1. The point that arises for consideration in this C.R.P is as to whether the view of the-learned Subordinate Judge of Trivandrum, that the present suit comes within the category contemplated under Section 3, sub-section 4, clause (e) of the Travancore-Cochin Court-fees Act, (Act 2 of 1125), is correct. The suit itself is for partition and separate possession of the shares claimed by the plaintiffs in the properties which, according to them, are held jointly as co-owners with definite shares. The plaintiffs claim partition and separate possession in the following manner:

59/216th share in Items 1 and 2:

13/54th sharps in Item 3:

⅓rd share in Item 4:

½ share in Items 5 to 10:

⅓ share in Item 11: and

½ share in Items 15 and 16.

2. The general allegations in the plaint are to the effect that the plaintiffs are entitled to the shares mentioned above and that the properties, are held by the plaintiffs and the defendants as co-owners entitled to definite shares.

3. The plaintiffs valued the jenma of their share at Rs. 500 on the basis that the suit comes within Section 3, sub-section 4, clause (e) of the Court-fees Act. The suit itself was filed in the court of the District Munsiff of Neyyattinkara.

4. Objection seems to have been taken by the first defendant that the value of the plaintiffs' share has been grossly under-estimated and if it is property valued it will exceed the pecuniary jurisdiction of the court of the District Munsiff. A commission appears to have been issued for assessing the market value of the suit property and ultimately the Commissioner has fixed the market value of the plaintiffs' share in the sum of Rs. 30,000.

5. This valuation fixed by the Commissioner does not appear to have been challenged as will be seen from the order of the learned District Munsiff. The learned District Munsiff was of the view that the plaintiffs have to pay court-fees on the market value of the share claimed by them and inasmuch as the market value of their share exceeds the pecuniary jurisdiction of his court, that court has no jurisdiction to entertain the suit and as such the learned District Munsiff directed the return of the plaint to be filed in the proper court.

6. On appeal by the plaintiffs, the learned Additional Subordinate Judge of Trivandrum has taken a different view. According to the learned Judge, court-fee has been paid in pursuance of Section 3, sub-section 4, clause (e) of the Travancore-Cochin Court-fees Act, and it is the further view of the learned Judge that the prayer for partition and separate possession in this case comes well within the scope of clause (e) of sub-section 4 to Section 3. In this view, the learned Judge held that the court-fee paid is correct.

7. In this Civil Revision Petition, on behalf of the first defendant-petitioner, Mr. G. Vishwanatha Iyer, his learned counsel, contends that the view of the learned Subordinate Judge that the suit comes within the ambit of Section 3, sub-section 4, clause (e) of the Travancore-Cochin Court-fees Act is not sound in law. According to the learned counsel, in this case the plaint proceeds on the basis that the plaintiffs and the defendants are all co-owners of the suit properties and the plaintiffs want only a partition and separate possession of the shares stated in the plaint.

8. According to Mr. Viswanatha Iyer, the provision of law relied upon by the learned Judge has been held to be inapplicable to suits for partition of properties held jointly as co-owners. The correct provision, according to Mr. Viswanatha Iyer, is that contained in Article 8, clause 8 of Schedule II of the Travancore-Cochin Court-fees Act. Therefore, the learned counsel contends that the view of the lower appellate court is not correct.

9. On the other hand, Mr. S. Nilakanta Iyer, learned counsel appearing for the plaintiffs, raised in the first instance a preliminary objection that the Civil Revision Petition, at the instance of the defendant, when the lower court has held that the court-fee paid is correct, is not maintainable. Mr. Nilakanta Iyer also contended that the view of the learned Subordinate Judge that the present suit comes, under the class of suits contemplated under Section 3, sub-section 4, clause (e) of the Travancore-Cochin Court-fees Act is also correct.

10. The preliminary objection of Mr. Nilakanta Iyer need not detain me very long. According to Mr. Nilakanta Iyer the decision regarding the valuation is final under Section 9 of the Travancore-Cochin Court-fees Act and it is open to the court hearing an appeal or revision against the judgment to reconsider this question. Therefore, in view of the provisions of Section 9 of the Travancore-Cochin Court-fees Act the revision at this stage is not maintainable.

