(1) This revision petition raises a question of court-fee. The plaintiff is the adopted son of late Adiseshayya. Defendant 1 is the wife of the said Adiseshayya. Defendant 2 is alleged to have been taken in adoption by Adiseshayya subsequent to the plaintiff's adoption. There was a partition between the plaintiff and Adiseshayya, where under the 'A' schedule properties were allotted to the share of the plaintiff and B-1 schedule properties to that of Adiseshayya.
Adiseshayya before his death executed a will in regard to the B-1 schedule properties excluding items 4 and 23 in favour of defendant 2. The B schedule properties were all purchased in the name of the defendant 1. It is alleged in the plaint that Adiseshayya brought about the alleged partition fraudulently and that the defendants were setting up rights in the A and B-1 schedule properties.
Froth the allegations in the plaint, it is clear that Adiseshayya during his life-time and after his death, defendants 1 and 2 were exclusively in possession of the A and B-1 schedule properties. The gist of the plaint is that by a fraud practised by Adiseshayya, the plaintiff was given A-1 schedule property and the rest of the property whether in the name of defendant 1 or in the name of Adiseshayya, is in the possession of the defendants who were setting up adverse claims to the same.
There is no allegation in the plaint that the plaintiff is either directly or constructively in possession of A-1 and B-1 schedlue properties. He valued the plaint under Art. 17-B of Sch. II of the Court-fee Act. The court-fee examiner objected to the valuation and pointed out that as the plaintiff did not and could not claim actual or constructive possession of A-1 and B-1 Schedule items he should pay court-fee under S, 7(v) of the Court-fees Act.
The learned Judge agreed with him and directed the plaintiff to pay deficit court-fee of Rs. 1332-7-0. The revision is filed against that Order.
(2) Learned Counsel for the petitioner contendes that the proper Article applicable is Art. 17-B of Sch. II of the Court-fees Act.
(3) The principles governing the valuation of reliefs for the purpose of court-fee partition suits are well settled. A suit for partition and separate possession of the plaintiff's share, where he is in either actual or constructive possession of the family properties has been held to be incapable of valuation and therefore chargeable with fixed fee under Sch. II of Art. 17-B -- See -- 'Ramaswamy Ayyangar v. Ranghachariar', AIR 1940 Mad 113 (FB) (A).
Conversely it has been held that where the plaintiff is not in joint possession of all or any of the common properties the suit in respect of the plaintiff's share should be valued under S. 7(v) -- See -- 'The Secretary of State v. Subramanian Chettiar', AIR 1938 Mad 278 (B).
It has also been held over and over again that for ascertaining the court-fee payable on a plaint the terminology used in the plaint is not of much relevance but it is the substance that matters. A plaintiff by a clever device and camouflage cannot evade court-fee if in substance the relief he asks for falls under one or other of the provisious of the Court-fees Act.
(4) If the aforesaid principles are applied, there is no doubt in my mind that the plaintiff should pay court-fee under S. 7(v) of the Court-fees Act. The plaint disclosses a clear outster of the plaintiff by defendants 1 and 2. According to the plaintiff, a fraud has been practised on him by his adoptive father by allotting to his share the A-1 schedule properties and by setting the rest of the properties in favour of defendant 2 who admittedly has been is possession of the same in his own right.
So too, defendant 1 the widow of Adiseshayya in whose name the properties were purchased is admittedly is in possession of the same to the exclusion of the plaintiff claiming absolute rights therein. As the plaintiff is not directly or constructively in possession of B-1 schedule properties Art. 17-B of the Court-fees Act cannot apply.
(5) Learned Counsel for the petitioner argued in respect of the B schedule properties, that a member of a joint Hindu family can file a suit for partition treating the properties purchased benami in favour of a wife or other relative of a member of the family and in that event it would be enough if he valued the relief under Art. 17-B. In support of this contention he relied upon some decision which I will briefly notice.
(6) In an unreported judgment in C. R. P. No. 1547 of 1936 (Mad) (C), Pandrang Rao J., held that where in a suit for partition by a member of a joint Hindu family there is an allegation that a certain property standing benami in the name of the wife of one of the coparceners is joint family property, no separate court-fee is leviable in respect of the property on the footing that must be deemed to be an item alienated in favour of a stranger. That may be so in a case where notwithstanding the benami transaction the family continues either in direct or constructive possession of the properties so purchased in the name of the female members of the family.
It is a common phenomena among joint family that the properties are purchased sometimes for various reasons in the names of female members of the family, but the fact does not make the properties any the less joint family properties. If a member of the family files a suit for partition on the basis that the family is in possession of those properties the plaintiff can pay court-fee under S. 17-B of Sch. II of the Court-fees Act.
But in this case, the widow is admittedly in possession of the properties claiming them to be her own properties to the exclusion of the plaintiff. That decision has, therefore, no bearing on the present case. Nor is the decision of Satyanarayana Rao J., and Panchapakesa Sastri J., in -- 'Joga Rao v. Venkata Rao', AIR 1949 Mad 471 (D), of much relevance. There in a suit foe partition one of the defendants pleaded that the plaintiff has purchased some properties in the names of strangers fraudulently and collusively and benami with a view to defeat the rights of the several members to the family properties and that those items should be brought into the hotchpot and the benamidars also were added as parties. It was contended that the defendant had to pay court-fee in respect of his share in such items.
