1. The question for decision in this case is whether the lover Court was correct in directing the plaintiff to pay additional Court-fee. The plaintiff is suing for partition, being an undivided member of a joint family, composed of the 1st defendant (his father) and defendants 2 and 3 (his brothers). The lower Court has held that as the plaintiff is, on his own case in the plaint 'out of possession' the Court-fee has to be valued under the provisions of the Court Pees Act, Section 7, Clause 5. The plaintiff maintains that, as he is suing as an undivided member and therefore in joint possession of the joint family properties, the case comes under Section 7, Clause 4(b) and he is entitled to fix his own value, for the convenience of getting his undivided share separated. The defendants contend that Section 7, Clause 4(b) cannot apply to any case in which a co-parcener is 'out of possession,' of the joint family property. At one stage of the argument, they went so far as to contend that unless the co-parcener suing was in physical possession of some portion of the joint family property, he was out of possession of the whole joint family property. But such a proposition would directly contradict the ordinary legal concept of a joint family in which physical possession by one member is physical possession on behalf of all. Any co-parcener is in law in physical possession of any and every portion of the joint family property, which is in the physical possession of any other co-parcener. He is in 'constructive possession' although he is not in physical possession.
2. Now the plaintiff sues, on the footing, that the joint family property is in physical possession of defendants 1 to 3 and that the plaintiff is their co-parcener and he does not state that the defendants have at any time denied the plaintiff's right to possession as a co-parcener. In fact, he states in paragraph 15 of the plaint that the defendants have sent him notice offering to give him separate possession of his fourth share in the joint family properties. But as the division proposed by them did not satisfy the plaintiff he did not accept that offer. Clearly then the plaintiff sues on the footing that the defendants are holding the plaintiff's share, according to their allotment of it, at the plaintiff's disposal, to be given to him whenever he chooses to take it. I cannot hold that there is here any ouster by the defendants of the plaintiff from the joint possession of the joint family property. One who is admitted to be a coparcener cannot be out of joint possession and the other co-parceners, who admit his membership cannot deny his possession because their possession is his possession. Unless there is a definite ouster, it is a contradiction in terms for a co-parcener to say that any other co-parcener is out of possession. The proper test to be applied to the case will be whether, if the plaint state of affairs continued for 12 years, the plaintiff would be barred from suing. It appears to me that he could Dot be barred from suing, since the suit is on the footing that the right to share exists admittedly and has never been denied, and the plaintiff is merely suing to enforce that right to share.
3. The law is quite clear that Section 7, Clause 4(b) applies to a suit for partition, where the plaintiff is still in joint possession and is not ousted from possession, be it physical or constructive, that is, from any participation in the joint family properties. In the Pall Bench case in Rangaiah Chetty v. Subramania Chetty (1910) 21 M.L.J. 21 the question whether Section 4(b) would apply to a case, where a co-parcener is excluded even from joint possession and is suing for joint possession was raised and not decided, the deciding factor indicated being whether the suit was not really one in ejectment. I cannot see how the present suit can be treated as a suit in ejectment, since the plaintiff sues on the footing that the defendants admit, they are holding the plaintiff's share for him and are not resisting his claim to joint possession at all, but only contest the nature and extent of the assets and the mode of division.
4. It has also been stated in the written statement by the defendants that they do not deny the plaintiff's right to a fourth share and are willing to grant it, according to their own views of the mode of division. But I do not advance this as a reason for my conclusion, as the Court-fees has to be decided, in the first instance, at least on the allegations in the plaint.
5. The lower Court has violated this principle, when it relied on certain statements, made by the plaintiff in an affidavit filed in I.A. No. 172 of 1923, filed over a year after the plaint, to the effect that the plaintiff is at present 'out of enjoyment' of the income of the family property, that is, on the date of the I.A. and not on the date of the plaint. But the I.A. itself states that there has already been an order of the Court that the defendants should deposit one-fourth of the profits of certain lands into Court and give security for a fourth of the outstandings shown in the plaint. This statement, even if I allow it to be relied upon by the defendants, means no more than that the plaintiff himself has chosen not to accept the share offered to him by defendants. It does not imply that the defendants refused to permit him enjoyment of any of the income of the joint family property. His case in fact is that the defendants, as they imply in their own written statement, are saying. 'Here is your share ready, come and take it.'
6. It is significant that the defendants put forward no objection as to the insufficiency of the Court-fee until over one year from the institution of the suit.
7. If at the actual hearing of the suit it is found as a fact that there has been an actual ouster, that the defendants have been excluding the plaintiff from all participation in the family profits, because they claimed them all for themselves and none for him, then different considerations would arise and the question will fall to be decided, whether the plaintiff has been prior to suit, definitely ousted from even joint possession of the family property and whether he should therefore pay an additional Court-fee, as in a suit for ejectment, under Section 7(5), but the time for that has not yet come.
8. I am clearly of opinion that Section 4(b) applies and that the plaintiff has to pay Court-fee op his own valuation. As this is a matter of material irregularity in the exercise of the lower Court's jurisdiction, it is clearly a matter for interference in revision. I therefore reverse the order of the lower Court. Plaintiff will get his costs in this Court.