Decided on January 11,1946


Referred Judgements :-


Cited Judgements :-



Weston, J. - (1.)THIS revision application raises the point as to the court-fee payable in a suit for partition of the joint family properties belonging to a joint Hindu family, when the plaintiff asserts that he is in joint possession with the defendants of those properties. The matter has come before a full bench, I understand, because, following the recent decision of the Madras High Court in Ramaswami v. Rangachariar, [1940] Mad. 259, F. B. it now appears, in the words used by the learned Chief Justice at p. 276 of that report, that "the Bombay High Court stands alone" in its application of Section 7 (v) of the Court-fees Act to such cases. The view of the Bombay High Court is expressed in three decisions: (1) Mahadeva Balwant Karandikar v. Laxuman Balwant Karandikar (1893) P. J. 13, (2) Balvant Ganesh v. Nana Chintamon (1893) I. L. R. 18 Bom. 209, and (3) Dagdu v. Totaram (1909) I. L. R. 33 Bom. 658, S. C. 11 Bom. L. R. 1074, It was held in all those cases that the plaintiff in a partition suit such as the present must pay court-fee ad valorem on the value of his share in the joint family property under Section 7, paragraph (v), of the Court-fees Act. THIS view apparently has stood unchallenged for more than fifty years, and we should, I think, be very reluctant to disturb it, except for good reason. At the same time the ordinary principles of stare decisis do not apply with their usual force where the question involves no possibility of disturbance of titles, but is a fiscal matter between Government and the litigant. Notice has been issued to the learned Government Pleader, and we have had the assistance of the arguments of Mr. Jathar, Assistant Government Pleader, in addition to those of Mr. Desai, who for the opponents in this revision supports the view taken by the trial Court, which naturally felt itself bound by the Bombay decisions.
(2.)MR. Desai has suggested a preliminary objection to the competence of this revision application. He points to the two paragraphs of Section 12 of the Courtfees Act. In paragraph (i) every decision by the Court, in which a plaint is filed, relating to the valuation for the determination of court-fees, is expressed to be final as between the parties to the suit. But finality of decision between parties is laid down in various enactments, and there are numerous decisions of this and other High Courts that this of itself in no way restricts the jurisdiction of the High Court to revise under Section 115 of the Code of Civil Procedure, in proper eases, orders to which such finality is given by the statute [see Vinayak Pandurangrao v. Sheshadasacharya (1944) 46 Bom. L. R. 711, and cases cited therein at p. 713]. The second paragraph of Section 12 does not support the argument that this Court has no power to interfere in revision. Paragraph (ii) of Section 12 lays a duty upon a Court of appeal, reference or revision, when a suit comes before it, to interfere in the matter of court-fees, when the question of the amount of those court-fees has been wrongly decided to the detriment of the revenue. This in no way requires that the discretionary power of the High Court to interfere in cases where the wrong decision has not been to the detriment of the revenue no longer exists. It was held as long ago as 1886, Vithal Krishna v. Balkrishna Janardan (1886) I. L. R. 10 Bom. 610, F. B. , and as recently as a year ago, Mahadeo Gopal v. Hari Waman (1944) 47 Bom. L. R. 350, that this Court has power to interfere in revision under Section 115 of the Code of Civil Procedure in proper cases where the trial Court has placed a suit under a wrong provision of the Court-fees Act, and the competence of the present revision application, therefore, calls for no further discussion.
Mr. Desai has also sought to base an argument upon Section 17 of the Court-fees Act. He points out that in the present case the joint family property, according to the plaint, consists of both immovable and movable property. He also point;; to the fact that the amounts of certain outstandings are stated by the plaintiffs not to be within their knowledge, and the plaintiffs in terms have asked that in the suit an account should be taken of those outstandings. He suggests, therefore, that the suit is really a composite suit by which the plaintiffs seek three reliefs: (1) possession of certain immovable property; (2) possession of certain movable property; and (3) accounts. The relief stated to be for accounts is, however, really a relief for ascertainment of property. The defendants said to be in physical possession of that particular part of the joint family property are in no way liable to account to the plaintiffs in the technical sense of the word, and all that the plaintiffs have sought is determination of the quantum of this part of the joint family property. It might be said that, if a suit for partition of joint family property, when such joint family property is wholly immoveable, falls under Section 7, para, (v), of the Courtfees Act, and if a suit for partition of joint family property, when such joint family property is wholly movable, falls under Section 7, para (iii), of the Act, then, when the joint family property is both movable and immovable, Section 17 of the Act will come into operation. Mr. Desai has not been able to cite any case in which a partition suit has been held to be a composite suit because the subjectmatter of it is both movable and immovable property. By its very nature, it seems to me a partition suit is not a composite suit. There is a single cause of action, and I should expect such a suit to be referable to a single provision of the Court-fees Act. If the application of Section 17 is the logical consequence of regarding a partition suit as one for possession, that consequence, in my opinion, weakens rather than strengthens the assumption from which it arises, that a partition suit is a suit for possession.

