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Subramania Ayyar v. V. Rama Ayyar And Ors.

Madras High Court

Aug 10, 1927

Judgment

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Concise Analytical Summary of the Opinion

Factual and Procedural Background

This appeal arises from an order of the Additional Subordinate Judge, East Tanjore at Mayavaram, dismissing O. S. No. 40 of 1921 on the ground that the proper Court-fee had not been paid. The plaintiff sued as the reversioner under Hindu law of one Ramaswami Ayyar and sought the property after the death of Ramaswami Ayyar's widow and daughters; the plaintiff is described as the daughter's son. The plaint was presented on 28 August 1920 and returned by the court office with four requisitions (the fourth stating: "Valuation has not been given in respect of all the properties described in the plaint schedules"). The plaintiff re-presented the plaint on 7 September 1920 with an amendment note. The office accepted the re-presented plaint, stamped it "Stamp correct; plaint may be filed", and the plaint was numbered and notices issued.

In the written statement the defendants pleaded that the Court-fee paid was incorrect and should have been paid on the market value of the suit properties. An issue—"Has proper Court-fee been paid on the plaint?"—was framed. Before trial, in March–April 1922 the defendants filed a petition under Order 7, Rule 11, raising objections to valuation and Court-fee. The matter experienced multiple adjournments, an aborted application for commission, and an attempted amendment by the plaintiff. Ultimately, the learned Subordinate Judge rejected the amendment and dismissed the plaint on 21 August 1922 under Order 7, Rule 11, Civil Procedure Code for alleged insufficiency of Court-fee.

Legal Issues Presented

Whether the plaint could lawfully be rejected under Order 7, Rule 11, Civil P. C. on the ground that the proper Court-fee had not been paid, without first giving the plaintiff a time-limited opportunity to correct valuation or supply additional stamp duty as required by that rule.
Whether, for certain categories of claimed land (notably fractional parts of survey numbers and portions not separately assessed to revenue), Court-fee should be assessed on market value or could be computed as five times the revenue assessment in terms of the Government notifications (Notification No. 4650 of 1889 and the reenacting Notification No. 358 of 1921).
Whether specific items such as trees standing on plots, and accessory rights in poramboke lands (channels, burial grounds, common village areas), require separate valuation for Court-fee purposes.
Whether matters raised by the defendants in their 1922 petition (listings of specific alleged defects) had actually been the subject of the 30 August 1920 requisition, such that the earlier return of the plaint constituted an opportunity under Order 7, Rule 11.

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

The plaintiff contended that he had complied with requisitions insofar as they related to the plaint presentation, re-presented the plaint after amendment, and the office accepted it ("Stamp correct; plaint may be filed").
The plaintiff relied on Government Notification No. 4650 (10 September 1889), superseded and reenacted by Notification No. 358 (10 September 1921), which for fractional shares recorded as separately assessed in Collector's register provides that value for fee computation "shall be deemed not to exceed five times such portion of the revenue". The plaintiff thus argued that Court-fee for certain fractional shares could be computed as five times the revenue rather than market value.
The plaintiff accepted some omissions pointed out by defendants, paid Court-fee in respect of three omitted items, and applied for amendment by I.A. 285 to add those items.
As to items where the defendant alleged under-valuation, the plaintiff asserted willingness to adduce evidence on valuation (particularly list C items).
With respect to porambokes and accessory rights (chethi and samudayam shares), plaintiff asserted that only accessory rights were claimed and that separate valuation of such poramboke trees was not required.

