1. Petitioners are the defendant Nos.1 to 3 in O.S. No. 268/2016 filed by respondent-plaintiff for relief of partition and separate possession of his 1/4th share and for enquiry into mesne profits in respect of 7 items of suit schedule properties.

2. The contention of the respondent-plaintiff in the suit is that the suit schedule properties belonged to one Dr. T. Thimmaiah, who is none other than the father of the petitioners-defendants and the respondent-plaintiff herein and that the said Dr. T. Thimmaiah passed away on 17.08.2014 leaving behind the respondent/plaintiff and the petitioners/defendants as his class-I heirs each being entitled for 1/4th share therein.

3. The suit is valued under sub-section (2) of Section 35 of the Karnataka Court Fee and Suit Valuation Act, 1958 and the fixed Court fee as contemplated thereunder has been paid. Written statement has been filed by the petitioners-defendants raising various contentions including the valuation made by the plaintiffs and the Court fee paid therein. The primary contention raised as regards the Court Fees is concerned, lack of pleading in the plaint by the respondent/plaintiff regarding he being in joint possession of the suit properties. It is contended that suit ought to have been valued under subsection (1) of Section 35, since joint possession is not pleaded.

4. The Trial Court framed the issues. Additional issue No.1 is with regard to contention raised by the petitioners/defendants with regard to sufficiency of the Court Fee paid by the respondent/plaintiff on the plaint. It appears upon the request made by the petitioners/defendants, the said issue was tried as a preliminary issue, evidence was led in and by the impugned order the Trial Court answered the said issue in the negative, holding that the Court Fee paid by the respondent/plaintiff under sub-section (2) of Section 35 of the Karnataka Court Fee and Suit Valuation Act, 1958 was proper and sufficient. Being aggrieved by the same, petitioners/defendants are before this Court.

5. Learned counsel for the petitioners/defendants appearing through video conferencing taking this Court through the records and also the plaint averments and relying upon the provisions of Section 11 of the Karnataka Court Fee and Suit Valuation Act, 1958 vehemently submits that when it comes to the issue with regard to payment of Court fee, it is mandatory on the part of the Court to adjudicate the same at the first instance upon the sufficiency of Court fee before proceeding further in the matter. He submits that the legislation being clear in this aspect of the matter there cannot be any leniency and no discretionary exercise of power can be shown under the circumstances. He refers to the judgment of the Hon'ble Apex Court in the case of Municipal Corporation Gwalior Vs. Puran Singh and others reported in (2015) 5 SCC 725 pointing out to paragraph No.17 of the said judgment, he insists that unless and until plaintiffs categorically and explicitly aver that he is in joint possession of the property, the valuation cannot be contemplated as done in the instant case. He further submits that the petitioners/defendants has not been heard and the Trial Court has disposed of the said issue during the Covid19 pandemic period and the petitioners herein were not provided sufficient opportunity to canvass their case effectively. Hence seeks for setting aside of the impugned order.

6. Per contra, learned counsel for the respondent-plaintiff refers to paragraph No.6 of the plaint and also to the contents of valuation slip. He submits plaintiff is claiming his share in the property in terms and in furtherance to the provisions of Section 8 of the Hindu Succession Act, 1956, being the class-I heir, which right he gets upon the demise of his father. He submits that in any case in the valuation slip plaintiff has specifically averred of he being in joint possession of the property. He also refers to the deposition of the defendant No.2 recorded on 17.01.2020, wherein it is admitted that in the valuation slip column No.4 it is stated that the plaintiff and defendant Nos.1 to 3 were in joint possession and enjoyment of the suit schedule properties.

7. Learned counsel for the respondent-plaintiff further relies upon the by Judgment of Full Bench of this Court in the case of Venkatesh R. Desai Vs. Smt. Pushpa Hosmani and others reported in AIR 2019 KAR 47. Thus relying upon the above learned counsel submit that no error or illegality can be found with the order passed by the Trial Court warranting interference at the hands of this Court.