11. In this case, it will be seen that it is not a question relating to valuation or the sufficiency of court-fees that is being challenged by the first defendant. What is challenged is the category under which the present suit falls, i.e, whether it comes under Section 3, sub-section 4, clause (e) or under Article VIII, clause 8 of Schedule II of the Court-fees Act. The finality contemplated under Section 12 of the Court-fees Act, 1870 which is more or less analogous to Section 9 of the Travancore-Cochin Court-fee Act has been considered by the Supreme Court in the decision reported in Nemi Chand v. Edward Mills Co. Ltd., AIR 1953 SC 28. At page 32 of the reports their Lordships observe as follows:

“Whether a case falls under one particular section of the Act or another is a pure question of law and does not directly determine the valuation of the suit for purpose of court-fee. The question of determination of valuation for apprisement only arises after it is settled in what class or category it falls.”

12. Again, on the same page their Lordships observe:

“……section 12 when it says that such a decision shall be final between the parties only make the decision of the court on a question of court-fees non-appealable and places it on the same footing as other interlocutory non-appealable orders under the Code and it does no more than that. If a decision under S. 12 is reached by assuming jurisdiction which the court does not possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of revisional powers”.

13. Though, no doubt, a revision may not he at the instance of the defendant regarding the adequacy of stamp paid on the plaint, courts have held that if a question of jurisdiction is involved in the objection raised by a defendant and that question is wrongly decided, a revision is maintainable. It has also been held that the High Court could interfere at the instance of a defendant, if the question raised by him went beyond the amount of court-fee payable and related to the jurisdiction of the court to try the case. (See Kattiya Pillai v. Ramaswamia Pillai, 56 Mad LJ 394 : (AIR 1929 Mad 396) decided by Venkatasubba Rao and Reliy, JJ).

14. The principle that the High Court can interfere at the instance of a defendant, if a further question of jurisdiction is also involved in the decision of the lower court regarding court-fees is again reiterated by a decision of a Full Bench of the Madras High Court reported in Murthiraju v. Subbaraju, AIR 1944 Mad 315, (Leach C.J Mockett and Lakshmana Rao, JJ.) The Full Bench approved of the principles laid down by the earlier Bench of the Madras High Court referred to earlier in 50 Mad LJ 394 : (AIR 1929 Mad 396).

15. As stated by me earlier, the question in this case is as to whether the suit comes under Section 8, sub-section 4, clause (e) or Art. VIII, clause 8, of Schedule II of the Travancore-Cochin Court-fees Act. The question really is as to the category under which the present action comes. The decisions referred to by me earlier clearly lay down that in such circumstances a revision at the instance of the defendant is maintainable. I may also indicate that I am not adverting to the provisions of the new Court-fees Act, Madras Act 14 of 1955, the scheme of which is entirely different and it does not arise for consideration in this case.

16. Mr. Neelakanta Iyer strongly relied upon the decision of the Full Bench of the Travancore-Cochin High Court reported in Mathews Kathanar v. Easus Kathanar, 1955 Ker LT 17 : (AIR 1954 Trav-Co. 178). According to the learned counsel, She said decision has laid down that the High Court cannot interfere in revision under Section 115 of the CPC, when the lower court has decided in favour of the plaintiffs about the correctness of the court-fees paid. I cannot accept this contention of Mr. Neelakanta Iyer based upon the said Full Bench decision.

17. On the other hand, that decision, in my opinion, is to the effect that a wrong decision that a court-fee paid is sufficient may result in the assumption or usurpation of jurisdiction by a subordinate court which it does not otherwise possess in law. In those cases the orders of the subordinate courts are open to revision by the High Court. I will only advert. So one or two observations contained in that judgment which, in my opinion, clearly show that the said decision does not lend any support to Mr. Nilakanta Iyer's contention. At page 30 (of Ker LT): (at p. 185 of AIR) of the said reports Mr. Justice Subramania Iyer observes:

“A decision regarding the category of a suit within which a particular plaint comes may affect its valuation and consequently the jurisdiction of the court. If it does so affect the case would come within clause (b) of Sec. 115 or within clause (c) if the manner in which the decision is reached is illegal or materially irregular”.

18. Again, at page 36 (of Ker LT): (at p. 188 of AIR) Mr. Justice Sankaran, agreeing with the judgment of Mr. Justice Subramania Iyer observes as follows:

“A wrong decision as to the particular category under which the suit falls for the purposes of Court fee may involve a question of jurisdiction so as to attract the revisional jurisdiction of the High Court…. If the decision is by a court with limited pecuniary jurisdiction, that the court fee paid is sufficient may in some instances result in the assumption or usurpation of a jurisdiction by that court in the matter of trying the suit……. In such cases also the orders of the subordinate courts will be open to revision”.