Respondents' (Defendants') Arguments

The respondents contended that the Court-fee paid was not correct and should have been paid on the market value of the suit properties rather than on the assessable formula relied upon by the plaintiff.
Counsel for the respondents (Mr. Bhashyam Ayyangar) argued that Clause (b) of Order 7, Rule 11 applied and that the plaintiff had been given an opportunity to correct the valuation by the earlier requisition but had failed to do so; he relied on the fourth requisition's general wording as a basis for asserting that opportunity had been provided.
The defendants filed lists (A, B, C, D) and affidavits setting out detailed valuation objections, including allegations that some items were omitted or undervalued and that certain items (e.g., share in patta No. 30) raised distinct proprietary questions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kullappa Goundan v. Abdul Rahim [1917] 40 Mad. 824	Principle that trees standing on specific items claimed in a plaint are included in the valuation of those items and need not be separately valued.	The court applied this precedent to hold that trees on specific claimed plots need not be separately valued; they are included in the items' valuation for Court-fee purposes.
Reference under the Court-fees Act, 1870, Section 5 (2) [1893] 16 All. 493	Interpreted to mean that a "fractional share" covers cases where plaintiff claims a fractional share (e.g., 1/2, 1/3) of a survey number, but not where plaintiff claims a definite area within the survey number (e.g., a certain number of acres).	The court described the earlier single-judge decision and its restrictive interpretation of "fractional share", but ultimately declined to accept that restrictive approach where a Government notification (deeming value as five times revenue) applied; the court reasoned the notification's language could cover definite-area claims that are effectively fractional shares.
Godavarty Sundra Amma v. Godavarty Mangamma [1918] 34 M.L.J. 558	Earlier decision dealing with fractional share/valuation questions; Coutts-Trotter, J. expressed view that "fractional share" could not cover a claim to a definite extent out of a larger survey number.	The court noted that the Division Bench's subsequent handling did not decide the notification's interpretation; the present court did not accept Coutts-Trotter, J.'s restrictive approach to "fractional share" and criticized the lack of consideration of the notification in that line of authority.
Kandasami Goundan v. Subbai Goundan A. I. R. 1924 Mad. 646 (Krishnan, J.)	Followed earlier views that, under the Act itself, a plaintiff suing for the possession of part of a survey number should pay Court-fees on the market value.	The court observed Krishnan, J.'s decision but noted that Krishnan, J. did not appear to have considered the Government notification; therefore the decision was of limited value on the notification point.
S. A. No. 886 of 1917 (order of Sadasiva Aiyar and Napier, JJ.)	Held that the plaintiff was bound to pay Court-fees on the market value of the plaint lands (as followed by Letters Patent appeal authorities).	The court recorded this order but observed that the notification was apparently not cited to those Judges, limiting the order's applicability to the notification issue.
S. A. No. 711 of 1915 (Oldfield, J.)	Passing references to the Reference under the Court-fees Act and to Godavarty Sundara Amma; raised issues about jurisdiction and valuation methods.	The court treated this as not providing a conclusive decision on the point and of little value for the notification interpretation.
Chandhan v. Bishan Singh [1911] 33 All. 630 (Tudball, J.)	Followed the view that a fractional share under the Court-fees Act did not cover definite-area claims and that plaintiffs should pay on market value in certain part-possession cases.	The court recorded that it disagreed with Tudball, J.'s narrowing of "fractional share" and found his approach unpersuasive where the notification was intended to provide relief from anomalous fees.
Letters Patent Appeal 97 of 1916	(Referenced in subsequent orders) Treated as authority in the line of decisions that required market-value-based Court-fees in related circumstances.	The opinion noted that some local orders follow this approach but emphasized that such authorities did not consider the Government notification and therefore were not decisive on the notification issue.

Court's Reasoning and Analysis

The court proceeded in two principal analytical strands: (A) procedural admissibility of dismissal under Order 7, Rule 11; and (B) substantive valuation law (the proper basis for computing Court-fees for the several categories of items).

