1. This revision has been filed by the Chief, Inspector of Stamps. The facts of this case will be j clear from the following pedigree:
MATHURA PRASAD|--------------------| |Badri Prasad Kailash Prasad. = | D. 1. Sri Uma Devi| || Kr. Lalit Mohan.-----------------| |Sirish Chandra Subhas ChandraD. 2. D. 3.
2. The suit was originally filed by Mathura Prasad for certain reliefs. He died during the pendency of the suit, and after his death Lalit Mohan became the plaintiff. The reliefs claimed on behalf of Lalit Mohan who is a I minor are as follows : (1) Declaration that the plaintiff is the owner of a one half share in the properties in eluded in Schedule A. (2) Partition and separate possession of the plaintiff's one half share in the properties contained in Schedule B. (3) Partition and separate possession] of the plaintiff's half share in Schedule C which consisted of various mortgages and bonds etc. The valuation of the suit was Rs. 43-552-15-0 out of which the property in Schedule A was valued at Rs. 18,000, the property in Schedule B at Rs. 15,000 and the property in Schedule C at Rs. 10,552-15-1. Mathura Prasad when he originally filed the suit for partition had claimed a one-third share on the ground that his two sons Badri Prasad and Kailash Prasad were each entitled to a one-third. On his death Kr. Lalit Mohan claimed larger share in the properties on the allegation that Mathura Prasad had left a will. It will appear that according to Hindu law Mathura Prasad was entitled to one-third, Badri Prasad to one-third and Kailash Prasad to one-third. Out of the one-third share of Kailash Prasad one-sixth belonged to him and one-sixth to Lalit Mohan. Lalit Mohan claimed that besides this one-sixth that he got under the Hindu law Mathura Prasad gave the whole of his one-third share to him under his will and thus he was entitled to a hall share in the properties, his father Kailash Prasad being entitled to one-sixth and defendants 1 to 3 between them were entitled to one-third. The plaintiff had paid court-fees of Rs. 392-8-0 only on the plaint. The Chief Inspector of Stamps filed a report on 20th February 1943 in which he claimed that the suit must be treated as a title suit in disguise and a suit for partition and therefore the plaintiff must pay ad valorem court-fees on the valuation of Rupees 43,552-15-0. The court-fee due was thus Rs. 1662-8-0 out of which Rs. 392-8-0 having been paid a deficiency of Rs. 1270 was still due from the plaintiff. The report was not accepted by the plaintiff and objections were filed on his behalf that the suit could not be treated as a title suit and the court-fees paid were sufficient.
3. The matter was considered by the learned Civil Judge on 20th March 1943. He did not accept the report of the Chief Inspector of Stamps, but nevertheless he held that the plaint was insufficiently stamped. According to the learned Civil Judge the plaintiff was liable to pay Rs. 15 for the declaration prayed for in his relief No. (1), Rs. 312-8-0 on relief No. (2) and Rs. 230 on relief No. (3). According tot he learned Civil Judge reliefs Nos. (2) and (3) must be deemed to be reliefs covered by Section 7, Sub-section (VIA), Court-fees Act as now amended which reads as follows : 'According to one quarter of the value of the plaintiff's share of the property and according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a coparcener or co-owner, and his claim to be a coparcener or co-owner on such date is denied.' The lower Court thus held that the total amount of court-fees payable was Rs. 557-8-0 out of which Rs. 392-8-0 having already been paid a balance of Rs. 165 was still due. The plaintiff has made good that deficiency. The Chief Inspector of Stamps, however, was not satisfied with the decision of the Court below and he has filed this revision against that order under Section 6B, Court-fees Act. The revision has been valued at Rs. 1270. The correct valuation should have been only Rs. 1105 inasmuch as the report of the Chief Inspector oi Stamps was that Rs. 1662-8-0 was the proper court-fee payable, while the learned Civil Judge hd held that Rs. 557-8-0 was the proper court-fee. The learned Counsel appearing for the applicant has cited the case reported in Wali-ullah v. Durga Prasad ('06) 28 All. 340 and has urged that the suit was in fact a suit to establish the plaintiff's title to a half share in the property and it must be treated as such. He has also cited the case reported in Bhagwan v. Shivalla ('27) 14 A.I.R. 1927 Nag. 248 in Wali-ullah v. Durga Prasad ('06) 28 All. 340 the plaintiff had filed a suit for declaration of his title where his title was denied. He had also claimed possession of the property inasmuch as he was out of possession and had then claimed partition, and this Court held that the suit was to establish the plaintiff's title to the property and to recover possession of the same, 'a claim for partition being added to make the relief sought effectual.' The present suit is a suit of an entirely different nature. The plaintiff is in joint possession of property as a co-owner and the suit was filed by Mathura Prasad for partition which was the effective relief that he had claimed. Moreover, in 1906 when the decision in Wali-ullah v. Durga Prasad ('06) 28 All. 340. was given Section 7, Sub-section (VIA), so far as I can find, did not exist or at any rate, was entirely differently worded. There being a special provision now in the Court-fees Act for suits for partition where the plaintiff claiming partition is in possession or out of possession and where his claim is denied or is accepted, to my mind that section must be applied unless there be some other cogent reason which will take the case out of the provisions of that section.
4. The new sub-section was considered by a learned Judge of this Court in a case reported in Zamurrad Husain v. Ram Sarup : AIR1943All281 . Where this Court held that Section 7(VIA), Courtfees Act should be applied in a suit for partition and court-fees in accordance with the provision of that section should be charged even in appeal. It is not denied that in this case the plaintiff was in possession as a co-owner. Learned Counsel alleges that if his claim as a co-owner had been denied, then the case will fall under Section 7(VI-A), but as it was not denied that he was a co-owner but it was only the extent of his share that was in dispute the case is not covered by the provisions of Section 7(VI-A) relied on by the lower Court. To my mind, this will mean putting a very restricted meaning on the said sub-section and it leads to this absurdity that if a plaintiff's claim as a co-owner and for a share on partition is denied in its entirety he has to pay much less court-fee than he would have to pay if the only question raised by the defendant is that the extent of the share claimed by the plaintiff is more than what the defendant admits. To my mind, the words 'his claim to be a...co-owner on such date is denied' should be interpreted to mean both when it is) denied in its entirety or even when only the extent of the share claimed is in dispute. In this view of the matter the decision of the lower Court is correct and the court-fee demanded by the Court below on one-fourth of the valuation inasmuch as the plaintiff was in possession as a co-owner was the proper one. I, therefore, dismiss this revision with costs.