1. This revision application raises the point as to the court-fee payable in a suit for partition of the joint family properties belonging to a joint Hindu family, when the plaintiff asserts that he is in joint possession with the defendants of those properties. The matter has come before a full bench, I understand, because, following the recent decision of the Madras High Court in Ramaswami v. Rangachariar,  Mad. 259. it now appears, in the words used by the learned Chief Justice at p. 276 of that report, that 'the Bombay High Court stands alone' in its application of Section 7(v) of the Court-fees Act to such cases. The view of the Bombay High Court is expressed in three decisions: (1) Mahadeva Balwant Karandikar v. Laxuman Balwant Karandikar (1893) P.J. 13 (2) Balvant Ganesh v. Nana Chintamon I.L.R(1893) . 18 Bom. 209and (3) Dagdu v. Totaram 11 Bom. L.R. 1074 It was held in all those cases that the plaintiff in a partition suit such as the present must pay court-fee ad valorem on the value of his share in the joint family property under Section 7, paragraph (v), of the Court-fees Act. This view apparently has stood unchallenged for more than fifty years, and we should, I think, be very reluctant to disturb it, except for good reason. At the same time the ordinary principles of stare decisis do not apply with their usual force where the question involves no possibility of disturbance of titles, but is a fiscal matter between Government and the litigant. Notice has been issued to the learned Government Pleader, and we have had the assistance of the arguments of Mr. Jathar, Assistant Government Pleader, in addition to those of Mr. Desai, who for the opponents in this revision supports the view taken by the trial Court, which naturally felt itself bound by the Bombay decisions.
2. Mr. Desai has suggested a preliminary objection to the competence of this revision application. He points to the two paragraphs of Section 12 of the Courtfees Act. In paragraph (i) every decision by the Court, in which a plaint is filed, relating to the valuation for the determination of court-fees, is expressed to be final as between the parties to the suit. But finality of decision between parties is laid down in various enactments, and there are numerous decisions of this and other High Courts that this of itself in no way restricts the jurisdiction of the High Court to revise under Section 115 of the Code of Civil Procedure, in proper eases, orders to which such finality is given by the statute [see Vinayak Pandurangrao v. Sheshadasacharya : AIR1945Bom60 and cases cited therein at p. 713]. The second paragraph of Section 12 does not support the argument that this Court has no power to interfere in revision. Paragraph (ii) of Section 12 lays a duty upon a Court of appeal, reference or revision, when a suit comes before it, to interfere in the matter of court-fees, when the question of the amount of those court-fees has been wrongly decided to the detriment of the revenue. This in no way requires that the discretionary power of the High Court to interfere in cases where the wrong decision has not been to the detriment of the revenue no longer exists. It was held as long ago as 1886, Vithal Krishna v. Balkrishna Janardan I.L.R.(1886) 10 Bom. 610 and as recently as a year ago, Mahadeo Gopal v. Hari Waman (1944) 47 Bom. L.R. 350 that this Court has power to interfere in revision under Section 115 of the Code of Civil Procedure in proper cases where the trial Court has placed a suit under a wrong provision of the Court-fees Act, and the competence of the present revision application, therefore, calls for no further discussion.
3. Mr. Desai has also sought to base an argument upon Section 17 of the Court-fees Act. He points out that in the present case the joint family property, according to the plaint, consists of both immovable and movable property. He also point;; to the fact that the amounts of certain outstandings are stated by the plaintiffs not to be within their knowledge, and the plaintiffs in terms have asked that in the suit an account should be taken of those outstandings. He suggests, therefore, that the suit is really a composite suit by which the plaintiffs seek three reliefs: (1) possession of certain immovable property; (2) possession of certain movable property; and (3) accounts. The relief stated to be for accounts is, however, really a relief for ascertainment of property. The defendants said to be in physical possession of that particular part of the joint family property are in no way liable to account to the plaintiffs in the technical sense of the word, and all that the plaintiffs have sought is determination of the quantum of this part of the joint family property. It might be said that, if a suit for partition of joint family property, when such joint family property is wholly immoveable, falls under Section 7, para, (v), of the Courtfees Act, and if a suit for partition of joint family property, when such joint family property is wholly movable, falls under Section 7, para (iii), of the Act, then, when the joint family property is both movable and immovable, Section 17 of the Act will come into operation. Mr. Desai has not been able to cite any case in which a partition suit has been held to be a composite suit because the subjectmatter of it is both movable and immovable property. By its very nature, it seems to me a partition suit is not a composite suit. There is a single cause of action, and I should expect such a suit to be referable to a single provision of the Court-fees Act. If the application of Section 17 is the logical consequence of regarding a partition suit as one for possession, that consequence, in my opinion, weakens rather than strengthens the assumption from which it arises, that a partition suit is a suit for possession.
