AIR 2012 KERALA 84 ::2012 (1) Ker LT 481 ::2012 (1) Ker LJ 489

Kerala High Court

Hon'ble Judge(s): K. T. Sankaran , J

Kerala Court-fees and Suits Valuation Act (10 of 1960) , S.37(2)— Suit for partition - Court fees - Specific averment in plaint was that plaintiff was in joint possession of suit property with other co-shares - Ouster or exclusion from possession not shown - Plaintiff not liable to pay ad valorem court fee under S. 37 (1) - Payment of fix Court fees under S. 37(2), proper. In the suit for partition, the specific averment in the plaint is that the plaintiff is in joint possession of the property. An averment that the income is being taken by some of the co-sharers is not equivalent to an averment that the plaintiff was excluded from possession of the property. In the case of a joint family property or a co-ownership property, there may be several sharers. It is not necessary that all the sharers should actually posses, cultivate and take the income. Some of the sharers may be employed elsewhere in the country or some may be working abroad. That does not mean that they have been excluded from possession of the property in which they have shares. What is meant by "excluded from possession" under Section 37(1) of the Court Fees Act is something akin to denial of the right of the plaintiff in the property and a consequential exclusion from possession. Possession by some of the co-owners and enjoyment of the property by them alone is not sufficient to constitute e....