(7) The learned Judges held that in a suit for declaration, as no question of set-off or counter claim arises, and there is no provision in the Court-fees Act which requires court-fees to be paid in respect of such claim by the defendant in a partition suit, the defendants need not pay any court-fee. The question, viz., when a benamidar is in actual possession and is claiming adversely to the family, whether a plaintiff should pay court-fee under S. 7(v) of the Court-fees Act was neither raised nor decided in that case. I, therefore, hold that the plaintiff is liable to pay court-fee under S. 7(v) in respect of his relief for possession of the B schedule properties.
(8) I canot also find any distinction in the application of the principle even in regard to the B-1 schedule properties. The cases cited by the learned counsel only reiterated the well-settled principles and applied them to the facts of those cases. In -- 'Rehanna Basana v. Adeppa', : AIR1951Mad732 (E), Balakrishna Ayyar J., held that in a suit for partition of the family properties some of which were alienated but were in the possession of the family, no separate court-fee was payable as, the properties were in the possession of the family, and it could not be deemed that such possession was on behalf of the aliencee.
As the family was in actual possession of the properties alienated, the learned Judge was certainly right in holding as he did.
(9) In -- 'Sellammal v. Jothimani Nadar', AIR 1936 Mad 411 (F), Varadachariar J., accepted and applied the aforesaid principles to the following facts. There a suit was filed by two sons of a Hindu father against their step-brothers and step-mother for a declaration that the suit properties were the undivided ancestral properties of the family, that a sale-deed executed by the plaintiff's father in favour of their step-mother was invalid as it was intended merely to conceal the assets of the family at the registered partition that was effected shortly after and the plaintiffs prayed for separate possession of their shares after a partition by metes and bounds.
The learned Judge held that the plaint was leviable to court-fee under S, 7(v) of the Court-fees Act and that clauses (iv) (b) (c) and (iv-a) of the Act had no application to the case. At p. 412, the learned Judge observes :
'Where the relief asked for is by way of possession, the suit will prima facie fall under cl. (v) and not under cl. (iv) (c)... It is in the circumstances of this case not possible to bring the suit under sub-cl. (b) of clause (iv) because even according to the plaintiffs defendant 4 is claiming the property adversely to the plaintiffs insisting on her own title under the sale-deed. It cannot therefore in any sense be said that the plaintiffs are even constructively in possession of the property.'
(10) It is not necessary to multiply decisions. From the aforesaid allegations in the plaint, it is manifest that in regard to B-1 schedule properties, defendant 2 is in actual possession claiming rights under the will executed by Adiseshayya and claiming adversely to the plaintiff. Even according to the allegations in the plaint, it is clear case of ouster.
(11) Even so it was contended by the learned Counsel for the petitioner that his client need only pay court-fee on the valuation representing the difference between the value of the A schedule the perty and the additional property that might be allotted to him in the re-partition that may be effected should he succeed in the suit. To put it differently, if a re-partition is effected the B-1 schedule properties will be brought into the hotchpot along with the A schedule properties and the plaintiff will get half of the entire property. As he is already in possession of the A schedule properties the argument proceeds that he seeks relief for the recovery of possession of only that extent which falls short of his half share in the entire property.
But the suit is not for the recover of any definite extent out of the B-1 shcedule property to make up the deficiency. The suit is in effect to recover the entire B-1 schedule properties on behalf of the family so that they might be pooled together along with the A schedule property for re-partition. It is not possible to predicate that in any re-partition that may be effected the A schedule property would again be allotted to the plaintiff and that only a part of B-1 schedule property to make up his half share would be given to him. It may be that the A schedule property may fall to the share of the representatives of Adiseshayya and that the B Schedule property or part of it may be allotted to the plaintiff. In the circumstances, it is not possible to adopte the basis suggested by the learned Counsel.
The decision of Ramesam J. in -- 'Sundara Ganapathi Mudali v. Daivasikamani Mudali', AIR 1934 Mad 94 (C), was relied upon in support of this argument. There the plaintiff brought a suit against his father and step-brother for partition of the family properties. Alleging that an unfair partition was effected owing to the pressure of his father and was compulsorily registered and that nonetheless he remained joint. At p. 96, the learned Judge made the following observations :
'In the present case the plaintff has got some immoveable properties allotted to him but he complains that this is an unfair allotment. And he apparently thinks that he is entitled to some more properties. I think an opportunity ought to be given to him so that he may state the valuation of his share of the immoveable properties in the manner stated by the proviso, that is, according to para. 5 of S. 7 and the valuation of the properties allotted to him and half the difference between the two would be the minimum value on which he is to pay the court-fees'.
(12) I do not think that method of valuation can be adopted when the plaintiff does not seek to recover only an additional extent, but claims re-partition of the entire property ignoring the previous partition. Further this is a new basis which has not ben suggested in the court below.
(13) In the result, the revision petition fails and is dismissed with costs. One month's time is granted to pay the court-fee.
(14) Revision dismissed.