1. This is a reference under Section 5, Court-fees Act, 1870.
2. The plaintiff brought a suit for partition of certain property upon the allegation that he and the defendants were members of a joint Hindu family who were jointly in possession of the property in suit. The plaintiff prayed that his share in the joint family property should be determined and partitioned and that he should be put in separate possession thereof. The suit was valued at Rs. 4,00,000 for the purpose of jurisdiction and he paid a court fee of Rs. 10 under Article 17(6), Sch. 2.
3. The defendants in their written statement traversed the principal allegations of the plaintiff, denying that the parties were members of a joint Hindu family and denying that the plaintiff was in joint possession of the property in suit. One of the pleas raised by the defendants was that the court-fee paid by the plaintiff was insufficient because he was not in joint possession of the property in suit, and that as the suit was in fact a suit to establish the plaintiff's title to a share in the property, and to recover possession of the same, he was liable to pay an ad valorem court-fee calculated on the value of his share.
4. The trial Court held that the plaintiff was out of possession and that as he claimed possession and partition he must pay a court-fee calculated on the value of the share claimed by him. The trial Court also decided the other important issues in the defendant's favour and dismissed the suit.
5. The plaintiff has come up to this Court in first appeal and has stamped his memorandum of appeal, as he did his plaint with a court-fee stamp of Rs. 10 under Sch. 2, Art, 17(6). The Taxing Officer was inclined to hold that the appellant must pay Rs. 3,830 to make good the deficiency in court-fees in both Courts but has referred the question for my decision. It is conceded that if the plaintiff is found to be in joint possession of the property in suit then his plaint and his memorandum of appeal have been sufficiently stamped. If, on the other hand, the finding of the trial Court, to the effect that the plaintiff is not in joint possession of the property, is upheld by this Court, then he is liable to pay upon his plaint and memorandum of appeal a court-fee calculated on the value of his share in the property in suit.
6. It is contended by the learned counsel for the appellant that liability to pay the court-fee depends in the first instance upon the allegations made in the plaint and the relief sought, apart altogether from the evidence. I think this contention must be accepted in view of the ruling in Waliullah v. Durga Prasad  28 All. 340. The plaintiff asserted in para. 23 of the plaint that since the management of the Court of Wards terminated on 20th October 1914, plaintiff 1 and defendant 1 have been managing the property jointly and taking money for their expenses out of the profits of the said property. In my opinion this is a clear assertion that the plaintiff is in joint proprietary possession of the property in suit. The trial Court has also understood that the plaintiff did claim to be in joint possession and has come to a distinct finding upon issue 2 that the plaintiff was out of possession and as he prays for possession of his share he must pay a court-fee calculated on the value of his share, So far as the allegations made in the plaint, and the relief claimed, are concerned. I am satisfied that the proper court-fee was Rs. 10 under Sch. 2, Article 17(6).
7. It has also been urged for the appellant that in his memorandum of appeal he challenges the whole decree dismissing his suit and in ground 8 of appeal he has expressly challenged the finding of the trial Court with reference to his joint possession of the property. His argument is that as the finding regarding joint possession is challenged in this Court he is not liable to pay an ad valorem court-fee unless and until the finding of the trial Court on this point is upheld. He further claims that he is not liable to pay an ad valorem court-fee until his appeal has been decided.
8. The learned Government Advocate contends that although the appellant's memorandum of appeal contains no less than 19 grounds there is no ground which expressly challenges the trial Court's finding on the question of court-fee and the appellant must therefore submit to that finding, and must pay the deficiency in court-fee on his plaint and memorandum of appeal before his appeal is admitted.
9. In my opinion the omission to include in the memorandum of appeal a ground expressly challenging the finding on the question of court-fee is immaterial. The appeal is against the decree, not against the judgment, and the decree does not contain any direction ordering the plaintiff to make good the alleged deficiency in court-fee. The decree merely dismisses the plaintiff's suit with costs. I think the appellant is entitled to contest the finding regarding the court-fee, which depends upon the finding regarding possession.
10. The learned counsel for the appellant relies strongly upon the decision of a Division Bench of this Court in Bachnu v. Ghulam Ali All. Second Appeal No. 896 of 1924 decided on 19th January 1927. The facts of the case are on all fours with the case before me. The plaintiff in that case sued for the partition of a house alleging that he was in possession over a part of it and paid Rs. 10 as the court-fee for partition. The defendants contended, inter alia, that the plaintiff was out of possession. The Court of first instance decided all the issues and held that the plaintiff was out of possession and called upon him to make good the deficiency by paying the difference between the court-fee payable ad valorem and the court-fee actually paid. The plaintiff did not pay the deficiency and the suit was dismissed. He went in appeal to the District Judge. One of his contentions was that the finding of the first Court, that he was out of possession, was wrong. The District Judge, without looking into the question of possession, called upon the plaintiff-appellant to make good the alleged deficiency. This was not paid and the appeal was dismissed. The decision of the Bench of this Court was that the learned District Judge was not justified in not trying the issue as to the plaintiff's possession before calling upon the plaintiff to pay the additional court fee.
11. In my opinion it is impossible to distinguish the two cases. The facts are practically identical.
12. Following the decision cited above, I hold that the plaintiff-appellant is not liable to make good the alleged deficiency of court-fees, either in the Court below or in this Court, until the question of the plaintiff's joint possession has been determined by this Court. As the appellant has not been completely successful I fix the costs against Government at Rs. 32.