Judgment :- 1. The plaintiff in O. S. No. 194/66 on the file of the Sub-Court, Palghat questions the decision of the learned Subordinate Judge on issue 8, holding that the court-fee paid on the plaint is insufficient. The matter has been placed before a Division Bench in view of the importance of the question raised. 2. The suit property belonged to three Muhammadan cosharers as tenants, in-common. It is enough to notice that the plaintiff is an assignee of the rights of two of them, and the 1st Defendant is an assignee of the rights of the 3rd co-tenant. The plaint proceeds on the allegation that the possession of the 1st Defendant is as a co-owner on behalf of all, and prays for converting the joint-possession into separate possession and enjoyment by partition. A fixed court-fee of Rs. 200 for partition was paid, under S.37 (2) of the Kerala Court-fees and suits Valuation Act 1959, for the relief of partition. The court below held that the relief has to be valued under S.37 (1) of the Act, on the market value of the plaintiff's share. We may extract S.37 (1) and (2) of the Court-fees Act. "37. Partition Suits. 1. In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share. 2. In a suit for partition and separate possession of joint property, or property owned, jointly in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:-A When the plaint is represented to (i) A Munsiff's court Rupees twenty (ii) A Sub Court or a District Court: Rupees one hundred if the value of plaintiff's share is Rs. 10000 or less; and Rs. two hundred if the value is above Rs. 10000" The proper court-fee payable would depend on whether the plaintiff has been excluded from possession or is in joint possession of the property in respect of which the suit for partition was brought. 10000 or less; and Rs. two hundred if the value is above Rs. 10000" The proper court-fee payable would depend on whether the plaintiff has been excluded from possession or is in joint possession of the property in respect of which the suit for partition was brought. It is conceded that for the purpose of court-fee, the allegations in the plaint are material, and these leave us in no doubt that the plaintiff proceeded on the footing that himself and the Ist Defendant are co-owners and that the possession of the 1st defendant was on behalf of the other co-owners from whom the plaintiff derived rights. In law also, the conclusion seems inescapable that the plaintiff and the 1st defendant are tanants-in-common. In Freeman on Co-tenancy and Partition (2nd Edition) it is observed that each co-tenant may convey his moiety at pleasure without the consent or knowledge of either of his companions in interest, and that in the case of tenants-in-common the grantee is substituted as a tenant-in-common having the same rights and subject to the same obligations as his grantor. (Article 194 at page 270). The learned author further observes: '167. Possession of one when presumed to be possession of all. The entry of one co-tenant, as we have shown, is in the absence of clear proof to the contrary, construed as conferring seizin upon all Thus, if A and B together own personal property of whichA A is in actual possession, and B sells his moiety to C, the possession of A immediately becomes the possession of C also." In India there is the statutory provision in S.44 of the Transfer of Property Act to the effect that a transferee from a co-owner acquires as to the share transferred, the transferor's right to joint possession. On first principles then, and on the averments in the plaint, it appears to us that the suit was essentially one on the footing that the plaintiff was in joint possession with the 1st defendant and the court fee paid appears to be sufficient. A A 3. A direct authority, almost on all fours with the facts of this case will be found in the decision in Cheria v. Kochukunjan (20 Cochin Law Reports 17). The suit there, as here, was for partition by an alienee from a co-tenant. A A 3. A direct authority, almost on all fours with the facts of this case will be found in the decision in Cheria v. Kochukunjan (20 Cochin Law Reports 17). The suit there, as here, was for partition by an alienee from a co-tenant. In a short but instructive judgment, treading on what they felt was virgin soil, the learned Judges (Varugis C. J. & Krishna Menon J.) referred to -the passage from Freeman on Co-tenancy noticed earlier, and held that on principle they were unable to perceive any difference between a suit by a co-tenant himself for partition against another co-tenant and one by his assignee. The case came in for some adverse comment before a Full Bench of the Travancore-Cochin High Court in Apparahan v. Rappalkutty (1949 T. C. L. R.225), which was a converse case to the facts in Cheria's case. In respect of one or some of the properties in regard to which the question arose in the Full Bench case, the plaintiff was clearly neither in actual nor in constructive possession. He was a co-tenant enforcing "partition against the other co-owners, but the property in question in respect of which the question arose, had gone into the hands of a stranger by court-auction purchase in pursuance of a decree to which the plaintiff was eo nomine a party. The actual decision could safely have been rested and was in fact rested on the ground that the plaintiff could not be said to be in joint possession and therefore ad valorem court-fee on the value of his share had to be paid. The authorities were exhaustively surveyed, and, at the end of this survey, Koshi J. who delivered the judgment commented on Cheria's case as follows:A "We cannot for the foregoing reasons treat the decision in Cheria v. Kochukunjan (20-Cochin L. R.17) as laying down correct law as to the quantum of fee payable when an alienee from a co-sharer brings a suit for division and delivery to him of his share. As the present is a converse case the question of overruling that decision does not perhaps strictly arise here. As the present is a converse case 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 co-sharers." Earlier, the decision was commented on as follows: "We are afraid that the rule that the possession of one co-tenant shall be deemed to be the possession of all co-tenants, has been unduly extended in that case. In any view in circumstances similar to the present where the purchaser claims title through a court sale in a