MODI, J. - (1.) THIS is a plaintiff's second appeal against an order of rejection of his plaint under O. VII r. 11 C. P. C. and has been transferred to this Court from the High Court of Bombay as a result of sec. 64 of the States Reorganization Act (Act No. XXXI of 1956 ).
(2.) THE facts leading up to this appeal may shortly be stated as follows. THE minor plaintiff Harishchandra's case, as put forth by his next friend Mst. Laxmi, his mother, was that the defendant Rupram and the plaintiff's father Ratanlal were brothers, being sons of one Dudaram. Originally Ratanlal and Rupram lived in a rented house together. THEreafter some twenty years ago, they purchased an open plot of land at an auction from the State of Sirohi for which they had obtained a Patta in their joint names and built a house thereon. After the house had become ready, the defendant occupied a room therein and let out three other Kotries therein to tenants while the plaintiff's father Ratanlal continued to live in the rented house. THE plaintiff's case further was that Ratanlal had died ten years before the present suit was filed, that no partition of the suit house had been made in his life-time. THE plaintiff was however a minor at the time of his father's death and in spite of the fact that the defendant had been asked more than once to give a half share of the suit house by partition and to divide the receipts accruing from rent, the defendant paid no heed. Mention must then be made of the allegation made in paragraph ten of the plaint which was to the effect that the defendant was in exclusive possession of the suit house and that he had definitely refused to allow the plaintiff to live therein and therefore a separate application for the appointment of a receiver was being made. On these allegations it was prayed that the plaintiff be put into separate possession of his share of the house by partition. For purposes of court-fee, and that is the question with which we are concerned in this appeal, the plaintiff valued his claim at Rs. 1300/- and put his case in this way. According to him, the value of the house was Rs. 2000/- and the defendant was alleged to have recovered a sum of Rs. 600/- by way of rent thereof and so the plaintiff was entitled to a half share of the total value of Rs. 2600/-that is, Rs. 1300/-, on which he paid ad valorem Court-fee of Rs. 90/ -. The defendant resisted the suit and among other pleas with which we are not concerned contended that the house was worth at least ten thousand rupees at the date of the suit and that the defendant had been in exclusive possession of it for the last 20 years and over and the court-fee paid by the plaintiff was insufficient and therefore prayed that the plaint be rejected under O. 7, r. 11 C. P. C. The trial court dealt with this matter as a preliminary issue and came to the conclusion that the suit was at the least of the value of Rs. 8000/- at the date of the suit and the plaintiff should have put in ad valorem court-fee on that basis that is on Rs. 4000/- being the value of his half share and allowed time to him to make up the deficiency in court-fee by or before the 9th October, 1952. On the last-mentioned date, the plaintiff's counsel filed an application that it was not intended to pay the deficit court-fee stamp. Consequently the trial court rejected the plaint by its order dated the 9th Oct. , '52. The plaintiff then went in appeal to the District Judge Mehsana at Palanpur who transferred it for disposal to the Assistant Judge, Mehsana, at the same place. The Assistant Judge dismissed this appeal by his order dated the 30th November, 1954. Aggrieved by this decision, the plaintiff filed this appeal before the High Court at Bombay which, as already stated, has been transferred to this court under the provisions of States Reorganization Act, 1956. The only question for decision is whether the finding of the courts below that the plaintiff should have filed ad valorem court-fee under sec. 7 (v) of the Court-fees Act on half the market value of the house as determined at the trial is not well-founded. It is strenuously contended by learned counsel for the plaintiff that the view taken by the courts below is erroneous, inasmuch as the plaintiff's suit relates to the relief of possession by partition of a joint family property which was in the constructive possession of the plaintiff, and it is further submitted in that connection that it was enough for the plaintiff in relation to such a suit to have put in the fixed court-fees under Article 17 (vi), Schedule II, of the Court Fees Act or under Art. 17 (vii) according to the Bombay amendment, the proper fee according to the Bombay law amounting to Rs. 15/- only. I have given this contention my careful and anxious consideration and have arrived at the conclusion that it is without any substance. Now, it is well established that in determining the applicability of the various provisions of the Court Fees Act to a particular suit, the court must look to the allegations made in the plaint and the plaint must be read as a whole and in its substance,caution being observed to see that nothing is imported into it which it does not really contain either actually or by necessary implication. See Sukh Lal Vs. Devi Lal (1 ). That being so, what is the gist of the plaint in this case ? In the first place, I should like to point out that it is entirely silent as to the defendant and the plaintiff's father constituting a joint Hindu family. All that is mentioned is that the land on which the suit house was built was purchased by the defendant and the plaintiff's father Ratanlal jointly at a public auction and that the house which had been later built on it came to be built with the funds belonging to his (plaintiff's) father alone. That being so, I am entirely unable to hold that this was