S. Narayanaswami Ayyar vs Kesava Ayyar

Basheer Ahmed Sayeed, J.—The plaintiff is the petitioner. He seeks to revise the order of the learned District Munsif of Melur whereby he

has been directed to pay court-fee on the plaint u/s 7, Clause (v) of the Court-fees Act. A reading of his judgment would show that he has clearly

misunderstood the facts averred in the plaint. He has followed the decision in ''Nagendram v. Appayya'', ILR (1947) Mad 763. But the facts in

that case are quite different from the facts in the present case and the decision cannot apply to the present case though the learned Government

Pleader would urge to the contrary. In that case, it was a purchaser from a coparcener of a Hindu joint family that was filing the suit for partition

and possession. But in the present case the plaintiff is an alienee from a co-sharer who got divided in status nearly 45 years ago. The plaint

allegations in the present case also make it clear that the vendor of the present plaintiff has been in joint possession of some of the items of the suit

property as a tenant in common with the other co-sharer. The purchaser therefore steps into the shoes of his vendor, who was in constructive

possession as co-sharer and what he is seeking now to do is to convert the joint possession as tenant in common to separate possession. In such a

case the position is that the suit cannot be valued except under Article 17 of the second schedule to the Court-fees Act where suits which cannot

be valued will have to be paid a fixed court-fee prescribed in the said Article. That is what the plaintiff has done in this case. That this case cannot

be brought within the scope of Section 7, Clause (v) has been made clear by a series of decisions.

(la) ''Gill v. Yaradaraghavayya'', 43 Mad 396, seems to be a direct authority in support of the contention of the petitioner. Even so the

observations made in ''Kandunni Nair v. Raman Nair'', 53 Mad 540, are very opposite and apply to the facts of the present case. ''Suryanarayana

v. Seshayya'', 90 Ind Cas 843 and ''Kurshit Kathum v. Hyder Khan'', 75 Ind Cas 93 , are also on the same principle and the decisions therein

apply to the facts of the present case. I do not think it is necessary for me to refer to any authority which would say that the plaintiff in this case

who is a purchaser from one of the co- sharer who became divided several years ago steps into the shoes of that co-sharer and gets all the rights

and interests that that co-sharer possessed in the properties. It is sufficient for me to refer to the passages cited by the learned counsel for the

petitioner in the 1950 edition of Mitra''s Limitation Act at pages 979 and 981. The learned District Munsif has failed to draw the distinction

between an alienee from a copar center of a Hindu joint family and an alienee from a member of such a family who became divided in status and

whose possession there after became that of a co-sharer in the proper ties. The plaint allegations clearly point to this fact that not merely is the

plaintiff in joint possession as a tenant-in-common but he is also a co-sharer and the plaintiff is only an alienee from the co-sharer. Such being the

circumstances, the learned District Munsif was entirely wrong in having applied the principle laid down in ''Nagendram v. Appayya'', ILR (1947)

Mad 763. The proper court-fee that would be payable under such circumstances would be the one which the plaintiff has already paid. This

petition is therefore allowed. There will be no order as to costs.