Balakrishna Ayyar, J.
1. The two pltfs are the petnrs. Pltf 1 is the husband of pltf 2. The deft is a son of a brother of pltf 1. Early in Jan 1944 pltf 1 sent a notice to the deft telling him that he intended to become divided in status. After having thus effected a disruption in status, pltf 1 executed on 10-1-1944 a gift deed of his immovable assets in favour of pltf 2. The pltfs continued to live as previously in a portion of the family house. Thereafter they brought a suit for partition of the assets of the family and also for accounts. A sum of Rs. 100 (one hundred) was paid as court-fee in respect of the claim for partition under Article 17 B of Schedule II,Court-fees Act.
2. The objection was taken that the court-fee paid was insufficient. The learned Subordinate Judge went into the question and required the pltffs to pay 'ad-valorem' Court-fee. They have therefore come to this Ct.
3. One item in respect of which 'ad valorem' court-fee was insisted on, is the house in a partof which the pltfs live. Now, under Section 7 Clause (V),Court-fees Act which is the one which the Subordinate Judge held to be applicable, 'ad-valorem' fees need be paid only if the pltfs sue for possession--but their allegation is that they are already in possession. That being so, I find it difficult to see how they can be required to sue for possession or said to be suing for possession of the properties.
4. The learned Govt Pleader referred me to the decisions in 'Nanjaya v. Shanmuga', 38 Mad 684: AIR 1914 Mad 440, 'Maharaja of Bobbili v. Venkataramanujulu, Naidu', 39 Mad 265 and 'Subba Goundan v. Krishnamachari', 45 Mad 449: AIR 1922 Mad 112 & also to p. 491 of the 11th Edn. of Mayne's Hindu Law wherein it is stated :
'The view taken by the Madras H. C. that as the purchaser from a coparcener is not a tenant-in-common with the coparceners in the family, he is not entitled to joint possession or to mesne profits....appears to be the sound view'.
This however is not in dispute. An alienee from a coparcener may not be a tenant-in-common; he may also be not entitled to possession. Still if as a matter of hard fact he is in actual possession of the property why should it be said that he must pay court-fee as though he were not in possession? That is a requirement I find it hard to understand. So far as the house is concerned of which the pltfs are in possession, they are not bound in my view to pay court-fee under Section 7(V), Court-fees Act. Payment under Article 17B of Schedule II is sufficient.
5. In respect of the other matter included inthe plaint, the order of the Subordinate Judgeappears to me to be correct. The civil revisionpetition is therefore allowed to the extent indicated above. As the petnrs have succeeded inpart and failed in part there will be no orderas to costs. Time to pay deficit court-fee onemonth.