Court-fee on the suit held payable.

The only question that has to be decided is as regards the Courtfee payable on the plaint. The learned Subordinate Judge, relying upon earlier decisions of this Court, such as Kuppuswami Goundan v. Mari Goundan1and Ramaswami v. Kunjammal2came to the conclusion that the plaintiff is not bound to set aside the partition deed and that he can simply ignore the existence of an earlier partition. In these circumstances, section 7(iv-A) of the Court-fees Act is not an impediment to the valuing of the suit. Nothing has been urged before me by the respondents to show that this conclusion arrived at by the learned Judge is not sustainable either on the principle decided in the cases mentioned, or under any other statutory provision.

The petitioner’s Counsel urges that when once he is able to ignore the existence of the previous partition of 1938, it is as if there has been no partition at all which would result in the properties being relegated to the position which they occupied prior to the alleged void partition. Antecedent to 1938, according to the plaintiff, himself and the other members of the joint family were in joint possession of the family properties and the suit for partition could be filed on the footing that antecedent jointness of possession should be converted into separate possession. On that basis Article 17-B of the second schedule of the Court-fees Act which provides for a fixed court-fee in such suits is the provision of law applicable. Even if that position is untenable, according to the petitioner’s counsel, the plaintiff should be deemed to be a tenant in common with other members of the erstwhile family after a division in status has taken place. To a partition suit filed by such a tenant in common, a Full Bench of the Lahore High Court in Mohammad Sohail v. Gulam Rasul3has applied the same principle as would pertain to a suit for partition where there has been no such conversion of coparcenary into a tenancy in common. Tekchand, J., in delivering the judgment of the Full Bench observed that the reasons as to why a suit by a coparcener for partition should fall within clause (vi) of Article 17 of the second schedule to the Court-fees Act (Article 17-B of the Madras Amendment) should apply equally to a suit by a co-owner who is only a tenant in common. The learned Judge observed:

“In either case, the relief sought is the change in the mode of enjoyment of joint property of which the plaintiff ex hypothesi is in joint possession and it is not possible to estimate at money value the subject-matter in dispute. It makes no difference for this purpose that in one case the joint property is held by the parties”as joint tenants,“while in the other they own it as”tenants in common.“And in the latter class of cases, it is, again, immaterial that the parties are governed by the Mohammadan law, or that they do or do not belong to the same family.”

Mr. Karunakaran for the petitioner urges that this dicta contained in the Full Bench case must be applied to a case where the plaintiff is entitled to ignore the partition thereby placing himself in the position as if there had been no partition at all. But the real difficulty in this case arises from the fact that the plaintiff in paragraphs 6 and 7 of the plaint admits the existence of an earlier deed to which he was eo nomine a party though as a minor represented by his mother as guardian.

On the other hand Mr. K.P. Ramakrishna Aiyar for the contesting respondents relies upon the Full Bench decision in Ramaswami v. Rangachariar4as well as the observations contained in Sellammal v Jothimani Nadar5. In the Full Bench case the majority Judges constituting the Full Bench held that where in a partition. of joint Hindu family property the plaintiff has impleaded alienees from the joint family and contested the validity of their alienations, the proper way of valuing the suit is that in respect of the general relief for partition and delivery of the plaintiff’s share, the provi