ORDER
1. The Petitioner was the 2nd defendant in Case No. 298/1 of 1966 on the file of the Principal Munsiff, Gulbarga. For the purpose of this revision petition, it is enough to refer to the two reliefs that the plaintiff has sought. One was for declaration and possession of the suit property valuing it at 25 times the land revenue; the second one was, for relief of declaration that the plaintiff has a preferential right to purchase the western portion of the suit land belonging to the 1st defendant and now sold to the 2nd defendant. The plaintiff and the 1st defendant are impleaded as respondents in this petition. In respect of the above relief of declaration the plaintiff valued it at Rs. 250/- under Section 24(d) of the Mysore Court-fees and Suits Valuation Act, 1958. The 2nd defendant questioned the correctness of the valuation and the court-fee paid by the plaintiff. On this, the trial court framed the 7th issue in the case which is as hereunder:
'Do defendants prove that the court-fee paid is insufficient?'
After hearing both the parties, the trial court came to the conclusion that the plaintiff has valued his reliefs correctly and therefore no additional court-fee is necessary. It is against this order that the 2nd defendant has preferred this revision, petition.
2. As the question in this case concerns the payment of court-fee, the State has been notified and is represented by Govt. Pleader. The Govt. Pleader supports the stand taken by the 2nd defendant and contends that the order of the lower court regarding the valuation and court-fee is not in accordance with law.
3. It is necessary to take note of some salient averments made in the plaint. The plaintiff and defendant 1 are real brothers governed by Mitakshara School of Hindu Law. They owned number of agricultural lands and one among them is the suit land bearing Survey No. 3/1. It is alleged that the family properties were partitioned under the partition deed dated 8th October 1964 and the suit land forming the western portion was allotted to the share of defendant 1. Defendant 1 of 2 is a purchaser from defendant 1 of some properties including the suit properties.
4. The contention of Shri Jagirdar the learned advocate for the petitioner is that the first relief which I have set out above flows from the above pleadings and in respect of this relief the provision of the Court Fees and Suits Valuation Act of 1958, (hereinafter referred to as the Act) that applies is Section 24(a) This section provides that:
'In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25. (a) Where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees one hundred, whichever is higher.'
It is not disputed by Shri Murlidhara Rao, the learned counsel appearing for the plaintiff-respondent that it is this section that governs valuation and court-fee payable on the first relief. This provision directs that the court-fee is payable on the market value of the property.
5. I may refer to the second relief. In so far as the second relief is concerned, the plaint allegations are that the first defendant has 'mala fide' sold the entire suit land without any right; that he was not competent to sell the entire land to the second defendant and that the sale of the western portion of the suit land belonging to the first defendant is also invalid in law, as he could not have validly transferred his portion of the suit land without first offering the same to the plaintiff and that the plaintiff is ready to purchase the western portion of the suit land at the price determined as per law. It is further alleged that the first defendant has sold the eastern portion of the suit land to the extent of five acres to the second defendant without any right and as such, the sale is ineffective and not binding on the plaintiff. On the basis of these pleadings the second relief is claimed. This relief, it is undisputed, is governed by Section 31 of the Act. Section 31 of the Act reads:
'31. Pre-emption suits :--In a suit to enforce a right of pre-emption, fee shall be computed on the amount of consideration for the sale which the pre-emptor seeks to avoid or on the market value, whichever is less.'
It is noticed that in Section 31 also, the market value governs the value of the suit as also the court-fee payable on the relief sought for. In both, Section 24(a) and Section 31 market value requires to be determined for purposes of valuation and court-fee. For such a determination of the market value, reference is made to Section 7(2) which provides:
'7. Determination of market value:--Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.
(2) The market value of land in suits falling under Sections 24(a), 24(b), 26(a), 27, 28, 29, 31, 35(1), 35(2), 35(3), 36, 38, 39, or 45 shall be deemed to be--
(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government or forms part of such an estate and is recorded in the Deputy Commissioner's register as separately assessed with such revenue,
and such revenue is permanently settled--twenty five times the revenue so payable.
Market value is to be determined in accordance with the provisions of Section 7. The other relevant sub-section is Section 7(2)(d).
(b) * * * * *(c) * * * * * (d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as abovementioned or the land is a garden or the land is a house site whether assessed to full revenue or not, is land not falling within the foregoing description--the market value of the land.
Explanation: The word 'estate', as used in this section means any land subject to the payment of revenue, for which the proprietor or farmer or raiyat shall have executed a separate engagement to Government, or which in the absence of such engagement, shall have been separately assessed with revenue.