(A) Procedural Analysis under Order 7, Rule 11

Order 7, Rule 11 permits rejection of a plaint only if the plaintiff has been given an opportunity to correct valuation within a time fixed by the Court where relief is under-valued, or to supply requisite stamp paper within time where the plaint is on insufficient stamp.
The court examined whether the return of the plaint on 30 August 1920 (with a general fourth requisition) constituted the necessary "opportunity" under Clause (b). The court found the fourth requisition too general and lacking the specific objections later raised in the 1922 petition by the defendants (list D), so it could not be regarded as the required opportunity to correct valuation in respect of those specific objections.
The court noted that acceptance of a re-presented plaint by the office ("Stamp correct; plaint may be filed") does not inevitably estop the court from rejecting the plaint later, but such later rejection is undesirable and, in the present case, unjustified because the specific defects were only disclosed later by defendants' petition.
Accordingly, the court concluded that the Subordinate Judge erred in dismissing the suit on the procedural ground that the plaintiff had had the opportunity under Order 7, Rule 11 to correct the valuation; the plaintiff should have been given an opportunity following the 1922 petition and counter-petition before dismissal.

(B) Substantive Analysis — Valuation and Court-fees

List A (errors in revenue assessment): The plaintiff admitted and corrected those mistakes and paid additional Court-fee; hence no further action was required by the appellate court on that list.
List B (items that are portions of survey numbers not separately assessed): The plaintiff relied upon the Government notification (Notification No. 4650 of 1889 and reenacted by Notification No. 358 of 1921), which provides that where a part of an estate is recorded as separately assessed, the value for fee computation of a fractional share shall be deemed not to exceed five times such portion of the revenue. The court analyzed prior case law that had read "fractional share" narrowly (to exclude claims to a definite area expressed in acres and cents) but rejected that narrow reading.
The court reasoned that the notification deliberately uses the words "fractional share" (not "definite share") and that "fractional share" can cover any fraction—whether a simple fraction (1/2) or a more complex fraction (e.g., 37/73). It held that a plaintiff claiming a definite area that is mathematically a fraction of the whole should not be penalized by a restrictive construction that would invite evasive drafting. Consequently, the court concluded the notification applied and the plaintiff need not pay Court-fees on market value for list B items; instead the deeming provision (five times assessment) was applicable.
As to trees: applying Kullappa Goundan v. Abdul Rahim, trees standing on specifically claimed plots are part of the plot's valuation and need not be separately valued. For trees on porambokes (channels, burial grounds, common spaces), the plaintiff asserted only accessory rights (rights incidental to ownership of plots) and not proprietary rights; the court accepted that those accessory claims need not be separately valued.
Items such as proportionate share in patta No. 30 (chethi and common samudayam shares): factual dispute existed as to whether the plaintiff claimed specific proprietary rights or merely accessory rights. The court held that this question depended on evidence and further inquiry; absent an adjudication on the facts, one could not attribute default to the plaintiff or reject the plaint on that basis.
List C (alleged undervaluation of certain A-1 and A-2 schedule plots): the court observed that the plaintiff sought to adduce evidence on valuation and ought to be given an opportunity to do so. If after evidence the lower court finds against the plaintiff on valuation, liberty should be given to file additional Court-fees; alternatively the plaintiff could expunge contested items or the defendant could waive objections to expedite trial. The court held dismissal was not warranted for these matters.
On balance, and even assuming some default by the plaintiff on payment of Court-fees, the court found that the lower court had not afforded the procedural opportunities required by Order 7, Rule 11 and had therefore erred in dismissing the suit. The appellate court thus proceeded to examine merits to indicate the correct approach and to fix what should happen on remand.

Holding and Implications

Holding: The appeal was allowed; the judgment of the Subordinate Judge dismissing O. S. No. 40 of 1921 was set aside and the suit was remanded to the Court below for disposal according to law. The court explicitly reversed the dismissal and remitted the case for trial or further proceedings consistent with this opinion.

