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18. In order to decide the question propounded before us, it will be necessary to consider certain authorities. The first is an unreported judgment of a Division Bench of this Court, presided over by Sen J., C. R. No. 234 of 1950 (Cal), judgment dated 29-6-50. The facts were as follows: Certain properties belonged to the mother of the plaintiff, being her absolute stridhan properties. The plaintiff filed a suit, stating that his mother had created a trust, but the trust deed was invalid for various reasons. He also advanced the alternative argument that all the beneficiaries had agreed that the trust would cease to operate and the trustees has agreed to give effect to the same. On these allegations, he claimed that the properties descend ed upon him and his co-sharers, and he asked for a partition, making the trustees and certain beneficiaries who were not co-sharers as parties, paying a court-fee of Rs. 15/-. The contention on behalf of the trustees and certain beneficiaries was that this was not a suit for partition simpliciter, but was really a suit for the declaration of the plaintiff's title to the properties, brought in the garb of a partition suit. Reliance was placed on a Madras decision Ramaswami Ayyangar v. C. S. Rangachariar, ILR (1940) Mad 259: (AIR 1940 Mad 113). It was held that the suit as framed could not be allowed to proceed on the fixed court-fee payable in a suit for partition pure and simple. The Madras case was distinguished on the ground that there, the plaintiff had brought a suit against his co-sharers in respect of the property which was admittedly joint family property at some time or other. The allegation in the Madras case was that the father had alienated some of the joint properties without just cause, and the plaintiff joined as parties to the suit the transferees, in order to recover them. It was pointed out that the properties dealt with by the mother were her own stridhan properties and the plaintiff was really seeking to set aside the deed of trust, and this was not a partition suit in which a court-fee of Rs. 15/- only was payable. The next case is also of a Division Bench of this Court, presided over by Sen, J. . The plaintiff there, brought a suit, alleging that the defendant No. I who was a member of the joint family, had purchased some properties in the benami names of certain persons who were strangers to the family. The suit was brought for partition of the joint properties, including these properties and the stranger benamidars were made parties. It was held that a prayer for partition of properties in the presence of these strangers involved a prayer for declaration of title to these properties and confirmation of possession as against them. Therefore, court-fees should have been paid on an ad valorem basis and not a fixed court-fee, as in a partition suit. It does not appear that the provisions contained in Clause (vA) of Article 17, Schedule II were brought to the notice of the learned Judges at all. In fact, it is not mentioned in the judgment, which contains very little reasoning. The next case to be considered is the judgment of a Division Bench of this Court presided over by Lahiri, J. (as he then was) . The facts of that case were as follows: The plaintiff instituted a suit for partition of certain immovable properties described in Schedule 'Ka' of the plaint, and of a Biri business described in Schedule 'Kha', as also of certain moveables described in Schedule 'Ga'. The defendants Nos. 1 and 2 were the two brothers of the plaintiff, and the defendant No. 3 was the son of the defendant No. 1. The plaintiff paid a fixed court-fee of Rs. 15/-, as in a partition suit. The controversy with regard to court-fees centered round the Biri business. In the plaint, the plaintiff stated that the Bin business was started with the income of the joint family consisting of the plaintiff and his two brothers. This business was carried on in a number of places, and it was stated that the defendant No. 1, with a view to deprive the plaintiff of his legitimate share of the income from the said business, fraudulently and collusively purported to sell it in favour of one Keshab Chandra Pal and thereafter got a fraudulent reconveyance from him in favour of his minor son, the defendant No. 3. He stated that these deeds of transfer were fraudulent and sham documents and that in spite of these fraudulent transfers, the Biri business continued to be a joint family business. It was stated that all properties were in the joint possession of the parties. The learned Subordinate Judge held that the plaintiff had stated that he was in joint possession, but not in actual possession, and he held that the plaintiff should pay ad valorem court-fees upon an one-third share of the value of the business. The plaintiff thereupon made an application challenging this finding. The learned Judges held that it was not necessary for the plaintiff in a suit for partition to allege that he was in exclusive possession. It was sufficient to allege joint possession. They then proceeded to discuss the effect of the introduction of para (v-A) of Article 17, Schedule II of the said Act. Lahiri, J. (as he then was) said as follows:

