Payment of Court fee on the value of shares claimed.

C.R.P. No. 1167 of 1958 is a petition to revise the order of the City Civil Judge in O.S. No. 2917 of 1955 holding that the plaint has not been properly valued and that the plaintiff should pay Court-fee on the market value of five items of properties, namely, items, 5, 10, 11, 17 and 18 of Schedule B to the plaint. The suit was one for partition between certain Muhammadan co-sharers of the estate of one Mohamed Ahmathulla Badsha Sahib, who died on 4th January, 1955. Defendants 1 to 8 are the co-sharers. Defendants 9 to 11 are the children of the 4th defendant, one of the co-sharers. They are strangers so far as the partition of the property is concerned. The plaintiff claims 21/192 share. There is no dispute about the shares of the various parties. The immoveable properties consisted of 9 items of properties. It is admitted that they all belonged to the estate of the deceased. C Schedule comprised outstanding due to the estate and there is no dispute in regard to that. B Schedule comprises moveable properties. The items to which I have made reference are items standing in the names of the various defendants in the books of the deceased.

The case for the plaintiff, who is the petitioner here, is that these items of properties though put in the names of the various defendants belonged to the deceased and as such are divisible between the sharers in proportion to the shares. There is no indication in the plaint that there is any adverse claim by the strangers in regard to the said items except in regard to a part of item No. 11. That comprises a sum of Rs. 6,000 standing in the names of defendants 9 to 11 in the books of the deceased. The plaintiff valued the plaint under section 37 (2) of the Court-Fees Act, 1955, and paid Court-fee as if he was entitled to a partition in respect of the properties in the joint possession of all the co-sharers.

Objection was taken on the side of defendants to the correctness of the Courtfee paid. The learned City Civil Judge held that the valuation in regard to the other items of properties was correctly made and that the valuation adopted in respect of items 5, 10 17 and 18 of B Schedule was not correct and the plaintiff should pay the Court fee on the amount claimed. This order cannot be sustained. The plaintiff does not allege in the plaint that any stranger to the family is interested in the money except in regard to a sum of Rs. 6,000, which stands in the name of defendants 9 to 11. In regard to the other items of properties she states that the moneys belonged to the deceased but were put in the books of the family in the names of the various defendants, who were holding it only on behalf of the family having no interest therein apart from being a co-sharer to the estate of the deceased. Under those circumstances I cannot understand how the plaintiff could be asked to pay the Court-fee in respect of this sum of money on the footing that it is a claim against the persons holding adversely to the co-sharers. According to the allegation in the plaint, moneys were standing in the names of persons, who were co-sharers, and it should be deemed to be that the plaintiff is in joint possession of those sums along with the respective defendants. Therefore, the valuation under section 37 (2) would be correct in regard to them.

Mr. G. Ramanujam, who appeared for the Additional Government Pleader, has sought to support the judgment of the lower Court by reference to the decision of the Andhra High Court reported in Srirama v. Lakshmidevamma1. In that case a suit was filed for reopening of a partition on the ground that the previous partition was effectuated by fraud. The plaint stated the widow of the other deceased cosharer was in possession of the property setting up an adverse claim to the same. The widow in that case was not a co-sharer with the plaintiff, as the deceased cosharer had executed a will in respect of his share of the property in favour of his adopted son, the 2nd defendant in the c