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Jamila Khatoon Etc. vs Saidul Nisa Etc. on 16 July, 1976 cites

Bai Shevantibai vs Janardhan Raghunath Warick on 22 May, 1944

(4) The relevant legal position may now be examined. The partition suits fall in two categories, viz. (1) in which the plaintiff is out of possession, and (2) in which be is in joint possession. So far as the first category is concerned, the plaintiff has to recover possession of the property and he has to value the suit for purposes of court fees under section 7(v) of the Court Fees Act on the market value of the share in the property. This valuation for purposes of court fees in view of section 8 of the Suit Valuation Act, also constitutes the value for purposes of jurisdiction. The High Court of Punjab has in a Full Bench decision, Krishan Kumar Grover v. Parmeshwari Devi, , held likewise, This view also finds support from a decision of the Judicial Committee reported as Bai Shevantibai v. Janardhan , which has also been relied upon in a number of cases cited at the bar. This category of cases does not present any difficulty and admits of no other answer. The problem, however, is different when we consider the second category of partition suits, where the planitiff is in joint possession. ... ( (5) In such cases, if the plaintiff wishes to enforce a right to share a joint family property, the court fee will be paid as prescribed by sub- clause (b) of clause (iv) of section 7 of the Court Fees Act. If it is not a case of joint family property and the plaintiff claims separate partiton of the property of which heis in joint possession, the suit is of the nature in which it is not possible to estimate at money value the subject matter in dispute (and it is not otherwise provided for) in such suits, the court fees paid will be as prescribed by clause (iv) of item 17 of the Second Schedule of the Court Fees Act, amounting to Rs.19.50, as amended by a local Punjab Amendment Act as extended to Delhi on 21st July, 1959 with effect from 1st August, 1959. Such suits can, for purposes of jurisdiction, not follow the valuation fixed for purposes of court fees. Reference in this connection may be made to a decision of the High Court of Lahore Nikka and other v. Fazal Dad Khan, Air 1930 Lahore 839, where a Division Bench held as follow : "In an appeal from a suit for possession by partition of certain land where the plaintiff alleges that he was in joint possession of the property in suit and the finding of the trial Court is to the effect that he was in such possession, the provisions of Court-fees Act applicable are Art. 17(6), Sch. 2 and not S. 7(4)(b). The court-fee payable in such case is, therefore Rs. 10.00 and not an advalorem Court-fee on the market price of plaintiff's share of the property."
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