1. This is a rule directed against an order passed by Mr. Harish Chander Mital, Senior Subordinate Judge, Simla dated the 13th December 1951 holding that the plaint was not properly stamped and that the plaintiff had not given proper particulars in regard to fraud, misrepresentation and undue influence alleged by her.
2. The plaintiff alleges that she is the widow of Dina Nath who died on the 2nd December 1950. She has prayed for separate possession by partition of her. one-third share of the immovable property, the details of which are given in para. 3 of the plaint. She has also prayed for declaration that she-is entitled to one-third share of certain sums of money in different banks and for rendition of accounts.
In reply to the plaintiff's claim the defendants denied that she was the lawfully wedded wife of Dina Nath and also raised two preliminary objections which are given in the issues which are:
(1) whether the suit is not in proper form?
(2) whether the plaint is sufficiently stamped and the plaintiff is in possession of a Part of the property in suit?
In regard to Issue No. 1 the learned Judge said that the plaintiff must supply full particulars of fraud, misrepresentation and undue influence and in regard to Issue No. 2 the learned Judge held that the plaintiff must pay 'ad valorem' court-fee. The petitioner has come up in revison to this Court and I issued the rule on the 24th December 1951 for today.
3. I have heard Mr. Bhagat Slngh Chawla in regard to the first issue and he has submitted that defendants Nos. 1 and 2 did in the first instance raise the objection as regards particulars of fraud, etc., but that objection was overruled long time before the present order of the Judge which is under revision was passed. He has also referred me to certain passages from the plaint which show that particulars have been given. In view of this and in spite of the arguments addressed to me by the counsel for the respondents I am of the opinion that no further particulars are necessary,
4. The real question is whether the court-fee paid in regard to partition is proper. The allegation of the petitioner in her plaint in the trial Court was that she was in possession of a portion of the property, that is a portion of 'Dale View', and she paid court-fee under Article 17 (vi) of Schedule II of the Court-fees Act, as according to her, her case fell within the rule laid down in the Full Benches of the Lahore High Court.
In 'Asa Ram v. Jagannath', 15 Lah 531, theplaint was stamped with a court-fee stamp ofRs. 10/- and the value of the plaintiff's share inthe property was Rs. 1,00,000/-. The defendantsdenied that the plaintiffs were members of a jointHindu family as that was the allegation of theplaintiffs or that the plaintiffs had any share inthe properties which were in the exclusive possession of the defendant. They also pleaded in thatcase that the two branches of the family hadseparated many years before and this partition hadbeen acted upon. After referring to several casesJai Lal, J. observed at pp. 561 and 562:
'If a plaintiff alleges in a suit for partition thathe is in joint possession of the property in suit,and the Court finds, on a plea being raised bythe defendant, this allegation to be untrue, thenordinarily the suit will be dismissed solely onthe ground that the plaintiff being out of possession is not entitled to sue for partition withoutasking for possession of the property in dispute* * *.'
But it was held in spite of this that where in the plaint it is alleged that the property is joint and is jointly possessed and that the plaintiff is in actual possession of a portion of the property the case would fall under Schedule II, Article 17 (vi) of the Court-fees Act. The same rule was laid down by another Pull Bench of the Lahore High Court where the parties were Mohammadans. In 'Mohammad Sohail v. Ghulam rasul', ILR (1941) Lah 308 at p. 320 Tek Chand, J., said:
'Further, the reason as to why a suit by a coparcener for partition falls within Clause (vi) of Article 17 of Schedule II of the Court-fees Act, applies equally to a similar suit by a co-owner. In either case, the relief sought is the change in the mode of enjoyment of joint property of which the plaintiff 'ex hypothesi' is in joint possession and it is not possible to estimate at money value the subject-matter in dispute. It makes no difference for this purpose, that in one case the joint property is held by the parties as 'joint tenants', while in the other they own it as 'tenante-in-common'.'
In this case a suit had been brought for partition of the alleged Joint family by a Mohammadan co-sharer who alleged that he was in Joint possession of the entire property by reason of the possession of another co-sharer and was in actual physical possession of a certain portion of the property as a co-sharer in the whole property. This washeld to fall under Article 17 (vi), Schedule II, ofthe Court-fees Act, and it was held that Section 7(iv)(b) does not apply to such suits. My attention has also been drawn to 'Mt. Sat Bhawanv. Bedi Ram Kishen Singh', ILR (1938) Lah240 where Din Mohammad, J,, with whom Addison, J., agreed, observed at p. 245:
'In our view, if a person is out of possession ofproperty to which he considers he is entitled onthe strength of any right, title or interest thathe claims in relation thereto and seeks to obtain possession thereof from the person who iskeeping it back from him, there being no jointness of possession or title between the two, hissuit is one for possession, bare and simple, towhich the provisions of Section 7(v) of theCourt-fees Act apply, * * *.'If a person is out of possession and was kept outand there is no jointness of possession of title between the two the case is no doubt one for possession, pure and simple, under Section 7(v) of theCourt-fees Act.
5. The question before me now is as to what is the court-fee which is payable on the allegations made by the plaintiff. She has alleged that she is a widow of the last owner and as such she is entitled to a third share under the Act of 1937 and would therefore be either a co-sharer or a co-owner as the case may be, and if she alleges that she is one or the other and also proves that she is in actual possession of a portion of the property the rule which would apply would be the one laid down in 'Mohammad Sohail's Case', ILR (1941) Lah 308 or 'Asa Ram's Case', 15 Lah 531 which I have referred to above. At this stage it is not necessary to find out whether she has any claim or not. The only question to be determined is whether the amount of court-fees paid by her is proper in accordance with the provisions of the Court-fees Act. Reading the plaint and the allegations made therein and the fact that she is in actual physical possession, in my opinion the case would fall under Article 17 (vi) of schedule II of the Court-fees Act and the learned Judge was in error in ordering that she should pay 'ad valorem' court-fee. The petition is therefore allowed and the rule made absolute.
6. This is a case which might best be tried by the District Judge himself. I therefore transfer the case to the learned District Judge, Ambala, and direct that it should be tried in Simla whenever he is in Simla for the purpose of trying cases as District Judge of Simla.
7. In the circumstances of the case I leave the parties to bear their own costs in this Court.
8. The learned District Judge will make suchorders as he deems necessary for appearance ofthe parties and then proceed with the case inaccordance with law, and I have no doubt thathe will give such facilities to the parties as hethinks 'necessary in the circumstances of the case.