Consequences and Specific Directions:

The court held that the plaintiff did not have to pay Court-fee on the market value in respect of the properties in list B, because the Government notification (deeming a fractional share's value to be not in excess of five times the portion of the revenue) applied to such claims.
The court directed that the plaintiff be given opportunity to adduce evidence on valuation where required (notably list C); if after evidence the lower court finds against the plaintiff the plaintiff may be permitted to pay additional Court-fees or to expunge items as appropriate.
With respect to trees on specific plots, these are included in plot valuation and need no separate valuation; poramboke accessory rights claimed need not be separately valued.
Costs and financial consequences: The respondents were ordered to pay the costs of the plaintiff in this Court (all costs except the Court-fee for appeal). The Court-fee paid by the appellant was ordered to be refunded.
Venue instruction: The case was to be sent back to the Sub-Court of Tiruvalur (the Sub Court of East Tanjore at Mayavaram having ceased to exist) for further action consistent with the opinion.

Broader implications: The opinion contains an interpretation of the government notification dealing with valuation of fractional shares and rejects a narrow reading of "fractional share" found in some earlier authorities. The opinion primarily addresses the direct effect on the parties and remands for further proceedings; it does not state that it is laying down broader binding precedent beyond the case, although it does analyze and distinguish prior decisions on the valuation point.

Show all summary ...

1. This is an appeal against the order of the Additional Subordinate Judge of East Tanjore at Mayavaram dismissing O. S. No. 40 of 1921 on the ground that the proper Court-fee has not been paid. The order rejecting the plaint could have been passed only under Order 7, Rule 11, Civil P. C. The suit was brought by the plaintiff claiming to be the reversioner, under the Hindu law, of one Ramaswami Ayyar and he claimed the property after the death of his widow and his daughters. The plaintiff is his daughter's son. The suit was filed on the last day allowed by the law of limitation. To some extent this fact seems to have prejudiced the Subordinate Judge against the plaintiff. While we have no particular sympathy with a stale suit, I do not see any reason why one should be prejudiced against the plaintiff on that ground. The plaint was presented on 28th August 1920. It was returned by the office with four requisitions. The fourth is:

Valuation has not been given in respect of all the properties described in the plaint schedules.

2. This was on the 30th August. The plaintiff's pleader re-presented the plainton 7th September with the note:

Those mentioned in the lots have been amended. Re-presented after amendment.

3. It is now admitted that the first three requisitions have been satisfied, but it is urged for the respondents that the fourth was not. I will discuss this point later on. The office was, however, satisfied with the re-presentation and a note was made "Stamp correct; plaint may be filed". The plaint was then numbered and 'notices were issued to the defendants. In the written statement a plea was taken that the Court-fee paid is not correct. The Court-fee should have been paid in respect of the suit properties on their market value.

4. An issue was framed:

Has proper Court-fee been paid on the plaint and the suit was adjourned. Before it came on for trial on 30th March 1922, there was a petition by the defendants under Order 7, Rule 11, raising various objections to the valuation and the payment of Court-fee made by the plaintiff and a counter-petition was filed; and the petition was posted to 26th April. On that day the plaintiff wanted a commission. So the case was adjourned to 20th July. On 20th July the plaintiff said that he did not want the commission and that he would adduce evidence. The matter was adjourned to 10th August. On that day some arguments were heard. The same day the plaintiff filed a petition for amendment. The amendment was refused and the plaint was rejected on 21st August.

5. Under Order 7, Rule 11, a plaint cannot be rejected unless the plaintiff is given an opportunity to correct the valuation within a time fixed by the Court where the relief is under-valued, or the plaintiff is given an opportunity to supply the requisite stamp paper within the time fixed by the Court where the plaint is filed on an insufficient stamp. It is contended by Mr. Bhashyam Ayyangar, vakil for the respondent, that Clause (b) applies and that an opportunity was given to the plaintiff to correct his valuation but he did not avail himself of the opportunity. In support of this contention he relies on the fourth requisition itself which does not show in respect of what property valuation was not given. No details were mentioned in it. The respondent's vakil no doubt filed a list of details in the petition of 1922. This is list D, but there is nothing to show that these were matters intended by the Court when the plaint was returned on 30th August 1920. It is likely that they were not, because the plaint was accepted on re-presentation. It may be that, when there is a clear omission in the original plaint, and the' Court demanded the plaintiff to rectify the defect and returned the plaint, and the plaintiff re-presented the plaint without rectifying it, the mere fact that the Court accepted the plaint over-looking the plaintiff's failure to rectify does not estop the Court from rejecting the plaint some time afterwards, though even then such action on the part of the Court is undesirable. In the present case, it cannot be said that there was any clear requisition by the Court. It was too general. Taking the matters in detail, in list D, the first objection is that certain items were omitted. The plaintiff accepted this objection and paid Court-fee in respect of these three items, and he applied by I. A. 285 for permission to amend the plaint by adding these three items. But this is not an omission to value the items. The items themselves were omitted by a slip, and seeing that the suit had not gone beyond the issue stage and the suit was of some magnitude, for the plaintiff had admittedly paid Court-fee on Rs. 10,000, such an amendment ought to be allowed. At any rate the matter does not come under Order 7.

