ORDER T.C. Raghavan, J. 1. The question involved in this Civil Revision Petition relates to the amount of court fee that is payable on a plaint for partition and separate possession of his share by an alienee from one or more of the cosharers in a joint family. 2. The properties involved in the suit in the lower court belonged to one Samuel Dairyam who was the brother of defendants 1 to 6 and the son of one Pakkyam Pillai. Samuel Dairyam died and his father Pakkyam Pillai inherited the plaint properties from his son. On his death his children, defendants 1 to 6 and the husband of the 7th defendant and Samadhanammal, the widow of Pakkayam Pillai inherited the properties. Defendants 5 and 6, Samadhanammal and the husband of the 7th defendant executed a mortgage deed in respect of their rights in the plaint properties in favour of the plaintiff. The plaintiff filed a suit on this mortgage, obtained a decree and in execution of the same purchased the rights of the mortgagors in court auction and obtained symbolical delivery of their share. Thus the plaintiff became entitled to 4 out of the 8 shares in the plaint properties. The present suit has been brought for partition of the plaint properties into 8 equal shares and for separate possession of 4 such shares with mesne profits, etc. 3. The 1st defendant, who alone contested the suit, contended, inter alia that the court fee paid was incorrect and ail issue was raised on the question of court fee. This issue has been tried as a preliminary issue by the lower court and the lower court has held that the court fee paid is insufficient and has directed the plaintiff to pay ad valorem court fee on the value of his share and the plaintiff has filed the present revision petition seeking to reverse that order. 4. The learned Subordinate Judge relies on a decision of the Madras High Court in Kamakshi Ayyar v. Namberumal Ayyangar (AIR 1939 Madras 506). In that case a mortgagee obtained a decree in respect of a portion of a house and in execution of the decree purchased that portion and obtained symbolical possession of that portion. Another mortgagee who had a mortgage of the whole house obtained a decree in his turn in respect of the whole house. In that case a mortgagee obtained a decree in respect of a portion of a house and in execution of the decree purchased that portion and obtained symbolical possession of that portion. Another mortgagee who had a mortgage of the whole house obtained a decree in his turn in respect of the whole house. The latter was in possession of the whole property and he refused to give physical possession of his portion to the former. Therefore the first mortgagee brought the suit for possession of his portion and in the plaint he averred that the second mortgagee was in wrongful possession and enjoyment of the whole house. On these allegations in the plain it was held by Leach C. J. that the suit was in truth and in fact a suit for possession against a person in wrongful possession of the property and in those circumstances His Lordship held that the suit had to be stamped with an ad valorem court fee on the market value of the plaintiff's share. I am afraid that this decision has no application to the instant case. 5. But the learned Government Pleader seeks to support the judgment of the learned Subordinate Judge on the strength of other decisions. He has invited my attention to certain observations in other decided cases, from which he argues that the court fee paid in the present case should have been an ad valorem court fee on the market value of the share of the plaintiff. The first case that he refers to is the Full Bench decision of five Judges of the Madras High Court in Ramaswami Ayyangar v. Rangachariar (AIR 1940 Madras 113). Leach C. J. at page 117 observes: "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". Thus the distinction between a suit to enforce a right to share in any property on the ground that it is joint property and a suit to obtain possession of a share is clearly brought out in the passage cited above. Thus the distinction between a suit to enforce a right to share in any property on the ground that it is joint property and a suit to obtain possession of a share is clearly brought out in the passage cited above. In the former case the implication is clear that the plaintiff is not in possession, whereas, in the latter, even though the plaintiff is not in actual possession he must be considered to be in constructive joint possession of the whole property. The question therefore is whether, in the present case, it can be said that the plaintiff is in joint possession, actual or at least constructive of the plaint properties. In view of the allegations in the plaint, I am afraid he is not. 6. The next decision again is of the Madras High Court in Vetcha Subba Rao v. Vetcha Veeraraju (AIR 1951 Madras 656). In this case the suit was for partition, by an alienee from a Hindu coparcener, of the assets of the family and for separate possession of her share. Balakrishna Ayyar J. held that a fixed court fee for partition under Art, 17B of Schedule II of the Court Fees Act of 1870 was sufficient. It would be of advantage to note the reasoning of the learned Judge in this case. His Lordship quotes with approval the following passage from Mayne's Hindu Law, 11th Edn., page 491 wherein it is stated: "The view taken by the Madras High Court that as the purchaser from a coparcener is not a tenant in-common with the coparceners in the family, he is not entitled to joint possession or to mesne profits..................appears to be the sound view". But His Lordship observes : "This however is not in dispute. An alienee from a coparcener may not be a tenant in-common; he may also be not entitled to possession. Still if as a matter of hard fact he is in actual possession of the property why should it be said that he must pay court fee as though he were not in possession ? That is a requirement, I find it hard to understand". In this view His Lordship held that a fixed court fee under Art. 17B of Schedule II was sufficient. That is a requirement, I find it hard to understand". In this view His Lordship held that a fixed court fee under Art. 17B of Schedule II was sufficient. From this observation the learned Government Pleader argues that in a case where the alienee is not in possession, as in the present case, ad valorem court fee has to be paid. At any rate, in the aforesaid Madras case, the alienee was in actual possession and hence that decision cannot be a direct authority for the position that in a case, where the alienee is not in possession, ad valorem court fee for possession has to be paid. 7. The third case cited by the learned Government Pleader is a Division