A suit for partition of joint family properties, including properties held in the name of a stranger to the coparcenary, is not maintainable unless the plaintiff pays ad valorem court fee on the market value of the properties held by the stranger, and such a suit is barred under the Benami Transaction (Prohibition) Act, 1988 if the plaintiff claims that the properties are benami transactions.

1. - This First Appeal at the instance of the defendants arises out of a judgment and decree dated 23-2-1984 passed by Shri D.N. Pathak, Special Subordinate Judge, Ranchi in Partition Suit No. 263 of 1982 whereby and whereunder the said learned Court decreed the plaintiff-respondents suit for partition.

2. The plaintiff-respondent filed the aforementioned suit for partition claiming 1/2 share in respect of the properties in suit.

3. The relationship of the parties would appear from the Genealogical table as mentioned in Schedule A written at the foot of the plaint which is as follows:

4. It is an admitted fact that the grandfather of the plaintiff Sheotahal Mistri executed a registered deed of Will dated 5-1-1938 in respect of two house properties which have been mentioned in items Nos. (i) and (ii) of Schedule B of the plaint jointly in favour of the plaintiff and the defendant No. 1. The plaintiff contended that thereafter the legatees of the said will i.e. he and defendant No. 1 came in joint possession of the aforementioned properties. It has further been asserted by the plaintiff that he constructed a house over the lands standing on M.S. Plot No. 636 Municipal Holding No. 312 situated at Tewari Tank Street, Ranchi.

5. It is further admitted that a partition suit was filed by Ram Kumar Mistri along with his sons in the Court of Subordinate Judge, Ranchi which was registered as Partition Suit No. 66 of 1961 wherein, inter alia, the plaintiff and the defendant No. 1 and their other brothers were impleaded as parties. The said suit ended in a compromise and a final decree in terms of the aforementioned compromise was passed on 16-2-1951. The said aforementioned will was executed by Sheolal Mistry dated 5-1-1938 (sic). The plaintiff has contended that the properties described in items Nos. (iii) and (iv) of the Schedule B appended to the plaint were purchased out of the joint family fund belonging to the plaintiff and the defendant No. 1. According to the plaintiff, although, the said properties stand in the name of defendant No. 2, she has no interest therein but in order to avoid future complication, she was impleaded as defendant No. 2 in the suit.

6. In the suit aforementioned, the plaintiff claimed 1/2 share in all the four items of the properties mentioned in Schedule B of the plaint.

7. In the aforementioned suit, a written statement was filed by the defendant No. 1. In the said written statement, the defendant No. 1 contended that there is no unity of title and unity of possession in respect of items Nos. (iii) and (iv) of Schedule B to the plaint. The defendant No. 1 further contended that the plaintiff and the said defendant No. 1 had no title or possession in respect of the aforementioned properties namely Items Nos. (iii) and (iv) of Schedule B to the plaint as the said properties were self acquired properties of the defendant No. 2 having been purchased out of her own separate fund. It was further stated that the defendant No. 2 herself constructed a Pucca building and dug a well therein. The defendant No. 1 further stated that the defendant No. 2 has got her name mutated in the State of Bihar and has been paying rent to it.

8. It was further alleged in the said written statement that the market price of the said properties would be about Rs. 1,00,000.00 and unless the plaintiff pays ad valorem Court-fee thereon, the suit will not be maintainable.

9. The defendant No. 1 further contended that the suit is bad for partial partition as the plaintiff deliberately has not brought in common hotchpotch the properties which have been acquired out of the joint family fund in the name of the plaintiff on 5-11-1969 by virtue of two registered deeds of sale. The said properties have been described in Schedule A of the written statement.

10. It has further been contended that the plaintiff was the Karta of the joint family along with him and their mother had also been residing with them. According to the defendant No.