proceeding to which the plaintiff is a party no question of the applicability of the rule even arises." With respect, we feel, the above criticism of Cheria's case is unfounded. None of the cases surveyed by the Full Bench runs counter to the decision in Cheria's case. For instance, the decision in Varkey v. Mariam (21-Cochin L.R. 290) was concerned with the suit by a co-owner against a stranger in possession who had trespassed on the suit properties, and it was rightly held that ad valorem court-fee was payable. In Poppatlal Moolji Salt's Case (30 Cochin Law Reports 236), it was expressly stated that there was no allegation, nor was it conceivable, that the 1st defendant should be deemed to be in joint possession on behalf of the plaintiff also. The Full Bench proceeded to review the decisions of the High Courts in what was then the Dominion of India. We do not wish to refer to these in detail except to state that most of them related to suits for partition in respect of joint Hindu families, either by or against alienees and other members. In Para.19 the Full Bench stated that it had come across two cases where it was ruled that an alienee from a co-sharer suing for partition should pay ad valorem court-fee on the market value of his share. The cases referred to were Nagendran v. Appayya (AIR. 1947 Mad. 285) and Sitharan Jha v. Lokenath Missir (81-Indian Cases 1052). The Madras case was one for partition by an alienee from a member of a joint Hindu family who wished to continue the suit on the original fixed court-fee paid by his alienor, who, having fallen out with him, got transposed as a Defendant. 1947 Mad. 285) and Sitharan Jha v. Lokenath Missir (81-Indian Cases 1052). The Madras case was one for partition by an alienee from a member of a joint Hindu family who wished to continue the suit on the original fixed court-fee paid by his alienor, who, having fallen out with him, got transposed as a Defendant. It was held that after these turn of events the alienee could in so sense be described as a person in joint possession actually or constructively with the other members of the family, and advalorem court-fee was payable. The second case of the Patna High Court, was one of a suit for partition by a court-auction purchaser of a fractional interest in certain properties, who obtained symbolical possession and paid ad valorem court-fee. The decision that the court-fee paid was correct was rested on the averments in the plaint. The only inference that the Full Bench drew from this case was that the plea that an alienee of a co-sharer should be deemed to be in joint possession with the other co-sharers was not even raised at any stage of the case. We only wish to remark that besides the language of the taxing provision being different, the question as to whether an alienee of the share of a member of a joint Hindu family, or of a specific item of joint family property can be said to be in joint possession with the rest of the members of the family, is, to say the least, controversial. Yet the case noticed by the Full Bench of Ramaswami v. Rangaachariar (AIR. 1940 Mad. 113), and the other cases reported in AIR. 1947 Mad. 16 and AIR. 1947 Bom. 237, all relate to partition by or against alienees in respect of properties of a joint Hindu family. We are therefore of the opinion that although the actual decision in Apparahan v. Rappalkutty (1949 T. C L. R.225) is correct, its criticism of the decision in Cheria's case was uncalled for and unjustified. 4. In Nabeesa Saivu v. Samudhana Ammal (1960 KLJ.1247) the suit was for partition of four out of 8 shares in co-ownership of property. The plaintiff derived rights to his four shares under a court-auction purchase followed by symbolical delivery. The properties were in possession of the defendant. 4. In Nabeesa Saivu v. Samudhana Ammal (1960 KLJ.1247) the suit was for partition of four out of 8 shares in co-ownership of property. The plaintiff derived rights to his four shares under a court-auction purchase followed by symbolical delivery. The properties were in possession of the defendant. It was held that ad valorem court-fee on the.market value of the share had to be paid. The learned judge found on the allegations in the plaint; that the plaintiff could not be said to be in joint possession either actual or constructive of the plaint properties. The authorities on the question were noticed, and among them, were the decisions in 20-Cochin L. R.17 and 1949 T. C. L. R.225. On the strength of the former decision, the cas3 was claimed to be covered in favour of the petitioner, and on the strength of the latter, for the opposite party. The Full Bench case was correctly treated as authority for the view that when a co-owner who is neither in actual nor constructive possession of the property, seeks to get his share carved out of the possession of an alienee of the other co-sharers, court-fee has to be paid as on suit for ejectment. The learned judge noticed the comment made on Cheria's case in the later Full Bench case, but did not express his assent or dissent. 5. In Abdul Ratheef v. Musthvf Ali (1959 KLT. 412) referring to S.37 (1) of the Kerala Court-fees Act, it was observed: "This provision can apply only, if the case pleaded, is one of exclusion of the plaintiff from possession. Mere appropriation of the profits of the property or even exclusive use or possession of the property by one co-sharer, does not amount to "exclusion ' of other co-sharers from possession, for which an intention on the part of the co-sharer to keep the others out of possession, such intention manifesting itself in some manner and to the knowledge of the others, is an essential element ...On the other hand, it is elementary, that the possession of joint property by one co-sharer is possession on behalf of all the co-sharers in the absence of ouster." The same view has also been taken in Thankamma v. Unniamma Antharjanam (1964 KLT. 529). 529). The position has been explained again, although with respect to Art.142 and 144 of the Indian Limitation Act 1908, in Kunju Mohammed v. Mohammed Kochumma and Others (1967 KLJ. 729). 6. In the light of the above rulings and principles, and on the allegations in the plaint, we entertain no doubt that the court-fee paid in the instant case was correct. In reversal of the order of the court below we declare accordingly. This revision is allowed. No order as to costs.