ASWATHE Vs. SSHAMIAH AND

JUDGEMENT

(1.) This revision petition is directed against an order passed by the District Judge, Civil Station, Bangalore in O. S. No. 37/54 on his file holding that the petitioner was liable to pay ad valorem court-fee on the value of his share in the suit schedule properties.

(2.) The present petitioner represented by his guardian Parvathamma filed a suit against the respondents for partition and possession of his 1/3 share in the suit schedule properties valued at Rs. 75,000/- in all. The petitioner alleged in his plaint that he was adopted by Parvathamma to her husband Chandrasekhariah about 2 or 3 months prior to the date of the suit and as such was a member of the joint family with the defendants and was entitled to claim and get his 1/3 share in all the suit schedule properties which were the joint family properties. The petitioner alleged that he was in constructive possession of the suit schedule properties along with the respondents and as such was entitled to pay a fixed court-fee under Article 11-B, Schedule II, Court-fees Act and paid Rs. 100/- as court-fee. The learned District Judge was of the opinion that since the petitioner had been, according to the plaint allegations, adopted about 2 or 3 months prior to the date of the suit he could not he presumed to be in constructive possession of the joint family properties described in the schedule and as such directed the petitioner to pay ad valorem court-fee calculated on the value of his share. The learned District Judge gave this ruling even before summonses were issued to the respondents. It is against this order that the present revision petition has been filed by the petitioner.

(3.) It is now well settled law that it is the allegation made in the plaint that should be the criterion to decide as to whether a person is entitled to pay a fixed court-fee under Article 11-B, Schedule II, Mysore Court-fees Act (which is the same as Article 17 of the Central Act) or is liable to pay ad valorem court-fee on the value of his share. (Vide -- 'Maghanmal v. Tolaram', 16 Ind Cas 778 (A), -- 'Asa Ram v. Jagan Nath', AIR 1934 Lah 563 (FB) (B), and -- in the matter of Nand Lal Mukherjee, AIR 1932 Cal 227 (C). Reference in this connection may be made to a decision of this Court reported in -- 'Krishnappa v. Bhashyam Iyengar', 44 Mys HCR 203 (D). It was laid down in that decision that where a co-owner, co-sharer, or co-tenant alleges that ho is in joint possession of the property in suit and wants his share, to be separated and put into his possession, a fixed court-fee under Article 11-B is sufficient and that he is not bound to pay ad valorem court-fee on the value of his share in the suit schedule properties. The several decisions of the Indian High Courts have been reviewed in this decision. The contention that because a member of a joint family is not in actual physical possession of any portion of the suit schedule properties, he is liable or bound to pay court-fee calculated on the value of his share has been repelled in the above decision. Reference may also be made to a recent decision of this Court reported in -- 'Nagendraiah v. Ramachandriah', AIR 1953 Mys 108 (E), wherein it has laid down that even if the trial Court had found that the plaintiff was not in possession of some of the items of the suit schedule properties, he is entitled to pay a fixed court-fee of Rs. 100/- under Article 11-B of Schedule II, Court-fees Act (Article 17 of the Central Act) on his memorandum of appeal. Vasudevamurthy J. observed in the course of his judgment that the plaintiff's suit continued to be on the whole a partition suit even after a decision of the trial Court and for purposes of an appeal it will he still an appeal from a partition suit notwithstanding the nature of the findings recorded by the trial Court. In -- 'Premananda v. Dhirendra Nath', AIR 1930 Cal 397 (F), it was observed as follows :