Judgment : 1. The plaintiff is the revision petitioner herein, who has filed a suit in O.S. No. 41 of 2002 before the Sub-court, Tiruvarur for partition. In the said suit, the respondents herein have filed a written statement, alleging that the petitioners ought to have paid Court fee under Section 37(1) of the Act. Pursuant to that notice dated 21.10.2002 was issued by the trial Court, directing the petitioner herein to value under Section 37(1) of Tamil Nadu Court Fees and Suits Valuation Act (in Short ‘the Act’). Objections were filed by the petitioners stating that they are in joint possession, the other family members have a right in coparcenary/joint family properties, without their consent alienated petitioners’ share which is not binding on them in respect of their share is concerned, hence not liable to pay Stamp Duty under Section 37(1) of the Act and maintain the same to be paid under Section 37(2) of the Act is perfectly valid. The trial Court has directed the petitioner to pay deficit Court fee under Section 37(1) of the Act within a period of three weeks, the same is challenged in this C.R.P. 2. The learned counsel Mr. Srinath Sridevan appearing for the petitioner submit that the trial Court without considering the petitioners objection passed a non-speaking impugned order; the petitioners are unmarried daughters as on 1.6.1990 became automatically co-owners to be treated on par with other male sharers; the petitioners are in joint possession of the said property; hence the impugned order directing the petitioner to pay deficit Court fee under Section 37(1) of the Act is liable to be set aside. 3. In support of his contention he relied on the following judgments: i) Full Bench decision reported in Minor C.R. Ramaswami Ayyangar represented by his mother and next friend Lakshmi Ammal v. C.S. Rangachariar and others, 1951 LW 11. “..If the words of Section 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 Ranagah Chetty v. Subramania Chetty (1), is erroneous and should be overruled. “..If the words of Section 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 Ranagah Chetty v. Subramania Chetty (1), is erroneous and should be overruled. In these circumstances, the only provision in the Court fees Act which is applicable is Article 17-B of Schedule II and in stamping his general relief under this provision the plaintiff has acted rightly. I am unable to accept the plaintiff’s contention that he should not be called upon to pay Court-fees in respect of any of the transactions which he challenges because he has not asked for specific relief in respect of them. His plaint challenges the validity of transactions entered into by his father as manager of the family, and particulars of these transactions have been supplied. The plaintiff must pay Court-fees in accordance with the relief which he is actually seeking. He cannot be allowed to evad e payment by omitting to ask for relief when the success of his suit depends on relief being granted to him. The Court must look at the real nature of the suit and decide what the plaintiff is asking for. In this case he is asking for possession of his share in the estate to be calculated after certain transactions have been set aside. Mr. V.V. Srinivasa lyengar has rightly conceded that if it is necessary for the plaintiff to ask for relief in respect of any of the transactions he must pay extra Court- fee. The plaintiff is in effect asking in respect of alienations where possession has passed to the alienees that they be set aside and that he be placed in possession of his share of the properties alienated. In respect of these transactions the plaintiff clearly has to stamp his relief in accordance with the provisions of Section 7(v). This will apply to Item Nos. 4, 11 and 14 of the table set out above........” “..The same principle has been distinctly laid down by the Privy Council in Bijoy Gopal Mukherjee v. Krishna Mahishi Debi (1) where their Lordships point out the jural basis underlying such transactions. This will apply to Item Nos. 4, 11 and 14 of the table set out above........” “..The same principle has been distinctly laid down by the Privy Council in Bijoy Gopal Mukherjee v. Krishna Mahishi Debi (1) where their Lordships point out the jural basis underlying such transactions. In that case the reversioner sued for a declaration that a lease granted by the widow of the last male-owner was not binding on him and for khas possession. It was objected that the omission to set aside the lease by a suit instituted within the time limited by Article 91 of the Indian Limitation Act was fatal to the suit. The following observations which are equally applicable to a father or manager of a joint family are appo site” “..It follows that in my opinion the plaintiff cannot be called upon to pay any additional Court-fee in respect of the transactions challenged other than the transactions described in items Nos. 4, 9, 10, 11 and 14. It will be for the respective defendants to establish their right to rank as creditors in the other transactions when the account is taken. Neither the plaintiff be called upon to pay a separate Court-fee in respect of his prayer for the appointment of a receiver. This relief is entirely of an interlocutory character..” From the above said judgment it is clear that in a suit for partition of joint family properties, where the plaintiffs is in joint possession with the other coparceners, is governed by Article 17-B of Schedule II of Madras Court-Fees Amendment Act, 1922 (in short ‘Court Fees Act’) and not by Section 7(iv)(b). The applicability of Section 7(iv)(b) of Act 1870 is limited to a case where member suing is not in joint possession. The Section 7(iv)(b) of Act 1870 is equivalent to Section 37(1) of the Act. ii) Rathna Mudali and others v. Ajudi Venatesa Mudali and others, 1951 (1) MLJ 461: “The plaintiffs paid a fixed Court-fee of Rs.100 under Article 17-B of the second schedule of the Court-Fees Act which of course should be the proper article applicable if the plaintiffs were in possession of the joint family properties actually or constructively. The Official Receiver did not contest the position that the Plaintiffs and Defendants 1 and 2 should be regarded as members of a joint undivided Hindu family. The Official Receiver did not contest the position that the Plaintiffs and Defendants 1 and 2 should be regarded as members of a joint undivided Hindu family. Indeed