The main legal point established in the judgment is the determination of court fee payable on a suit for partition and separate possession by an alienee from cosharers in a joint family, based on the possession of the plaintiff and the nature of the suit.

T.C. Raghavan, J.

1. The question involved in this Civil Revision Petition relates to the amount of court fee that is payable on a plaint for partition and separate possession of his share by an alienee from one or more of the cosharers in a joint family.

2. The properties involved in the suit in the lower court belonged to one Samuel Dairyam who was the brother of defendants 1 to 6 and the son of one Pakkyam Pillai. Samuel Dairyam died and his father Pakkyam Pillai inherited the plaint properties from his son. On his death his children, defendants 1 to 6 and the husband of the 7th defendant and Samadhanammal, the widow of Pakkayam Pillai inherited the properties. Defendants 5 and 6, Samadhanammal and the husband of the 7th defendant executed a mortgage deed in respect of their rights in the plaint properties in favour of the plaintiff. The plaintiff filed a suit on this mortgage, obtained a decree and in execution of the same purchased the rights of the mortgagors in court auction and obtained symbolical delivery of their share. Thus the plaintiff became entitled to 4 out of the 8 shares in the plaint properties. The present suit has been brought for partition of the plaint properties into 8 equal shares and for separate possession of 4 such shares with mesne profits, etc.

3. The 1st defendant, who alone contested the suit, contended, inter alia that the court fee paid was incorrect and ail issue was raised on the question of court fee. This issue has been tried as a preliminary issue by the lower court and the lower court has held that the court fee paid is insufficient and has directed the plaintiff to pay ad valorem court fee on the value of his share and the plaintiff has filed the present revision petition seeking to reverse that order.

4. The learned Subordinate Judge relies on a decision of the Madras High Court in Kamakshi Ayyar v. Namberumal Ayyangar (AIR 1939 Madras 506). In that case a mortgagee obtained a decree in respect of a portion of a house and in execution of the decree purchased that portion and obtained symbolical possession of that portion. Another mortgagee who had a mortgage of the whole house obtained a decree in his turn in respect of the whole house. The latter was in possession of the whole property and he refused to give physical possession of his portion to the former. Therefore the first mortgagee brought the suit for possession of his portion and in the plaint he averred that the second mortgagee was in wrongful possession and enjoyment of the whole house. On these allegations in the plain it was held by Leach C. J. that the suit was in truth and in fact a suit for possession against a person in wrongful possession of the property and in those circumstances His Lordship held that the suit had to be stamped with an ad valorem court fee on the market value of the plaintiff's share. I am afraid that this decision has no application to the instant case.

5. But the learned Government Pleader seeks to support the judgment of the learned Subordinate Judge on the strength of other decisions. He has invited my attention to certain observations in other decided cases, from which he argues that the court fee paid in the present case should have been an ad valorem court fee on the market value of the share of the plaintiff. The first case that he refers to is the Full Bench decision of five Judges of the Madras High Court in Ramaswami Ayyangar v. Rangachariar (AIR 1940 Madras 113). Leach C. J. at page 117 observes:

"A suit to enforce a right to share in any property on the ground that it is joint family property is a suit of a different nature from a suit to enforce the right to a share. Where the. claim is to share, it implies that the plaintiff is not in possession; whereas a suit to obtain possession of a share is compatible with the plaintiff being in joint possession of the whole".

Thus the distinction between a suit to enforce a right to share in any property on the ground that it is joint property and