18a. The learned Judge pointed out that in Gagan Chandra Hazra's case (Supra) the attention of the learned Judges had not been drawn to the provisions of Clause (v-A) of Article 17 Schedule II. It was held that the decision of the learned Subordinate Judge was erroneous and that the fixed court-fee paid by the plaintiff upon the plaint must be held to be sufficient. The next case is also a decision of a Division Bench of this Court presided over by Lahiri, J. (as he then was) Ranjit Kumar Pal Choudhury v. Murari Mohan Pal . It was not a case in which the point of court-fees arose. But it is of interest because it lays down certain principles regarding the frame of a suit for partition. The plaintiff's case was that the Karta of the joint family had resorted to various kind of fictitious transactions for the purpose of transferring the ostensible title in certain joint family properties in favour of strangers. Then again, some properties were acquired benami in the name of strangers. Also, some fraudulent transactions were entered into in order to defeat the claim of the co-sharers, in properties purchased out of joint family funds. Upon these allegations, the plaintiff claimed for a declaration of his 1/4th share In all the properties which were included in the schedule to the plaint. The co-sharers were made defendants, together with certain strangers who were the alleged benamdars and transferees of the suit properties. It was argued that all the defendants were not interested in a partition of all the properties mentioned in the plaint and the suit was bad for misjoinder of defendants as also for multifariousness. These contentions were negatived, and it was held that in a partition suit, the co-sharers may be made defendants as well as strangers. It is not the law that those properties in which all the defendants do not claim interest have to be left out in a suit for partition, but it is the law that only those properties have to be left out which, upon the allegations in the plaint, are not properties in which all the co-sharers are interested. Otherwise, no question of title or benami could be investigated at all in a suit for partition whereas it is a settled law that such question can and should be decided in a partition suit. (See Ramcaran v. Hart Charan, 18 Cal LJ 556, Rajendra Kumar v. Brojendra Kumar, 37 Cal LJ 191: (AIR 1923 Cal 501) and Annapurna Devya v. Amiya Nath, 35 Cal LJ 530: (AIR 1922 Cal 307). The point of court-fee arose in the next case, which is also a decision of a Division Bench of this Court, presided over by Lahiri, J. (as he then was) . The facts in that case were as follows: The plaintiff and the defendant No. I were two brothers having an equal share in all the joint family properties. The plaintiff brought a suit for partition, not only making the brother a defendant, but various other parties were impleaded as parties to the suit. The defendant No. 2 was the wife of defendant No. 1, the defendant No. 3 was the son of defendant No. 1, the defendant No. 4 was the wife of the defendant No. 3, the defendant No. 5 was the widow of a predeceased son of the plaintiff, the defendant No. 6 was a private tutor of the family, the defendant No. 7 was a pleader of the Alipore Court, and the defendant No. 8 was a relative of the defendant No. 1 by marriage. The case of the plaintiff was that certain properties, which were claimed by the plaintiff as joint family properties, stood in the name of these defendants. In other words, the defendants Nos. 2 to 8 were the ostensible owners and the properties were standing in their names, although those properties were acquired with joint family funds. It was alleged that these defendants were mere benamdars and the properties were joint family properties. There was, of course, the allegation that the plaintiff was in possession of all the properties. The learned Subordinate Judge held that, as the plaintiff had included in the suit, properties standing in the name of strangers and since the plaintiff wanted an adjudication of his title as against them, he must pay ad valorem court-fees in respect of all the properties which stood in the name of the strangers. The learned Subordinate Judge followed the decision of , Lahiri, J. pointed out that in , it had already been held that Gagan Chandra's case was not correctly decided, because the provisions of Clause (v-A) of Article 17, Schedule II had not been brought to the notice of the learned Judges. The learned Judge discussed both the provisions namely, Clause (v-A) of Article 17, Schedule II and Clause (v-A) of Section 7 and said as follows:

"These two provisions envisage four kinds of suits--(a) suit for partition and separate possession of a share of joint family property; (b) partition and separate possession of a share of joint property; (c) to enforce a right to a share in any property on the ground that it is joint family property; and (d) to enforce a right to a share in any property on the ground that it is joint property. A suit for partition may come under any one of these four classes.... To enforce a right to a share in any property on the ground that it is joint family property or joint property, in my opinion, connotes something more than a mere suit for partition and separate possession of joint family property or joint property. The adjectival phrase "to enforce a right to a share in any property on the ground that it is joint family property or joint property" entitles the plaintiff to ask for an adjudication of title............"

