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HIGH COURT OF CALCUTTA
SEN GUPTA, K. C. CHUNDER
GAGAN CHANDRA HAZARA - Appellant
Versus
SURENDRA NATH KHAMRAI - Respondent
Civil Rule 758 Of 1948
Decided On : FEBRUARY 8, 1951
Court Fees - Partition Suit - Declaration of Title - Ad Valorem Basis
Fact of the Case:
The plaintiff brought a suit for partition, alleging that certain properties were purchased in the name of the defendants who were strangers to the family. The plaintiff sought a decree for partition in the presence of these defendants, claiming that they were not the real owners.
Finding of the Court:
The court held that the prayer for partition of the properties in the presence of the defendants involved a prayer for declaration of title and confirmation of possession against them, requiring court fees to be paid on an 'ad valorem' basis.
Issues: The issue was whether court fees for the properties of the defendants, alleged to be the ostensible owners, should be paid on a fixed basis for a partition suit or on an 'ad valorem' basis for a declaration of title.
Ratio Decidendi: The court determined that the court fees should be paid on an 'ad valorem' basis for the properties of the defendants, as the prayer for partition involved a declaration of title and confirmation of possession against them.
Final Decision: The plaintiff was granted the liberty to exclude the defendants from the category of defendants, in which case no 'ad valorem' court fees for those properties would be payable. The Rule was made absolute with costs.
( 1 ) THIS Rule was issued at the instance of two defts, deft 24 and deft 25, in a suit for partition in a matter relating to court-fees payable. The pltf brought the suit on the allegation, among other things, that with regard to some of the properties deft 1, who is a member of the joint family had purchased the same in the name of defts 24 and 25 who were strangers to the family. Had these strangers not been made parties the present question would not have arisen. The pltf wanted a decree for partition in the presence of these two defts who were alleged to be the ostensible or apparent owners of the properties in dispute but who were not according to the pltf the real owners. Therefore till the declaration was made that they were not the real owners but the joint family was the real owner, no partition as far as these properties were concerned could be asked for. The very prayer of the partition of the properties in the presence of these defts involved a prayer for declaration of title to these properties as against these defts and confirmation of possession as against them. Therefore the court-fee should have been paid as far as these properties of defts 24 and 25 are concerned on the 'ad valorem' basis and not on the fixed court-fee basis for a partition suit.
( 2 ) THE pltf will be at liberty to exclude defts 24 and 25 from the category of defts in which case no 'ad valorem' court-fee for those properties will be payable. The Rule is accordingly made absolute with costs
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