Subba Rao, J. -
(1.) THESE are references under Section 5, Court -fees Act. O. S. No. 201 of 1949 was filed on the file of the court of the Subordinate Judge of South Kanara for division of the plaint B Schedule Immovable properties and the C Schedule in moveables into 16536 shares and for allotment to the plaintiff 851 shares therefrom and to direct the first defendant to account for the income of the family properties realised by him and sale proceeds of the clay sold by him from items 13 and 14 of the B Schedule to defendants 99 to 102, and other incidental reliefs. The suit was valued in respect of the relief of partition at a sum of Rs. 100. On 30 -7 -1952 the learned Subordinate Judge passed a supplementary preliminary decree whereunder, defendants 1, 4 and 8 were directed to render accounts to the family for the sale proceeds of clay realised by them and they were also made liable to pay the other members of the family their shares of Rs. 21600 after deducting their own share. Defendants 1, 4 and 8 preferred separate appeals to the High Court. The appeal preferred by the first defendant is S. R. No. 3174 of 1953 and that by defendants 4 and 8 is S. R. No. 1257 of 1953. Both the memoranda of appeal were stamped on a fixed court -fee of Rs. 100 under Article 17 -B of the II Schedule to the Court -fees Act. The office took the view that as the appeals were directed against the decree for specific amounts, 'ad valorem' court fee should be paid.
(2.) THE relevant provisions of the Court -fees Act read as follows:
It is settled law that a relief for partition is not capable of valuation and therefore Art. 17 -B of Sch.II will apply. It is equally well establish that a relief for accounting is governed by S. 7(iv)(f).
It has also been held that in a suit for rendition of accounts, when the amount is ascertained and a decree granted for a specific amount, the defendant should pay 'ad valorem' court fee in an appeal against that decree. If a relief for partition and a relief for accounting are two distinct subject -matters they should be separately valued, even though the two reliefs are clubbed together in the same suit. But if the relief for accounting is implied in relief of partition, it cannot be said that the former relief is in respect of a different subject -matter. In that case, though it is framed as a separate relief, in effect and in substance it will be part of the same relief. It is therefore necessary to ascertain the scope of a relief for accounting in a suit for partition.
In - - 'Parameshwar Dube v. Gobind Dube',, AIR 1916 Cal 500 (A), Fletcher J. after considering the case law in the subject summarised his view as follows at page 502:
"The result of these authorities I think is that in an ordinary suit for partition in the absence of fraud or other improper conduct, the only account the 'karta' is liable for is as to the existing state of the property divisible. The parties have no right to look back and claim relief against past inequality of enjoyment of the members or other matters."
Jwala Prasad J. in - - 'Jyotibai v. Lackhmeshwar Prasad',, AIR 1930 Pat 1 (B), stated the law thus:
"Now such a 'karta' is not responsible to the other members of the family for the management of the joint family property in respect of the income derived therefrom and the expenditure incurred by him. He is the sole master of the situation and is not in any way controlled by the junior members of the family. He has to use his own discretion unfettered in any way and controlled only by his own sense of right or wrong. He is neither a trustee nor an agent and is not accountable to the members of the family. If any member happens to be dissatisfied with him, his remedy is to separate from the family and to ask for a partition. He is entitled to his share in the family properties, moveable and immovable, including cash, that may be in existence at the time of partition. He cannot ask for an account of a preceding period, except for the purpose of determining the properties including cash in the hands of the 'karta' so as to be available for partition." Later on, the learned Judge proceeded to state: "He can be asked not to render an account as an agent on behalf of the other members, but only to disclose the properties including cash in 'his hands and that might necessitate looking into the accounts. A disclosure of property is not rendition of account, the word "account" in a suit for partition and accounts against a 'karta' being used for convenience's sake, and not in the legal sense to bring it within the expression used in Section 7(iv)(f) of the Court fees Act. Section 7(iv)(f) applies to a suit for accounts. The test is: "Can a junior member, without _claiming partition, bring a suit for accounts against a 'karta?' If he cannot, then the relief as to accounts becomes subsidiary to the principal relief of partition."
I accept the aforesaid observations as a full statement of the law on the subject. It will be seen from the said two judgments that in a partition suit a relief for accounts may be asked for under two circumstances:
1. for the purpose of ascertaining the partible assets of the family and
2. for directing the manager to render accounts on the ground of fraud or improper conduct. Though the terminology used is similar in both the cases, in substance the reliefs are essentially different in context. In the former, the relief of accounting is incidental and subsidiary to the relief of partition as the accounting is only for the purpose of ascertaining the assets, in the latter case, the relief for the rendition of accounts is distinct and separate matter and it is an accident that it is clubbed along with the relief for partition in the same suit.