Bench ruling of the Madras High Court in In re, S. R. M. AR. S. SP. Sathappa Chettiar (AIR 1954 Madras 1126). At page 1129, the following passage occurs: "The choice lies between these two provisions (Art. 17B of Sch. II and Sec. 7(iv b)). One has to decide on a consideration of the fact whether the plaint proceeds on the basis that the plaintiff is still in joint possession of the property along with other members and is therefore merely claiming a share in the property or whether the plaintiff was out of possession on the date of suit and was excluded and is therefore now seeking right to share in joint family property". Therefore it is clear from this passage that, if the plaintiff is still in joint possession of the property along with the other members and is only claiming a share, a fixed court fee for partition alone need be paid, whereas, if the plaintiff is excluded from possession and is therefore seeking to enforce a right to share in joint properly, then ad valorem court fee for possession has to be paid. 8. The last case referred to by the learned Government Pleader is In re, K. Ranga Reddy (AIR 1957 Andhra Pradesh 724). 8. The last case referred to by the learned Government Pleader is In re, K. Ranga Reddy (AIR 1957 Andhra Pradesh 724). In that case the question was whether an alienee from a coparcener, who was in possession of a specific item of property belonging to the joint family, was liable to pay ad valorem court fee in a suit filed by him for partition and for working out the equity by the allotment of the particular property to the share of his alienor and His Lordship Umamaheswaram J. held that the alienee need not pay ad valorem court fee for possession. The reasoning in the case is that, though the right of an alienee is only an equity and the alienee does not acquire an interest in the property so as to be a tenant in-common with the members of the family entitled to possession; though it is only an equity to stand in his vendor's shoes and to work out his rights by means of a partition and though his suit is not technically a suit for partition, but he is only entitled to work out his equity by instituting a suit for partition impleading his vendor and the members of the coparcenary, yet, since the alienee is in actual and exclusive possession of an item of joint family property, his suit is a suit for partition and separate possession of his share of the property in the joint possession of himself and the defendants. 9. Therefore there is distinction between an alienee who is in possession and one who is not in possession of any portion of the joint family property and the court fee payable depends on this fact whether the alienee is in possession or not in possession of any portion of the joint family property. If he is in possession of any portion of the joint family property and he only claims to get that property allotted to the share of his vendor, then he need only pay a fixed court fee for partition; whereas, if he is not in possession of any portion of the joint family property and he claims by his suit to share in the joint family property, then he has to pay ad valorem court fee for possession of his share. 10. 10. The learned advocate of the petitioner, on the other hand, invites my attention to a decision of the Cochin Chief Court in Cheria v. Kochu Kunjan (20 Cochin LR 17). That case is similar to the case before me. The plaintiff in that case was an alienee from one cotenant and the Cochin Chief Court held that a fixed court fee of Rs. 10/- was sufficient. The learned Judges, extracting a passage from Freeman's Co-tenancy occurring at page 244 to the effect that, 'if A and B together owned personal property, of which A was in possession and B sold his moiety to C, the possession of A immediately became the possession of C also', held that there was no difference in principle between a suit by the cotenant himself and one by his assignee. In that view the learned Judges held that a fixed court fee for partition was sufficient. The learned counsel for the petitioner on the strength of this decision, argues that, at any rate, the present case being one coming from the Cochin area the principle laid down in the Cochin case must apply to the present case. But this argument does not appear to be sound or acceptable in view of the decisions already referred to by me and especially in view of a Full Bench decision of the Travancore-Cochin High Court in Apparahan v. Rappal Kutty (1949 TCLR 225). In an elaborate judgment delivered by Koshi J. the Full Bench has considered the above decision of the Cochin Chief Court in Cheria v. Kochu Kunjan (20 Cochin LR 17). The, case before the Full Bench was a case, coming from the Cochin area, converse to the 20 Cochin L. R. case. The Full Bench has held when a coowner, who is neither in actual nor constructive possession of the property, seeks to get his share out of the possession of an alienee of the shares of the other coowners, court fee has to be paid as on a suit in ejectment. As observed already the case before the Full Bench was a suit by a coowner to get his share of the family properties alienated and which were in the possession of the alienee. Thus the position in that case was converse to that in the instant case before me. As observed already the case before the Full Bench was a suit by a coowner to get his share of the family properties alienated and which were in the possession of the alienee. Thus the position in that case was converse to that in the instant case before me. Koshi J. in paragraph 13 of his judgment in the Full Bench case refers to Cheria v. Kochu Kunjan and observes: "We are afraid the rule that the possession of one cotenant shall be deemed to be the possession of all cotenants has been unduly extended in that case". The learned Judge further observes in paragraph 20 of his judgment: "We cannot for the foregoing reasons treat the decision in Cheria v. Kochu Kunjan as laying down correct law to the quantum of fee payable when an alienee from a cosharer brings a suit for division and delivery to him of his share. As the present is a converse ease the question of overruling that decision does not perhaps strictly arise here. The position may no doubt be different if the alienee is or alleges to be in actual possession and enjoyment of the properties with the other cosharers". It is thus clear that the law on this Question is not different in the Cochin area. 11. For the aforesaid reasons I hold that the decision of the lower court is correct and therefore the Civil Revision Petition fails and is dismissed, in the circumstances, without costs. 12. Time for payment of deficit court fee, one month from the date of receipt of the records in the lower court.