A co-owner under the law she is presumed to be in constructive possession of the property and as such court fee is to be paid on the deemed market value and not on actual market value

Citation

CDJ 2006 SC 950

Jagannath Amin vs Seetharama(died) by Lrs and others

Head note

Karnataka Court Fee and Suit Valuation Act, 1958 - Section 35(1), Section 35(2) - Suit for partition relating to agricultural land - Appellant contended before the trial court that being a co-owner under the law she is presumed to be in constructive possession of the property and as such court fee is to be paid on the deemed market value and not on actual market value. Plaint scheduled property being agricultural property as such court fee is valued under Section 7(2)(d) of the Act and she cannot be compelled to value the said under Section 35(1) of the Act being a co-owner in respect of the plaint scheduled property along with the defendants. Defendants took the stand that the property is not agricultural property and is a house site and as such court fee under Section 35(1) of the Act is to be paid on the actual market value and not on deemed market value - The trial court held that Section 35(1) of the Act was applicable and not Section 35(2) of the Act. The same was challenged by the appellant before the High Court. The High Court dismissed the revision petition. The High Court held that though it is true that there is a graded scale under Section 35(2) of the Act which applies to partition suits etc. the trial court had "perhaps" rightly gone into special requirements and has concluded that Section 35(1) would apply to the facts of the present case - In view of what has been stated in M/s Commercial Aviation's case (AIR 1988 SC 1636) and Neelavathi's case (AIR 1980 SC 691) the view of the trial judge as affirmed by the High Court cannot be sustained - The order of the High Court is set aside.

Para 8 to 10

Cases Referred:
1. T.K. Srinivasamurthy & Ors. v. T. Seetharamaiah and Ors., AIR 1990 Kar. 149. (Relied) [Para 7]
2. Commercial Aviation and Travel Company and Others v. Mrs. Vimla Pannalal, AIR 1988 SC 1636. (Relied) [Para 8]
3. Neelavathi and Ors. v. N. Natarajan and Others, AIR 1980 SC 691. (Relied) [Para 9]

Comparative Citations:
2006 (10) JT 397, 2007 (1) SCC 694, 2006 AIR(SCW) 6351, 2006 (11) Scale 599, 2006 (8) Supreme 863, 2007 (1) CalHN 39, 2007 (1) KCCR 358, 2007 (2) SRJ 44, 2007 (4) SLT 254