Vetcha Subba Rao and Another vs Vetcha Veeraraju

Balakrishna Ayyar, J.—The two pltfs are the petnrs. Pltf 1 is the husband of pltf 2. The deft is a son of a brother of pltf 1. Early in Jan 1944

pltf 1 sent a notice to the deft telling him that he intended to become divided in status. After having thus effected a disruption in status, pltf 1

executed on 10-1-1944 a gift deed of his immovable assets in favour of pltf 2. The pltfs continued to live as previously in a portion of the family

house. Thereafter they brought a suit for partition of the assets of the family and also for accounts. A sum of Rs. 100 (one hundred) was paid as

court-fee in respect of the claim for partition under Article 17 B of Schedule II, Court-fees Act.

The objection was taken that the court-fee paid was insufficient. The learned Subordinate Judge went into the question and required the pltffs to

pay ''ad-valorem'' Court-fee. They have therefore come to this Ct.

One item in respect of which ''ad valorem'' court-fee was insisted on, is the house in a part of which the pltfs live. Now, u/s 7 Clause (V),

Court-fees Act which is the one which the Subordinate Judge held to be applicable, ''ad- valorem'' fees need be paid only if the pltfs sue for

possession--but their allegation is that they are already in possession. That being so, I find it difficult to see how they can be required to sue for

possession or said to be suing for possession of the properties.

The learned Govt Pleader referred me to the decisions in ''Nanjaya v. Shanmuga'', 38 Mad 684: AIR 1914 Mad 440, ''Maharaja of Bobbili v.

Venkataramanujulu, Naidu'', 39 Mad 265 and Subbe Goundan and Another Vs. Krishnamachari and Others, & also to p. 491 of the 11th Edn. of

Mayne''s Hindu Law wherein it is stated :

The view taken by the Madras H. C. that as the purchaser from a coparcener is not a tenant-in-common with the coparceners in the family, he is

not entitled to joint possession or to mesne profits....appears to be the sound view"".

This however is not in dispute. An alienee from a coparcener may not be a tenant-in-common; he may also be not entitled to possession. Still if as

a matter of hard fact he is in actual possession of the property why should it be said that he must pay court-fee as though he were not in

possession? That is a requirement I find it hard to understand. So far as the house is concerned of which the pltfs are in possession, they are not

bound in my view to pay court-fee u/s 7(V), Court-fees Act. Payment under Article 17B of Schedule II is sufficient.

In respect of the other matter included in the plaint, the order of the Subordinate Judge appears to me to be correct. The civil revision petition is

therefore allowed to the extent indicated above. As the petnrs have succeeded in part and failed in part there will be no order as to costs. Time to

pay deficit court-fee one month.