1. This is a Court-fee reference coming before me as the Taxing Judge on a reference made by the taxing officer. The question is as to the proper Court-fee payable on the memorandum of appeal. The facts giving rise to this reference may be stated as follows in the wording of the taxing officer:
Plaintiffs-respondents Nos. 1 to 3 brought a suit for partition of some properties described in Schedules Kha, Ga, Gha and Una of the plaint, into 3 equal snares and for possession of one-third share therein along with defendant No. 4. With respect to the shares of the parties and also with regard to the division of the joint family properties into 3 shares giving to plaintiffs 1 to 3 and defendant 4 one-third share, defendant 1 one-third share, and defendant 2 one-third share, there was absolutely no dispute. The real controversy in the suit centred round the properties to be actually divided. The appellant-defendant 1 contended that items Nos. 1, 3 and 4 of Schedule Ga properties measuring an area of 3.49 acres, 29.29 acres and 10.40 acres respectively were his separate and exclusive properties and not liable for partition. This contention was overruled by the learned Court below and hence this appeal.'
2. The question which has been raised, by the taxing officer on the reference is, whether the court-fee payable on the memorandum of appeal in these circumstances, is the fixed court-fee under Article 17-A, Schedule II of the Court-fees Act as amended by the Orissa Act, or ad valorem Court-fee payable under Article I, Schedule I of the Court-fees Act. There can be no dispute that Article I is in the nature of a residuary Article and will not beapplicable where any other Article specifically applies. Article 17 of the Court-fees Act as it originally stood has been substituted by two Articles, 17 and 17-A by virtue of Orissa Act V of 1939 with a further surcharge by Sectioin 2 of Orissa Act XX of 1947. Article 17-A of the Orissa Act, 1939 is the same as Article 17, Sub-article (6) of the main Act and is in the following terms:
17A. Plaint or memorandum of appeal in every suit where it is not possible toestimate at a money value the subject-matter in dispute and which is not-other wise provided for fay this Act,
When the plaint is presented to or the memorandum of appeal is against the area of -
(a)a Bevinue Coat in the district of Ganjam or Keraput
Ten Rupees (b)any other Revenue Court of a District Judge, Sabordinate Judge or Munsif.
Fifteen Rupees if the value for purposes of jurisdiction does not exceed Rs. 4000 onehandred rupees if such value exceeds Rs. 4000.
3. It has been held that in partition suits, where the plaintiff claims the allotment of his separate share of the joint property and separate possession thereof, he claims nothing more than the conversion of the joint possession of the whole into a separate possession of the allotted, part and that the subject-matter in dispute therefore is only the right to conversion in the mode of enjoyment and that it is not capable of being estimated in money value. It has accordingly been held that to such suits Article 17-A applies. The further question that arises is where in such a suit the defendant claims certain items of property as his separate property and as not liable to partition and where that issue has been decided one way or another and the aggrieved party has to go up in appeal in respect of that issue, whether it is not reasonable to say that the subject-matter in dispute in the appeal is really the title to certain properties and is therefore capable of valuation and consequently ad valorem Court-fee is payable. This certainly looks plausible; but it has been held in a number of cases that Article 17 (6) (which corresponds to Article 17-A of the Orissa Amendment Act of 1939) applies to such cases and that the memorandum of appeal is chargeable with the same fee as that on the plaint and does not depend upon the decision of the Court on a particular issue that has been raised in the suit. According to that view, in order to attract the application of Article 17-A what is material, is not the value of the subject-matter in dispute in the appeal, but the subject-matter in dispute in the suit. It has to be noticed that the Article does not say 'Memorandum of appeal where it is not possible to estimate at money value the subject-matter in dispute' but 'memorandum of appeal 'in a suit', where it is not possible to estimate at money value the subject-matter in dispute.' This is the view taken in the Full Bench case in 'Diwan Chand v. Dhani Ram', ILR (1941) Lah 234: AIR (28) 1941 Lah 123. That is also the view taken in 'Abdul Rahman v. A. B. Crisp', AIR (17) 1930 Rang 164 and 'Parmeshur Din v. Hargobind Prasad', AIR (26) 1939 Oudh 90, as also in 'Jyoti Prosad Singha v. Jogendra Ram Roy', 56 Cal 188 : AIR (15) 1928 Cal 878. The last mentioned case is a case where the appeal related only to costs, but the Calcutta High Court held that the court-fee payable is the fixed court-fee and it is laid down as follows:
'So far as this Court is concerned, it has always been recognised that in appeals against decrees from partition suits, the proper Court-fee payable is the fixed Court-fee. It does not matter whether the ground of attack is with reference to allotment of specific portion of immovable or moveable property or the ground of attack is the question of costs,'
The view taken in these cases therefore gives full effect to the phrase 'memorandum of appeal 'in every suit' appearing in Article 17-A' and that appears to me to be the correct view. I should be prepared to follow it in preference to the contrary view that appears to have been taken in 'Ram Prasad v. Krishnananda', AIR (23) 1938 All 221, where there is no discussion of the question.
