N. Periyanna Pillai vs P.R. Srinivasa Reddiar and others

Rajagopala Ayyangar, J.—This revision raises for consideration the proper court-fee payable on the plaint. The plaintiff petitioner is an aliened for value of certain specified items of immoveable properly from the manager of a joint family. An younger brother of the manager who was a minor on the date of the alienation filed a suit for a declaration that this alienation was not binding on his share and obtained a decree to that effect, subject however to the equity of the aliened to have the items sold to him being allotted to the share of the alienating coparcener in a general suit for partition the aliened being directed to file this suit within six months. The present suit has accordingly been filed by the aliened for a general partition and he imp leaded the aileron and his younger brother as well as their mother who is entitled to a share in the family properties under the Women''s Rights to Property Act, 1937, praying that the Court might direct

(a) the partition of all properties in Sch. II part II items 1 to 14 into two equal shares and properties in Sch. II part II item 15 and Sch. II part I and Sch. III into three equal shares and appoint a Commissioner there for

(b) to direct the Commissioner to so divide the properties in Sch. II part II items 1 to 14 in such a way as to give effect to the equities in favour of the plaintiff as set out in para 11 above, i.e., to allot the entire items 1 and 2 in Sch. II part II wholly to the share of the first defendant and through him to the plaintiff herein so as to enable the plaintiff to retain those properties with him or if that is not possible to allot the properties of equal quality and value as the above items to the first defendant and through him to allot to the plaintiff or to work out the equity in such other manner so as to enable the plaintiff to get the properties of equal value as items 1 and 2 in Sch, II Part II;

(c) to allot the shares divided as above to the first defendant, second defendant and third defendant and allot to the plaintiff to retain or get the properties secured for him as a result of the above equities

(d) and give separate possession to the plaintiff and other sharers of the shares allotted to them as above.

He valued the suit for purposes of jurisdiction at Rs. 27,483-5-4 being the value of the aileron''s share, but paid a court fee of Rs. 100 under Art. 17 B. of Sch. II of the Court Fees Act.

The defendants raised objection to the court fee paid by the plaintiff, their contention being that this should have been on the basis of S. 7 (v) of the Court Fees Act and this formed the subject of an issue which was taken up for disposal as a preliminary issue.

The contention raised on behalf of the plaintiff was that as he was actually in possession of certain items of family property and the relief he was seeking was merely to retain their possession by having them allotted to the share of his aileron, he was not seeking the relief of ''''possession" so as to bring the suit within the class contemplated by S. 7 (v). But this is obviously unsound as the relief he is seeking is for a partition and the allotment of a share of the family properties to his aileron and as the plaintiff is admittedly not in physical possession nor in constructive possession by reason of the possession by the members of the family, he has necessarily to value the relief under S. 7 (v). The point appears to me to be clear on principle. If authority were needed, reference may be made to the decision of a Bench of this Court in Kollipara Nagendram Vs. Chundru Appayya and Others, .

Learned Counsel for the plaintiff petitioner relied on a decision of Balakrishna Aiyar, J., in Subaru v. Veeraraju (1951) 1 M.L.J. 95, but I do not understand the learned Judge to lay down that a suit by an aliened seeking partition and allotment of a share to his vendor is not a suit to which S. 7 (v) of the Court Fees Act would be attracted, or could be governed by Art. I7-B. The learned Subordinate Judge has in the present case applied this decision and has directed the plaintiff to value his suit and pay court fees under S. 7 (v) only in regard to the share which is in excess of the property in the possession of the plaintiff and that is all the assistance which plaintiff can derive from the ruling of Ramakrishna Aiyar, J. I do not see any ground for interfering with the order of the Subordinate Judge and the revision petition fails and is dismissed with the costs of the contesting respondents. The time for payment of the court fee is extended by one month from today.