Kanhaiya Lal vs Baldeo Lal and Others

Adami, J.—The petitioner and the plaintiffs Nos. 1--4, opposite party, are brothers, being the sons of Babu Garib Chand, deceased, who had a brother, Babu Saheb Lal, a pleader. The latter died on the 25th December 1911, leaving a will, dated the 19th December 1911, by which he bequeathed all his property to the petitioner, who took out probate of the will on the 17th May 1922. Subsequently during the survey settlement proceedings the petitioner''s name was entered in the record-of-rights and in the municipal register with respect to all the properties which he took under the will of Babu Saheb Lal. It appears that the opposite party did not contest either the grant of probate to the petitioner or the record of his name in the record-of-rights. This year, however, they have instituted the suit out of which this application, arises seeking partition of the properties coming down both from their father and from Saheb Lal.

In their plaint they asserted that Garib Chand and Saheb Lal were joint in mess and property, and that Saheb Lal died while still joint with his brother. They claimed that all the said properties were ancestral and that they were in joint possession of them all; and that Saheb Lal had been educated to become a pleader out of the joint funds. The plaint, while not denying that Saheb Lal had made a will in favour of the petitioner and that probate had been granted to him or that the petitioner''s name was recorded in respect of Saheb Lal''s properties in the record-of-rights, alleged that the petitioner had obtained Probate of Saheb Lal''s will by fraud and had procured the entry of his name in the Survey and Settlement Record and in the municipal register while he was karta of the family, without the knowledge of his brothers and in collusion with others. The plaintiffs in the suit stated in the plaint that they did not admit the genuineness of the will and they denied Saheb Lal''s right to execute the will bequeathing property which they claimed to be joint property. The reliefs claimed in the plaint were a declaration that all the properties, including those covered by Saheb Lal''s will were joint family properties and that they were entitled to a four-fifths share on partition of all this property and the delivery to them of their partitioned share and costs.

They valued their four-fifths shares at Rs. 15, 107 for the purpose of jurisdiction and paid Rs. 15 as Court-fees claiming that the suit was a partition suit, pure and simple.

The petitioner, as defendant to the suit at once put in an objection that the Court-fee of Rs. 15 was insufficient and that an ad valorem fee must be paid before the plaint could be accepted seeing that the plaintiffs sought for a declaration of title and for partition and possession.

The learned Subordinate Judge in his order on the objection admitted that the suit is for a declaration of title and possession as well as for partition and that the decision of Dawson-Miller, C.J., and Coutts, J., in the case of Rachhya Raut v. Chando AIR 1922 Pat. 113 to the effect that if in a partition suit in the forefront of their prayer in the plaint the plaintiffs ask for a declaration of title and possession they are claiming under the guise of a partition suit a declaration of their title and they must pay an ad valorem Court-fee applies in the present case. But giving it as his reason that some of the properties in suit were admittedly joint, and the fact that the plaintiff''s pleader took upon himself the responsibility of having the suit dismissed respecting the other properties which are the subject-matter of dispute as having been held adversely by the defendant if complete ouster were established as well as the fact that the plaintiffs were not in a position to pay the ad valorem fee, the learned Subordinate Judge held that under the peculiar circumstances of the case the Court-fees Act had to be construed leniently and that the decision in Rachhya Raut v. Chando AIR 1922 Pat. 113 did not entirely apply. He, therefore, held that the Court-fee of Rs. 15 was sufficient and overruled the objection.

It is against this order that the present application is made. If an appeal lay against this interlocutory order there is no doubt what the result would be. The plaint clearly asks for a declaration of title and possession as well as for partition, and the learned Subordinate Judge was bound by the decision in Rachhya Raut v. Chando AIR 1922 Pat. 113. The mere facts that a pleader gives an undertaking or that no declaration is necessary with regard to a partition of some of the property or that the petitioner is too poor to pay Court-fees give no good ground for neglecting an express decision of the High Court, and the provisions of the Court-fees Act or for depriving of its dues the Government revenue in the interest of which the Court-fees Act was passed.

No appeal, however, lies and we have to consider whether this Court can interfere in revision. I think it is clear that it cannot. No question of jurisdiction arises; for the Subordinate Judge had jurisdiction to decide whether the suit was one in which an ad valorem fee should be paid; he may have decided the question wrongly, but jurisdiction is not affected. Order 7, Rule 11(c) cannot be invoked by the petitioner; for that rule requires the rejection of a plaint where "the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so.

In the present case the Subordinate Judge accepted the Court-fee of Rs. 15 as sufficient and, therefore there was no direction to the plaintiffs which was disobeyed. This is not a case either in which the decision of the category within which a suit lies affects the jurisdiction and competence of the Court to try the case,

It must be decided, I think, that this Court cannot interfere at the present stage. At the same time I think it should be made clear to the learned Subordinate Judge that, as he has by his order circumscribed the scope of the plaintiff''s suit the plaintiff should not be allowed to again extend its scope unless he consents to pay the further Court-fee required by law.

Subject to this remark, I would reject the application.

Macpherson, J.

I agree.