As to whether a suit for partition of joint family property can properly be said to be a suit for possession of property, a suit for possession of immovable property is usually termed a suit in ejectment, and its ordinary significance is that the plaintiff is out of possession, that the defendant is wrongfully in possession, and that the plaintiff seeks that possession should be taken from the defendant and be given to him. But a partition suit, where the plaintiff under accepted principles of Hindu law is in constructive joint possession of the whole property is certainly not a suit in ejectment in the ordinary sense of the term. The plaintiff in constructive possession of the whole seeks that the mode of enjoyment of the property by himself and by other members of his family shall be changed, and that, instead of enjoying joint possession of the whole, his possession shall be altered to separate possession of a part. An extreme and no doubt unusual but by no means impossible example of partition suit is one by a manager in physical possession of the whole of the joint family property who nevertheless may seek the assistance of the Court for partition and for his separate possession of only a fraction of the property. All the High Courts other than Bombay, on the above line of reasoning, have accepted that a suit for partition of joint family property, when the plaintiff is in constructive possession, is not a suit for the possession of property within the meaning of para (v) of Section 7 of the Court-fees Act, and this reasoning may also be applied to cases where the joint family property is entirely movable property.

(3.)THE first case of the Bombay High Court, Mahadeva Balawant Karandikar v. Laxman Balwant Karandikar is based upon a decision of the Calcutta High Court, Kirty Churn Mitter v. Aunath Nath Deb. (1882) I. L. R. 8 Cal. 757 THE judgment merely affirms that in agreement with that decision the court-fee must be ad valorem on the value of the share claimed by the plaintiffs. THE case of Kirty Churan Mitter v. Aunath Nath Deb was on a reference under Section 5 of the Court-fees Act by the Taxing Master of the High Court, and the decision there, strangely enough, was directly the reverse of the decision in Mahadeva Balwant Karandikar v. Laxman Balwant Karandikar, THE suggestion before the Taxing Master appears to have been that the suit was one falling under Clause (b) of para. (iv) of Section 7, which provides for suits to enforce the right to share in any property on the ground that it is joint family property. Garth C. J. upheld the opinion of the Taxing Master that the suit did not fall under Clause (v) of para. (iv) of Section 7, because the suit was not brought to "enforce the right to share in any property on the ground that it was joint family property," but the plaintiff was in actual possession of his share in the joint estate, and merely sought for the partition of the estate, the separation of his share, and for khas possession of such share when separated. THE Taxing Master's opinion that a courtfee of ten rupees, presumably under Article (vi) of Clause 17 of Schedule II of the Court-fees Act, therefore, was correct. THE material part of the learned Chief Justice's judgment is as follows (p. 758) : If the plaintiff's suit had been to recover possession of, or establish his title to, the share which he claims in the property, he must have paid an ad valorem stamp-fee upon the value of that share. But, as I understand, he is already in possession of his share, and all that he wants is, to obtain a partition, which is merely, as explained by the learned Judges in the ease of Rajendro Loll Gossami v. Shama Churn Lahoory (1879) 4 C. L. R. 417, 418 to 'change the form of his enjoyment of the property, or, in other words, to obtain a divided, instead of an undivided, share. It seems to me impossible to say what will be the value to the plaintiff of this change in the nature of his property, and I, therefore, think a stamp-fee of Rs. 10 is sufficient. "
The judgment suggests perhaps that the plaintiff in that case was in physical possession of precisely the share he claimed to obtain by partition, and under the Dayabhaga law a coparcener has a defined share of coparcenary property, although his physical occupation of that share must be by consent of other coparceners. It is not easy to understand what the learned Chief Justice meant when he contemplated that, if the suit had been to establish the plaintiff's title to the share which he claimed in the property, he 'must have paid an ad valorem stamp-fee upon the value of that share,' for such suit would seem to fall either under Section 7 (iv) (d) or under Schedule II, Article 17 (iii) as a suit for declaration. In Nandalal Mukherji v. Kalipada Mukherji (1931) I. L. R. 59 Cal. 315, Rankin C. J. stated (p. 318) : A person is not entitled to partition unless and until he is in possession of his share. But, if he is out of possession of his share, the court does not require him to bring two suits. He can bring a suit in which he may claim to recover possession of his share and he may also claim to have that share partitioned by the same decree. If it appears that he is out of possession according to his own showing, then he has to bring a suit to get possession of his share; and it is perfectly true that, in that case, he would have to pay court-fee on the market value of that share. It is not a question of declaration or declaration with consequential relief. He would have to pay court-fee as in a suit for possession. That I take to be the meaning of what was said by Garth C. J. in the case of Kirty Churn Miltter v. Aunath Nath Deb.


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