In Re: K. Ranga Reddy

Umamhaesa Ram, J.—The main question arises for ''consideration in the reference is whether an alienee who is put in possession of a specie of property by an alienee from a member of an undivided Hindu Joint Family, is liable to pay court-fee u/s 7 (v) of the Court Fee Act in a suit filed by him for partition and for working out the equity by the allotment of the particular property to the share of the alienating coparcener. Court-fee was paid by the Appellant under Schedule 33, Article 17B, of the Court Fees Act. But objection was raised by the office that the court-fee was payable by him as for recovery of possession u/s 7 (v) of the Court Fees Act. The question for decision is whether Section 7 (v) applies to the case of an alienee in actual possession suing for partition.

Section 7 (v) provides that in suits for possession of lands, houses and gardens, the court-fee is payable according to the value of the subject-matter/and the value/shall be deemed to be, where they subject-matter is land, in the manner set out there under. It is clear that in the instant case specific item of property was sold by the coparcener and was put in possession of the alienee Sand the Plaintiff-Appellant seeks partition in respect of the property: which he obtained actual possession of. It is plain on the terms of the section that if no possession is sought to be recovered, Section 7(v) has no application. This position is made clear by Balakrishria Ayyar J. in Vetcha Subba Rao and Another Vs. Vetcha Veeraraju, . The facts of that case apply ad idem and I fail to see how the Appellant can be said to be suing for the possession of the property when he is already in possession and when he does not seek a relief.

The next question that arises for decision is whether the court-fee paid by the Appellant under Schedule II, Article 17B of the Madras Court-Fees Act is correct. Article 17B of Schedule II is as follows:

Plaint or memorandum When the plaint is pre-of appeal in every suit sensed by or the memo-where it is not possible randum of appeal is to estimate at a money agiinst the decree of value the subject-matter

(a) Revenue Court Ten Rupees in dispute and which is not otherwise provided for by this Act

(b) District Munsif''s for by this Act. Court or the City . Civil Court -Fifteen Rupees.

(c) District Court or Sub-Court One hundred Rupees.

The two essential requisites of the Article are (1) that it is hot possible to estimate at a money value the subject-matter in dispute and (2) that it is not otherwise provided for by the Act. Having regard, to. the discussion, ampersand, Section 7(v), does not apply. The learned Government Pleader has not been able to point out that the'' suit'' falls under any other provision of the Act. ''What was contended was that Article 17B is inapplicable inasmuch as if is possible to estimate at money value" the .subject-matter if dispute, I am unable to uphold this contention. The right of an alienee as laid down the several decisions, is only an enuity and . that the .alienee, does, not acquire an interest in the property so as to be tenant-in-common with the members of the family entitled to possession but only an equity, to stand, in his vendor''s, shoes and to work out his rights by means of a'' partition." As stated the Mayne''s Hindu Law, 11th edition, at page 488, "The vendee''s suit to enforce the sale by partition is not technically a suit for partition in the sense of the Mitakshara Law; and the decree which he may contain enforcing the transfer, either in whole or in part, by a partition of the family property will1 hot by itself break up the Joint ownership of the members of the family in the remaining property or the corporate character of the family".

Though the suit is not technically a suit for partition, he is entitled to work out his equity only by instituting a suit for partition impleading his vendor and the members of the coparcenary. The equity which he seeks to enforce in the action is, in my view, not capable of valuation, and therefore falls under the term of Article 17-B. In the decision already cited, Vetcha Subba Rao and Another Vs. Vetcha Veeraraju, , Balakrishna Ayyar J., held that payment of court-fee under Article 17-B of Schedule II was quite sufficient. A similar view was taken by Mockett J. in Jodu Rosamma being minor by next friend and brother Sunnapu Rangaiah Vs. Jodu Chenchiah and Others, .

The learned Judge held that a Hindu widow suing for partition under the provisions of the Hindu Women''s Rights to Property Act was liable to pay court-fee only under Article 17-B of Schedule next-wrong reliance was placed on the decision in Kollipara Nagendram Vs. Chundru Appayya and Others, . That decision has really no? application to the facts of the case as it is found at page 16 that the alienee "could in no sense be described as a person in joint possession actually or even constructively along with the other members of the family."

As it is evident from the facts of this case that the alienee is in actual and exclusive possession, the aforesaid decision does not apply. My attention was next drawn to a passage in the commentary on the "Law of Court Fee- and Suits Valuation, Andlira'''' by M. Krishna Rao and T. Ananta Babu, at page 84, in which it is stated that an alienee in actual possession "is in no better position than an alienee who did not enter into possession," and that the reasoning in Vetcha Subba Rao and Another Vs. Vetcha Veeraraju, , requires reconsideration.

Having given my best consideration, I am inclined to follow the view of Balakrishna Ayyar J. in Vetcha Subba Rao and Another Vs. Vetcha Veeraraju, for the reasons already stated and hold that the alienee, who has been put in actual possession by an alienee from an undivided coparcener of a specific item of property, is bound to pay court-fee only under Article 17-B of Schedule II and not u/s 7 (v) of the Act.

In the result, the court-fee paid is correct.