An alienee in possession of a specific item of property sold by a coparcener is liable to pay court fee only under Schedule II, Article 17-B of the Madras Court-Fees Act and not under Section 7(v) of the Court Fees Act.

ORDER :- The main question that arises for consideration in the reference is whether an alienee, who is put in possession of a specific item of property by an alienee from a member of an undivided Hindu Joint Family, is liable to pay court-fee under S.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 II, Art. 17-B 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 S. 7 (v) of the Court Fees Act. The question for decision is whether S. 7 (v) applies to the case of an alienee in actual possession suing for partition.

Section 7 (v) provides that in suits for possession of lands, houses and gardens, the court-fee is payable according to the value of the subject-matter and the value shall be deemed to be, where the subject-matter is land, in the manner set out thereunder. It is clear that in the instant case a specific item of property was sold by the coparcener and was put in possession of the alienee and the plaintiff-appellant seeks partition in respect of the property which he obtained actual possession of. It is plain on the terms of the section that if no possession is sought to be recovered, S. 7 (v) has no application. This position is made clear by Balakrishna Ayyar J. in Subba Rao v. Veerraju, 1951-1 Mad LJ 95 : (AIR 1951 Mad 656(1)) (A). The facts of that case apply ad idem and I fail to see how the appellant can be said to be suing for the possession of the property when he is already in possession and when he does not seek a relief.

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

Plaint or memorandum of appeal in every suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by this Act. When the plaint is presented by or the memorandum of appeal is against the decree of-

(a) Revenue Court - Ten Rupees.

(b) District Munsifs Court or the City Civil Court - Fifteen Rupees.

(c) District Court or Sub-Court - One hundred Rupees.

The two essential requisites of the Article are (1) that it is not 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 aforesaid, S. 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 Art. 17-B is inapplicable inasmuch as it is possible to estimate at a money value the subject-matter in dispute. I am unable to uphold this contention. The right of an alienee as laid down in 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 vendors shoes and to work out his rights by means of a partition. As stated in Maynes Hindu Law, 11th edition, at page 488,

"The vendees 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 obtain enforcing the transfer, either in whole or in part, by a partition of the family property will not by itself break up the joint ownership of the members of the family in the remaining property or the corporate character of the family".

Though the suit is not technically a suit for partition, he is entitled to work out his equity only by instituting a suit for partition impleading his vendor and the members of the coparcenary. The equity which he seeks to enforce in the action is, in my view, not capable of valuation, and theref

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