1. In this case the plaintiff sues for partition of certain immoveable property of which he alleges he is in possession as a co-tenant on behalf of himself and the other co-tenants. This is not a suit to enforce a right to share in the possession of property on the ground that it is joint family property within the meaning of Section 7(IV)(b) of the Court Fees Act VII of 1870 and therefore the question of the applicability of that sub-section to suits for the partition of joint family property which was decided by a Full Bench of this Court in Rangiah Chetty v. Subramania Chetty (1910) 21 M.L.J. 21 does not arise.
2. There is a long course of decisions in Calcutta that a suit such as the present for a partition by a plaintiff alleging himself to be already in joint possession is incapable of valuation within the meaning of Schedule II Article 17(6) and is not governed by Clause V of Section 7 and though the point was not expressly decided by the Full Bench in the case reported in Rangiah Chetty v. Subramania Chetty (1910) 21 M.L.J. 21 the reasoning of all the learned Judges who heard the reference is in accordance with this view.
3. The same view is taken in Tarachand Mukherji v. Afzal Beg I.L.R (1911) All. 184. In these circumstances we are not prepared to agree with the decision in Reference under the Court Fees Act, Section 5. : (1894)4MLJ110 , that the value of the subject-matter of such a suit is not incapable of valuation but easily ascertainable or with the decision in Dagdu v. Tolaram I.L.R (1909) Bom. 658, assuming that the point arose in that case which is not clear. The balance of authority appears to us to be strongly in favour of the view that such a suit as the present is governed by Schedule II Article 17 Clause 6, the latest case being Ahamuddin Tamijuddin Amiruddin 44 Ind.Cas. 216 and we must so hold and set aside the order rejecting the plaint and remand the case to the lower Court for disposal according to law. Costs will abide the result.