4. It is, however, necessary to examine whether there is any course of decisions in the Patna High Court to the contrary since in a matter of this kind, relating to procedure, the Patna practice is binding on me. The only cases of the Patna High Court as having a bearing on the question which have been brought to my notice by both the appellant's counsel as well as by the learned Advocate-General who has appeared before me for the Government, on issue of notice, are the following: 'Gobind Dube v. Parmeshwar Dube', AIR (6) 1919 Pat 403; 'Dukhi Singh v. Harihar Shah', AIR (8) 1921 Pat 78; 'Rachhya Raut v. Mt. Chandoo', AIR (10) 1923 Pat 113; 'Banku Behari v. Chatur Pandey', AIR (11) 1924 Pat 640; 'Nand Kishore v. Achambit Kumar', AIR (24) 1937 Pat 514; 'Sital Prasad v. Ramdas Sah', AIR (26) 1939 Pat 274; 'Ramautar Sao v. Ram Govind Sao', AIR (29) 1942 Pat 60; and 'Kameshwar Singh v. Raj Bansi Singh', AIR (30) 1943 Pat 433. I shall now examine these cases.
5. In 'Gobind Dube v. Parmeshwar Dube', AIR (6) 1919 Pat 403, it was held that where the suit was in a sense a suit to obtain a decree for money or a decree for immovable property an ad valorem Court-fee must be paid, but that if it was a plain suit for partition, the fixed Court-fee is payable. On the facts of that case, the learned Judge was of the opinion that the suit was one for partition and that therefore, the memorandum of appeal before him was chargeable only with, the fixed Court-fee.
6. 'Dukhi Singh v. Harihar Shah', AIR (8) 1921 Pat 78 is a case in which the question arose not about the court-fee payable, but as to the competency of the appeal, depending upon the valuation of the suit for purposes of jurisdiction. In the course, however, of that decision, their Lordships stated as follows:
'It is settled by authority that in a suit for partition, pure and simple, where the plaintiff is in possession of his share of the property and: simply wants to alter the mode of his enjoyment by claiming to hold his share in the property separately from the other joint holders, the court-fee payable will be Rs. 10/- only under Schedule II, Article 17, Clause 6 of the Court-fees Act. It has also been settled that where the plaintiff is out of possession of his share in the joint property,he is required to pay ad valorem Court-fee under Section 7, CLAUSE 4 of the Court-fees Act, inasmuch as it is not a suit for mere partition, but for a consequential relief in the shape of recovery of possession of his share in the property. In such a case, the plaintiff has to pay Court-fee upon the valuation of his share in the property.'
7. In 'Rachhya Raut v. Mt. Chandoo', AIR (10) 1923 Pat 113, their Lordships laid down with reference to a partition suit that:
'one must look to see what is the real nature of the claim. If it is merely a suit claiming a partition and nothing else, then it makes no difference that the defendants by their written statement raise a question disputing the title or possession of the plaintiffs. But if in the very forefront of their claim they ask the Court for declaration of their title and possession, they are claiming under the guise of a partition suit a declaration of their title which is the proper subject-matter of a title suit.'
It is not very clear from the report whether the question involved in this case was with reference to the Court-fee payable on the plaint or on the memorandum of appeal.
8. In 'Banku Behari v. Chatur Pandey', AIR (11) 1924 Pat 640, the question as to the correctness of the Court-fee paid both on plaint as well as on the memorandum of appeal in the Courts below was raised. The stamp-reporter appears to have been of the opinion that ad valorem Court-fee was payable since the Courts below had found that Schedule II properties were acquired in the names of various defendants. Their Lordships were not prepared to accept the view of the stamp-reporter and said as follows:
'It is the case of the plaintiffs in the plaint that the family is joint and it is well settled that where the family is joint, the possession of one is the possession of all. I know of no authority which entitles the stamp-reporter to determine the question of Court-fees by reference to what is afterwards decided by the Court. If the plaintiffs' case is untrue, it must fail. But I know of no authority which entitles the Court to compel the plaintiff to pay court-fees not on the footing of the plaint, but on the footing of what is afterwards decided by the Court.'
