Orissa High Court
Balmakunda Singh Rai And Ors. vs Chitrabhanu Singh Rai And Ors. on 20 January, 1970
Equivalent citations: AIR 1971 ORISSA 108, 36 CUTLT 1200 ILR (1970) CUT 1102, ILR (1970) CUT 1102
JUDGMENT A. Misra, J.
1. Plaintiffs are the petitioners. The only point for consideration in this revision relates to the appropriate provision of the Court-fees Act which will govern the plaintiff's suit for purposes of court-fees and jurisdiction.
2. The suit was filed with the following prayers; (a) Properties described in Schedule A at the foot of the plaint be divided into two equal shares after declaration that the plaintiffs are entitled to half share out of the suit properties and the same be allotted to the plaintiffs; and (b) portion of the suit properties, if any, transferred by defendants without legal necessity be allotted to their share. A genealogy of the family is given in the plaint snowing that plaintiffs represent one branch and defendants another branch of the joint family descended from the common ancestor Sadananda Singh Ray. The suit properties, it is alleged appertained to the zamindari and thikadari interest belonging to the joint family, but the said interest being impartible in character, it devolved only on one heir, though the ancestral and joint character of the property was never lost.
In a previous suit filed by plaintiff No. 1, though his claim for partition was negatived on the ground that the zamindari was impartible, maintenance at the rate of Rs. 125/- a month out of the estate was decreed in his favour as a member of the joint family. After abolition of the zamindari in 1952 and thikadari interest in 1954, the character of impartibility came to an end, and as such, plaintiffs became entitled to partition and allotment of their share of bhogra lands which were converted into raiyati.
3. The suit is valued at Rs. 46,000/- for the purpose of court-fee and jurisdiction, but a fixed court-fee of Rs. 150/- has been paid. On objections raised by defendants regarding the correctness of the valuation given and the court-fee paid, the learned Subordinate Judge assessed the value of the entire properties at Rs. 3,00,500/- and the share claimed by plaintiffs at Rs. 1,50,250/-. Accordingly, he directed the plaintiffs to pay ad valorem court-fee on the said amount.
4. Learned counsel for petitioners contends that the court below has erred in directing the plaintiffs to pay ad valorem court-fee on the market value of the share claimed holding that the suit is governed by Section 7(vi)(a) of the Court-fees Act as amended in Orissa. According to him, a suit of the present nature will be governed by Article 17-A of Schedule II of the Court-fees Act as amended in Orissa and only a fixed court-fee is payable.
5. Section 7(iv)(b) of the parent Act governed suits to enforce a right to share any property on the ground that it is joint family property. Under the Orissa amendment of the Court-fees Act, a specific provision has been made for partition suits in Section 7(vi)(a). The result of the amendment is that in Orissa, a suit for partition and separate possession of a share of joint family property or of joint property or to enforce such rights when plaintiff alleges that he has been excluded from possession of the property falls to be governed by the amended clause.
Such a suit has to be valued according to the market value of the share in respect of which the suit is instituted and ad valorem court-fee has to be paid on such valuation. It is contended by learned counsel for petitioners and we agree with him that to attract the application of the amended provision Section 7(vi)(a), plaintiff must allege to have been excluded from possession of the property of which he claims to be a coparcener or co-owner. Nowhere in the plaint, there is any allegation of plaintiffs having been excluded from possession of the suit properties. On the other hand, their specific case is that so long the property carried with it its imparticle character, defendant No. 1 held it as representing the entire family. In other words, plaintiffs allege that in the eye of law, they were in joint possession of the properties as members of the joint family,
6. Mr. Pal, learned counsel appearing for opposite parties, while not disputing that the amended provision Section 7(vi)(a) will be attracted only where there is an allegation of exclusion from possession, contends that in fact the properties do not constitute joint family properties and plaintiffs were never in possession either actually or constructively It is not disputed that determination of the question as to which provision of the Court-fees Act will govern a particular case will depend on the allegations contained in the plaint and the nature of suit as framed by the plaintiffs irrespective of the defence that may be put forth. If, as contended by Mr. Pal, the properties are not joint family properties, such a defence will be available to him and the suit may fail if the properties are not found to be joint family properties. This, however, will not justify construing the plaint as one where plaintiffs allege to have been excluded from possession. Therefore, the court below has erred in holding that the suit as framed is one governed by the amended Section 7(vi)(a) of the Court-fees Act.