4. As to whether a suit for partition of joint family property can properly be said to be a suit for possession of property, a suit for possession of immovable property is usually termed a suit in ejectment, and its ordinary significance is that the plaintiff is out of possession, that the defendant is wrongfully in possession, and that the plaintiff seeks that possession should be taken from the defendant and be given to him. But a partition suit, where the plaintiff under accepted principles of Hindu law is in constructive joint possession of the whole property is certainly not a suit in ejectment in the ordinary sense of the term. The plaintiff in constructive possession of the whole seeks that the mode of enjoyment of the property by himself and by other members of his family shall be changed, and that, instead of enjoying joint possession of the whole, his possession shall be altered to separate possession of a part. An extreme and no doubt unusual but by no means impossible example of partition suit is one by a manager in physical possession of the whole of the joint family property who nevertheless may seek the assistance of the Court for partition and for his separate possession of only a fraction of the property. All the High Courts other than Bombay, on the above line of reasoning, have accepted that a suit for partition of joint family property, when the plaintiff is in constructive possession, is not a suit for the possession of property within the meaning of para (v) of Section 7 of the Court-fees Act, and this reasoning may also be applied to cases where the joint family property is entirely movable property.
5. The first case of the Bombay High Court, Mahadeva Balawant Karandikar v. Laxman Balwant Karandikar is based upon a decision of the Calcutta High Court, Kirty Churn Mitter v. Aunath Nath Deb. I.L.R.(1882) 8 Cal. 757 The judgment merely affirms that in agreement with that decision the court-fee must be ad valorem on the value of the share claimed by the plaintiffs. The case of Kirty Churan Mitter v. Aunath Nath Deb was on a reference under Section 5 of the Court-fees Act by the Taxing Master of the High Court, and the decision there, strangely enough, was directly the reverse of the decision in Mahadeva Balwant Karandikar v. Laxman Balwant Karandikar, The suggestion before the Taxing Master appears to have been that the suit was one falling under Clause (b) of para. (iv) of Section 7, which provides for suits to enforce the right to share in any property on the ground that it is joint family property. Garth C.J. upheld the opinion of the Taxing Master that the suit did not fall under Clause (v) of para. (iv) of Section 7, because the suit was not brought to 'enforce the right to share in any property on the ground that it was joint family property,' but the plaintiff was in actual possession of his share in the joint estate, and merely sought for the partition of the estate, the separation of his share, and for khas possession of such share when separated. The Taxing Master's opinion that a courtfee of ten rupees, presumably under Article (vi) of Clause 17 of Schedule II of the Court-fees Act, therefore, was correct. The material part of the learned Chief Justice's judgment is as follows (p. 758) :-
If the plaintiff's suit had been to recover possession of, or establish his title to, the share which he claims in the property, he must have paid an ad valorem stamp-fee upon the value of that share. But, as I understand, he is already in possession of his share, and all that he wants is, to obtain a partition, which is merely, as explained by the learned Judges in the ease of Rajendro Loll Gossami v. Shama Churn Lahoory (1879) 4 C.L.R. 417 to 'change the form of his enjoyment of the property, or, in other words, to obtain a divided, instead of an undivided, share.
