Venkatasubba Rao, J.
1. In the appeal that we have just disposed of, a question of court-fee has been raised on behalf of the Government under Section 12(ii) of the Court-Fees Act.
2. The suit is in effect one for partition and possession, brought by the plaintiff against his co-sharers. He claimed in the plaint two separate shares, each of one-eighth, on the ground that he purchased them from two different co-owners. He fixed the total value of the entire one-fourth share at Rs. 14,000 and paid in respect of the relief of 'partition and separate possession' of that share, Rs. 100 as court-fee under Schedule II, Article 17-B (Madras Amendment) of the Court-Fees Act.
3. It must be mentioned that previous to the suit, he had applied to the Collector for separate registration, which was refused. He therefore prayed for a declaration that he was entitled to get himself registered as a landholder to the extent of the one-fourth share. In respect of this relief he paid a court-fee of Rs. 100 under Schedule II, Article 17-A (Madras Amendment).
4. Thus, the plaintiff paid on his plaint in respect of these two reliefs Rs. 200 as the court-fee. Here on the memorandum of appeal also, he paid a similar amount.
5. The appeal, as will be evident, from what has been stated in the judgment just delivered, deals with the one-eighth share of the seventh defendant alone. The question has been raised whether under the terms of Section 12, the plaintiff can be called on to pay the deficit court-fee payable on his plaint (in the lower Court) in respect of the other one-eighth share.
6. The relevant portion of the section reads thus:
Whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of revenue.
7. There are three possible positions:
(i) Notwithstanding that the appeal is confined to a part of the suit, it may be contended that the whole suit has come before the Court of appeal. Hence the appellate Court has jurisdiction to levy the deficit court-fee in respect of the entire subject-matter of the suit.
(ii) That part of the suit alone as is comprised in the appeal (it may be-contended) is before the appellate Court. In that case deficit court-fee only in respect of that part of the suit can be levied.
(iii) Only a part of the suit being comprised in the appeal, the suit as such is not before the appellate Court. Therefore the section has no application at all.
8. On this point there are two reported decisions. In Kerala Varma v. Chadayan Kutti I.L.R. (1891) Mad. 181 the facts were; the suit related to three parcels of land but the defendants' appeal was in respect of only one of them. The suit was valued at Rs. 480 odd. The appellate Court held that it ought to have been valued at about Rs. 1,100. The deficit court-fee not having been paid, an order was made, 'original suit rejected.' The learned Judges (Wilkinson and Shephard, JJ.) held that the District Judge's order was irregular, on the ground 'he had no jurisdiction over the whole subject-matter of the suit, the appeal by fourth defendant relating to one item only'. The judgment is brief, but the decision is perfectly clear. In other words, of the three possible views mentioned above, it was the second view that prevailed. It is a ruling of a Bench of Our Court, which does not appear to have ever been questioned, and there is no reason why we should now depart from it.
9. Radharanee v. Kshetra Mohan (1935) 40 C.W.N. 406 is the second of the two cases referred to above. There the suit related to four mortgages and the lower Court accepted Rs. 2,775 to be the correct court-fee payable on the plaint. The defendants appealed in regard to a part of the suit claim, namely, the amount claimed on the basis of the fourth mortgage bond alone. The appellate Court held that the proper court-fee payable in the Court below was Rs. 6,000 odd. The question arose, could the appellate Court make an order for the payment of this entire amount? The answer was given in the affirmative. It will be seen that the decision is at variance with what was held in Kerala Varma v. Chadayan Kutti I.L.R. (1891) Mad. 181. But from the judgment, which in this case also is very brief, it would appear that the argument that was put forward and negatived, was that indicated in position No. (iii) above. It follows therefrom that position No. (ii) did not fall to be considered in that case, that is, the position accepted in the Madras case; nor was that case referred to or cited.
10. The section is not happily worded, but we think that the view taken in Kerala Varma v. Chadayan Kutti I.L.R. (1891) Mad. 181 is the most reasonable.
11. The question then remains, what was the court-fee payable on the plaint in respect of the seventh defendant's one-eighth share? There is a distinct averment in the plaint, that the first defendant is in possession of the plaintiff's share which means, that the plaintiff is out of possession. The prayer in the suit, which is in accordance with this allegation, is both for partition and separate possession. Where the plaintiff is in possession, actual or constructive, and merely seeks to change the form of his enjoyment by obtaining a divided, in the place of, an undivided share - in such a case there is a conflict of judicial opinion as to the appropriate provision applicable. But where, as here, the plaintiff has been excluded, upon his allegation, from possession, there can be no doubt whatsoever that the court-fee payable is ad valorem under Section 7(v).
12. It is for the Government to show that the court-fee of Rs. 100 (paid in the lower Court in respect of this relief) is insufficient. It was on the assumption, that court-fee was payable on the market value of the one-eighth share (that is, Rs. 7,000), that the case was argued on behalf of the Government. But the suit property is a mitta, which it is not disputed, is an 'estate', and the value of the land, is to be deemed to be, under Section 7(v)(a) twenty times the annual revenue payable. It has not been shown what the annual revenue is, in other words, there is nothing to show that twenty times the annual revenue amounts to a figure in excess of the sum on which Rs. 100 (the amount actually paid) would be the proper court-fee. So much for the plaint in the Court below. The same remark would apply to the court-fee paid on the memorandum of appeal.
13. Finally, one word as regards the contention in respect of the relief of declaration. The value of the seventh defendant's share (which alone has come before the appellate Court) is less than Rs. 10,000, and therefore the court-fee payable on the plaint under Schedule II, Article 17-A(i) (Madras Amendment) is Rs. 100 and not Rs. 500, and that sum has been paid. It is unnecessary in this view, to consider the other question raised, namely, whether the prayer as to declaration was superfluous and therefore no court-fee was payable in respect of that relief Kattiya Pillai v. Ramaswamia Pillai : AIR1929Mad396 .
14. In the result, we must hold that the Government's contention has not been made out.