A plaintiff in a partition suit who is not in direct or constructive possession of the common properties is liable to pay court-fee under S. 7 (v) of the Court-fees Act.

( 1 ) THIS revision petition raises a question of court-fee. The plaintiff is the adopted son of late Adiseshayya. Defendant 1 is the wife of the said Adiseshayya. Defendant is alleged to have been taken in adoption by Adiseshayya subsequent to the plaintiffs adoption. There was a partition between the plaintiff and Adiseshayya, where under the "a" schedule properties were allotted to the share of the plaintiff and B-1 schedule properties to that of Adiseshayya. Adiseshayya before his death executed a will in regard to the B-1 schedule properties excluding items 4 and 23 in favour of defendant 2. The B schedule properties were all purchased in the name of the defendant 1. It is alleged in the plaint that Adiseshayya brought about the alleged partition fraudulently and that the defendants were setting up rights in the A and B-1 schedule properties. Froth the allegations in the plaint, it is clear that Adiseshayya during his life-time and after his death, defendants 1 and 2 were exclusively in possession of the A and B-1 schedule properties. The gist of the plaint is that by a fraud practised by Adiseshayya, the plaintiff was given A-1 schedule property and the rest of the property whether in the name of defendant 1 or in the name of Adiseshayya, is in the possession of the defendants who were setting up adverse claims to the same. There is no allegation in the plaint that the plaintiff is either directly or constructively in possession of A-1 and B-1 schedlue properties. He valued the plaint under Art. 17-B of Sch. II of the Court-fee Act. The court-fee examiner objected to the valuation and pointed out that as the plaintiff did not and could not claim actual or constructive possession of A-1 and B-1 Schedule items he should pay court-fee under S, 7 (v) of the Court-fees Act. The learned Judge agreed with him and directed the plaintiff to pay deficit court-fee of Rs. 1332-7-0. The revision is filed against that Order.

( 2 ) LEARNED Counsel for the petitioner contendes that the proper Article applicable is Art. 17-B of Sch. II of the Court-fees Act.

( 3 ) THE principles governing the valuation of reliefs for the purpose of court-fee partition suits are well settled. A suit for partition and separate possession of the plaintiffs share, where he is in either actual or constructive possession of the family properties has been held to be incapable of valuation and therefore chargeable with fixed fee under Sch. II of Art. 17-B -- See -- Ramaswamy Ayyangar v. Ranghachariar, AIR 1940 Mad 113 (FB) (A ). Conversely it has been held that where the plaintiff is not in joint possession of all or any of the common properties the suit in respect of the plaintiffs share should be valued under S. 7 (v) -- See -- "the Secretary of State v. Subramanian Chettiar, AIR 1938 Mad 278 (B ). It has also been held over and over again that for ascertaining the court-fee payable on a plaint the terminology used in the plaint is not of much relevance but it is the substance that matters. A plaintiff by a clever device and camouflage cannot evade court-fee if in substance the relief he asks for falls under one or other of the provisious of the Court-fees Act.

( 4 ) IF the aforesaid principles are applied, there is no doubt in my mind that the plaintiff should pay court-fee under S. 7 (v) of the Court-fees Act. The plaint disclosses a clear outster of the plaintiff by defendants 1 and 2. According to the plaintiff, a fraud has been practised on him by his adoptive father by allotting to his share the A-1 schedule properties and by setting the rest of the properties in favour of defendant 2 who admittedly has been is possession of the same in his own right. So too, defendant 1 the widow of Adiseshayya in whose name the properties were purchased is admittedly is in possession of the same to the exclusion of the plaintiff claiming absolute rights therein. As the plaintiff is not directly or constructively in possession of B-1 schedule properties