P. KESANNA Vs. BOYA BALA GANGAPPA AND ANR.

JUDGEMENT

(1.) THE respondents and their brother, Pedda Gangappa, were members of a joint Hindu family. The family became divided in 1913 and, according to the respondents, the lands forming the joint estate were divided between the brothers. Pedda Gangappa died in 1933. These petitions arise out of suits filed by the respondents in the Court of the District Munsif of Bellary to recover the properties which had been allotted to them at the partition. Each alleged that he had been given possession of his share but had been dispossessed by the petitioner, an alienee from the widow of Pedda Gangappa. The reliefs sought were valued at ten times the land revenue which was payable. The petitioner contended that the respondents were bound in law to value the reliefs asked for in accordance with the market values of the properties claimed by them and consequently he asked the District Munsif to appoint a Commissioner to ascertain the market values. The respondents objected. They said that by reason of the decision of this Court in Subramania Aiyar v. Rama Aiyar, (1927) 54 M.L.J. 67. they could only be compelled to pay court -fees on the basis of the land revenue paid by them. The District Munsif accepted this contention notwithstanding that there were several decisions of this Court to the contrary. The petitioner now asks this Court to revise the District Munsif's orders. The petitions have been placed before a Full Bench because of the conflict of authority .

(2.) SECTION 7(v)(d) of the Court -Fees Act says that in suits for the possession of land, houses and gardens the court -fee shall be according to the value of the subject -matter and where the land forms part of an estate paying revenue to Government, but is not a definite share of the estate and is not separately assessed, the value shall be deemed to be the market value of the land. By a notification issued by the Governor -General in Council on the 10th September, 1889, it was provided that, when a part of an estate paying annual revenue to the Government under a settlement which is not permanent is recorded in the Collector's register as separately assessed with such revenue, the value of the subject -matter of a suit for the possession of a fractional share of that part shall, for the purposes of the computation of the court -fee chargeable in the suit, be deemed not to exceed five times such portion of the revenue separately assessed on that part as may be rateably payable in respect of the share. On the 10th September, 1921, the Provincial Government issued a notification embodying a similar provision, but in 1932 it directed that the court -fee should be assessed at ten times the revenue instead of five times.

(3.) IN our judgment the correct opinion was expressed in the cases decided by this Court. What the Court has to look at is the relief which the plaintiff seeks. If he is asking to be put in possession of Immovable property the boundaries of which are indicated, as here, the case falls under Section 7(v)(d) of the Court -Fees Act. In such circumstances he is not asking for a "share." He is asking the Court to give him possession of what has already fallen to him. It is only when he is seeking possession of property as a fractional share of a portion of an estate that the notification applies. The decision in Subramania Aiyar v. Rama Aiyar, (1927) 54 M.L.J. 67 must be overruled.