CHANDRALA SESHAYYA Vs. CHANDRALA LAKSHMAMMA

JUDGEMENT

(1.) THE only point for determination in this civil revision petition is whether the learned District Judge, Krishna, erred in law in holding that the Full Bench decision in 'Kesanna v. Boya Bala Gangappa', 1947-1 MLJ 201, would apply to the petitioners' case and make court-fee payable under Section 7, Clause 5 (d) of the Court-fees Act on the 'market value' of the property, as the petitioner was, claiming not a partition of a fractional share of undivided land but was claiming a specific portion of that undivided land, namely, the 'northern half of the suit land. After perusing the entire records, and hearing Mr. M. V. Sri-nivasa Rao for Mr. M. Appa Rao, the learned counsel for the petitioner, and Mr. Ch. Rama-krishna Rao, for the Government Pleader, I have absolutely no hesitation yya and Ors. vs. Chandrala Lakshmamma and Ors. (01.02.1951 - MA... Page 2 of 3 in holding that the lower Court's view is correct and is not vitiated by any error. THE Full Bench ruling has laid down that when a person is suing for a decree for possession of 'specific immove-able property' the court-fee must be paid on the 'market value' of the lands. That position is not disputed by the [earned counsel for the petitioner, as, indeed, it cannot be before this Court. What he contends is that the petitioner was only asking for an 'unspecified fractional Share' of an undivided land, namely, a half share. If that had been so, his argument would have been correct and court-fee would have been payable only under Section 7 (6)(b)(sic.). But the petitioner has really asked for a 'specific portion' 'of the land, namely, the 'northern half of the land, and not for a mere unspecified half of the land, with reference to good and bad qualities. It is obvious that a man claiming the 'northern half, or the 'eastern half, or, a half 'to be carved out in the middle of a 'land' leaving only the margins for the other half, is asking for a 'specific portion' of the land, and not just 'an unspecified half wherever it is allotted. A specific property that is claimed can never be an unspecified fractional share of the property, though, of course, it will be, like any portion of land, 'some fraction of the entire land'. THE matter is not merely academic or technical, but will have important practical consequences. For instance, a man asking for and getting the 'western half of Rajasthan will get only a desert whereas a man asking for and getting the 'eastern hall' of Rajasthan will get fertile lands of great value. A mere suit for a half of Rajasthan, with reference to good and bad qualities, will give the plaintiff half the desert and half the good lands where a suit for only the 'eastern half' will give him very valuable lands worth very much more than the half value of the whole. THE rule is thus laid down by a Bench decision, to which I was also a party in 'Venkatasubba Rao v. Venkata Rao', 1951-1 Mad L Jour 73 : "A fractional share predicates that the owner of that share is entitled to every bit of the total extent of the land till a partition is held and specific part is allotted to him." In other words, he has a half share, in a case like this, in every blade of grass or other property 'all over the land', and his right will not be confined to, nor will he be allotted, the whole of the crops or properties in the northern half of the land, giving him no right whatever in the southern half of the land. So, this case is one where the petitioner was suing for a 'specific share of the land', namely, the 'northern half of the land in question, and 'not for a fractional half of an undivided land where nobody has been given any specific share in any portion. THE learned counsel for the petitioner made his position even worse by saying that the petitioner could not claim any share in the 'southern half of the land as he has been 'gifted only the northern half of the land'. In other words, he admitted that a 'specific portion' of this land was gifted to him and was claimable by him, and he was bound, to pay court-fee under Section 7(5)(d) of the Court-fees Act.

(2.) NO doubt, the learned counsel for the petitioners was right in urging that the Full Bench decision holding that court-fee under Section 7(5)(d) had to be paid on such specific portions of land leads to some anomalies. That is so. In the decision in 'Venkatasubba Rao V. Venkata Rao', 1951-1 Mad L Jour 73, referred to above, we observed, at page 80, as follows :