1. The 1st defendant is the appellant. He is a junior member of a tarwad of which the plaintiff is the manager appointed under a karar. jointly with a younger brother, the 1st defendant acquired a certain property, and the younger brother subsequently died. The plaintiff brought the suit as manager of the tarwad for partition and recovery of the younger brother's half share of the property on the ground that it had passed to the tarwad by inheritance. There was also a prayer for mesne profits from the date of the younger brother's death. In his written statement the 1st defendant alleged that the younger brother's name was only nominally added in the assignment deed and that in fact the whole property was acquired by himself alone. The learned Subordinate Judge has disbelieved this allegation and has given a preliminary decree for partition, which directs that the amount of mesne profits due to the tarwad shall be determined at the time of passing the final decree. The judgment decides that only three years' mesne profits are awardable, but this decision is not carried into the decree.
2. The plaintiff as respondent raises the preliminary question of the sufficiency of the Court-fee paid on the memorandum of appeal. The appellant disputes his right to raise an objection of this character, and refers to the procedure laid down in Chapter II of the Court Fees Act, so far as it applies to a High Court. Section 4 provides that Court-fees must be paid before any of the documents specified in the first or second schedules of the Act are filed. Section 5 states that when a difference arises between the officer whose duty it is to scrutinise the sufficiency of the Court-fee and a suitor or attorney, the question shall be referred to the taxing officer, whose decision shall be final unless he considers the question of sufficient importance to refer it to the Chief justice. In the Madras High Court the officer who has to ensure that the Court-fee has been duly paid, is the Deputy Registrar, Appellate Side, and the taxing officer is the Master. It is conceded that in the present case the procedure permitted by these sections was not availed of. Not only so, but it is very difficult to see what opportunity a respondent would have of setting it in operation. The case for which Section 5 ordinarily provides is when the officer who has to admit the appeal finds the Court-fee paid insufficient and calls upon the appellant to pay the; deficit. If then the appellant contests the correctness of the requisition, the officer makes a reference to the taxing officer. In such a case, no doubt, the taxing officer's decision is final, and even though the respondent was unrepresented when the correct Court-fee was finally fixed, it may well be, as appears to have been decided in Ranga Pai v. Baba I.L.R. (1897) M. 398, that he cannot raise the 'question at the hearing of the appeal. We have been referred to no authority however for the position that where no recourse has been had to Section 5 he is still debarred from so doing. In Bhubaneswar Trigunait, In re I.L.R. (1925) C. 871 all that was decided was that where in a probate case a taxing officer's certificate as to the sufficiency of the duty is produced, although it may have been given after no such 'difference' as is contemplated by Section 5, it is still final. This part of that decision was followed by one of us in Swaminatha Aiyar v. Guruswami Mudaliar : AIR1927Mad940 . There is, however, a direct decision in Kasturi Chetti v. Deputy Collector, Bellary I.L.R. (1898) M. 269 that where there has been no decision by the taxing officer under Section 5 the Court is not precluded from taking notice at the hearing of the deficiency in the stamp duty. 'Otherwise,' the learned Judges say:
there would be no remedy for the most obvious error, or even for a deliberate trick to defraud the stamp revenue, unless detected by the routine establishment in the first instance, and before the admission of the appeal or the reception of the paper, as the case might be.
3. We think that this is the correct view and following it we have allowed the respondent to address us on the question of Court-fee.
4. The appellant has placed his own valuation on the appeal, valuing the half share at Rs. 75 and one year's mesne profits at Rs. 350, and endeavours to justify this course by showing that the suit falls either under Section 7(iv) (b), as a suit to enforce the right to share in the property on the ground that it is joint family property, or alternatively under Schedule II, Article 17 (vi), which provides for a suit or appeal where it is not possible to estimate at a money value the subject-matter in dispute, and which is not otherwise provided for by the Act. The respondent, on the other hand, urges that the suit is one for possession as provided for by Section 7 (v). It appears to us that the question must depend upon whether the plaintiff, at the time he brought the suit, was in or out of possession, actual or constructive, of the suit property. If he was in constructive possession, the suit would resemble in nature one filed by a coparcener in joint possession of the family property for partition, and it has been held by a Full Bench of this Court in Rangiah Chetty v. Subraniania Chetti (1910) 21 M.L.J. 21 that such a suit is governed by Section 7, Clause (iv) (b) of the Act, on the theory that what the plaintiff really asks for is the conversion of his joint possession of the whole, whether actual or constructive, into separate possession of his share. Similarly, as has been held in Gill v. Varadaraghavayya I.L.R. (1919) M. 396 : 38 M.L.J. 92, a suit by a co-tenant for partition is governed by Schedule 11, Article 17 (vi), because it would not fall under Section 17 (iv) (b), the property not being joint family property. Mr. Govinda Menon for the appellant further relies upon Padammah v. Themana Amniah I.L.R. (1894) M. 232 which related to an invalid kanom of tarwad property granted by the karnavathi to two junior members. It was found that although there had been an attornment of the tarwad tenants to the kanomdars, possession really remained with the karnavathi, and consequently it was enough for the. plaintiff, who sued as a junior member of the tarwad to upset this arrangement, to ask for a declaration that the kanom was invalid. If, however, the kanom had been granted to a stranger who was in possession, the learned Judges add, then possession also must be sought as a relief consequent upon the declaration. This decision has been considered and explained in Chowkaran Kunhi Packer v. Chowkaran Malikaimal Valia Bapotty : (1919)37MLJ544 where the circumstances were closely similar.
