merits and thereafter decide the suit on
merits and in accordance with law. Consequently, connected miscellaneous
petition is closed. There shall be no order as to costs.
03.02.2023
Index :Yes/No
Internet : Yes/No
Speaking order/non-speaking order
lok
G.K.ILANTHIRAIYAN, J.
lok
https://www.mhc.tn.gov.in/judis
CRP.No.2904 of 2016
To
The Principal District Court, Namakkal.
CRP.No.2904 of 2016
03.02.2023
https://www.mhc.tn.gov.in/judis