The view of the trial court is that the plaintiff's first relief comes under Section 7(2)(a). The contention of Shri Jagirdar is that this view is erroneous. He says that the property concerned in the suit for purposes of declaration and possession is not an entire estate or a definite share of an estate, but land not coming within the description of either the entire estate or a definite share of an estate paying annual revenue to Govt. or forming part of such an estate and recorded in the Dy. Commissioner's registers as separately assessed with such revenue and such revenue is permanently settled. His contention is that the plaintiff's case is definite inasmuch as it is not any share that he is claiming in the suit property, but a distinct and specified property, that is, the eastern portion of a particular survey number. Therefore, his submission is that the property in suit is land which does not fall within any of the other description in sub-section (2), and therefore, it is the market value of the land that governs the Court-fee payable by the plaintiff under Section 7(2)(d) of the Act. He strongly relies on a Full Bench decision of the Madras High Court reported in AIR 1947 Mad 297, Kesanna v. Gangappa wherein it is laid down that:
'If a plaintiff is asking to be put in possession of immoveable property, the boundaries of which are indicated, the case falls under S. 7(v)(d). In such circumstances he is not asking for a 'share'. He is asking the Court to give him possession of what has already fallen to him. It is only when he is seeking possession of property as a fractional share of a portion of an estate that the notification issued by Madras Government in 1921 applies.
Where, therefore, a person brings a suit for possession of specific immoveable property that has been allotted to him in a previous partition, the court-fee must be paid on the market value of the land notwithstanding that it had formed part of an estate paying revenue to Government.'
6. In the present case the plaintiff is asking for a specific immovable property that has been allotted to him in a prior partition. Therefore, the facts of this case are similar to the facts of the case in the decision referred to above. The provisions of Section 7(v)(d) of the Madras (sic) Court Fees Act, 1870 are identical with the provisions of Section 7(2)(d) of the Mysore Act. Similarly, Section 7(v)(a) of the Madras (Sic) Act is also identical with that of the Mysore Act. It is while interpreting these provisions that the madras High Court took the view as above stated. Another decision which lends support to this view is the one reported in : AIR1952Mad88 , learned Judge takes the view as hereunder:--
'A specific property that is claimed can never be an unspecified fractional share of the property, though, of course, it will be, like any portion of land, 'some fraction of the entire land'. Where the plaintiff is claiming not a portion of an unspecified fractional share of undivided land but is claiming a specific portion of that undivided land, namely, the 'northern half' of the land, court-fee is payable under S, 7, Clause (5)(d) on the market value of the property.'
Shri Murlidhar Rao appearing for respondent contended, that even though there is a partition between the plaintiff and defendant 1, the moment the partition takes place, the property that falls to the share of the plaintiffs becomes an estate within the meaning of Section 7(2)(a) of the Act. This contention is against the explanation in which the meaning of the word 'estate' is given. The word 'estate' means:
'Any land subject to the payment of revenue, for which the proprietor or farmer or raiyat shall have executed a separate engagement to Govt. or which in the absence of such engagement shall have been separately assessed with revenue.'
The former part of this definition does not apply to the share which a person like the plaintiff gets by a partition. In order that such a share can be an estate it must have been separately assessed to land revenue. It is not the case of the plaintiff that this has been separately assessed. It is no doubt true that where after a partition a distinct property is allotted to a sharer and he claims possession of the property allotted to his share, he will be forced to value his suit on the basis of the market value of the property allotted to him, and he has to pay court-fee on the market value. But, if he simply files the suit for partition of a share without claiming any definite property, he will have the benefit of coming under Section 7(2)(a) of the Act and pay court-fee at 25 times the revenue as payable which will be much less in many a case than the market value of the specific property. This anomaly has been adverted to in the decision reported in : AIR1952Mad88 , referred to above, and it has been observed therein that suitable amendment of the Court-fees Act should be made in order to remove this anomaly. As long as the Act stands as it is, this anomaly will continue.
7. With great respect I agree with the view taken by the Madras High Court and hold that the court-fee is payable in this case in respect of both reliefs on the market value of the property concerned. And as the provisions of the Court-fees Act, as they are to-day, apply to the facts of this case the order of the lower court is not in accordance with the relevant provision of the Court-fees Act to which I have adverted to earlier. Therefore, in respect of both the reliefs referred to by me in the course of this order, the plaintiff has to pay court fee on the market value of the property in respect of which relief is sought.
8. The order of the learned Munsiff is set aside. In view of what I have stated above, it is necessary that the trial Court should fix the market value of the property, in respect of which relief is claimed and then call upon the plaintiff to pay the requisite court fee. The Revision Petition is allowed, each party bearing his own costs.
9. Revision allowed.