(3.) BEARING the aforesaid principles in mind I shall now proceed to consider the cases cited. In - - 'Ramaswami v. Rangachariar',, AIR 1940 Mad 113 (C), a Full Bench of this court laid down the mode of valuation of the reliefs in a suit for partition. There a Hindu minor sued through his mother as next friend for partition of the properties of the joint family consisting of himself, his father and his three brothers and for possession of his one -fifth share therein. He also joined as defendants several other persons (strangers to the family) either as alienees of family properties or as creditors of the family. His prayers were for:
(i) an account of the moveable and Immovable joint family properties;
(ii) the partition by metes and bounds of his one -fifth share;
(iii) the appointment of a receiver to manage the properties and collect rents and income till the disposal of the suit;
(iv) the costs of the suit; and
(v) such further and necessary reliefs as in the circumstances might be considered necessary and proper.
The learned Judge held that the relief for partition should be valued under Article 17 -B Schedule II of the Act. In respect of the alienations sought to be set aside and for possession of the properties alienated, they directed that those reliefs should be valued under Section 7(v) of the Act. In respect of the setting aside of decrees passed against the plaintiff in suits in which he had been 'eo nomine' impleaded as a party, Section 7(iv -A) of the Act was held to be applicable.
In regard to the other transactions of his father impugned by the plaintiff, it was held that no court fee was necessary. The reason given was that a relief for declaration or cancellation of those transactions was incidental to the relief of partition. The aforesaid judgment therefore is an authority for the position that in a suit for partition, if a relief relates to a distinct subject matter it should be separately valued, and in a case where a relief is only incidental to the relief of partition, no separate court fee need be paid. Mack J. in - -'Peravadhannulu v. : AIR1950Mad26 (D), appears to lay down a different principle. There a grandson filed a suit against the grandfather for a partition of the joint family property and for the rendition of the accounts. The court directed the defendant to pay a sum of Rs. 20,000 in an account being taken of the outstanding due. In an appeal to the District Court he sought to value it under Article 17 -B of the 2nd schedule of the Court -fees Act. The learned Judge held, following the Full Bench decision in - - Dhanukodi Nayakar in re', : AIR 1938 Mad 435 (E), that the defendant should pay 'ad valorem' court -fee on the subject matter of the appeal. The learned Judge said:
"I am unable to see how for fiscal purposes the liability of a manager of a Hindu joint family business to account to other members of the joint family can be differentiated from an ordinary suit for accounts as between partners. The simple principle of valuation is contained in Article I, Schedule I of the Court fees Act. In a plaint or memorandum of appeal court -fee is payable on the amount or value of the subject -matter in dispute."
The facts are not clear. It is not known on what basis the rendition of accounts was asked for in that suit. If it was a distinct relief on the ground of fraud or improper conduct of the grandfather, I respectfully agree with the conclusion arrived at by the learned Judge; but, if the relief claimed was only incidental to the relief of partition, for the purpose of ascertaining the assets of the family, I regret my inability to accept the correctness of the decision.
But Krishnaswami Nayudu J. in - - 'Veluchami Pillai v. : AIR1950Mad353 (P), strikes a different note, in that case the plaintiff, a member of the joint Hindu family, instituted the suit for partition claiming a one fourth share in the properties and paid a court fee of Rs. 100 under Article 17 -B Schedule II of the Court fees Act. The final decree provided that the plaintiff should receive a certain amount from the other parties to equalise the shares and he was also granted a decree for a specific amount in respect of his share of the profits. The plaintiff preferred an appeal and paid a court fee of Rs. 100 provided under Article 17 -B of Schedule II. The learned Judge held that the decree for owelty and a share of the profits are incidents in a suit for partition and therefore the court fee paid on the relief for partition was sufficient.
To the same effect is the judgment of Chandra Reddi J. in - - 'Kamalam v. Saradambal',, 1952 2 Mad L. J. 47 (G). There the plaintiff brought an administration suit against her mother and her three sisters for partition of the plaint schedule property into four shares and for delivery of separate possession of her share and for rendition of accounts of other assets and income from the family property. A court fee of Rs. 100 was paid under Article 17 -B of the II schedule of the Court fees Act. A preliminary decree was made. The Commissioner appointed after looking into the accounts found that the second defendant who was virtually in management of the estate was liable to pay the plaintiff Rs. 3152 -8 -9. The second defendant filed an appeal against that judgment. "The question was whether 'ad valorem' court fee should be paid on that amount or whether the court fee of Rs. 100 under Article 17 -B of the 2nd schedule of the Court fees Act would be the correct court fee. The learned Judge held that only the fixed fee of Rs. 100 was payable. The learned Judge also accepted the principle that the accounting was only incidental to the relief of partition.;