Govinda Menon, J.
1. The only question that has to be decided is as regards the court fee payable onthe plaint. The learned Subordinate Judge, relying upon earlier decisions of this court, such as -- 'Kuppuswami Goundan v. Mari Goundan', 1943 1 Mad. L. J. 249 and -- 'Ramaswami v. Kunjammal', 1950 1 M.L.J. 408 came to the conclusion that the piaintiff is not bound to set aside the partition deed and that he can simply ignore the existence of an earlier partition. In these circumstances. Section 7(iv-A) of the Court-fees Act is not an impediment to the valuing of the suit. Nothing has been urged before me by the respondents to show that this conclusion arrived at by the learned Judge is not sustainable either on the principle decided in the cases mentioned, or under any other statutory provision.
2. The petitioner's Counsel urges that whenonce he is able to ignore the existence of the previous partition of 1938, it is as if there hasbeen no partition at all which would result in the properties being relegated to the position which they occupied prior to the alleged void partition. Antecedent to 1938, according to the plaintiff himself, and the other members of the joint family were in joint possession of the family properties and the suit for partition could be filed on the footing that antecedent jointness of possession should be converted into separate possession. On that basis Article 17-B of the second schedule of the Court-fees Act which provides for a fixed court-fee in such suits is the provision of law applicable. Even if that position is untenable, according to the petitioner's counsel, the plaintiff should be deemed to be a tenant in common with other members of the erstwhile family after a division in status has taken place. To a partition suit filed by such a tenant in common, a Full Bench of the Lahore High Court in -- 'Mohammad Sohail v. Gulam Rasul', I.L.R. (1941) Lah 308 has applied the same principle as would pertain to a suit for partition where there has been no such conversion of coparcenary into a tenancy in common. Tekchand J. in delivering the judgment of the Full Bench observed that the reasons as to why a suit by a coparcener for partition should fall within Clause (vi) of Article 17 of the Second Schedule to the Court-fees Act (Article 17-B of the Madras amendment) should apply equally to a suit by a co-owner who is only a tenant in common. The learned Judge observed: 'In either case, the relief sought is the change in the mode of enjoyment of joint property of which the plaintiff 'ex hypothesi' is in joint possession and it is not possible to estimate at money value the subject matter in dispute. It makes no difference for this purpose that in one case the joint property is held by the parties 'as joint tenants', while in the other they own it as 'tenants in common.' And in the latter class of cases, it is again, immaterial that the parties are governed by the Mohammadan law, or that they do or do not belong to the same family.' Mr. Karunakaran for the petitioner urges that this dicta contained in the Full Bench case must be applied to a case where the plaintiff is entitled to ignore the partition thereby placing himself in the position as if there had been no partition at all. But the real difficulty in this case arises from the fact that the plaintiff in paragraphs 6 and 7 of the plaint admits the existence of an earlier deed to which he was 'eo nomine' a party though as a minor represented by his mother as guardian.
3. On the other hand Mr. K. P. Ramakrishna Aiyar for the contesting respondents relies upon the Full Bench decision in -- 'Ramaswami v. Rangachariar', I.L.R. (1940) Mad 259 as well as the observations contained in -- 'Sellammal v. Jothimani Nadar', 70 Mad. L.J. 398. In the Full Bench case the majority Judges constituting the Full Bench held that where in a partition of Joint Hindu family property the plaintiff has impleaded alienees from the joint family and contested the validity of their alienations, the proper way of valuing the suit is that in respect of the general relief for partition and delivery of the plaintiff's share, the provision in the Court-fees Act which was applicable was Article 17-B of the second schedule to the Act and that in respect of alienations made and property having passed over to the possession of third parties, the suit should be valued under Section 7(v) of the Court-fees Act. In the latter case Varadachariar J. considered a case where two sons of a Hindu father filed a suit for partition and claimed that the properties which had been assigned by their father in favour of their step mother were in fact joint family properties and should be brought into the hotchpot for partition even though there had been an earlier partition of the remaining properties and held that court-fee on the plaint was leviable under Section 7, Clause (v) of the Court fees Act. Though the facts in that case have some resemblance to those we have to consider now, it seems to me that they are not 'ad idem'.
Somewhat allied to the present case is the decision in -- 'Suryanarayana v. Seshayya : AIR1926Mad122 where Odgers J. discussed the question of courtfee payable in a suit where the plaintiff admitted partial partition of joint family properties but at the same time contended that since the rest of the properties remained joint he was in constructive possession of the same along with the other members of the family. To such a case the learned Judge applied Article 17-B of the Second schedule. What was decided was that the correct mode of regarding the relief claimed in suits for partition of properties of a joint Hindu family which had already divided some of its properties is that it is merely a prayer to change the form of enjoyment and can only be valued by deducting, from the value of the plaintiff's share as ascertained in the partition, the value of his beneficial enjoyment as coparcener before partition. In such a case therefore it is impossible to estimate the money value of the suit. Article 17-B alone should therefore be held to be applicable. If the plaintiff had, in the plaint, alleged that he was in joint possession of any item of the joint family property along with the other members, then this decision of Odgers J. would be applicable. But I am not able to find any allegation in the plaint where it is stated that he is in joint possession with the other members of the family of at least one item of the family property. On the plaint as it stands, I cannot say that the learned Judge was wrong in directing court-fee to be paid on the basis he did with regard to the relief for partition. But it seems to me that such of the items as are assessed to land revenue as ryotwari land need be valued only at ten times the revenue payable. The improvements on such property, whether they are buildings or trees, need not be separately valued.
4. My attention was drawn to the judgment in -- 'C. R. P. No. 1950 of 1950', in which my learned brother Basheer Ahmed Sayeed J. has held that in somewhat similar circumstances in relation to a Marumakattayam tarwad, court-fee was payable under Article 17-B of the second schedule of the Court fees Act. But it is seen from that judgment that the plaintiffs who claimed partition were not 'eo nomine' parties to the previous partition deed at all. Further they were claiming maintenance on the basis that they were in joint possession with the defendants. If the plaintiff here had asserted in the plaint that there was joint possession, constructive or otherwise, of at least some portion of the property, Article 17-B would be the proper provision of law. But in the absence of any such allegation, I find it difficult to hold that on the averments in the plaint joint possession can be maintained. It is open to the plaintiff to suitably amend the plaint, if so advised, and then claim that the court-fee paid is correct. But if no such amendment is made, the order of the lower court cannot be disturbed. In any event the plaintiff is not bound to pay court-fee on the buildings on lands which are assessed to land revenue.
5. With these observations this revision petition is dismissed but in the circumstances without costs.