In a suit for partition of joint family property, where the plaintiff alleges to be in possession, either actual or constructive, of a portion of that property, the court fee payable is as prescribed by Article 17 (vi) of Schedule II of the Court Fees Act, as such a suit is not for enforcing a right to share in joint family property but merely for a change in the mode of enjoyment of the property.

( 1 ) THE petitioners feeling dis-satisfied with the order dated 30th April, 1974, passed by Shri S. R. Goel, Additional District Judge, Delhi, have challenged the same by this rsvi. sion petition.

( 2 ) THE findings of the trial Court were assailed on the ground that the case set up by the respondent was to enforce his right to share in the immovable property in suit on the plea that it was joint family property and he being not in possession of the same as averred in the written statement, the court-fees payable ought to have been computed as per provisions of section 7 (iv) (b) of the Court-fees Act (herein to be called the Act ) on the market value of his share in the immovable property; that he further claims share in the jewellery in the sum of Rs. 13927 and l/7th share of Rs. 6,000 and he admittedly being not in possession of any portion of the said assets the suit should have been separately valued for purposes of jurisdiction and court-fee and should have paid separate and ad valorem court-fees on the said amounts.

( 3 ) IT is settled law that to determine prima fade the nature of the suit it is the plaint which has to be examined. For the purpose of determining the appropriate provision of the Act applicable to a suit, the criterion to be kept in view is the frame of the suit. It is not of much relevance for the purpose of ascertaining the court-fees payable on a plaint as to what terminology is used in the plaint but what in fact is the substance of the plaint. The Court-fees payable on a plaint has to be determined on the allegations in the plaint as the suit would proceed on the assumption set out in the plaint.

( 4 ) THE respondent No. 1 (herein called the respondent ) and the petitioners arc brothers being the sons of deceased Jawala Prashad. Shiv Lal, their grandfather was said to have left considerable immovable property which was inherited by their father and uncle Ghasi Ram who died issueless in 1946. The property left by their grandfather was joint Hindu Family ancestral property. Their father having joined Government service the property was managed by their uncle. The respondent being the eldest of the brothers and enjoying the confidence of their father received the share of the income of the family property from their uncle. The income so received and amassed by the respondent came to about Rs. 5,000 in the beginning of 1947. According to the respondent in 1947 Jawala Prashad was in possession of Rs. 7,000, the common fund of the family while he (the respondent) had also about Rs. 5,000 as the collection from the ancestral family property, with the said family income of Rs. 12,000 the suit property house bearing No. 8567, Ara-Kishan Road, Paharganj, New Delhi, was brought by their father The acquisition of the said house was a joint Hindu Family acquisition and the nature of the property was joint Hindu Family property. Their maternal grandmother left some agricultural property which the respondent alleges had been thrown into common hotch potch. The property left by their maternal grand-mother was a joint property and an accretion to the existing joint property income from which used to be thrown in the common fund in the hands of their father, the Karta of the Joint Hindu Family. According to the respondent the common fund in the hands of their father existing in the sum of Rs. 6,000 at the time of his death in 1972 is stated to be with Perma Nand petitioner. Besides, petitioner J. N. Sharma is stated to be in possession of ancestral jewellery which is divisible between the parties. The said two petitioners in the circumstances, according to the respondent, are liable to render accounts of the family assets to the remaining co-parceners. Differences having arisen in the family the respondent does not want to keep his share joint in the said properties with the other coparceners. Accordingly he filed the present suit seeking decree for partition by metes and bounds separating his l/7t