1. This is a revision petition presented against the decision of the Additional District Munsif of Guntur in which he held that the plaintiff's suit bad not been properly valued. He held that ad valorem Court-fee on the value of the property claimed must be paid.
2. Now the value of the suit is to be ascertained from the plaint and the plaint sets out that the suit is one for partition. It is brought by the plaintiff, the younger brother of the 1st defendant. The 3rd defendant is the undivided son of the 1st, and the 4th and 5th defendants, the sons of the 2nd defendant. According to the plaint, in the year 1912 it was arranged that a division should take place and certain vessels and working utensils were divided out into three equal shares. The 1st defendant had been the manager of the joint family and he was apparently unwilling to divide the rest of the property, moveables and immoveables. The plaintiff has admittedly collected and applied to his own use certain rents from the family land, and it is alleged that the 1st defendant has done the same thing with regard to granting cowles of other portions of the family land which the plaintiff says the 1st defendant is liable to account for. The said lands are in the management of the first defendant and in the constructive possession of this plaintiff. The learned Additional District Munsif says that
Having regard to the claim for rendition of accounts and for the recovery of past profits, it cannot be said that the plaintiff is in joint possession and enjoyment of the suit properties.
3. This I am unable to follow. The allegation is clearly that the lands and some of the moveables have remained undivided and that the plaintiff, with regard to the land that has been leased by the 1st defendant, is in constructive possession thereof, which can only mean to my mind that he is in possession as a tenant-in-common the division in status of the joint family having, as stated, taken place in 1912.
4. Under the state of things the question is, under which provision of the Court Fees Act the matter falls In the Pull Bench case reported as Rangiah Chetty v. Subramania Chetty (1910) 21 M.L.J. 21 a suit for partition by a member of a joint Hindu family, it was held by White, C.J., and Krishna Swamy Aiyar, J., the majority of the Court, that the suit was governed by Section 7, Clause 4(b). Now partition having taken place, the question is whether the matter is not governed by the present Article 17(6) in Schedule II which would entail a Court-fee of Rs. 15. As stated by Krishna swami Aiyar, J. the question 'is really the value of the convenience of changing the form of the enjoyment of the plaintiff's share....It is not possible to estimate this difference in value or this convenience in the form of the enjoyment at a money value.' True he was there speaking of joint possession, but I do not think that that affects the applicability of those remarks to the present case. Ayling, J., who dissented from the majority of the Full Bench in that he held that the matter fell under Article 17(6) as amended also concurred in the opinion expressed in Kitty Churn Mitter v. Aunath Nath Deb (1882) 8 C.l. 757 that the correct method of regarding the relief claimed in suits for partition was that it was merely a prayer to change the form of enjoyment and could only be valued by deducting from the value of his share as ascertained in the partition the value of his beneficial enjoyment as co-parcener before partition. That learned Judge also was of opinion that in such a case it was impossible to estimate the money value of the suit. I have not had the advantage of an argument on the other side but Mr. Somayya has put before me the facts fully and clearly so far as I am able to understand and I am of opinion that the decision of the learned Additional District Munsif is wrong. I think on the authority of the Full Bench case above quoted, the proper valuation will be that which seems to have occurred to the learned District Munsif in one place in the course of his judgment, namely, Rs. 15.
5. The civil revision petition will be accordingly allowed. The Court-fee will be paid within ten days after the records are received in the lower Court.