The main legal point established in the judgment is that suits for partition and separate possession by co-owners are governed by Art. VIII Clause.8 of Schedule II of the Court Fees Act.

1. The point that arises for consideration in this C.R. P. is as to whether the view of the learned Subordinate Judge of Trivandrum, that the present suit comes within the category contemplated under S.3, sub-section 4, clause (e) of the Travancore-Cochin Court Fees Act (Act 2 of 1125) is correct.

2. The suit itself is for partition and separate possession of the shares claimed by the plaintiffs in the properties which, according to them, are held jointly as co-owners with definite shares. The plaintiffs claim partition and separate possession in the following manner:

59/216th share in items 1 and 2;

13/54th share in item 3;

1/3rd share in item 4;

1/2 share in items 5 to 10;

1/3 share in item 11; and

1/2 share in items 15 and 16.

3. The general allegations in the plaint are to the effect that the plaintiffs are entitled to the shares mentioned above and that the properties are held by the plaintiffs and the defendants as co-owners entitled to definite shares.

4. The plaintiffs valued the jenma of their share at Rs. 500 on the basis that the suit comes within S.3, sub-section 4, clause (e) of the Court Fees Act. The suit itself was filed in the court of the District Munsiff of Neyyattinkara.

5. Objection seems to have been taken by the first defendant that the value of the plaintiffs' share has been grossly under-estimated and if it is properly valued it will exceed the pecuniary jurisdiction of the court of the District Munsiff. A commission appears to have been issued for assessing the market value of the suit property and ultimately the commissioner has fixed the market value of the plaintiffs' share in the

sum of Rs. 30,000. This valuation fixed by the commissioner does not appear to have been challenged as will be seen from the order of the learned District Munsiff The learned District Munsiff was of the view that the plaintiffs have to pay court fees on the market value of the share claimed by them and inasmuch as the market value of their share exceeds the pecuniary jurisdiction of his court, that court has no jurisdiction to entertain the suit and as such the learned District Munsiff directed the return of the plaint to be filed in the proper court.

6. On appeal by the plaintiffs, the learned Additional Subordinate Judge of Trivandrum has taken a different view. According to the learned judge, court fee has been paid in pursuance of S.3, sub-section 4, clause (e) of the Travancore-Cochin Court Fees Act, and it is the further view of the learned judge that the prayer for partition and separate possession in this case comes well within the scope of clause (e) of sub-section 4 to S.3. In this view, the learned judge held that the court fee paid is correct.

7. In this Civil Revision Petition, on behalf of the first defendant-petitioner, Mr. G. Viswanatha Iyer, his learned counsel contends that the view of the learned Subordinate Judge that the suit comes within the ambit of S.3, sub-section 4, clause (e) of the Travancore-Cochin Court fees Act is not sound in law. According to the learned counsel, in this case the plaint proceeds on the basis that the plaintiffs and the defendants are all co-owners of the suit properties and the plaintiffs want only a partition and separate possession of the shares stated in the plaint. According to Mr. Viswanatha Iyer, the provision of law relied upon by the learned judge has been held to be inapplicable to suits for partition of properties held jointly as co-owners. The correct provision, according to Mr. Viswanatha Iyer is that contained in Art.8, Clause.8 of Schedule II of the Travancore-Cochin Court Fees Act. Therefore, the learned counsel contends that the view of the lower appellate court is not correct.

8. On the other hand, Mr. S. Nilakanta Iyer, learned counsel appearing for the plaintiffs, raised in the first instance a preliminary objection that the Civil Revision Petition, at the instance of the defendant, when the lower court has held that the court fee paid is correct, is not