It seems to me impossible to say what will be the value to the plaintiff of this change in the nature of his property, and I, therefore, think a stamp-fee of Rs. 10 is sufficient.'
6. The judgment suggests perhaps that the plaintiff in that case was in physical possession of precisely the share he claimed to obtain by partition, and under the Dayabhaga law a coparcener has a defined share of coparcenary property, although his physical occupation of that share must be by consent of other coparceners. It is not easy to understand what the learned Chief Justice meant when he contemplated that, if the suit had been to establish the plaintiff's title to the share which he claimed in the property, he 'must have paid an ad valorem stamp-fee upon the value of that share,' for such suit would seem to fall either under Section 7(iv)(d) or under Schedule II, Article 17(iii) as a suit for declaration. In Nandalal Mukherji v. Kalipada Mukherji I.L.R.(1931) Cal. 315 Rankin C.J. stated (p. 318) :-
A person is not entitled to partition unless and until he is in possession of his share. But, if he is out of possession of his share, the court does not require him to bring two suits. He can bring a suit in which he may claim to recover possession of his share and he may also claim to have that share partitioned by the same decree. If it appears that he is out of possession according to his own showing, then he has to bring a suit to get possession of his share; and it is perfectly true that, in that case, he would have to pay court-fee on the market value of that share. It is not a question of declaration or declaration with consequential relief. He would have to pay court-fee as in a suit for possession. That I take to be the meaning of what was said by Garth C.J. in the case of Kirty Churn Miltter v. Aunath Nath Deb.
7. The dictum of Garth C.J. seems to have influenced the decision in Balvant Ganesh v. Nana Chintamon (1893) I.L.R. 18 Bom. 209, where Candy J. emphasized it saying (p. 211) :-
Even had the plaintiffs in the present case simply sued to establish their title to the share which they claim in the property, they would still have had to pay an ad valorem stamp fee upon the value of that share.
Candy J. then went on to hold that, as the plaintiffs claimed partition and possession of a definite share in certain lands and houses, which could be valued, ad valorem court-fee was leviable on the principle laid down in Mahadeva Balwant Karandikar v. Laxuman Balwant Karandikar. In Dagdu v. Tolaram 11 Bom. L.R. 1074 reference was not made either to Mahadeva Balwant Karandikar v. Laxuman Balwant Karandikar or to Balwant Ganesh v. Nana Chintamon. It appears that, between the time of the decision in Balwant Ganesh v. Nana Chintamon and the year 1909, when Dagdu's case came up, opinion had been expressed in one case, Motibhai v. Haridas (1896) I.L.R. 22 Bom. 315 that a partition suit falls within Section 7(iv)(b) of the Court-fees Act. The point in Motibhai v. Hondas was not really one of court-fees, but of jurisdiction. Batchelor J. dealt with Motihbai's case in Dagdu v. Totaram and held that the suit contemplated by Section 7(iv)(b) was one to enforce the right to 'share' in property, and not the right to 'a share' in property, and expressed the opinion that a suit falling under Clause (b) is one for the enforcement of what one might call an abstract claim or right, which conclusion, as he pointed out, brings Clause (b) into proper logical neighbourhood with the other clauses of paragraph (iv). Having rejected the only argument which appears to have been addressed, namely, that the decision in Motibhai v. Haridas should be followed, Batchelor J. seems to have concluded that the suit then must necessarily fall under paragraph (v) of Section 7 as being a suit for the possession of land. Of course as Clause (vi) of Article 17 of Schedule II is a residuary clause, if the suit can properly be brought under any of the sections of the Act, the question of this clause does not arise, but it may at least be said that the existence of a residuary clause was not at all considered in Dagdu's case.. The Calcutta High Court, in a series of decisions ending with Nandalal Mukherji v. Kalipada Mukherji I.L.R.