8. Heard and perused the records.

9. Issue in controversy is limited with regard to the valuation of the suit; there is no dispute with regard to the relationship between the parties; that they being the legal heirs of Dr. T. Thimmaiah. The case of the respondent/plaintiff is that suit schedule properties belonged to said Dr. T. Thimmaiah and the respondent/plaintiff and the petitioners/defendants being the legal heirs became entitled for equal share therein, upon his demise on 17.08.2014. Though various contentions are taken up by the defendants with regard to the very claim of the plaintiff of the property belonging to said Dr. T. Thimmaiah, as regards the court fee is concerned, it is vehemently contended that the plaintiff has not averred in the plaint that he being in joint possession of the property enabling him to value the suit under sub-section (2) of Section 35 of the Karnataka Court Fee and Suit Valuation Act, 1958. Heavy reliance is placed by the learned counsel for the petitioners/defendants on to Section 11 of the Karnataka Court Fee and Suit Valuation Act, 1958 as well as to the paragraph No.17 of the judgment of the Hon'ble Apex Court in Municipal Corporation Gwalior (Supra).

10. Before adverting to the said contentions, it is appropriate to refer to the judgment passed by the Full Bench of this Court in the case of Venkatesh R. Desai (supra). Questions involved in the said judgment is with regard to interpretation of provisions of Section 11 of the Karnataka Court Fee and Suit Valuation Act, 1958, that is whether the issue arising in respect of payment of the Court fee has to be tried as a preliminary issue or could it be tried along with other issues in all the cases and every circumstances After adverting to various judgments of the Hon'ble Apex Court on the issue involving to the payment of Court fee to be determined under Section 11 of the Act, 1958, At paragraph No.35 the Full Bench of this Court has arrived at the following conclusion:

35. Accordingly, and in view of the above, we are clearly of the view that by virtue of Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958 read with Order XIV, Rule 2 of the Code of Civil Procedure, 1908, when an issue of valuation and/or court fees is raised in a civil suit on the objection of the defendant, the same is not invariably required to be tried as a preliminary issue and before taking evidence on other issues; but could be tried as a preliminary issue if it relates to the jurisdiction and the Trial Court is of the view that the suit or any part thereof could be disposed of on its determination. The reference stands answered accordingly.

11. It is necessary also to refer to Section 11 of the Act, 1958 which reads as under:

11. Decision as to proper fee in courts

(1) In every suit instituted in any 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.

(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 court's 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.

(3) A defendant added after issues have been framed on the merits of the claim may, in the written statement filed by him, 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, and if the court finds that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the court shall follow the procedure laid down in sub-section.

(2).Explanation. - Nothing in this sub-section shall apply to a defendant added as a successor or a representative in interest of a defendant who was on record before issues were framed on the merits of the claim and who had an opportunity to file a written statement pleading that the subject-matter of the suit was not properly valued or t hat the fee paid was not sufficient.

(4) (a)Whenever a case comes up before a court of appeal, it shall be lawful for the court, either on its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower court affecting the fee payable on the plaint or in any other proceeding in the lower court and determine the proper fee payable thereon.

Explanation. - A case shall be deemed to come before a court of appeal even if the appeal relates only to a part of the subject-matter of the suit.

(b)If the court of appeal decides that the fee paid in the lower court is not sufficient, the court shall require the party liable to pay the deficit fee within such time as may be fixed by it.

(c)If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower court, the deficit fee shall be recoverable as if it were an arrear of land revenue.

(d)If the fee paid in the lower court is in excess, the court shall direct the refund of the excess to the party who is entitled to it.

(5) All questions as to value for the purpose of determining the jurisdiction of courts arising on the written statement of a defendant shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim.

