M LSREENIVASA RAO Vs. HARINATH UPADYAYA

JUDGEMENT

(1.) The question that arises for determination in this petition is whether in a suit for partition brought by a purchaser of the undivided interest of a coparcener in joint family property, a fixed Court fee is payable under sub-sec. (2) of S.35 of the Mysore Court Fees and Suits Valuation Act. 1958 (hereinafter referred to as the Act), or whether ad valorem Court fee is payable under sub-sec. (1) of that section, on the market value of the plaintiff's share.

(2.) The petitioner-plaintiff purchased in a Court auction the undivided interest of a coparcener in suit properties which are joint family properties. In the plaint his main prayer is for a decree for partition of the suit properties by metes and bounds and for possession of his share therein. He has alleged in the plaint that he obtained possession of such undivided share under Or.21, R.96 CPC. He paid a fixed court fee of Rs.200 under sub-see. (2) of S.35. On an objection raised by the office of the Court, that the Court fee paid was insufficient, the learned Civil Judge held that ad valorem Court fee was payable under sub-sec. (1) of S.35 on the market value of the share claimed by the plaintiffs in the suit properties. Feeling aggrieved by the order of the learned Civil Judge, the plaintiff has presented this revision petition.

(3.) Mr. G. R. Doreswamy, learned Counsel for the petitioner contended that after the petitioner purchased in the Court auction the undivided share of a coparcener in the suit properties he had been put in symbolic possession of such undivided share in the execution proceedings that consequently he must be regarded as being in constructive possession of the suit properites an 9 "that only a fixed Court fee is payable under subsection (2) of Section 35.