Order/Judgment:

1. The Civil Revision Petition and Original Petition arise out of O.S.No.97 of 2022 filed by the respondents herein. The petitioner/defendant had filed IA No.13 of 2025 seeking to reject the plaint and the said petition was dismissed by order dated 16.10.2025. The order in I.A.No.13 of 2025 has been challenged in the Civil Revision Petition. The petitioner had also filed an application complaining of insufficiency of the court fee and improper valuation. By order dated 16.10.2024, the trial court found that the court fee paid under Section 37(2) of the Kerala Court Fees and Suits Valuation Act is sufficient. The above order has been challenged in the original petition and copy of the order has been produced as Exhibit P6 in the original petition.

2. The properties originally belonged to the father of the petitioner and respondents. According to the respondent, the deceased father had executed a registered Will No. 1570 of 2003 and a codicil No.8561 of 2003 whereby the petitioner and his mother were entitled to the properties. The respondents were excluded under the Will. The above said documents were registered in Bombay. The respondents contended that their mother had executed a Will regarding her share in the property in favour of the respondents on 14.10.2015. The father of the petitioner and respondents had died on 26.07.2007. After the death of their mother, the respondents sought partition and when it was refused, the suit was filed by the respondents.

3. According to the petitioner, the father of the petitioner had executed a Will as Document No.251 of 1994, which had been registered in the Sub Registrar's Office, Kottappadi, whereby the properties were bequeathed in favour of the sons of the petitioner. The petitioner further submits that after the death of his father, his children had settled the properties in his favour as per Document No.1844 of 2008 dated 14.07.2008. He has further submitted that the mother of the petitioner had filed O.S.No.818 of 2008 seeking partition of the properties and the suit was dismissed on 14.10.2016. It is hence submitted that the present suit filed by the daughters claiming on the basis of a Will stated to have been executed by their mother on 14.10.2015 is liable to be rejected since the earlier suit was dismissed as not passed without reserving any right to file a fresh suit. It is also contended that going by the averments in the plaint filed by the respondents, the respondents were admittedly not in possession of the properties and hence court fee had to be paid based on the market value. Both the contentions were rejected by the trial court.

4. Heard Sri M.P. Ramnath, counsel for the revision petitioner in C.R.P.No.373 of 2025 and for the petitioner in O.P. (C)No.2658 of 2025 and Sri T.K. Asokan, counsel for the respondents in C.R.P.No.373 of 2025 and O.P.(C)No.2658 of 2025.

5. The counsel for the petitioner relied on the decision of this Court in Hameed v. Abdullah Haji [2007 (3) KLT 840] to submit that for determination of the court fee payable, all that is required is to look into the averments in the plaint and since the plaint itself specifically says that the plaintiffs are out of possession, ad valorem court fee under Section 37(1) has to be paid. Another contention taken is that a decision regarding the court fee has to be made before the trial of the suit.

6. As far as original petition is concerned, the trial court has found that the court fee paid under Section 37(2) is sufficient. For arriving at the said conclusion, the trial court has relied on the decision in Janaki v Chandran & Ors. [2012 (1) KLT 481]. The said decision was rendered after referring to the decision in Hameed (supra). The learned Single Judge held that joint possession within the meaning of Section 37(2) does not necessarily mean joint physical possession for all practical purposes. The Court held that what is meant by “excluded from possession” under Section 37(1) is something akin to denial of the right of the plaintiff in the property and a consequential exclusion from possession and possession by some of the co-owners and enjoyment of the property by them alone is not sufficient to constitute exclusion from possession of the remaining co-owners. In the case on hand, the mere fact that the petitioner claims exclusive possession based on a Will executed in 1994 in favour of his children and a subsequent settlement by his children in his favour cannot be treated as a total denial of all the rights of the plaintiffs. The property originally belonged to the father. The real question that needs to be decided is which is the last Will executed by the father of the petitioner. The contention in the suit is that there has been a subsequent Will executed in 2003 and registered in Mumbai and also a codicil which had been registered in Mumbai. Unless the Will executed in 1994 is found to be the last one, the claim of the petitioner based on the settlement deed executed by his children cannot be sustained. The mother had withdrawn the suit after executing a Will in 2015. In the above circumstances, it is not possible to reject the plaint even without a trial. The rights of the parties based on the the Will executed in 1994, the Will executed in 2003, the codicil executed in 2003 and the settlement deed executed in 2008 and the Will executed by the mother in 2015 will have to be decided after a full- fledged trial.

                  In the above circumstances, I do not find any reason to interfere with the orders passed by the court below on the question of court fee and on the question of rejection of the plaint. The Civil Revision Petition and the Original Petition are dismissed. It is made clear that the observations made in this judgment are solely for the purpose of deciding the Civil Revision Petition and the Original Petition and the court below shall consider and dispose of the suit in accordance with the law, untramelled by the observations made in this judgment.