Meaning scope and applicability of joint possession explained.

(PRAYER: Revision filed against the order dated 23.06.2003 made by the Sub Court at Tiruvarur against the check slip issued by the Sub Court at Tiruvarur in O.S.No.41 of 2002.)

The plaintiff is the revision petitioner herein, who has filed a suit in O.S.No.41 of 2002 before the Sub Court, Tiruvarur for partition. In the said suit, the respondents herein have filed a written statement, alleging that the petitioners ought to have paid Court fee under Section 37(1) of the Act. Pursuant to that notice dated 21.10.2002 was issued by the trial Court, directing the petitioner herein to value Under Section 37(1) of Tamilnadu Court Fees and Suits Valuation Act (in Short `the Act'). Objections were filed by the petitioners stating that they are in joint possession, the other family members have a right in coparcenary/joint family properties, without their consent alieniated petitioners' share which is not binding on them in respect of their share is concerned, hence not liable to pay Stamp Duty under Section 37(1) of the Act and maintain the same to be paid under Section 37(2) of the Act is perfectly valid. The trial Court has directed the petitioner to pay deficit Court fee under Section 37(1) of the Act within a period of three weeks, the same is challenged in this CRP.

2. The learned counsel Mr.Srinath Sridevan appearing for the petitioner submit that the trial Court without considering the petitioners objection passed a non-speaking impugned order; the petitioners are unmarried daughters as on 01.06.1990 became automatically co-owners to be treated on par with other male sharers; the petitioners are in joint possession of the said property; hence the impugned order directing the petitioner to pay deficit Court fee under Section 37(1) of the Act is liable to be set aside.

3. In support of his contention he relied on the following judgements;

I) Full Bench decision reported in Minor C.R.Ramaswami Ayyangar represented by his mother and next friend Lakshmi Ammal Vs.C.S.Rangachariar and others (1951 LW 11)

..... If the words of S.7(iv)(b) are to be given their ordinary meaning they cannot apply to a suit for partition by a member of a joint family who is still in joint possession. It follows that I consider that the majority decision in Rangiah Chetty V. Subramania Chetty (1), is erroneous and should be overruled. In these circumstances, the only provision in the Court fees Act which is applicable is Art.17-B of Schedule II and in stamping his general relief under this provision the plaintiff has acted rightly.

I am unable to accept the plaintiff's contention that he should not be called upon to pay court-fees in respect of any of the transactions which he challenges because he has not asked for specific relief in respect of them. His plaint challenges the validity of transactions entered into by his father as manager of the family, and particulars of these transactions have been supplied. The plaintiff must pay court-fees in accordance with the relief which he is actually seeking. He cannot be allowed to evade payment by omitting to ask for relief when the success of his suit depends on relief being granted to him. The Court must look at the real nature of the suit and decide what the plaintiff is asking for. In this case he is asking for possession of his share in the estate to be calculated after certain transactions have been set aside. Mr.V.V.Srinivasa Iyengar has rightly conceded that if it is necessary for the plaintiff to ask for relief in respect of any of the transactions he must pay extra court-fee. The plaintiff is in effect asking in respect of alienations where possession has passed to the alienees that they be set aside and that he be placed in possession of his share of the properties alienated. In respect of these transactions the plaintiff clearly has to stamp his relief in accordance with the provisions of S.7(v). This will apply to item Nos.4, 11 and 14 of the table set out above........"

"....The same principl