E P MUTHU ROWTHER Vs. MUHAMMED ALI ROWTHER

JUDGEMENT

(1.) The plaintiff in O. S. No. 194/66 on the file of the Sub Court, Palghat questions the decision of the learned Subordinate Judge on issue 8, holding that the court fee paid on the plaint is insufficient. The matter has been placed before a Division Bench in view of the importance of the question raised.

(2.) The suit property belonged to three Muhammadan cosharers as tenants in common. It is enough to notice that the plaintiff is an assignee of the rights of two of them, and the 1st Defendant is an assignee of the rights of the 3rd cotenant. The plaint proceeds on the allegation that the possession of the 1st Defendant is as a coowner on behalf of all, and prays for converting the joint possession into separate possession and enjoyment by partition. A fixed court fee of Rs. 200 for partition was paid, under S.37(2) of the Kerala Court fees and suits Valuation Act 1959, for the relief of partition. The court below held that the relief has to be valued under S.37(1) of the Act, on the market value of the plaintiff's share. We may extract S.37(1) and (2) of the Court fees Act.

(3.) A direct authority, almost on all fours with the facts of this case will be found in the decision in Cheria v. Kochukunjan (20 Cochin Law Reports 17). The suit there, as here, was for partition by an alienee from a cotenant. In a short but instructive judgment, treading on what they felt was virgin soil, the learned Judges (Varugis C. J. & Krishna Menon J.) referred to the passage from Freeman on Cotenancy noticed earlier, and held that on principle they were unable to perceive any difference between a suit by a cotenant himself for partition against another cotenant and one by his assignee. The case came in for some adverse comment before a Full Bench of the Travancore Cochin High Court in Apparahan v. Rappalkutty (1949 TCLR 225), which was a converse case to the facts in Cheria's case. In respect of one or some of the properties in regard to which the question arose in the Full Bench case, the plaintiff was clearly neither in actual nor in constructive possession. He was a cotenant enforcing "partition against the other coowners, but the property in question in respect of which the question arose, had gone into the hands of a stranger by court auction purchase in pursuance of a decree to which the plaintiff was eo nomine a party. The actual decision could safely have been rested and was in fact rested on the ground that the plaintiff could not be said to be in joint possession and therefore ad valorem court fee on the value of his share had to be paid. The authorities were exhaustively surveyed, and, at the end of this survey, Koshi J. who delivered the judgment commented on Cheria's case as follows: