S. NARAYANASWAMI AYYAR Vs. KESAVA AYYAR

JUDGEMENT

(1.) THE plaintiff is the petitioner. He seeks to revise the order of the learned District Munsif of Melur whereby he has been directed to pay court -fee on the plaint under Section 7, Clause (v) of the Court -fees Act. A reading of his judgment would show that he has clearly misunderstood the facts averred in the plaint. He has followed the decision in 'Nagendram v. Appayya',, ILR (1947) Mad 763. But the facts in that case are quite different from the facts in the present case and the decision cannot apply to the present case though the learned Government Pleader would urge to the contrary. In that case, it was a purchaser from a coparcener of a Hindu joint family that was filing the suit for partition and possession. But in the present case the plaintiff is an alienee from a co -sharer who got divided in status nearly 45 years ago. The plaint allegations in the present case also make it clear that the vendor of the present plaintiff has been in joint possession of some of the items of the suit property as a tenant in common with the other co -sharer. The purchaser therefore steps into the shoes of his vendor, who was in constructive possession as co -sharer and what he is seeking now to do is to convert the joint possession as tenant in common to separate possession. In such a case the position is that the suit cannot be valued except under Article 17 of the second schedule to the Court -fees Act where suits which cannot be valued will have to be paid a fixed court -fee prescribed in the said Article. That is what the plaintiff has done in this case. That this case cannot be brought within the scope of Section 7, Clause (v) has been made clear by a series of decisions.