Panchapakesa Ayyar, J.
1. This is a petition by one Varadarajulu Reddiar, the plaintiff in O.S. No. 78 of 1955 on the file of the Subordinate Judge, Cuddalore, for revising and setting aside the order of the learned Subordinate Judge directing him to pay Court-fee under Section 7(v) of the Court-fees Act on a sum of Rs. 38,000 the market value of all the unalienated properties claimed by him to be liable to be partitioned in the suit. The main basis for the lower Court's order was that the allegation of joint possession set up by the plaintiff as regards them was belied, at least regarding six items of properties, the old house, the new house and four plots of land by the admission of the plaintiff himself in O.S. No. 49 of 1953, District Munusifs Court Tindivanam, wherein he had expressly stated that, in or about 15 years ago, that is, about 1938, the house GHJK (old house) and items 2 and 3 of the plaint fell to his shares, the house MLPO (new house) and the properties AENM and QMNEVS fell to the share of defendant 1 and were exclusively enjoyed by him thereafter, and he was paying the kist for the lands separately though, no doubt, he alleged that some wells and all other immoveable and moveable properties were enjoyed in common even after such partition. Mr. K.S. Desikan, the learned Counsel for the petitioner, could not get over this admission, and, indeed, did not want to get over it. But his contention was that, in addition to the Court-fee already paid on the plaint, only Court-fee on the market value of the above six items could be demanded, and not Court-fee on the value of all the unalienated properties covered by the partition suit. He pointed out that, but for that admission in that suit, whose plaint was asked, in the plaint in this suit, to be treated as part of it, the petitioner need not have paid anything more than the Court-fee he had already paid as for an ordinary partition suit. That is so. But that, of course, will not help him when it is a question of paying the Court-fee under Section 7(v) on the market value of the above six items, in addition. The question, then, is whether the lower Court was justified in demanding Court-fee on the market value of all the other unalienated items moveable and immovable, covered by the suit also. Mr. Desikan submitted that it was not; and I agree with him. The learned Additional Government Pleader contended that, since, in the reply notice, the first defendant had denied the right of the plaintiff to partition regarding the other unalienated items also, alleging that there was no joint possession regarding them and that a complete partition had already taken place, the plaintiff should pay Court-fee under Section 7(v), or at least under Section 7(iv)(b), regarding those other items. I cannot agree. The ruling of a Bench of this Court in In re Sathappa Chettiar (1954) 2 M.L.J. 400 : I.L.R. (1955) Mad. 810, relied on by the Additional Government Pleader, will have no application to the facts of this case, as, there, the right to a share was given up, on the plaintiff's behalf by his guardian, and then it was sought to be resuscitated, and, so Section 7(iv)(b) of the Court-Fees Act was held to apply, as the suit was one|to enforce a right to a share in the property on the ground that it continued to be joint family property, despite the prior giving up. Then, the learned Additional Government Pleader urged that whenever a reply notice to the person seeking partition denies his right to partition and denies joint possession of the properties, that will be enough to bring the operation of Section 7(iv)(b). The argument is unsustainable. In the majority of partition suits, a reply notice will deny the right to partition and also deny joint possession. For the reason, to compel the plaintiff seeking partition to pay Court-fee under Section 7(iv)(b), and to deprive him of the right given to him under the law to file a suit for partition, paying Court-fee only on that basis, will be unjustifiable and even illegal.
2. In the end, therefore, I modify the order of the learned Subordinate Judge and direct the petitioner to pay Court-fee, in addition to the Court-fee already paid, on the market-value of the old house, new house and the four bits of land referred to above to be ascertained by the lower Court either by appointing a commissioner or by any other satisfactory method. The direction that the petitioner should pay any more Court-fee (on the other unalienated immoveable properties or moveable properties), than what has been mentioned above, is set aside. One month's time is given to the petitioner to pay the additional Court-fee after the amount due is determined by the lower Court, after valuing the six items. In the circumstances, all the parties will bear their own costs.
3. Mr. K.S. Desikan prays for permission to put in an amendment petition in the lower Court, if the petitioner thinks fit dropping the claim to partition of the old house, new house and the four other properties (partitioned already according to O.S. No. 49 of. 1953), and escape the payment of the additional Court-fee ordered by me. He is free to do so.