P. Kesanna vs Boya Bala Gangappa and Another

Alfred Henry Lionel Leach, C.J.—The respondents and their brother, Pedda Gangappa, were members of a joint Hindu family. The family

became divided in 1913 and, according to the respondents, the lands forming the joint estate were divided between the brothers. Pedda Gangappa

died in 1933. These petitions arise out of suits filed by the respondents in the Court of the District Munsif of Bellary to recover the properties

which had been allotted to them at the partition. Each alleged that he had been given possession of his share but had been dispossessed by the

petitioner, an alienee from the widow of Pedda Gangappa. The reliefs sought were valued at ten times the land revenue which was payable. The

petitioner contended that the respondents were bound in law to value the reliefs asked for in accordance with the market values of the properties

claimed by them and consequently he asked the District Munsif to appoint a Commissioner to ascertain the market values. The respondents

objected. They said that by reason of the decision of this Court in Subramania Aiyar v. Rama Aiyar (1927) 54 M.L.J. 67. they could only be

compelled to pay court-fees on the basis of the land revenue paid by them. The District Munsif accepted this contention notwithstanding that there

were several decisions of this Court to the contrary. The petitioner now asks this Court to revise the District Munsif''s orders. The petitions have

been placed before a Full Bench because of the conflict of authority .

Section 7(v)(d) of the Court-Fees Act says that in suits for the possession of land, houses and gardens the court-fee shall be according to the

value of the subject-matter and where the land forms part of an estate paying revenue to Government, but is not a definite share of the estate and is

not separately assessed, the value shall be deemed to be the market value of the land. By a notification issued by the Governor-General in Council

on the 10th September, 1889, it was provided that, when a part of an estate paying annual revenue to the Government under a settlement which is

not permanent is recorded in the Collector''s register as separately assessed with such revenue, the value of the subject-matter of a suit for the

possession of a fractional share of that part shall, for the purposes of the computation of the court-fee chargeable in the suit, be deemed not to

exceed five times such portion of the revenue separately assessed on that part as may be rateably payable in respect of the share. On the 10th

September, 1921, the Provincial Government issued a notification embodying a similar provision, but in 1932 it directed that the court-fee should

be assessed at ten times the revenue instead of five times.

Until the decision in Subramania Ayyar v. Rama Aiyar (1927) 54 M.L.J. 67. this Court had consistently held that, when a person is suing, for a

decree for possession of specific Immovable property, the court-fee must be paid on the market value of the land notwithstanding that it had

formed part of an estate paying revenue to the Government. See Godavarty Sundaramma v. Godavarty Mangamma (1916) 34 M.L.J. 558

Kandaswami Goundan v. Subbai Goundan (1923) 46 M.L.J. 345 Viswanatha Aiyar v. Ramaswami Naidu S.A. No. 886 of 1917 and Raghava

Reddiar v. Krishna Reddiar S.A. No. 711 of 1915. The judgment in Subramania Aiyar v. Rama Aiyar (1927) 54 M.L.J. 67 was delivered by

Ramesam, J., sitting with; Cornish, J. . It was there held that the notification of the 10th September,. 1921, covered a case where the plaintiff was

suing for the recovery of possession of a specified Immovable property which had formed part of an estate. The Court was of the opinion that the

words ""fractional share"" in the notification covered both a definite fraction and also an indefinite fraction. In other words the learned Judges

considered that the deciding factor was whether the land had formed part of an estate paying revenue to the Government . This decision not only

conflicts with the previous decisions of this Court but also is in conflict with three decisions of the Allahabad High Court, Reference under the

Court-Fees Act, 1870, Section 5 I.L.R.(1894) All. 493 Chandhan v. Bishan Singh ILR (1911) All. 630 and Randhir Singh v. Randhir Singh ILR

(1937) All. 128. The only reported case in which it has been referred to with approval is Kuljas Rai v. Pala Singh AIR 1945 Lah. 15 but the facts

there were different.

In our judgment the correct opinion was expressed in the cases decided by this Court. What the Court has to look at is the relief which the

plaintiff seeks. If he is asking to be put in possession of Immovable property the boundaries of which are indicated, as here, the case falls u/s 7(v)

(d) of the Court-Fees Act. In such circumstances he is not asking for a ""share."" He is asking the Court to give him possession of what has already

fallen to him. It is only when he is seeking possession of property as a fractional share of a portion of an estate that the notification applies. The

decision in Subramania Aiyar v. Rama Aiyar (1927) 54 M.L.J. 67 must be overruled.

The result is that the petitions are allowed and the cases will be remanded to the District Munsif to inquire into the question of the market values

of the respective properties. If it turns out, that the values are within his pecuniary jurisdiction he will require the plaints to be stamped accordingly

and he will then proceed to try the suits. If the values exceed his pecuniary jurisdiction, he will return the plaints for presentation to the proper

Court.

The petitioner is entitled to his costs.