1. The plaintiff brought a suit in the Court of the District Judge, Bangalore for a declaration that he is entitled to a half share in the plaint schedule properties and for being put in possession of his half share after division. The defendant denied that he and the plaintiff were members of a joint family. He disclaimed interest in certain items which the plaintiff alleged belonged jointly to himself and the defendant and he claimed that he himself was the sole and absolute owner of the other items described in the schedule to the plaint and was in exclusive possession of those items. The plaintiff paid a fixed court-fee of Rs. 50/- on the plaint under Article 11(B) of Schedule II, Mysore Court-fees Act. This was at that stage proper and sufficient and the case reported in -- '44 Mys HCR 203' (A) where it has been held that where a co-owner, co-sharer or co-tenant alleges that he is in joint possession of the property in suit and wants his share to be separated and put into his possession, a fixed court-fee under Article 11 (B) is sufficient is fully in favour of the plaintiff in this matter. At p. 213 it is observed that even if he is in possession constructively if not actually then a fixed court-fee would be sufficient. All the relevant cases in British India and in Mysore which had been decided by that date have been discussed in that judgment and we are bound by it. And if we may say so with respect, that decision appears to be correct and has not been questioned so far.
2. The learned District Judge who heard the present suit found on one of the issues that the plaintiff was not in joint possession of the properties except items 2, 9 and 10 and that hewould have to pay court-fee in respect of the other items of properties and that the court-fee already paid by him was not sufficient. He made a decree in favour of the plaintiff declaring that he is entitled to a one-third share in item 2, and the entire items 9 and 10 of the plaint schedule properties and dismissed his suit in regard to the other items. The plaintiff has come up in appeal to this Court and has paid a similar court fee of Rs. 50/- as under Article 11 (B) of Schedule II.
3. The office has raised the question of the sufficiency of the court-fee and the point put against the appellant is that though the plaint may be deemed to have been properly and sufficiently stamped when it was filed, as there has now been a finding of the lower Court that the plaintiff is not in joint possession of certain items, whether he should not be required to pay court-fee 'ad valorem' in respect of those items both in this Court and the Court below before his appeal is admitted and registered as a regular appeal.
4. We are inclined to think that the court-fee paid is correct. The decision in -- '44' Mys HCR 203' (A) and the passage at p. 209 to the effect that it is fairly well settled that it is the allegation in the plaint that has to be looked into and that the denial of that allegation by the defendant does not take the suit out of the scope of Section 11(B) (which is the same as Article 17, Indian Court-fees Act) is in favour of the appellant's contention. As also the case in -- 'Vishnuprasad Narandas v. Narandas Mohan-lal', : AIR1950Bom4 (B) where it has been held that a suit for partition falls under Schedule II, Article 17 and that it would be so whatever be the contentions urged by the defendant while resisting the plaintiff's claim. As observed at page 5 of the report:
'In such a case if the plaintiff prefers anappeal against the decree dismissing a partof his claim it is not suggested that theproper court-fee on the memorandum of hisappeal would not be the same as on hisoriginal plaint. If that is so, it is difficult toappreciate why an appeal preferred by thedefendant against a decree based on a findingthat the properties in suit are the propertiesof the undivided family and that they do notbelong to the appellant-defendant as hisexclusive properties should not similarly fallunder Article 17, Clause VII of Schedule II.'
They point out that the nature of the _suitwould not change by reason of the contentionsurged on behalf of the defendant and woulddepend on the plaint; it would still continueto be 'on the whole' a partition suit and for thepurposes of an appeal it would still be anappeal from a partition suit 'notwithstanding'the nature of the findings recorded by the trialCourt. The circumstance as to who is theappellant would not be relevant. They havefollowed -- 'Shankar Maruti v. BbagwantGunaji', AIR 1947 Bom 259 (FB) (C) andrelied for their decision on -- 'Jyoti Prosad v.Jogendra Ram' : AIR1928Cal878 , 'Parmeshur Din v. Hargobind Prasad', A. I. R.1939 Oudh 90 (E), -- 'Jai Pratap Narain Singhv. Rabi Pratap Narain Singh', AIR 1930 All443 (F) and on the Full Bench decision of theLahore High Court in -- Diwan Chand v.Dhani Ram', AIR 1941 Lah 123 (FB) (G) whichalso refers to and relies on those cases and --'Abdul Rahman v. A. B. Crisp', AIR 1930 Rang164 (H). In -- 'AIR 1941 Lah 123 (FB) (G)'it has been held that the wording of Article 17shows clearly and indubitably that when a suit falls under any one of the clauses of Article 17, the plaint as well as the memorandum of appeal arising from such a suit is chargeable with a fixed court-fee of rupees ten only irrespective of whether the subject-matter in appeal is or is not capable of being estimated in money value. Therefore in an appeal arising from a suit for partition of joint properties, of which the plaintiff claimed to be in actual or constructive possession, a Court-fee of Rs. 10/- is payable on the memorandum of appeal even though the trial Court, had found the plaintiff not to be in possession of some or all such properties.
5. Except the Patna High Court which has been taking a somewhat different view -- vide -- 'Nand Kishore v. Achambit Kumar', A. I. R. 1937 Pat 514 (I) based on some prevailing practice in that Court, all the other High Courts. including our Court have taken the same view as the Bombay one as laid down in -- : AIR1950Bom4 (B). In -- 'Veluchami Pillai v. Sankaralingam Piliai', : AIR1950Mad353 (J) also relying on -- 'AIR 1941 Lah 123 (FB)' (G) and -- : AIR1928Cal878 and other cases it has been held that irrespective of the fact whether an appeal is against a preliminary or a final decree in a partition suit, the court-fee payable on, such appeal will be under Article 17 (b) of Schedule II. In--'Manohar v. Manoramabai'. AIR 1952 Nag 350 (FB) (K) the opinion of the Full Bench was, relying on -- 'AIR 1941 Lah 123 (FB)' (G), that the court-fee payable on a memorandum of appeal in a suit for partition which falls under Article 17(vi) of Schedule II, Court-fees Act would be the same as that leviable on a plaint and is not to be assessed on the basis of the value of the subject-matter in appeal.
6. In the light of these decisions we direct that the court-fee now paid may be treated as sufficient.
7. Order accordingly.