Rani Bhuwneshwar Kuer and Another vs Rajkumar Raghubansmani Prasad Narain Singh

In civil Revision No. 299 the petitioner is Rani Bhuvaneshwar Kuer and in Civil Revision No. 300 the petitioner is Raja Bahadur Dhakeshwar Prasad Narain Singh. Both these petitions are directed against an order of the Subordinate Judge of Gaya ordering that the prayer for making an inventory of moveable properties by the plaintiffs in the partition suit be granted. The terms in which the prayer was granted will be mentioned later on. But in order to appreciate the points raised in these two cases it is necessary to give a few more facts. The plaintiffs in the suit out of which these applications arise filed the plaint on 3rd May 1941. The Court ordered that the plaint be registered and put up with the Sharistadar''s report on 6th May 1941. On the same date plaintiffs filed a petition supported by an affidavit for appointing a commissioner to investigate and make an inventory of all the moveable properties and livestock of the joint family and also for appointing a receiver of all the properties of the joint family. They filed three affidavits and defendant 1 filed a vakalatnama. As the lawyers of defendant 1 were present the Court requested them to enter appearance so that he may hear them before passing orders. The next date fixed for hearing the parties on the question of inventory was 6th May 1941. On 6th May, the Court noted that it had seen the Sharishtadar''s report about court-fee and indicated that the matter would be heard on 12th May 1941. Later on, on the same date, defendant 2 appeared and defendant 1 filed a petition supported by an affidavit praying that the petition for inventory made by the plaintiffs should be rejected. On the 7th the argument on this point was finished and on 9th May 1941, the order complained against was passed and the ordering portion is as follows:

The application of inventory will be allowed subject to this condition: that it will come into operation when the required court-fee is paid. For this purpose the plaintiffs will be entitled to value the reliefs properly according to their own estimate of the same and pay the court-fee required under the law subject, of course, to this question being investigated later on. The plaintiffs will also have to deposit in the first instance a sum of Rs. 500 on account of the fees and other expenses of the Commissioner or Commissioners to be appointed in this case. As soon as the above directions are complied with, an order for inventory will forthwith issue. Parties will bear their own costs of this application.

On the same day, another order was passed directing defendant 2 not to remove or dispose of or destroy the moveable properties which may be in her possession and which the plaintiffs claim to be the joint family property. The order did not apply to ornaments and jewelleries on her person or the articles for her actual personal use. On 10th May it was noted that the necessary court-fee stamp was filed at about 11 A.M. The Court, however, allowed time to the defendants to move this Court. On the 12th the plaintiffs filed an application for time for hearing the court-fee matter and the next date fixed was 16th May 1941. This Court was moved on 12th May 1941, and as the, opposite party was present in Court the order for issuing the writ for inventory was stayed till the disposal of the application, Mr. P.R. Das on behalf of defendant 1 undertook to produce before the Subordinate Judge the account books of the head office by a certain date and of the other offices by a later date. Mr. P.R. Das appearing on behalf of defendant 1 referred to the reliefs claimed by the plaintiffs in the plaint, but in view of the order we propose to pass it is not necessary to set them out at length.

The points taken by Mr. P.R. Das are that the Subordinate Judge had no jurisdiction to make the order as no suit was pending before him at the time when he made the order, that is on 9th May 1941, because the plaint was not properly stamped and that the order is otherwise wrong. He says that from the nature of the reliefs and. the report of the Sharishtadar it was clear, as the Court itself has found, that the order for inventory could not be passed because the plaint was insufficiently stamped. As I understand his argument it amounts to this that an order for inventory should not have been passed till the Court was properly in seisin of the case and the Court was not in proper seisin of the case till the proper court-fee was paid and as the court-fee matter was to be disposed of on 12th May 1941, the Court should not have passed an order granting the prayer for inventory,, though conditional, on 9th May 1941. Mr., Khurshed Husnain, on the other hand, has gone a step further and urged that there was no allegation that the properties belonging to Rani Bhuvaneshwar Kuer were blended with the properties belonging to the Amawan Estate and, therefore, there could not be any inventory with regard to the properties in the possession of Rani Bhuvaneshwar Kuer. Sir Manmatha Nath Mukharji, on the other hand, has urged that these two applications do not shew that there was any question of jurisdiction involved and therefore they must be rejected. He says even if the Court was wrong on the question of court-fees, it was only an error of law and not jurisdiction. Referring to reliefs Nos. 3 and 6 he goes further and says that court-fee need not be paid on those two reliefs. The question of blending is of no importance because the plaintiffs'' case was that a number of moveables belonging to the Amawan Estate were in the house of Tikari. He has further pointed out that of the various affidavits filed in this Court, the affidavit filed by Bisuri Singh is not satisfactory, nor is the affidavit filed by Raghunandan Prasad Singh or Muhammad Hyder. That this was a case preeminently for an inventory to be ordered as the plaintiffs alleged and although they have tried their best to give a list of moveables in schedule D, they have not been able to give a list of all the moveable properties that were in the possession of the defendants and liable to partition.

A number of points have been raised in this case but it is not necessary for us to express our opinion on every one of them. The fact remains that the order for issue of a writ for inventory was passed before the question of court-fee was actually disposed of by the trial Court. The position was this. The defendants got notice of the fact that a prayer for inventory was made. They appeared before the Court and raised the question that the prayer could not be granted till the proper court-fee was paid. This position to a certain extent the Court accepted and wanted to dispose of the matter on 12th May. But as a matter of fact the order for inventory was made before that date. In fact the court-fee matter was not disposed of even on the 16th because on that date the plaintiffs asked for further time. Therefore, it seems to us that the order for inventory, ''before the court-fee matter was disposed of, was not proper. We will, therefore, send back the case to the Court below to dispose of the court-fee matter before issuing a writ for inventory. In deciding what form the writ should take the Court may take into consideration the various affidavits that have been filed before us. Various proposals were made by the petitioners for consideration of this Court but as the plaintiffs were not prepared to agree to them the matter has to be disposed of by the Court below. The records should be sent down to the Court below and the case disposed of as directed above. There will be no order for costs.