NABEESA SAIVU Vs. SAMADHANA AMMAL

JUDGEMENT

(1.) The question involved in this Civil Revision Petition relates to the amount of court fee that is payable on a plaint for partition and separate possession of his share by an alienee from one or more of the cosharers in a joint family.

(2.) The properties involved in the suit in the lower court belonged to one Samuel Dairyam who was the brother of defendants 1 to 6 and the son of one Pakkyam Pillai. Samuel Dairyam died and his father Pakkyam Pillai inherited the plaint properties from his son. On his death his children, defendants 1 to 6 and the husband of the 7th defendant and Samadhanammal, the widow of Pakkayam Pillai inherited the properties. Defendants 5 and 6, Samadhanammal and the husband of the 7th defendant executed a mortgage deed in respect of their rights in the plaint properties in favour of the plaintiff. The plaintiff filed a suit on this mortgage, obtained a decree and in execution of the same purchased the rights of the mortgagors in court auction and obtained symbolical delivery of their share. Thus the plaintiff became entitled to 4 out of the 8 shares in the plaint properties. The present suit has been brought for partition of the plaint properties into 8 equal shares and for separate possession of 4 such shares with mesne profits, etc.

(3.) The 1st defendant, who alone contested the suit, contended, inter alia that the court fee paid was incorrect and all issue was raised on the question of court fee. This issue has been tried as a preliminary issue by the lower court and the lower court has held that the court fee paid is insufficient and has directed the plaintiff to pay ad valorem court fee on the value of his share and the plaintiff has filed the present revision petition seeking to reverse that order.