K RANGA REDDY Vs. STATE

JUDGEMENT

(1.) THE main question arises for 'consideration in the reference is whether an alienee who is put in possession of a specie of property by an alienee from a member of an undivided Hindu Joint Family, is liable to pay court -fee under Section 7 (v) of the Court Fee Act in a suit filed by him for partition and for working out the equity by the allotment of the particular property to the share of the alienating coparcener. Court -fee was paid by the Appellant under Schedule 33, Article 17B, of the Court Fees Act. But objection was raised by the office that the court -fee was payable by him as for recovery of possession under Section 7 (v) of the Court Fees Act. The question for decision is whether Section 7 (v) applies to the case of an alienee in actual possession suing for partition.

(2.) THE next question that arises for decision is whether the court -fee paid by the Appellant under Schedule II, Article 17B of the Madras Court -Fees Act is correct. Article 17B of Schedule II is as follows:

(3.) The two essential requisites of the Article are (1) that it is hot possible to estimate at a money value the subject -matter in dispute and (2) that it is not otherwise provided for by the Act. Having regard, to. the discussion, ampersand, Section 7(v), does not apply. The learned Government Pleader has not been able to point out that the' suit' falls under any other provision of the Act. 'What was contended was that Article 17B is inapplicable inasmuch as if is possible to estimate at money value" the .subject -matter if dispute, I am unable to uphold this contention. The right of an alienee as laid down the several decisions, is only an equity and that the alienee, does, not acquire an interest in the property so as to be tenant -in -common with the members of the family entitled to possession but only an equity, to stand, in his vendor's, shoes and to work out his rights by means of a' partition." As stated the Mayne's Hindu Law, 11th edition, at page 488, "The vendee's suit to enforce the sale by partition is not technically a suit for partition in the sense of the Mitakshara Law; and the decree which he may contain enforcing the transfer, either in whole or in part, by a partition of the family property will1 hot by itself break up the Joint ownership of the members of the family in the remaining property or the corporate character of the family".