5. 'There are no doubt observations in that judgment,' the learned Judges say,
about 'unity of possession' and about the possession of the tenant being the possession of the tar-wad, etc. But they must be read with the facts of the case and do not support the contention that under no circumstances can a junior member of the tarwad sue for possession if the tarwad had parted with possession.
6. They further remark:
The character in which an alienee anandravan holds possession will depend upon how far he ousts the tarwad and not upon whether he is a member of it or not. If the tarwad is ousted then the possession of the ouster, whether he be a member of it or not, is as injurious to the tarwad as ouster, by a stranger and the member in possession must be sued, as if he was a stranger.
7. The same principles have been followed lay Wallace, J., in the case of a Hindu coparcenary in Ramakrishna Aiyar v. Muthuswami Aiyar (1924) 86 I.C. 627 it is accordingly necessary here to decide upon the plaint, the terms of which must determine the nature of the suit and (he amount of Court-fee to be paid, whether it was incumbent or not upon the plaintiff to sue for possession. There is an averment in paragraph 4 that after the death of the younger brother the 1st defendant had been collecting and appropriating the whole of the income of the property, in paragraph 7 that, although he had been requisitioned that the property should be divided, he has refused to comply through selfish motives and with a view to defraud the. tarwad, and in paragraph 8 that the tenants were in possession of the property. The prayer is accordingly for a decree directing the division of the property into two equal shares and that one of these shares be caused to be surrendered and given delivery of to the plaintiff. It appears to us that these allegations clearly amount to saying that the 1st defendant is holding the half share of the property, which since his younger brother's death belongs to the tarwad, not permissively from the tarwad or in any other way constructively, but wholly adversely. The property was in origin self-acquired, and there; appears to be no ground for the view that the tarwad at any time had possession in any form. The plaintiff was assessed to Court-fee on the footing that the suit was one for possession and we consider that, this is clearly right and that the appellant must pay a fee upon his memorandum accordingly. So far then as the prayer for possession is concerned the fee will be assessed, as regards Items 1 to 3, which are assessed lands, upon one-half of ten times the assessment, or Rs. 150, under Clause (a.) of Section 7 (v) ; on the remaining items (Nos. 4 to 13), which are sarvamanyam or revenue free, upon one-half of 15 times the mesne profits, or Rs. 4,387-8-0 under Clause (c) of the same section. Therefore on this part of the memorandum the fee will be payable on Rs. 4,537-8-0.
8. There remains the question of mesne profits. In his judgment the learned Subordinate Judge has found that the claim to mesne profits prior to three years before suit is barred although he does not in express terms award mesne profits for this period. He adds that the rate will be determined at the stage of the final decree. The preliminary decree embodies this latter direction but makes no reference to the term of three years. There is accordingly no sum certain fixed in this respect upon which the Court-fee can be paid by the appellant. The alternatives seem to be either that he should pay no fee at all or, as was held, we think obiter, in Puny a Nahako, In re (1926) 52 M.L.J. 128 that he should pay it on the valuation given in the plaint. With much respect to the learned Judges who expressed that view, we can find no sufficient justification for adopting this latter course. The decree, which we must follow in preference to the judgment, contains no more than a direction for the determination of the mesne profits and accordingly it is difficult to apply the terms of Schedule I of the Court-fees Act, where it is said that the fee is to be payable on the amount or value of the subject-matter in dispute. Mr. Govinda Menon for the appellant asks us to adopt the position that in the case of all decrees for possession, and mesne profits it is only necessary to appeal against that part of the decree which awards possession, because if it be set aside, the award of mesne profits must necessarily go with it. We need not go so far as to discuss the tenability of this view. Where, however, a preliminary decree only makes provision for the subsequent determination of the mesne profits we think that the apt occasion for requiring a defendant to pay a Court-fee in this respect would be if and when the profits have been determined by a final decree. To require him to pay now a Court-fee upon, the profits as estimated in the plaint, where there is as yet no question as to their amount but only as to the right of the plaintiff to receive them, appears not only difficult to justify on principle but also to lead to the difficulty that if the defendant subsequently has to appeal against the amount of mesne profits awarded by the final decree, he would pay Court-fee twice over. We do not think, therefore, that at the present stage the fee payable should comprise this item.
9. We give the appellant three months to pay the Court-fee as settled above. The appeal will be posted for hearing immediately the Court-fee is paid. In default of payment the appeal will stand dismissed with costs.