20. In my opinion, the case of was not correctly decided, but that the cases of and were decided correctly. In the background of these decisions, I shall proceed to consider the arguments advanced before us . The first contention advanced before us by Mr. Sen Gupta was that Clause (vA) of Article 17, Schedule II does not apply, unless it is found that the properties in suit are the joint properties of the plaintiff and all the defendants. This is a point that has been specifically dealt with by Lahiri, J. (as he then was) in Ranjit Kumar Pal Choudhury's case , (Supra). The learned Judge has rightly pointed out that in a suit for partition it is not necessary that all the defendants should be interested in all the joint properties. It is sufficient if all the co-sharers are interested in all the properties claimed to be joint. Otherwise, it would be impossible to implead strangers in a partition suit. Whatever be the position outside West Bengal, the law on the point in West Bengal must be read in the background of the amendment in Article 17. The manner in which the amendment came into being shows the background of the particular statutory provision and the evil which it was intended to remedy. At first, there was no specific clause in the Court-fees Act relating to partition suits. Now there are two provisions, so far as West Bengal is concerned. Clause (v-A) of Article 17, Schedule II applied to suits for partition where the plaintiff avers in his plaint that he is in possession. The other provision is Clause (viA) of Section 7, which is applicable when the plaintiff is not in possesson that is to say, where the suit is a partition suit but there has been an ouster from possession. In the first case, the court-fee payable is a fixed court-fee of Rs. 15/-; in the second case, ad valorem court-fee is payable. As long as all the co-sharers are parties and they would all be entitled to a share in all the properties found to be joint, the suit has been rightly framed and is a partition suit, even if strangers are impleaded. It is not necessary that all the defendants should be interested in all the properties. The second point taken is that as strangers have been made defendants to the suit, it means that the suit involves a declaration of title in respect of strangers. Therefore, the suit is bad, because (a) different causes of action have been joined together and the suit is bad for multifariousness and (b) the suit is really one for confirmation of possession against the strangers. In my opinion there is no substance in either of these points. As long as it is averres in the plaint that there are joint properties in which all the co-sharers are interested, this is enough. Some of these properties may stand in the names of strangers, but provided that the plaintiff claims to be in possession, either by himself or through his co-sharers, a suit for partition lies and comes within the scope of Clause (v-A) of Article 17, Schedule II. In such a suit, it is not only permissible, but it may be highly desirable to join strangers as parties, because the properties or some of them may be standing in their names and it would be impossible to deal with them in the absence of these persons. One principle however, must be borne in mind. A suit for partition must start with the proposition that there exist joint properties or joint family properties. Where it is stated that properties have been acquired in his own name or benami by a co-sharer out of joint funds, or that property has been acquired out of such funds, then this test is satisfied. In such a case, strangers or persons in whose names the property stands may be made parties to the suit and it is not a valid argument to lay that the suit will then involve a declaration of title against a stranger or confirmation of possession against a stranger and that the suit is no longer a suit for partition. Provided that the facts alleged can be proved, these properties were always joint properties and are capable of being partitioned. Such adjudication will be covered by the words "to enforce a right to a share in any property on the ground that it is joint family property or joint property". Where, however, the plaintiff does not start by alleging the existence originally of any joint property or joint family property, or that the property claimed has been acquired out of joint funds, or that in law it should be treated as an accretion or an adjunct to a joint estate, then in that case different principles will apply. An instance of this is the unreported decision cited above namely, C. R. No. 234 of 1950 (Cal), judgment dated 29-6-50. It will be remembered that in that case, certain properties belonged to a lady as her absolute stridhan property. The lady executed a deed of trust. A son of hers brought a suit challenging the deed of trust and alternatively, alleged 'that the trust had come to an end. He then claimed a partition. There was therefore, no joint property or joint source of income to start with and the plaintiff could not succeed unless he had the deed of trust set aside or had it declared that the trust had come to an end. Until then, the property was trust property and not joint property capable of being partitioned. In such a case, the suit cannot be called a suit for partition which would come under Clause (v-A) of Article 17 Schedule II. The reason is that even upon, the averments in the plaint, an initial hurdle has to be passed before the suit could be described as a partition suit. In the case of benami or fraudulent purchases out of joint funds, upon the averments in the plaint, such properties must be taken always to have been joint. It is true, that in order to succeed the plaintiff will have to establish by evidence that the properties were purchased benami or out of joint family funds or joint funds. These are, however, within the legitimate scope of a partition suit, and there is no initial hurdle to get over. A more difficult case is where an item of joint property is transferred fraudulently to a stranger. A typical example will be where a karta of a joint family transfers property, alleging it to be for family necessity, when no such" necessity existed. Whether in such a case, it will be necessary to ask for a cancellation of the Deed of transfer is a difficult question. We are, however, not called upon to consider such a case here because our question postulates that in the instant case, no order of cancellation of any document is involved. All that cannot be done in a partition suit, which comes under Clause (v-A) of Article 17, Schedule II is to ask for recovery of possession, because the condition precedent for the applicability of that clause is that the plaintiff should be in possession. If it transpires during the hearing of the suit that the plaintiff was not in possession, then he will have to pay ad valorem court-fees.