The main legal point established in the judgment is the requirement of ad valorem court-fees for properties standing in the names of strangers to the coparcenary in a partition suit, as per Division Bench decisions and the Court-fees Act.

1. This first appeal is by the plaintiffs in a partition suit. When the case was taken up, our attention was drawn to the fact that the Stamp Eeporter had reported a deficit court fee due on the plaint. The stamp report was to the effect that a number of the properties sought to be partitioned stood in the names of two ladies, one of them grandmother of the parties and the other, defendant 4, the widow of one of the members of the joint family. Having regard to certain decisions of this Court, the Stamp Reporter said that it was necessary for the plaintiffs to displace the apparent title of the ladies before they could ask for these properties to be partitioned. The total consideration of the documents relating to these properties came to Es. 19,223, and, the plaintiffs share being one-third, the value of thab share would be Es. 6,407-10-8. Accordingly, he said that the plaintiffs had got to pay ad valorem oourt-fees amounting to Rs. 609. 6-0 on the memo of appeal in this Court and a further court-fee amounting to Bs. 487 8-0 on the plaint.

2. The matter, on the objection of the plaintiffs, came before the learned Taxing Officer in regard to the reported deficit in this Court. He accepted the stamp report and called on the plaintiffs to make up the deficit. Instead of doing so, however, the plaintiffs amended the memo. of appeal cutting out the prayer for relief in regard to these particular properties, bo that, so far as this Court was concerned the appeal in its amended form could proceed on the court-fees paid. But the matter of the deficit due on the plaint still remains, and under s. 12 read with s. 10, Court-fees Act, we have to deal with that matter before the appeal can be heard.

3. In my opinion, the view taken by the Stamp Reporter and the learned Taxing Officer is quite correct, and is fully supported by Division Bench decisions of this Court which are binding upon us. The question came before a Division Bench in First Appeal No. 64 of 1923, and the Bench held that, so far as the properties sought to be partitioned stood in the name of strangers to the coparcenary, the suit must be regarded as a suit for declaration of title and consequential relief, and consequently ad valorem court-fees were payable. The matter was different in the case of properties standing in the names of members of the coparcenary.

4. The question came again before a Division Bench in Banku Behary V/s. Chatur Pandey, 6 Pat. L. Tim. 655 : A. I. R. (11) 1924 Pat. 640. The Bench referred to First Appeal No. 64 of 1923 with approval and reiterated that in regard to properties standing in the name of male members of the joint family no ad valorem fee was payable, but it was payable in respect of properties standing in the name of strangers, for, it was necessary for the plaintiff to displace the apparent title of those strangers.

5. Our attention has been drawn to certain unreported decisions. One is in civil Revision No, 188 of 1945. There two learned Judges reiterated the principle that, so far as properties standing in the name of strangers who are claiming the properties as their own are concerned, the plaintiff in a suit for partition must pay ad valorem court fees. They went on to observe, however, and this is relied on by the appellants, that the position is entirely different where the plaintiff alleges in the plaint that the properties, though standing in the name of strangers, belong to the joint family and the strangers are alleged to be mere benamidars or name-lenders. In such a case, they said, the plaintiff should not be required to pay ad valorem court-fees because the defendants, after being served with notice of the plaint, did not claim the properties as their own. In such a case, they said, the plaintiff was merely giving information to the Court as to what were the properties which he was seeking to partition. The possession and title to the properties are claimed by the plaintiff jointly with the other defendants.

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