The main legal point established in the judgment is that in a suit for partition brought by a purchaser of the undivided interest of a coparcener in joint family property, ad valorem Court-fee is payable under sub-section (1) of Section 35 of the Mysore Court-fees and Suits valuation Act, 1958.

D. M. CHANDRASHEKHAR, J.

( 1 ) THE question that arises for determination in this petition is whether in a suit for partition brought by a purchaser of the undivided interest of a coparcener in joint family property, a fixed court-fee is payable under Sub-section (2) of Section 35 of the Mysore Court-fees and Suits valuation Act, 1958 (hereinafter referred to as the Act), or whether ad valorem Court-fee is payable under Sub-section (1) of that Section, on the market value of the plaintiff's share.

( 2 ) THE petitioner-plaintiff purchased in a Court auction the undivided interest of a coparcener in suit properties which are joint family properties. In the plaint his main prayer is for a decree for partition of the suit properties by metes and bounds and for possession of his share therein. He has alleged in the plaint that he obtained possession of such undivided share under Order 21, rule 96, Civil Procedure Code. He paid a fixed court-fee of Rs. 200/- under Sub-section (2) of section 35. On an objection raised by the office of the Court that the Court-fee paid was insufficient, the learned Civil Judge held that ad valorem Court-fee was payable under sub-section (1) of Section 35 on the market value of the share claimed by the plaintiffs in the suit properties.

( 3 ) FEELING aggrieved by the Order of the learned Civil Judge, the plaintiff has presented this revision petition.

( 4 ) MR. G. R. Doreswamy, learned counsel for the petitioner contended that after the petitioner purchased in the Court auction the undivided share of a coparcener in the suit properties, he had been put in symbolic possession or such undivided share in the execution proceedings, that consequently he must be regarded as being in constructive possession or the suit properties and that only a fixed court-fee is payable under Sub-section (2) of Section 35.

( 5 ) ON the other hand, the learned Government Pleader (to whom notice had been issued) contended that the plaintiff being merely the purchaser of the undivided interest of a coparcener in the suit properties, could not be in possession of the suit properties and that hence in a suit for partition, he has to pay ad valorem court-fee under Sub-section (1) of Section 35.

( 6 ) THE legal position of the purchaser of the undivided interest of a coparcener in a Joint family property, in regard to possession of such property, has been stated thus in Mulla's Hindu Law, (13th Edition, 1970 Re-print, at page 292):

"the purchaser of the undivided interest of a coparcener in a specific property. (i) at a sale in execution in West Bengal and Uttar Pradesh, or (ii) at private sale or a sale in execution in Madras, does not acquire the right to joint possession with the other coparceners. Such a purchaser acquires merely the right to compel a partition which the coparcener whose interest he has purchased might have compelled, had he been so minded, before the sale of his interest took place. That right can only be enforced by suit for a general partition to which all the coparceners must be joined as parties. . . . . If the purchaser has obtained possession, the non-alienating coparceners are entitled to sue for and recover possession of the whole of the property for the benefit of the joint family including the vendor. . "

( 7 ) IN Siddeswara v. Bhubneswar AIR1953 SC 487 , 1954 (2 )BLJR65 , [1954 ]1 SCR177 , dealing with the right of such purchaser, to the joint family properties, this is what B. K. Mukherjea, J. , (as he then was), said at page 491:

"all that he (the plaintiff) purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. . . . "

( 8 ) IN view of the above statement

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