This appears to be a clear authority for the position that in a partition suit the Court-fee payable on the appeal is to be the same as that on the plaint where the plaint is treated as involving a dispute relating to the subject-matter of the suit incapable of valuation.
9. 'Nand Kishore v. Achambit Kumar', AIR (24) 1937 Pat 514, is a case where in an appeal memorandum arising out of a partition suit ad valorem Court-fee was collected. But this is so because on the facts of that case, the suit was held to be a title suit in the guise of a partition suit. His Lordship observes as follows:
'It has not ordinarily been the practice in the Patna High Court, from the time of its foundation, to depend exclusively on the averments of the plaintiff for the ascertainment of what should be the proper Court-fee payable, to permit a plaintiff to escape liability by a vague and indefinite statement of facts in the plaint or to penalise him because he may possibly ask for a declaration which may be unnecessary. The proper court-fee payable is to be determined on appreciation of what the plaintiff-appellant really sought, not requiring payment of ad valorem Court-fee merely because a suit for partition was defended by a claim of adverse possession, but astute to see that plaintiff should notavoid liability to pay Court-fee under Section 7(iv)(c) or Section 7(v) of the Act merely by omitting to assert a prayer for possession in what was essentially a title suit in the guise of a partition suit.'
This decision which has been relied on as an authority for the practice of collecting Court-fee in appeals arising from every partition suit on ad valorem basis does not appear to me to support any such position. It shows only that where the suit itself is in substance a title suit and not a partition suit, the Court-fee payable is ad valorem. But it is obvious that it wolud be so both for the plaint and the memorandum of appeal and not for the memorandum of appeal alone. It depends on what may be determined to be the essence of the piaint and the relief sought for. It has nothing to do with the decision of the issues in the suit.
10. 'Sital Prasad v. Ramdas Sah', AIR (26) 1939 Pat 274, relates only to the proper Court-fee payacue on the piaint in a partition suit having regard to the facts of that particular case and has no wearing on what fee is payable on a memorandum of appeal arising out of a partition, suit.
11. 'Ramautar Sao v. Ram Gobind Sao', AIR(29) 1942 Pat 60, is also a case relating to the proper Court-fee payable on a plaint in a partition suit and emphasizes the principle uniformly adopted in the Patna High Court that the court-fee payable in partition suits depends not on the ostensible form, but on the real substance and on the question whether the suit is in essence a title suit under the guise of a partition suit. This decision contains a valuable statement of the considerations which should guide the determination of that question.
12. 'Kameshwar Singh v. Rajbansi Singh', AIR(30) 1943 Pat 433, is not a case relating to Court-fees, but is useful only for a statement in the judgment that in a suit for partition, the plaint is chargeable with a fixed Court-fee on the ground that partition merely changes the form of enjoyment and therefore the subject-matter is not capable of valuation.
13. It will thus be seen on a review of these decisions that there is no case of the Patna High Court, so far as it has been brought to my notice laying down that irrespective of what is the proper court-fee payable in a plaint in a partition suit, the court-fee payable on the memorandum of appeal depends on the value of the subject-matter in dispute in the appeal arising from the decision of an issue in the suit. On the other hand, the cases in 'Gobind Dube v. Parmeshwar Dube', AIR (6) 1919 Pat 403, and 'Banku Behari v. Chatur Pandey', AIR (11) 1924 Pat 640, are clear authority to the contrary. The only point that is insisted upon in all these cases is that the court-fee must depend not on the form, but on the substance. It is however assumed throughout in all these cases that the court-fee on the appeal is the same as that payable on the plaint. I would therefore respectfully adopt the view of the Full Bench in 'Diwan Chand v. Dhani Ram', ILR (1941) Lah 234, that the court-fee payable on a memorandum of appeal arising from a partition suit is a fixed court-fee as provided in Article 17-A if from a fair consideration of the plaint the court-fee payable on the plaint itself is under the said article; but that the court-fee payable both on the plaint as well as on the memorandum of appeal would depend on the substance and not on the form.
14. In the present case, the court-fee payable on the memorandum of appeal, therefore, would depend upon what would have been the correct court-fee payable on the plaint itself having regard to its substance and in the light of theprinciples elucidated in the decisions quoted above.The learned Taxing Officer has not examined thequestion in this light. The matter will, therefore,be remitted back for reconsideration and final decision by the Taxing Officer in the light of theabove view. If he comes to the conclusion thatthe court-fee payable on the plaint itself in thiscase was ad valorem and not a fixed Court-fee, hewill, in his capacity as the Registrar, consider thequestion of collecting the deficit Court-fee on theplaint also.