The main legal point established in the judgment is that the sufficiency of court-fee in a partition suit depends on whether the plaintiff has been excluded from possession or is in joint possession of the property, as per the provisions of S.37 (1) and (2) of the Kerala Court-fees and Suits Valuation Act 1959.

1. The plaintiff in O. S. No. 194/66 on the file of the Sub-Court, Palghat questions the decision of the learned Subordinate Judge on issue 8, holding that the court-fee paid on the plaint is insufficient. The matter has been placed before a Division Bench in view of the importance of the question raised.

2. The suit property belonged to three Muhammadan cosharers as tenants, in-common. It is enough to notice that the plaintiff is an assignee of the rights of two of them, and the 1st Defendant is an assignee of the rights of the 3rd co-tenant. The plaint proceeds on the allegation that the possession of the 1st Defendant is as a co-owner on behalf of all, and prays for converting the joint-possession into separate possession and enjoyment by partition. A fixed court-fee of Rs. 200 for partition was paid, under S.37 (2) of the Kerala Court-fees and suits Valuation Act 1959, for the relief of partition. The court below held that the relief has to be valued under S.37 (1) of the Act, on the market value of the plaintiff's share. We may extract S.37 (1) and (2) of the Court-fees Act.

"37. Partition Suits.

1. In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share.

2. In a suit for partition and separate possession of joint property, or property owned, jointly in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:-A

When the plaint is represented to (i) A Munsiff's court Rupees twenty

(ii) A Sub Court or a District Court: Rupees one hundred if the value of plaintiff's share is Rs. 10000 or less; and Rs. two hundred if the value is above Rs. 10000"

The proper court-fee payable would depend on whether the plaintiff has been excluded from possession or is in joint possession of the property in respect of which the suit for partition was brought. It is conceded that for the purpose of court-fee, the allegations in the plaint are material, and these leave us in no doubt that the plaintiff proceeded on the footing that himself and the Ist Defendant are co-owners and that the possession of the 1st defendant was on behalf of the other co-owners from whom the plaintiff derived rights. In law also, the conclusion seems inescapable that the plaintiff and the 1st defendant are tanants-in-common. In Freeman on Co-tenancy and Partition (2nd Edition) it is observed that each co-tenant may convey his moiety at pleasure without the consent or knowledge of either of his companions in interest, and that in the case of tenants-in-common the grantee is substituted as a tenant-in-common having the same rights and subject to the same obligations as his grantor. (Article 194 at page 270). The learned author further observes:

'167. Possession of one when presumed to be possession of all. The entry of one co-tenant, as we have shown, is in the absence of clear proof to the contrary, construed as conferring seizin upon all Thus, if A and B together own personal property of whichA

A is in actual possession, and B sells his moiety to C, the possession of A immediately becomes the possession of C also."

In India there is the statutory provision in S.44 of the Transfer of Property Act to the effect that a transferee from a co-owner acquires as to the share transferred, the transferor's right to joint possession.

On first principles then, and on the averments in the plaint, it appears to us that the suit was essentially one on the footing that the plaintiff was in joint possession with the 1st defendant and the court fee paid appears to be sufficient. A

A

3. A direct authority, almost on all fours with the facts of this case will be found in the decision in Cheria v. Kochukunjan (20 Cochin Law Reports 17). The suit there, as here, was for partition by an alienee from a co-tenant. In a short but instru