Full Judgment
1. The petitioners being aggrieved by the order dated 25-11-1993 in O.S. No. 7 of 1992 on Issue No. 11, have filed this revision challenging its legality and correctness.
2. The petitioner 1 is the wife of the respondent 3 and the petitioners 2 and 3 are their children. That both the petitioners and respondent 3 were staying together till few years prior to the suit. The relationshipbetween petitioner 1 and respondent 3 could not be cordial. Hence the respondent 3 started to stay separately since few years. Just to deprive the petitioners of their lawful right over the joint family property, the respondent 3 began to dispose of the family property. As such O.S. No. 7 of 1992 came to be filed for partition and injunction.
3. Mr. Mogali, learned Counsel for the petitioners submitted that the learned Civil Judge has wrongly approached the case and he has called upon the petitioners to pay the Court fee on the ad valorem of the suit schedule property. On the other hand Mr. D.M. Kulkarni, learned Counsel for the respondents supported the order of the lower Court.
4. Mr. Mogali, learned Counsel for the petitioners relied upon the decision in the case of A. Gopinath v K. Ramalingam and Others, wherein it is held as follows:
'Karnataka Court Fees and Suits Valuation Act, 1958, Section 35(1) -- Partition suit -- Joint family properties -- Payment of Court fee -- Excluded from possession -- Meaning -- Not necessary that plaintiff should be in actual possession of whole or part of the property -- Explained.
HELD: The claim of the plaintiff in the suit is that he is entitled to a share in the undivided joint family properties. In such a case the possession of one in law is possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that plaintiff should be in actual possession of the whole or part thereof. Unless it is shown that he is excluded from such possession, it cannot be said that the plaintiff has to pay ad valorem Court fee under Section 35(1) of the Act'.
4. In the present case, the petitioners have claimed partition of the suit schedule property and sought for injunction against the defendants 1 and 2. Mr. Mogali, learned Counsel for the petitioners submitted that yet the defendant 3-respondent 3 has not filed his written statement. According to him there is sham transaction between the defendants 1 and 2 and defendant 3. Now it is to be seen in view of the decision stated above whether Section 35(1) of K.C.F. and S.V. Act applies or Section 35(2) of K.C.F. and S.V. Act applies. In the instant case, the petitioners have only sought for partition and injunction. They have paid the Court fee of Rs. 200/- for the relief of injunction under Section 35(2). The learned Civil Judge has approached the case wrongly. The case cited above squarely applicable to the case on hand. By going through the order of the learned Civil Judge, I am left with no option otherwise than reversing the impugned order. The petitioners since they claim partition and injunction, they are required to pay the Court fee only under Section 32(2) of K.C.F. and S.V. Act and there is no material to show that they have been ousted or excluded the suit schedule property. Hence the following order.
In the result, the petition is allowed and the impugned order is set aside.