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S. Narayanaswami Ayyar Vs. Kesava Ayyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 668 of 1950
Judge
Reported inAIR1952Mad539; (1952)1MLJ11
ActsCourt-fees Act, 1870 - Sections 7 - Schedule - Article 17
AppellantS. Narayanaswami Ayyar
RespondentKesava Ayyar
Advocates:K. Vaitheeswaran, Adv.;Government Pleader
DispositionRevision allowed
Cases ReferredNagendram v. Appayya
Excerpt:
- - a reading of his judgment would show that he has clearly misunderstood the facts averred in the plaint. it is sufficient forme to refer to the passages cited by the learnedcounsel for the petitioner in the 1950 edition ofmitra's limitation act at pages 979 and 981.the learned district munsif has failed to drawthe distinction between an alienee from a coparcener of a hindu joint family and an alieneefrom a member of such a family who becamedivided in status and whose possession thereafter became that of a co-sharer in the properties. the plaint allegations clearly point tothis fact that not merely is the plaintiff injoint possession as a tenant-in-common but he isalso a co-sharer and the plaintiff is only analienee from the co-sharer......in the present case also make it clear that the vendor of the present plaintiff has been in joint possession of some of the items of the suit property as a tenant in common with the other co-sharer. the purchaser therefore steps into the shoes of his vendor, who was in constructive possession as co-sharer and what he is seeking now to do is to convert the joint possession as tenant in common to separate possession. in such a case the position is that the suit cannot be valued except under article 17 of the second schedule to the court-fees act where suits which cannot be valued will have to be paid a fixed court-fee prescribed in the said article. that is what the plaintiff has done in this case. that this case cannot be brought within the scope of section 7, clause (v) has been.....
Judgment:
ORDER

Basheer Ahmed Sayeed, J.

1. The plaintiff is the petitioner. He seeks to revise the order of the learned District Munsif of Melur whereby he has been directed to pay court-fee on the plaint under Section 7, Clause (v) of the Court-fees Act. A reading of his judgment would show that he has clearly misunderstood the facts averred in the plaint. He has followed the decision in 'Nagendram v. Appayya', ILR (1947) Mad 763. But the facts in that case are quite different from the facts in the present case and the decision cannot apply to the present case though the learned Government Pleader would urge to the contrary. In that case, it was a purchaser from a coparcener of a Hindu joint family that was filing the suit for partition and possession. But in the present case the plaintiff is an alienee from a co-sharer who got divided in status nearly 45 years ago. The plaint allegations in the present case also make it clear that the vendor of the present plaintiff has been in joint possession of some of the items of the suit property as a tenant in common with the other co-sharer. The purchaser therefore steps into the shoes of his vendor, who was in constructive possession as co-sharer and what he is seeking now to do is to convert the joint possession as tenant in common to separate possession. In such a case the position is that the suit cannot be valued except under Article 17 of the second schedule to the Court-fees Act where suits which cannot be valued will have to be paid a fixed court-fee prescribed in the said Article. That is what the plaintiff has done in this case. That this case cannot be brought within the scope of Section 7, Clause (v) has been made clear by a series of decisions.

(la) 'Gill v. Yaradaraghavayya', 43Mad 396, seems to be a direct authority in supportof the contention of the petitioner. Even so theobservations made in 'Kandunni Nair v.Raman Nair', 53 Mad 540, are very oppositeand apply to the facts of the present case.'Suryanarayana v. Seshayya', 90 IndCas 843 and 'Kurshit Kathum v.Hyder Khan', 75 Ind Cas 93 , are alsoon the same principle and the decisions thereinapply to the facts of the present case. I do notthink it is necessary for me to refer to anyauthority which would say that the plaintiff inthis case who is a purchaser from one of the co-sharer who became divided several years agosteps into the shoes of that co-sharer and getsall the rights and interests that that co-sharerpossessed in the properties. It is sufficient forme to refer to the passages cited by the learnedcounsel for the petitioner in the 1950 edition ofMitra's Limitation Act at pages 979 and 981.The learned District Munsif has failed to drawthe distinction between an alienee from a coparcener of a Hindu joint family and an alieneefrom a member of such a family who becamedivided in status and whose possession thereafter became that of a co-sharer in the properties. The plaint allegations clearly point tothis fact that not merely is the plaintiff injoint possession as a tenant-in-common but he isalso a co-sharer and the plaintiff is only analienee from the co-sharer. Such being the circumstances, the learned District Munsif was entirely wrong in having applied the principle laiddown in 'Nagendram v. Appayya', ILR(1947) Mad 763. The proper court-fee thatwould be payable under such circumstanceswould be the one which the plaintiff has alreadypaid. This petition is therefore allowed. Therewill be no order as to costs.


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