7. If the suit is not governed by the amended Section 7(vi)(a), the next point for consideration is the appropriate provision which will govern it. No specific provision has been made in regard to suits for partition where plaintiffs claim to be in actual or constructive possession of the properties. Learned counsel for petitioners contends that such suits will be governed by the residuary Article 17-A of the second Schedule which deals with cases where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by the Act. It is well settled that in partition suits where plaintiff alleges to be in joint possession, it is not possible to estimate the subject-matter at a money value, because in such cases, what is sought is, in substance, a change in the mode of enjoyment and not recovery of possession of the property which plaintiff claims to be already in possession with his co-sharers. This view is not seriously disputed by Mr. Pal, but he contends that taking the substance of the plaintiff's claim in the present suit, it is really one for declaration of the properties being joint family properties and recovery of possession of a share. In such a case, it is argued that even if on the allegations the suit is held not to be governed by Section 7(vi)(a) as amended, it will be governed by Section 7(iv)(c) of the Court-fees Act.
In this connection, he refers to para 10 of the plaint and the prayer of plaintiffs which includes a declaration that plaintiffs are entitled to half a share. Para 10 of the plaint does not lend support to the contention advanced, inasmuch as, it is stated therein that certain alienations made by defendants without legal necessity are liable to be taken into account in their half share of the suit properties. Thus, there is no prayer or relief claimed to set aside any of the alienations. So far as prayer (a) is concerned, it is couched in language which may appear as if plaintiffs want a declaration of their right to half share and partition and allotment of the same as a consequential relief. It is argued for petitioners that merely because the prayer makes reference to such a declaration, it cannot be construed as a suit for declaration of a title with consequential relief. Even if in the prayer portion there is a claim for declaration, the plaint should be examined to see whether it is a declaration properly so-called and whether such a declaration is necessary to entitle the plaintiffs to get the relief.
Reliance is placed in support of this contention on a decision reported in AIR 1938 Pat 22 (FB), (Ramkhelawan Sahu v. Bir Surendra Sahi). That was a suit for recovery of possession, though a claim for declaration of right to the property was also made in the plaint. It was held that the claim for declaration was unnecessary and amounted to nothing more than a finding of fact on the basis of which the relief claimed by the plaintiff can be granted. In the present case, a consideration of the entire plaint shows that the specific case of plaintiffs is that the properties are joint family properties and they are in joint possession of the same. On the basis of these allegations, they claim partition and allotment of half a share. This being the frame of the suit, the inclusion of a claim for a declaration in the prayer cannot amount to a declaration properly so-called, but refers only to a finding of fact on the basis of which plaintiffs claim division and allotment of half a share to them. In the aforementioned Patna case, it was observed:
"The distinction between the remedy sought and the finding of fact necessary to justify the granting of that remedy may be simply tested by considering whether the plaintiff obtaining an order for possession but having been refused a formal declaration in the decree could come to the appellate court with a complaint that he had not received the whole remedy for which he had asked."
Applying this test, if partition and allotment of their share are allowed to the plaintiffs, they cannot go to the appellate court complaining that they have not received the whole of the remedy which they had asked by not being given the declaration claimed. Thus, as the suit is framed, it cannot be construed as one for declaration with consequential relief. Necessarily, the only other provision of the Court-fees Act which will govern the present suit is Schedule II, Article 17-A where-under fixed court-fee is payable. It is immaterial in this case whether the jurisdictional value of the property is Rs. 46,000/- as alleged in the plaint or Rs. 3,00,500/- as assessed by the court below, because the court-fee is the same. In either case, the same court has jurisdiction to entertain the suit.
8. In the result, we allow the revision, but in the circumstances without costs, set aside the order of the court below and hold that the suit has been properly valued and proper court-fee paid.
B.K. Patra, J.
9. I agree.