19. These observations, far from supporting the position now taken by Mr. Nilakanta Iyer, clearly establish that in cases where questions relating to the category under which a particular suit comes has been wrongly decided, that decision is open to being challenged in revision in this court. Therefore, the preliminary objection of Mr. Nilakanta Iyer is overruled.

20. Coming to the merits, as mentioned by pie earlier, Mr. Viswanatha Iyers contention is that suits for partition and separate possession of their share by parties who are jointly in possession along with others as co-owners or otherwise do not come under Section 3, sub-section (4) clause (e) of the Court Fees Act but it really comes under Article VIII, Clause 8 of Schedule II. As this question has come up for decision in the other High Courts, it is desirable to set out the provisions of the Travancore-Cochin Act. Section 3 of the Act says:

“The amount of fee payable under this Act in suits, original or appeal, shall be computed as follows: Sub-section (4), clause (e) deals with suits to enforce right to share in any property on the ground that it is joint family property and it is further stated that in all such suits the plaintiff shall state the amount at which he values the reliefs sought”

21. Art. VIII, clause 8, of schedule II deals with “every other suit where it is not possible to estimate, at a money value, the subject-matter in dispute, and which is not otherwise provided for by this Act” and the court fee payable is Rs. 10. The provision in the Court Fees Act, VII of 1870, corresponding to Section 3, sub-section (3), clause (e) of the Travancore-Cochin Court Fees Act is that contained in Sec. 7, clause 4, sub-clase (b) and the wording of the said sub-clause is almost identical.

22. article 17-B of schedule II of the Court Fees Act, 1870, as amended in Madras, corresponds to Article VIII, clause 8, of schedule II of the Travancore-Cochin Court-Fees Act. The wording again is almost the same except that the stamp duty payable differs according as to whether the plaint, or memoranda is against the decree of a revenue court, District Munsiff's Court, City Civil Court, or a District Court or a sub Court. The question of stamp duty as such does not have any bearing. The question as to whether Section 7, clause 4(b) or article 17-B of schedule II of the Court Fees Act of 1870, applies to suits for partition of properties held jointly has been considered by a Full Bench of five Judges of the Madras High Court in Ramaswami v. Rangachariar, AIR 1940 Mad 113.

23. In that case among other reliefs the plaintiff asked for a partition and separate possession of his share in the properties held jointly by him. There were certain other attacks made in respect of certain alienations made by the father and it is not necessary for me to consider them in the case before me. The plaintiff therein valued his share. In the properties at Rs. 40,000 and paid stamp duty of Rs. 100 under article 17-B of schedule II of the Court Fees Act as amended in Madras.

24. The learned Judges had to consider in the first instance under which provision of the Act, the plaint requires to be stamped in respect of the plaintiffs general relief for partition and delivery to him of his share. There was an earlier Full Bench decision of the Madras High Court decided by three learned Judges and reported in Rangiah Chetty v. Subramanian Chetty, 21 Mad LJ 21 which had held that a suit for partition of joint family property where the plaintiff is in joint possession with other co-parceners is governed by Section 7, clause (iv)(b) corresponding to Section 3, Sub-section (4), clause (e) of the Travancore Cochin Court-fees Act.

25. It was therefore contended that the plaintiffs' treating his plaint as one under article 17-B of schedule II of the Court Fees Act is not correct in view of the earlier Full Bench decision.

26. The larger Full Bench did not accept the decision of the earlier Full Bench reported in 21 Mad. LJ 21 as laying down the correct law. After a review of the decisions of the various High Courts, the learned Judges came to the conclusion that the language of Section 7 cl. (iv)(b) of the Court Fees Act of 1870 is incompatible with a claim for partition when the plaintiff is in joint possession with the defendants. The learned Judges observe at page 117 as follows:

“A suit to enforce a right to share in any property on the ground that it is joint family property is a suit of a different nature from a suit to enforce the right to a share. Where the claim is to share, it implies that the plaintiff is not in possession; whereas a suit to obtain possession of a share is compatible with the plaintiff being in joint possession of the whole”.

27. It is further observed at page 117:

“If the words of Sec. 7(iv)(b) are to be given their ordinary meaning they cannot apply to a suit for partition by a member of a joint family who is still in joint possession. It follows that I consider that the majority decision in 21 Mad LJ 21 is erroneous and should be overruled. In these circumstances the only provision in the Court-Fees Act which is applicable to Article 17-B of Sch. 2 and in stamping his general relief under this provision the plaintiff has acted rightly”.

