1. This is a court-fee reference before me as the taxing Judge on a reference made by the Taxing Officer (Registrar of this Court). The question that has been raised on the reference is, whether in this case the proper court-fee leviable on the plaint, on the memorandum of appeal in the lower appellate Court as also in this second appeal should be the fixed court-fee under Article 17-A, Schedule II of the Court-Fees Act or ad valorem court-fee payable under Section 7(iv)(c) of the Act.
2. The determination of proper court-fee depends on the real nature of the suit. The scrutiny ought to be very cautious. The Court is not to import into the plaint anything which it does not really contain, either actually or by necessary implication. That is to say, the Court is to take the plaint as it is and not as it may think it ought to have been in the way that the relief, not asked for deliberately, and the plaintiff takes the risk in that behalf cannot be imported into the plaint. The Court must take care not to be misled by the dexterity or skill of draftsmanship of the pleading and must always go deeper in order to scrutinise what is the real nature of the suit.
3. For correct appreciation of the real nature of the suit a genealogical table showing the relationship of the parties, who are members of a Mahomadan family, so far as is material, is set out as follows:--
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Abdul Rahiman Saffiruddin Subran Bibi
(died in 1940) D.5 P.1
Kulsam Bibi D.1 (widow) Haffizullah
Kamina Bibi (widow died 1943) P.2
The other defendants are out-sider transferees defendants.
4. The plaintiff filed a suit for partition of the property left by Abdul Rahiman against the defendants. Defendants 2, 3 and 6 are transferees from defendant No. 1 Kulsam Bibi. Defendant No. 4 is a transferee from Kanina Bibi. The allegations in the plaint are, inter ana, that on August 2, 1945 and September 21, 1956 defendant No. 1 Kulsam Bibi had illegally transferred the entire property beyond her legitimate share; that the sale beyond her interest is therefore invalid and inoperative: and further that defendant No. 1 Kulsam Bibi having thus illegally transferred the entire suit property belonging to Abdul Rahiman is trying to put the transferees in possession to the detriment of the plaintiffs' interest in the suit property. The prayers in the plaint are these:--
'(i) Portion of property left by Sheik Abdul Rahaiman.
(ii) Plaintiff No. 1's 1/4th share as well as the 1/2 share of pro forma defendant No. 5 which has since been transferred to plaintiff No. 2 may be set apart for the plaintiffs and the possession thereof may be given.
(iii) Cost of the Suit.
(iv) Any other relief or reliefs to which the plaintiffs may be found entitled to.'
5. The question is whether the suit is one tor partition pure and simple or whether it involves setting aside the impugned sales to the transferee defendants by defendant No. 1 Kulsam Bibi by the said sale deeds dated August 2, 1945 and September 21, 1956 as invalid and inoperative and a declaration accordingly. If it is a simple suit for partition, then the proper Court-tee payable would be the fixed court-fee under Art. 17-A, Schedule n. If, on the other hand, the suit is substantially for declaration of title and for setting aside the sales, then the Court-fee payable would be ad valorem Court-fee payable under Section 7(iv)(c) of the Act.
6. After the plaint was filed on August 1, 1957, an objection was raised that the plaintiffs should pay ad valorem Court-fee. By an order made on August 20, 1957 the learned Munsif found that the Court-fee that is payame is fixed Court-fee and not ad valorem for the reasons tuny discussed in the said order. Then again when the unsuccessful plaintiffs filed an appeal before the lower appellate Court, a similar objection was raised by the office that the plaint as filed in the lower Court is not pure and simple partition but in the garb of a partition suit the plaintiffs wanted declaration of title and delivery of possession.
The learned District Judge fully considered the question of Court-fee, and in his order dated 22 June, 1959 found that the plaint, as framed, could be treated as one tor pure and simple partition -- that the plaint does not show that the plaintiff-appellants have been excluded from possession; and accordingly held that the fixed court-fee paid was sufficient. In the judgment of the learned lower appellate Court dated 2-3-1962, which is the subject-matter of the second appeal, the learned successor District Judge expressed a view contrary to the order passed by his predecessor on June 22, 1959 as aforesaid. The learned lower appellate Court expressed that according to him, it is a suit tor declaration of title, partition and recovery of possession where the plaintiffs intend to fight out alienations, to recover possession from the alienees and as such it comes within the scope of Section 7(iv)(c) of the Court-fees Act, Then the plaintiffs filed this second appeal on July 2, 1962 whereupon the Stamp Reporter took objection and reported that ad valorem fee is payable both in this Court as also in each of the lower Courts. On this objection raised by the stamp reporter the Taxing Officer referred the question to me as Taxing Judge for decision.
7. Keeping in view the principles laid down by a Division Bench of this Court in Sadanand Sahu v. State or Orissa, (1961) 3 Orissa J. D. 335 : (AIR 1962 Orissa 102). I am of opinion that prima facie the suit, as framed, appears to be substantially for partition. The alienation referred to in the plaint are matter of history which form the cause of action for the suit by the plaintiffs against the defendants for the partition of their legitimate share. The plffs. rely on an undisputed position in Mahomadan law that defendant No. 1 Kulsam Bibi had no right to alienate the property of her husband although she was allowed to enjoy the entire income of the property till her dower debt was satisfied and in support of their contention they rely on a passage from the Principles of Mahomadan Law by Mulla (15th Edition) Article 301 page 353 which is set out as follows:
'301. No right to alienate property to satisfy dower debt.-- (1) The right of a widow to retain possession of her husband's property under a claim for her dower does not carry with it the right to alienate the property by sale, mortgage, gift or otherwise. If she alienates the property the alienation is valid to the extent of her own share; it does not affect the shares of the other heirs of her husband.'
8. For the determination of proper court-tees, in this case I am of the view that prima facie the substance of the plaint, as framed, appears to be one for partition, and not for declaration of title with consequential relief. I fully agree with the view of the learned Munsif in his order dated August 20, 1947 as also of the learned District Judge dated June 22, 1959. The view on court-fees expressed by the lower appellate Court in the judgment dated March 2, 1962 prima facie is not correct.
9. In this view of the case, my answer to the question referred for decision is that the proper court-fee leviable on the plaint, in the memorandum of appeal in the lower appellate Court, as also in the Second appeal in this Court is the fixed court-fee under Article 17-A Schedule II of the Court-fees Act. The reference is answered accordingly. There will be no order for costs of this reference.
10. While making this order on this reference I must make it clear that none of my observations in this judgment for the purpose of determining court-fee, will be binding, on the Court hearing this Second Appeal on merits.