a case of a joint Hindu family property, and what may be properly said for the plaintiff is that his is a case of a joint property as contradistinguished from joint family property. Be that as it may, the effect of the allegations made by the plaintiff as to his possession, or, for that matter of the possession of his father, with respect to the suit house clearly is that, although according to the plaintiff, it was his father who had entirely provided the funds with which the house in suit was built, the defendant alone went into occupation of a part of the house and he left out the remainder of it and the plaintiff's father continued to live in the rented house as before. It was further averred in paragraph ten of the plaint that the defendant alone was in possession of this house and that he had definitely declined to let him (plaintiff) have the enjoyment of it. It was on this account that the plaintiff appears to have paid an ad valorem court-fee on what he thought was the value of his half share of the house. Relying on these allegations to which I have drawn attention above, both Courts, below came to the conclusion that the plaintiff was out of possession of this house, (if indeed he had not been ousted from the possession thereof and consequently they were of the view that the contention of the plaintiff that it was enough for him to pay court fees for partition thereof on the footing that he was in possession of it was untenable. It has been strenuously urged before me by learned counsel for the plaintiff that his client should be treated as having been in constructive possession of the suit house. Unfortunately for him, however, I do not find it possible to accept this contention on the plaint as it was framed, and it is not for the court to decide the question of court-fees on the plaint as it might have been framed but it was not. The position, therefore, is that the present is that class of a case where the plaintiff claiming to be the owner of a half share in a house, is not in actual or constructive possession of or any part in it and claims for recovery of his half share by partition. On these facts, the question is whether it was or would be enough for the plaintiff to pay the fixed court-fee as provided under Article 17 (vi) of the Court Fees Act (or which is the same thing as under Article 17 (vii) as amended in Bombay) or he should have paid ad valorem court fee on the market value of his share as prescribed by sec. 7 (v) of the Act. Now, there is a consensus of judicial opinion at this date, though there was an acute controversy at one time, that in a suit for partition of joint property where the plaintiff alleges joint possession, either actual or constructive, a fixed court-fee stamp, speaking broadly, of rupees ten is leviable under Art. 17 (vi) of the Court Fees Act and sec. 7 (iv) (b) or sec. 7 (v) can properly have no application to such a case. This fee has been fixed at Rs. 15/-under the corresponding clause (vii) of Article 17 by an amendment in Bombay but that is only a minor matter of detail. The ratio decidendi of this view is that the plaintiff in such a case does not sue to enforce any right to share the joint property nor to recover possession without more; but on his own allegations, he is already under enjoyment of his share and what he really seeks to do is to change the mode of his enjoyment of the joint property from an undivided to a divided one and that the relief in such a case is not capable of being valued in money. See Shankar Maruti Vs. Bhagwant Gunaji (2 ). This view however does not and cannot come to the aid of a plaintiff where on the case put forth by him he appears to have been altogether excluded from possession of the suit property and cannot me that in such a case Art. 17 (vi) constructive possession of the same. And it clearly seems to be said to be either in actual or cannot rightly have any application and the proper court-fee payable by the plaintiff would be the ad valorem fee as provided under Sec. 7 (v) of the Court-fee Act, the material portion of which reads as follows: - "in suits for the possession of land, houses, gardens-according to the value of the subjectmatter. " See Ramaswami Vs. Rangachariar (3 ). It may also be pointed out that so far as this type of case is concerned, there can be no question that sec. 7 (iv) (b) cannot apply to such a case for we are here concerned with property which is joint but which is not joint family property and sec, 7 (iv) (b) governs a case of enforcing a right to a share in a joint family property. I hold accordingly. In view of the foregoing discussion I am definitely of the opinion that the courts below were perfectly right when they came to the conclusion that the plaintiff should have paid court-fee under sec, 7 (v) of the Court Fees Act and not under Article I7 (vi), and that having not been done, the plaint was rightly rejected. Learned counsel in the last resort prays that he may be allowed opportunity to file the deficit court-fees as decided even now. I am afraid, I cannot accede to this request. The present suit was filed on the 30th October, 1949, more than twelve years ago. The plaintiff had ample opportunity to make up the deficiency in the court-fee before now but he did not do so. In fact the trial court rejected the plaint when his learned counsel had taken a determined stand and given in writing that it was not intended to make up the deficiency in that connection, and it was as a result of that that the trial court rejected the plaint on the 9th October, 1952. In these circumstances, I regret, I do not think that it is a fit case where any further indulgence can be shown to the plaintiff in the manner desired, The result is that this appeal fails and is hereby dismissed, but under the circumstances I make no order as to costs. . ;