(1931) Cal. 313 already referred to, but also apparently based on Kirty Churn Mitter v. Aunath Nath Deb. has held that Article 17, el. (vi), Schedule II applies to a suit such as the present. It is a matter for some surprise that one decision, namely, that in Kitty Churn Mitter v. Aunath Nath Deb, appears to be the foundation stone of the two opposing views taken by the Calcutta and the Bombay High Courts, for the difference between the Dayabhaga and Mitakshara schools in that under the former the share of a coparcener is defined while under the latter it is not, does not appear to be substantial, if any, ground for general distinction. In Bengal the Legislature in the year 1935, by amendment of the Court-fees Act, accepted and adopted the view which the Calcutta High Court had always taken. By Bengal Act VII of 1935, among other amendments to Section 7 of the Court-fees Act was added a el. (vi)(A) which provides that in suits for partition and separate possession of a share of joint family property, or of joint property, or to enforce a right to 'a share' in any property on the ground that it is joint family property or joint property, if the plaintiff has been excluded from possession of the property in which he claims to be a coparcener or coowner, the court-fee is to be according to the market value of the share in respect of which the suit was instituted. Also to Article 17 of Schedule II of the Act, after the entry (v) was added an entry (v)-A, whereby a fee of Rs. 15 is prescribed as the court-fee in suits for partition and separate possession of a share of joint family property or of joint property or to enforce a right to a share in any property on the ground that it is joint family property or joint property if the plaintiff is in possession of the property in which he claims to be a coparcener or co-owner. The decisions of the other High Courts on the point are set out at length in the latest Madras full bench ruling, and no possible distinction can be made to these cases on grounds of differences in the Mitakshara and Dayabhaga schools of law. It appears that, before this latest decision, the 'Madras High Court had held in accordance with the one Bombay decision, Motibhai v. Haridas, that suits such as the present fell within Section 7(iv)(b) of the Court-fees Act. The view expressed by Batchelor J. in Dagdu's ease as to the inapplicability of Clause (b) of paragraph (iv) of Section 7 was approved by the full bench, but the Bombay view that partition suits fall under Section 7, paragraph (v), was emphatically dissented from. As I have already stated, the basis of all the decisions of the other High Courts is that a suit for partition is not a suit for possession when a plaintiff in constructive possession seeks to have the mode of his possession changed, and it is held that paragraph (v) of Section 7 must be restricted to the suits which of their essential nature are suits for possession. It is also held by those High Courts that the second condition of Article 17 (vi) of the second schedule, or Clause (vii) as it is by the recent Bombay amendment of the second schedule, that it is; not possible to estimate at A money-value the subject-matter in dispute, is also satisfied; for the value of a change in the mode of possession is not capable of being expressed in money. I think that these decisions are right, and it does appear that the Bombay view, although it has stood for so many years is based on three decisions, two of which rest upon a Calcutta decision, which appears itself to suggest the opposite result, and a third which appears to have been given without taking into consideration Article 17 of Schedule II, and where it seems to have been assumed that, if suits of this nature do not fall under Clause (b) of paragraph (iv) of Section 7 of the Court-fees Act, they must necessarily fall under paragraph (v) of that section. In these circumstances, in view of the weight of authority, I think that it should now be declared that the Bombay decisions are not good law, and that this Court should fall into line with all other High Courts, and should hold that, where in a suit for partition the plaintiff claims to be in constructive possession with the other coparceners of the joint property, the suit falls under Schedule II, Article 17, Clause (vii) (according to the Bombay amendment) and the court-fee payable is the fixed fee, which under the present Act is Rs. 15.
8. In the present case the plaintiffs valued their relief for the purpose of courtfees at Rs. 5,110. They made this valuation thinking apparently that the matter was governed by el. (b) of paragraph (iv) of Section 7 of the Court-fees Act. The stamp paid exceeds Rs. 15, which, in my opinion, is the proper stamp payable under Article 17 of Schedule II of the Act, and it must, therefore, be held that the plaint is adequately stamped. I think, therefore, that the rule in this case must be made absolute. The order requiring the plaintiffs to amend their plaint, and to pay the deficient court-fees as on an amount of Rs. 1,38,122-1-0, must be set aside. The applicant in this Court should obtain his costs from the defendant-opponents.
9. I agree.
10. I agree.