6. The next objection is that some trees ought also to be separately valued. In so far as the trees standing on specific items claimed in the plaint are concerned, it is not necessary to value them separately: vide Kullappa Goundan v. Abdul Rahim [1917] 40 Mad. 824 They are included in the valuation of the items themselves. It was made according to the Court-fees Act, namely five times the assessment on the items. But it is said that there are some trees on poramboke lands. The plaintiff has made it clear that in respect of all porambokes, such as channel, burial grounds, etc., the only rights he seeks are rights accessory to ownership of plots in the village and not rights of actual ownership as in the case of specific cultivated plots. That being so, these trees need not be valued.

7. Then, the defendant also mentioned one item in his list, namely proportionate share in patta No. 30 in respect of the chethi and common samudayam shares of Saruvalur.

8. To this also the plaintiff says that he does not claim any specific proprietary rights in the chethi and samudayam, but merely claims accessory rights. The defendant says that there is a specific plot which is enjoyed in common by all the sharers in the village. The matter in dispute depends on evidence and further enquiry. If on enquiry the defendant's version turns to be true the plaintiff's suit as to this item may have to be dismissed. But without ascertaining what exactly are the facts existing in the village, one cannot attribute default to the plaintiff and reject the suit. The matter can only be noted at present and can be disposed of when the whole suit is tried. It is obvious that matters of this kind, namely the right to patta 30, could not have been known to the Court when it made the requisitions in August 1920 and could not have been meant by it in the fourth requisition. I am, therefore, of opinion that what happened in August 1920 could not be regarded as any opportunity to the plaintiff, when the real specific objections to the plaint were disclosed in 1922 by the petition of the defendant. The Court, after expressing its opinion on such a petition and the counter-petition ought to have given an opportunity to the plaintiff to correct the valuation or pay the additional stamp duty, as the case may be. This it has not done. On the simple ground that the dismissal of the suit is erroneous, assuming on the merits that there is some default on the part of the plaintiff in the matter of paying Court-fees, the order of the Court below cannot be sustained. I now go to the merits to see whether there is any default on the part of the plaintiff and if so what, and whether, an opportunity should be given to the plaintiff, and we have to point out the proper amount of Court-fee and fix a time for paying it,

9. List A filed by the defendant shows some mistakes in the plaint in giving the revenue assessment of various items. It is now admitted that these mistakes have been corrected by the plaintiff and the additional Court-fee has been paid by the plaintiff. So we have nothing to do with this list. List B gives a number of items which are not separately assessed to revenue. These are all portions of survey numbers which have been separately assessed. In respect of this the defendant's contention is that the plaintiff should pay Court-fee on the market value and not on the proportionate part of five times the assessment of the whole survey number. The plaintiff relies on Notification No. 4650, dated 10th September 1889 issued by the Government of India. It has now been superseded and reenacted by Notification No. 358, dated 10th September 1921. Under this notification:

When a part of an estate paying annual revenue to the Government under a -settlement which is not permanent is recorded in the Collector's register as separately assessed with such revenue, the value of the subject-matter of a suit for the possession of . . . a fractional share of that part shall, for the purposes of the computation of the amount of the fee chargeable in the suit be deemed not to exceed five times such portion of the revenue.