Explanation. - In this section, the expression "merits of the claim" refers to matters which arise for determination in the suit, not being matters relating to the frame of the suit, misjoinder of parties and causes of action, the jurisdiction of the court to entertain or try the suit or the fee payable, but inclusive of matters arising on pleas of resjudicata, limitation and the like.

12. The aforesaid conclusion arrived at by the Full Bench of this Court read in the light of Section 11 of the Act, 1958 makes it clear that it is not in every case the issue with regards to the payment of court fee has to be tried as a preliminary issue. It is clear as and when the issue of payment of Court fee would go to the root of pecuniary jurisdiction of the Court trying the suit, necessary that such issue shall be adjudicated as a preliminary issue. If the Court has unlimited pecuniary jurisdiction, such issue even if it is on the question of payment of the Court fee, can be tried along with the other issues involved in the suit is the conclusion arrived at.

13. Facts of the present case read in the light of the aforesaid judgment makes it clear that the suit which is pending consideration before the Trial Court, which is having unlimited pecuniary jurisdiction is not disable to take up the matter with regard to the issue of payment of court fee along with other issues. More particularly, when the complexity of the matter is putforth in the written statement denying the very claim of the respondent/plaintiff of the suit schedule properties being the exclusive property of his father. It is only thereafter the valuation could be arrived at by the Court.

14. Though in the instant case, the Trial Court has held that the Court fee has been paid sufficient, in view of the fact that the respondent/petitioner claimed that he was not given sufficient opportunity of being heard and also in view of the fact that the averments made by the petitioners/defendants to the nature of the property, may also have to be taken into consideration with regard to the Court fee. This Court is of the considered view that the impugned order be set aside and the Trial Court be directed to consider the said issue along with the main/other issues providing an opportunity to the petitioners/defendants to advert to their case during the trial.

15. Reliance placed on by the learned counsel for the petitioner to the judgment of the Hon'ble Apex Court in the case of Municipal Corporation Gwalior (supra) at paragraph No.17 is inapplicable inasmuch as the said judgment has been rendered in the context of a claim to a joint family property. Invariably, in a suit for joint family property averment with regard to joint possession is indispensable. In the instant case as noted above the plaintiff has filed the suit seeking relief claiming to be the class-I heir under Section 8 of the Hindu Succession Act. Relevant also to refer to the judgment of the Hon'ble Apex Court in the case of Jagannath Amin Vs. Sitaram dead by Lrs reported in 2007 1 SCC 694, wherein at paragraph No.8 the Hon'ble Apex Court has held as under:

8. ….. The general principle of law is that in the case of co-owners, the possession of one is in lawpossession of all, unless ouster or exclusion is proved. To continue to be in -joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiff had been excluded from possession.

16. Thus possession of one co-owner is the possession of other is sufficient in law in the instant case since the suit is one under Section 8 and in the absence of any averments with regard to exclusion of the plaint if, this Court do not see the necessity of adverting to said issue, the same is left at this juncture to be adjudicated by the Trial Court while determining the issue along with the other issues.

17. With the above observation, following:

ORDER

(i). Petition is disposed of.

(ii). Impugned order dated 12.03.2020 produced at Annexure-A passed by the Trial Court is set-aside.

(iii). The matter is remitted to the Trial Court to reconsider the said issue along with other main issues.

(iv). This order is restricted only to the extent of determination of issue on Court Fee as a preliminary issue. No opinion with regard to merits of the case is expressed in this case.

(v). Parties are at liberty to raise all contentions as may be available under law before the Trial Court.

(vi). Since this matter is pending consideration from the year 2016, the Trial Court shall dispose of the matter as expeditiously as possible within an outer limit of one year from the date of receipt of certified copy of this order.

(vii). Parties shall co-operate in disposing the matter expeditiously without seeking any unnecessary adjournment in the matter.

(viii). All the pending I.A's are disposed of with liberty to the parties to file such applications before the Trial Court. Parties are at liberty to seek such interim relief as may be available under law.