TSAPATTI KOTILINGAM Vs. TSAPATTI SATYANARAYANA MURTHI

JUDGEMENT

(1.) This revision petition raises the question of court-fee. The plaintiff sues for a partition of what he calls the joint family property in which he; and the defendants are interested. His case is that his father, the father of the 1 defendant, Mallayya and Nukkayya formed members of a joint Hindu family, that Nukkayya having expressed a desire to Beparate from the family, he was given some property in lieu of his share and that the remaining two brothers Mallayya and the father of the plaintiff continued as members of the joint family without any division, in status between them, Mallaya died and, thereafter he and the defendants continued as members of an undivided family and he has been living with his maternal uncle and allowed the 1 defendant to be in possession and management of the properties; as the 1 defendant was wasting away the property, called upon him to account but the 1 defendant declined to render and hence the necessity for this suit.

(2.) The learned Subordinate Judge, was of opinion that as the plaintiff did not allege joint possession or enjoyment, the court-fee must be paid under Section 7, Clause 5 of the Court Fees Act, and not under Section 7, Clause 4 (b) of the Act. It seems tome that this view is unsound. Section 7, Clause 4 (b), provides for a suit to enforce the right to share in any property on the ground that it is joint family property. Krishnasawmy Ayyar, J., interpreted this clause in Rangiah Chetty V/s. Subramania Chetty 21 M.L.J. 21 at p. 26 : 8 Ind. Cas. 512 : 9 M.L.T. 3 (1910) M.W.N. 755 thus: There is a joint family at the date of the suit. The plaintiff's right to have the property divided is on the ground that the property belongs to the joint family on that date. There is no further cause of action necessary to sue. The fact that it is joint family property is sufficient to entitle a co-parcener without more to claim his share of partition.

(3.) If the plaintiff alleges that he is a coparcener, it is enough because the possession of one co-parcener must be deemed to be possession on behalf of all. Ramakrishna Ayyar v. Muthusaumy Iyer also takes this view. In that case Wallace, J., was of the opinion that a plaint by a Hindu co-parcener for joint family properties should be valued under Section 7, Clause 4 (6) of the Court Fees Act, where there is no allegation in that plaint that he has been ousted from possession of the joint family properties because the possession of a coparcener must be deemed to be possession of all. But at the same time he observed that if in the course of the trial it were established that he was not in possession, he will have to pay court-fee under Section 7, Clause 5. In this case the allegation in the plaint is that there was a joint family consisting of three brothers Nukkayya, Mallayya and Tatayya, the father of the plaintiff but Nukkaya separated from the family. The effect of that separation may be to effect a separation between the members inter se. Before the plaintiff can succeed in the suit, he will have to lay the foundation that the original family continued undivided in spite of the separation of Nukkayya before the Court can grant relief en the footing that he is a member of an undivided Hindu family. But he has alleged in the plaint that the family continued undivided and the court-fee will have to be calculated on the allegations in the plaint. I must, therefore, take it that his claim is to enforce the right to share in the suit property on the ground that it is joint family property. I think that before the plaintiff can be called upon to pay a court-fee on any basis other than under Section 7, Clause 4(b), it has to be established in this case whether the separation of Nukkayya did not effect a severance of the entire joint family as well and the remaining brothers continued undivided. If this is found against, then the plaintiff should be called upon to pay a valuation on the findings of the Court because it may be he may be entitled to value the plaint under Art. 17, Clause 6 of the Court Fees Act. That would depend on the nature of the findings the lower Court will arrive at.