10. This notification was the subject of consideration in Reference under the Court-fees Act, 1870, Section 5 (2), which was a decision of a single Judge. It was there held that a fractional share under this notification covers only a case where the plaintiff claims a certain fraction of a survey number, but not where he claims a certain definite area within the survey number, for instance, if the plaintiff claims ½ or 1/3 or 1/4th share of a survey number assessed with revenue the notification applies, but where he claims three acres 70 cents out of a survey number whose extent is seven acres 30 cents the notification does not apply, though three acres 70 cents is 37/73 of seven acres 30 cents.

11. The point came up for discussion in Godavarty Sundra Amma v. Godavarty Mangamma [1918] 34 M. L. J. 558 which was considered by a single Judge, namely Coutts-Trotter, J., as he then was. No reference was made to this notification, but the decision in Reference under the Court-fees Act, 1870, Section 5 (2), was referred to, and one perhaps may infer that by reference to the decision in Reference under the Court-fees Act 1870 Section 5 (2) the learned Judge was also aware of the notification. He agreed with Burkitt, J., but he regretted his conclusion and said that the result was very anomalous. He pointed out that a suit for a share would have to go before a lower Court. He was of opinion that a "fractional share" cannot cover a case where the plaintiff claims a definite extent out of a larger survey number separately assessed. There was a Letters Patent appeal against his judgment. But before the Division Bench all that seems to have been done was that a report was called for from the District Munsif on the question whether the portion was separately assessed, and when it was found not separately assessed, the appeal was dismissed. The question of the interpretation of the notification was apparently not argued; at any rate there is nothing in the judgment about it, The judgment of the Division Bench cannot be regarded as an authority for the interpretation of the notification.

12. The point next came before Krishnan, J., in Kandasami Goundan v. Subbai Goundan A. I. R. 1924 Mad. 646 He followed the earlier views. He also referred to two unreported decisions in Madras. The first is S. A. No. 886 of 1917. Sadasiva Aiyar and Napier, JJ., passed this order:

Following Letters Patent Appeal 97 of 1916 we hold that the plaintiff was bound to pay the Court-fees on the market value of the plaint lands.

13. Here again it does not appear that the notification was cited before the learned Judges or that they considered it, The other unreported decision referred to by Krishnan, J., is S. A. No. 711 of 1915. There, Oldfield, J., made a passing reference to Reference under the Court-fees Act, 1870 Section 5 (2) and Godavarty Sundara Amma v. Godavarty Mangamma [1918] 34 M. L. J. 558 The argument was that the lower appellate Court's jurisdiction would have been ousted if the items were valued in a particular way. But the other side contended that even if they were valued according to Reference under Court-fees Act, 1870, Section 5 (2), there would have been no change in the Court's jurisdiction. The contention was disallowed. There is no decision on the point. I do not think that S. A. No. 711 of 1915 is of any value as a decision on the question now under consideration. The view in Reference under the Court-fees Act, 1870, Section 5, [1893] 16 All. 493 was followed in Chandhan v. Bishan Singh [1911] 33 All. 630 by Tudball, J. Even the judgment of Krishnan, J., does not show that he considered the notification. He said that the construction of section 7, clause 5 (a) to (d) has been the subject of consideration both in this Court and the Allahabad High Court. If so, and if Krishnan, J., has only considered the Court-fees Act and not the notification, his decision is of no value either. The notification is one purporting to remit the Court fees and it was intended to give some relief to the subjects against the anomalous fees leviable under the Act itself.