he claimed that that being the position he was entitled to sell the propertie s under the Hindu Law for discharging proper debts. The Subordinate Judge has however held that there was no proof that the Plaintiffs were in possession of the properties along with the Official Receiver and therefore directed the plaintiffs to pay Court-fee as in a suit for ejectment under Section 7, Clause (v) of the Court-fees Act. In my opinion this is wrong. The effect of the insolvency is not to put an end to the joint possession of the coparceners and whatever the rights of Official Receiver mig ht be, the coparceners must be deemed to be in possession atleast constructively of all the joint family properties, in this view the Court-fee paid by the Plaintiffs must be held to be correct and the order of the lower Court must be reversed. There will be no order as to costs in this revision petition as the objection as regards Court-fee was not taken by the Official Receiver.” In this case, the suit was filed by coparcener for partition of joint family property. Some members of the coparcenery were adjudicated insolvents, the official receiver was in possession of the property who was authorised to sell the properties. In a dispute as to whether Court fee paid by the plaintiffs under Article 17-B was valid or not, this Court held that the Court fee paid under Article 17-B is valid. iii) In addition to the above decision, he relied on the judgment Lakshmi Ammal v. K.M. Madhavakrishnan and others, AIR 1978 SC 1607 , it has been held as follows: “ 2. It is unfortunate that long years have been spent by the Courts below on a combat between two parties on the question of Court-fee, leaving the real issues to be fought between them to come up leisurely. Two things have to be made clear. Courts should be anxious to grapple with the real issues and not spend their energies on peripheral ones. Secondly, Court-fee, if it seriously restricts the rights of a person to seek him remedies in Courts of justice, should be strictly construed. After all access to justice is the basis of the legal system. Two things have to be made clear. Courts should be anxious to grapple with the real issues and not spend their energies on peripheral ones. Secondly, Court-fee, if it seriously restricts the rights of a person to seek him remedies in Courts of justice, should be strictly construed. After all access to justice is the basis of the legal system. In that view, where there is a doubt reasonable, of course, the benefit must go to him who says that the lesser Court fee alone be paid. 3. In this particular case there is hardly any difficulty in holding that the plaintiff in Para 14 of the plaint has clearly alleged that she is in joint possession and is seeking partition and separate possession of her half-share in the suit properties as heir of deceased Paramayee. Obviously, the Court-fee that is payable is as she has claimed, namely under Section 37(1) which corresponds to Article 17-B of the Central Act, which is the predecessor legislation on the subject. We allow the appeal and se nd the case back to the trial Court and direct that Court to proceed with the suit expeditiously. We make it clear that our decision on the question of Court-fee does not have any implications on the merits, including the validity of otherwise of the Will. No costs.” In the above decision, it has been held that Section 37(2) of the Act corresponds to Article 17-B of the Court Fees Act. It has been further held that when plaintiff alleging that he is in joint possession and seeking partition and separate possession of his/her share Court-fee is payable under Section 37(2) of the Act. It is relevant to note that in the said judgment the Hon’ble Supreme Court observed that the Court should be anxious to grapple with the real issues and not spend their energies on perip heral ones. Secondly, Court-fee, if it seriously restricts the rights of a person to seek his remedies in Courts of justice, should be strictly construed. In that view, where there is a doubt reasonable, of course, the benefit must go to him who says that the lesser Court fee alone be paid. Secondly, Court-fee, if it seriously restricts the rights of a person to seek his remedies in Courts of justice, should be strictly construed. In that view, where there is a doubt reasonable, of course, the benefit must go to him who says that the lesser Court fee alone be paid. iv) Neelavathi and others v. N. Natarajan and others, AIR 1980 SC 691 , wherein it has been held as follows: “Section 37 of the Tamil Nadu Court Fees and Suits Valuation Act relates to Partition Suits. Section 37 provides as follows: 37(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 family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates: When the plaint is presented to— (i) a District Munsif’s Court Rupees one hundred (ii) the City Civil Court, Chennai or a Sub-Court or a District Court. Rupees one hundred, if the plaintiff’s share is rupees thirty thousand or less; rupees five hundred, if it is above rupees thirty thousand but below rupees one lakh; and rupees seven hundred and fifty, if the value is rupees one lakh and above. (iii) The High Court Rupees one thousand ( 3 ) Where, in a suit falling under sub-section (1) or sub-section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in sub-section (2), according as such defendant has been excluded from possession or is in joint possession. ( 4 ) Where, in a suit falling under sub-section (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in Section 40, separate fee shall be payable on the relief of cancellation in the manner specified in that section.” 6. In the case on hand the petitioners herein have alleged that they are co-owners and they are in joint possession of the suit property. In the case on hand the petitioners herein have alleged that they are co-owners and they are in joint possession of the suit property. Applying the said judgments mentioned supra, this Court is of the prima facie view that the Court fee paid by the petitioners under Section 37(2) of the Act is right and the impugned order is set aside. However, it is open to the trial Court to frame necessary issues as to whether the petitioners herein are liable to pay stamp duty under Section 37(2) or 37(1) of the Act and decide the same along with the other issues while disposing of the suit on merits. The C.R.P. is disposed of on the above terms.