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HIGH COURT OF CALCUTTA
R. S. BACHAWAT, D. N. SINHA, P. N. MUKHERJEE
SIBA RANI DEVI - Appellant
Versus
RAMENDRA NATH MUKHERJEE - Respondent
Civil Revn. Case 926 Of 1960
Decided On : APRIL 17, 1962
COURT FEES ACT, 1870 - S. 7(VIA) - SCH. II, ART. 17(VA) - SUIT FOR PARTITION AND SEPARATE POSSESSION OF A SHARE OF JOINT FAMILY PROPERTY OR JOINT PROPERTY - COURT FEES PAYABLE - SUIT FOR DECLARATION OF PLAINTIFF'S RIGHT TO A SHARE IN THE PROPERTY IN THE PRESENCE OF A STRANGER - COURT FEES PAYABLE.
Fact of the Case:
The plaintiff filed a suit for partition and separate possession of a share of joint family property or joint property, and also for a declaration of his right to a share in the property in the presence of a stranger. The question arose as to whether the court fee payable was a fixed court fee of Rs. 15/- under Schedule II, Article 17(VA) of the Court Fees Act, 1870, or ad valorem court fee under Section 7(VIA) of the Act.
Finding of the Court:
The court held that a suit for partition and separate possession of a share of joint family property or joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property, if the plaintiff is in possession of the property of which he claims to be a coparcener or co-owner, is chargeable with a fixed court fee of Rs. 15/- under Schedule II, Article 17(VA) of the Court Fees Act, 1870. This is so even if the plaintiff joins as a defendant a stranger, that is, a person who is not a co-sharer or co-owner, for enforcing, in his presence, the right to the share in the suit properties, claimed by the plaintiff, even if the determination of the questions, whether the suit properties are joint properties and whether the plaintiff has a right to a share therein, involves the construction of some document in respect of the suit properties or any of them, in which the stranger is or claims to be interested and/or an adjudication that some such document or transaction in respect of such properties or any of them is void and/or not binding on the plaintiff provided that the determination of the above question does not involve the cancellation or setting aside of such document or transaction.
Issues: Whether a suit for partition and separate possession of a share of joint family property or joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property, if the plaintiff is in possession of the property of which he claims to be a coparcener or co-owner, is chargeable with a fixed court fee of Rs. 15/- under Schedule II, Article 17(VA) of the Court Fees Act, 1870, even if the plaintiff joins as a defendant a stranger, that is, a person who is not a co-sharer or co-owner, for enforcing, in his presence, the right to the share in the suit properties, claimed by the plaintiff, even if the determination of the questions, whether the suit properties are joint properties and whether the plaintiff has a right to a share therein, involves the construction of some document in respect of the suit properties or any of them, in which the stranger is or claims to be interested and/or an adjudication that some such document or transaction in respect of such properties or any of them is void and/or not binding on the plaintiff provided that the determination of the above question does not involve the cancellation or setting aside of such document or transaction.
Ratio Decidendi: The court held that the suit was chargeable with a fixed court fee of Rs. 15/- under Schedule II, Article 17(VA) of the Court Fees Act, 1870, as it was a suit for partition and separate possession of a share of joint family property or joint property, and the plaintiff was in possession of the property of which he claimed to be a coparcener or co-owner. The fact that the plaintiff had joined a stranger as a defendant did not alter the nature of the suit, as the stranger was not a necessary party to the suit and his presence did not affect the plaintiff's right to a share in the property.
Final Decision: The court answered the question in the affirmative, holding that the suit was chargeable with a fixed court fee of Rs. 15/- under Schedule II, Article 17(VA) of the Court Fees Act, 1870.
( 1 ) THIS reference arises out of a suit instituted by Amar Nath since deceased against 9 defendants claiming declaration of the plaintiff's right to an one-third share in the suit properties and partition and separate possession of his share on the ground (a) that the plaintiff and defendants Nos. 1 and 2 Lokenath and Chandra Nath were co-owners of the properties, (b) that their brother Tarak Nath obtained schedule ka properties under a deed of settlement executed by Raja Pearymohon, (c) that on a true construction of the deed of settlement in the event of Tarak dying sonless, the plaintiff and the defendants Nos. 1 and 2 would become entitled to the schedule ka properties in equal shares subject to the rights given to Tarak's widow, (d) that the schedule kha properties were in reality transformations of some of the other properties obtained by Tarak under the deed of settlement, (e) that Tarak Nath died sonless leaving behind him his widow defendant No. 3 Siba Rani and his daughters, defendants Nos. 4, 5 and 6, Amiyabala, Rekha and Anima, (f) that on the death of Tarak Nath the plaintiff and the defendants Nos. 1 and 2 became entitled to the schedule ka and kha properties in equal shares, (g) that defendant No. 7, Golamrnustafa was an izardar of Tarak Nath and defendant No. 8, Harish Chandra had a settlement from Tarak and defendant No. 9 Amulya Charan was a care-taker of the suit properties, (h) that Tarak Nath had no right to dispose of the suit properties by his will, if any, and (i) that a deed of release executed by the plaintiff and the defendant No. 2 in favour of Tarak Nath was void and inoperative. The plaint was later amended by adding as party defendant No. 10, Roy Sukhendra administrator pendente lite to the estate of Tarak Nath. On the death of Amar Nath his heirs were substituted as plaintiffs. The trial court held that the suit was chargeable with the fixed court-fee of Rs. 15/ -. The defendants Nos. 3, 4, 5, 6 and 10 moved this Court in revision for setting aside this order. A question of law arising out of the revision case has been referred to this Bench under Chapter II Rule 1 Proviso (ii) of the Appellate Side Rules.
( 2 ) MR. Mitter contended that the defendant has no right to move this Court in revision on a matter concerning court-fees. We cannot decide this point as the whole case has not been referred to us. Mr. Mitter will be at liberty to urge this point before the Division Bench.
( 3 ) THE question referred to this Bench is as follows :"whether a suit, which otherwise satisfies the requirement of Clause (VA) of Schedule II, Article 17 of the Court Fees Act, would go out of the purview of that Clause, if the plaintiff joins as a defendant a stranger, that is, a person who is not a co-sharer or co-owner, for enforcing, in his presence, his (the plaintiff's) right to the share, claimed by him in the suit properties, and if the determination of the question that the suit properties are joint properties, as claimed by the plaintiff, and of the plaintiff's title to the same as a co-sharer, as aforesaid, depends upon the construction or avoidance -- though not necessarily, cancellation, of some document or transaction in respect of the suit properties or any of them, in which the said stranger is or claims to be interested. If so, how is such a suit to be valued and stamped?"
( 4 ) FOR a proper appreciation of this question it is necessary to refer to Schedule II Article 17 (VA) and Section 7 (VIA) of the Court Fees Act as amended by Bengal Act VTT of 1935. Schedule II Article 17 (VA) provides for payment of a fixed court-fee of Rs. 15/- on a plaint in a suit"for partition and separate possession of a share of joint family property or joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property if the plaintiff is in possession of the property of which he claims to be a coparcener or co-owner". Section 7 (VIA) provides
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