14. In so far as all these decisions lay down that under the Act itself a plaintiff suing for the possession of a part of a survey number should pay Court-fees on the market value I agree with them. But the object of the notification is to give relief from the anomalous position, and, where the notification has not been considered the decisions are of no value. It is noticeable that the Act uses the words "definite share" and while making provision for a definite share or a part of an estate it did not make any provision for a part of saparately assessed survey number. The notification did not use the words "definite share" but used the words "fractional share." I do not understand any of the Judges who have considered the matter to say that a fraction means a simple fraction like 1/2, 1/3, or 1/4; and not a complicated fraction like 19/48, or 37/72, etc., as one may get in Mahomedan law cases. If the words "fractional share" can cover any kind of fraction, the only question is: Does it make any difference when a plaintiff mentions an area which can be worked out as a fraction of the whole but does not mention it by describing it as a fraction. In my opinion it does not. The opposite conclusion can be easily evaded by a clever plaintiff describing the plot he claims not as so many acres and cents but as the north-western 37/73, of such and such a survey number or something like that. I do not think that liability to pay Court-fee should depend upon the ability to evade or not. The Court-fees Act is a fiscal enactment and ought to be liberally construed. The anomaly is recognized by Coutts-Trotter, J. If by a fairly reasonable construction one can avoid the anomaly, I think one ought to do so. Of course, if it is impossible to escape the anomaly and the language of the notification can by no manner of construction be made to support the plaintiff's contention, then one cannot help it. But it seems to me that the words "fractional share" are not inapplicable to a case where the plaintiff claims 3 acres 30 cents out of 7 acres 30 cents, as the share he claims is a fraction of a larger area. All that can be said against the plaintiff is that what he claims is a fraction with defined boundaries, but the words "fractional share" cover both a definite fraction and also an indefinite fraction, whereas the learned Judges who considered the matter seem to limit the words to the case of indefinite fraction. They think that the notification applies to unspecified 1/2 or 1/4 but not to a definite 1/2 or 1/4. I do not see any reason why the words "fractional share" should be so limited. At any rate, I am not doing any violence to the English language when I say that the words cover both definite and indefinite fractional shares. Tudball, J., seems to think that a specific share is not covered by "fractional share" and there is some difference between a specific share and a definite share. The result is I am unable to agree with Burkitb, J. and Tudball, J., in the Allahabad cases.

15. As to the Madras cases I am of opinion that no Division Bench ever considered this matter, and it is clear that even Coutts-Trotter, J., did not consider the notification. If he really considered it, then, with great deference, I am not able to agree with him. It seems to me that the conclusion I am arriving at is a reasonable construction avoiding all anomalies and does not do any violence to the language of the notification. It is noticeable that the notification deliberately omits the words "definite share" and used the words "fractional share," and I am of opinion that the plaintiff need not pay Court-fees on the market value of the property in list B,

16. The next point to be considered is list C. filed by the defendants. It is said that some of the items are under-valued, plots in A-1 and A-2 schedules. The defendant has filed an affidavit and given his valuation which the plaintiff says is too much. The plaintiff is prepared to adduce evidence. The B diary is not very clear as to whether the learned vakil for the plaintiff was ready with the evidence. It does not show that the case was ever posted for such evidence. We think that the plaintiff is entitled to an opportunity for adducing evidence as to the value of the items. If, after taking the evidence on both sides, the lower Court comes to a conclusion against the plaintiff, then liberty must be given to the plaintiff to file additional Court-fees. Of course it is open to the plaint to expunge these items from the plaintiff if he likes. It is also open to the defendant to waive his objections for the purpose of accelerating the trial of the case; but we do not see any reason for dismissing the suit as the Subordinate Judge has done. The result is the judgment of the Subordinate Judge is reversed and the suit is remanded to the Court below for disposal according to law.

17. In the case of Schedule A properties the plaintiff's claim is for the Ekabhogam miras village. I have already pointed out that the plaintiff has paid Court-fee on the assessed lands and in respect of porambokes he claims only accessory rights and therefore, need not pay any Court-fee in respect of them.

18. The respondents will pay the costs of the plaintiff, in this Court, namely all costs except the Court-fee for appeal. The Court-fee paid by the appellant will be refunded. The case will be sent back to the Sub-Court of Tiruvalur, the Sub Court of East Tanjore at Mayaram having ceased to exist.