28. Therefore, the provision of the Act namely, article 17-B of schedule II of the Court Fees Act, 1870, under which the plaintiff had valued his suit and prod the court-fees was ultimately held to be the correct provision of law applicable to such suits and the earlier Full Bench decision of the Madras High Court, to the contrary and holding that section 7 clause (iv)(b) of the Court Fees Act will apply was overruled.

29. Therefore, it follows from the Full Bench decision referred to above, where all the decisions of the other High Courts have been referred to that suits for partition and separate possession by persons claiming to be in joint possession as co-owners or otherwise are governed by Article 17-B of schedule II of the Indian Court Fees Act as amended by Madras Act, corresponding to article VIII, clause 8 of schedule II of the Travancore-Cochin Court Fees Act.

30. The various decisions of the other High Courts, except the Bombay High Court, and referred to in the Full Bench decision of the Madras High Court are in accordance with the decision of the Madras Full Bench. Therefore, the position is that in suits of the nature before me, the provision of law applicable is clause 8 of article VIII of schedule II. The original Bombay view which was noted in the later Full Bench decision of the Madras High Court, appears to have been that even where the plaintiff is in joint possession along with the defendants, the provisions of section 7, clause 5 of the Indian Court Fees Act corresponding to section 3, sub-section 5 of the Travancore-Cochin Act are applicable.

31. I need not advert to the earlier Bombay view, because it is seen that even the Bombay High Court has now accepted the latest decision of the Full Bench of the Madras High Court as laying down the correct law. The latest decision of the Bombay High Court that I have in mind is a Full Bench decision of that court reported in Shankar Maruti v. Bhagwant Gunaji, AIR 1947 Bom 259. After noting the earlier Bombay decisions and also the decisions of the other High Courts, including the Full Bench decision of the Madras High Court, the learned Judges observe at page 263 as follows:—

“In these circumstances, in view of the weight of authority, I think that it should now be declared that the Bombay decisions are not good law, and that this court should fall into line with all other High Courts, and should hold that, where in a suit for partition the plaintiff claims to be in constructive possession with the other coparceners of the joint property, the suit falls under Sch. II, Article 17, clause (vii) (according to the Bombay amendment) and the court-fee payable is the fixed fee, which under the present Act is Rs. 15”.

32. I may mention that Article 17, clause (vii) of schedule II referred to in the Bombay Act, by the learned Judges corresponds to Article 17-B of schedule II of the Madras Act which in turn corresponds to Article VIII, clause VIII of schedule II of the Travancore-Cochin Court Fees Act. Therefore, it will be seen that even the Bombay High. Court, which was taking a different view from all the High Courts has now fallen into line with the other High Courts and has agreed with the view expressed by the other High Courts.

33. Therefore, it follows that the view of the learned Judge that the present suit is governed by clause (e) of sub-section 4 of section 3 of the Travancore-Cochin Court Fees Act is not correct and in my opinion, the suit comes within the ambit of suits contemplated under clause VIII of Article VIII of Schedule II of the Travancore Cochin Court Fees Act.

34. Though only a fixed court-fee of Rs. 10 may have to be paid under the said provision mentioned above, still the jurisdictional value will radically differ. As the plaintiffs have accepted the Commissioner's report regarding the value of their share namely, Rs. 30,000, it follows that the trial court was correct in directing the return of the plaint. But unfortunately even that court has not focussed its attention to the actual provision of law that is applicable.

35. In the result, the order of the lower appellate court is set aside and that of the trial court is restored, though for entirely different reasons given by me in this judgment.

36. I may also Indicate that the learned Government Pleader to whom notice has been issued contended that in this case there are allegations to the effect that the plaintiffs have been excluded from possession or enjoyment of the suit properties by other sharers and as such the suit comes under Section 3, sub-section 5 of the Travancore-Cochin Court-fees Act. He relied upon the allegations contained in paragraphs 15 and 21 of the plaint, I have gone through the said allegations and those allegations in my opinion do not amount to an averment by the plaintiffs that there has been an ouster by the other co-owners.

37. Such allegations that the plaintiffs have not been paid their share or that the defendants are appropriating the entire profits, cannot by themselves be considered to mean that there is such exclusive possession on the part of the defendants which the plaintiffs understand to amount to an ouster. Those are all allegations made by the plaintiffs for separating their share from the rest of the parties. I am not able to read more into those allegations so as to justify me to accept the contention of the learned Government Pleader. The petitioner will get his costs from the plaintiffs, in this C.R.P

BE/D.H.Z

38. Revision allowed.