Judgment:
ORDER
K. Govindarajan, J.
1. The plaintiffs 1 and 2, who aggrieved by the order of the trial court, directing them to pay the court fee on the basis of the market value of the property, are the revision petitioners.
2. The second petitioner and the first respondent are the sons of the first petitioner and the second respondent is the father of the first petitioner. The petitioners and the first respondent entered into an agreement dated 14.12.1992 to effect partition of the suit properties among themselves. According to the plaintiffs in O.S. No. 132 of 1993 it was agreed that the registration of the said partition should be done on or before 13.3.1993, and in pursuance of the said agreement the parties took possession of the property. Since the said partition deed was not executed and registered by the defendants in O.S. No. 132 of 1993, the plaintiffs filed the said suit O.S.No. 132 of 1993 on the file of the Subordinate Court, Gobichettipalayam praying for a decree for specific performance of the agreement dated 14.12.1992. In para 8 of the plaint, the plaintiffs have stated the particulars regarding court fee as follows :-
'Value for the purpose of court fees and jurisdiction in Rs. 9,25,000 and a court fee of Rs. 200 is paid under Section 53 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955.
Details of valuation
Value of the 'A' Schedule Rs. 2,50,000.00Value of the 'B' Schedule Rs. 6,75,000.00 Since the relief of specific performance to execute a partition deed is not provided for court fee is paid under Section 53 of the Court Fees Act'.
3. On 5.1.1996 the trial court called upon the plaintiffs to pay the court fee under Section 42(e) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, on the basis of the value of the properties allotted to the shares of the plaintiffs 1 and 2, as per agreement dated 14.12.1992. The plaintiffs filed their objections for the court fee check report. After considering the objections of the plaintiffs, the lower court directed the plaintiffs to pay the court fees under Section 42(e) of the Act of Rs. 9,25,000, being the value of the shares allotted to the petitioners herein. Aggrieved against that order, the petitioners have filed the above revision petition.
4. For the purpose of the court fee, the court has to look at the plaint. Court fee has to be paid according to the nature of the suit. The plaintiff, as per Section 10 of the Act shall file with the plaint, a statement in the prescribed form mentioning the particulars of the subject matter of the suit and the valuation thereof, unless such particulars and valuation are contained in the plaint. In the present case the plaintiffs have given the details about the valuation in paragraph 8 of the plaint as stated above.
5. The learned Government Advocate Mr. V. Srikanth has submitted that the suit is for specific performance, and the suit has to be valued as per the details given in the plaint. Section 42(e) of the Act speaks about the market value of the properties. If a property has a market value, the court fee should be paid on that market value.
6. The present suit is filed by the co-owners against other co-owner. Pursuant to the agreement dated 14.12.1992 each co-owners had taken possession of their respective shares. The only purpose for which the present suit is filed is mat the partition should be recorded in writing as per the agreement dated 14.12.1992, by executing the said document and to register the same by getting a decree for specific performance. There is no dispute that the present suit would fall under Section 42(e) of the Act for the purpose of court fee. Section 42(e) reads as follows :-
'Section 42. Suits for specific performance :-
In a suit for specific performance, whether with or without possession fee shall be payable -
(a)............
(b)............
(c)...........
(d)............
(e) In other cases where the consideration for the promise sought to be enforced has a market value computed on such market value, or where such consideration has no market value at the rates specified in section so.'
7. Now, the only dispute is whether any consideration was passed on under the agreement between the parties and if it is so, whether it has any market value. At the risk of repetition I may mention that the suit is only between the co-owners and they took possession of their respective shares pursuant to the agreement dated 14.12.1992. The 'consideration' has been defined in Section 2(d) of the Indian Contract Act as follows :-
'When, at the desire of the promisor, the promise or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such Act or abstinence or promise is called a consideration for the promise '.
8. So, when at the desire of the promisor, the promise has done something, such Act is called a consideration for the promise. In the present case the promise is to execute and register the document under which the parties want to record the division of their own properties. It is settled principle that no transfer is involved in a partition action, as it is only severance of joint status. Once a division of the properties by metes and bonds has taken place as between the members of a co- parcenary and the parties takepossession as exclusive owners of their respective items allotted to them, such a partition assumes a division in status having taken place between the parties. This has happened in the present case. The plaintiffs wanted to record the same by way of a document.
9. It is stated in the plaint that the agreement dated 14.12.1992 was entered into, so as to partition the suit properties as per the desire and direction of the third plaintiff and with the help of panchayatdars. An amicable settlement between the parties at the instance of the elders to avoid further dispute is itself a consideration for such an agreement. Such a consideration cannot have any value in terms of Section 42(e) of the Act. So, the petitioners are correct in saying that the court fee paid already is in accordance with the provisions of the Tamil Nadu Court Fees and Suits Valuation Act. On that basis, the learned counsel for the petitioners has rightly submitted that the order of the lower court is not sustainable in law.
10. For the foregoing reasons, this revision petition is allowed, and the order of the trial court dated 8.4.1996 is set aside. There will be no order as to costs. Consequently, C.M.P. No. 14388 of 1996 is dismissed.