Prithvi Raj, J.
(1) The petitioners feeling dis-satisfied with the order dated 30th April, 1974, passed by Shri S. R. Goel, Additional District Judge, Delhi, have challenged the same by this rsvi.sion petition.
(2) The findings of the trial Court were assailed on the ground that the case set up by the respondent was to enforce his right to share in the immovable property in suit on the plea that it was joint family property and he being not in possession of the same as averred in the written statement, the court-fees payable ought to have been computed as per provisions of section 7(iv)(b) of the Court-fees Act (herein to be called 'the Act') on the market value of his share in the immovable property; that he further claims share in the jewellery in the sum of Rs. 13927 and l/7th share of Rs. 6,000 and he admittedly being not in possession of any portion of the said assets the suit should have been separately valued for purposes of jurisdiction and court-fee and should have paid separate and ad valorem court-fees on the said amounts.
(3) It is settled law that to determine prima fade the nature of the suit it is the plaint which has to be examined. For the purpose of determining the appropriate provision of the Act applicable to a suit, the criterion to be kept in view is the frame of the suit. It is not of much relevance for the purpose of ascertaining the court-fees payable on a plaint as to what terminology is used in the plaint but what in fact is the substance of the plaint. The Court-fees payable on a plaint has to be determined on the allegations in the plaint as the suit would proceed on the assumption set out in the plaint.
(4) The respondent No. 1 (herein called 'the respondent') and the petitioners arc brothers being the sons of deceased Jawala Prashad. Shiv Lal, their grandfather was said to have left considerable immovable property which was inherited by their father and uncle Ghasi Ram who died issueless in 1946. The property left by their grandfather was joint Hindu Family ancestral property. Their father having joined Government service the property was managed by their uncle. The respondent being the eldest of the brothers and enjoying the confidence of their father received the share of the income of the family property from their uncle. The income so received and amassed by the respondent came to about Rs. 5,000 in the beginning of 1947. According to the respondent in 1947 Jawala Prashad was in possession of Rs. 7,000, the common fund of the family while he (the respondent) had also about Rs. 5,000 as the collection from the ancestral family property, with the said family income of Rs. 12,000 the suit property house bearing No. 8567, Ara-Kishan Road, Paharganj, New Delhi, was brought by their father The acquisition of the said house was a joint Hindu Family acquisition and the nature of the property was joint Hindu Family property. Their maternal grandmother left some agricultural property which the respondent alleges had been thrown into common hotch potch. The property left by their maternal grand-mother was a joint property and an accretion to the existing joint property income from which used to be thrown in the common fund in the hands of their father, the Karta of the Joint Hindu Family. According to the respondent the common fund in the hands of their father existing in the sum of Rs. 6,000 at the time of his death in 1972 is stated to be with Perma Nand petitioner. Besides, petitioner J. N. Sharma is stated to be in possession of ancestral jewellery which is divisible between the parties. The said two petitioners in the circumstances, according to the respondent are liable to render accounts of the family assets to the remaining co-parceners. Differences having arisen in the family the respondent does not want to keep his share joint in the said properties with the other coparceners. Accordingly he filed the present suit seeking decree for partition by metes and bounds separating his l/7th share in the Joint Hindu Family properties. The petitioners in their written statement traverse the aforesaid claim of the respondent alleging that the family had no ancestral property that there was no joint or common fund of the family; that the respondent had separated long ago from the family of Jawala Prasad and was living separately even during his life time that the immovable suit properly was the self-acquired property of Jawala Prashad; that no common fund had ever existed in the hands of Jawala Prashad and that lie never left any jewellery.
(5) As already noted above for determining the court-fees payable on the plaint only the allegations of the plaint are to be taken into consideration. The court is not required to examine the truthfulness of the said allegation. From the allegations set out in the plaint it is evident that the respondent has filed the suit as a coparcener of the Joint Hindu Family claiming separate possession of his share by metes and bounds instead of the joint possession which he, at present, alleges, to possess in the joint family property with the other co-parceners. All that he seeks is a change in the mode of enjoyment of his share and not to seek to enforce it. If that be so, can it be said that he is enforcing his right in the property. Mere denial of right or title would not amount to ouster in the case of co-parceners.
(6) There is ample authority in support of the proposition that a suit for partition of alleged joint properties of which the plaintiff claims to be in actual or constructive possession is governed by the provision of Article 17(vi) of Schedule Ii of the Act and a fixed court-fee is payable on the plaint. The law in this respect cannot be said to be uncertain giving rise to any doubt as to whether the provisions of section 7(iv)(b) or Article 17(vi) of Schedule 11 are applicable in a suit such as the present one. Apart from the specific allegation made in the plain that the respondent was claiming separate possession by metes and bounds as a co-parcener, he in his statement stated that a portion of the house was let out to a tenant by their father. On the statement of the respondent the trial Court held that he was in symbolic possession of 'at least that portion of the house' which is occupiea by the tenant.
(7) There is a catena of authorities in support to the proposition that in a suit for partition of joint family property by metes and bounds when the plaintiff alleges to be in possession, either actual or constructive, of a portion of that property, the Court-fee payable is as prescribed by Article 17 (vi) of Schedule Ii of the Act as in such a suit what is sought is a change in the mode of enjoyment of the property and not to enforce a right to title of his share in the property. in such a case the relief is merely for change of joint enjoyment of the property into separate enjoyment and as such the suit is incapable of valuation.
(8) In Asa Rain v. Jagun Nath and other's, A.I.R. 1934 Lah 563. a Full Bench of the Court after examining the case law observed at page 573 that consensus of judicial opinion is that in a suit for partition of joint property, where the plaintiff alleged joint possession, court-fee was livable under Article 17(vi) of Schedule If of the Act and that section 7(iv)(b) does not apply to such a suit, the ralio disendi being that the plaintiff was not enforcing any right to share in joint family property but merely sought to change the mode of his enjoyment of the joint property and that the relief in such a case was not capable of being valued in money. It was further hied that section 7(iv)(b) applies only to cases relating to joint family property where the plaintiff had been ousted from its enjoyment and sought to be restored to joint enjoyment. Further in determining the provisions of the Act applicable to a particular suit the. allegations made by the plaintiff alone must be considered and that the pleas raised by the defendant did not affect the question.
(9) In Rain Narain Kaul v. Mst. Bishan Rani and other's A. I. R. 1938 Lah 321 following Asa Rain's case (supra) it was held that in a suit for partition of properties alleged to be belonging to a joint family and being in joint possession of the parties, the court-fee payable on such a plaint was under Article 17 (vi) of Schedule Ii of the Act and not ad valorem on the share of the plaintiff in the properties in the suit.
(10) Similar view was taken earlier by the Lahore High Court in Mst, Durga Devi v. Parbati, A.I.R. 1933 Lah 208
(11) Reference here may also be made to a Full Bench decision of the Lahore High Court in case Dewan Chand v. Dhani Ram and others, A.I.R. 1941 Lah 123 The question that arose in that case related to the amount of court-fee payable on the memorandum of appeal against the preliminary decree in a suit for partition of alleged joint properties. The trial Court decreed the suit in respect of one property which was held to be jointly owned by the parties but dismissed the suit relating to other properties holding that they were not held jointly by the parties. The plaintiff in appeal paid the fixed court-fee as per Article 17(vi) of Schedule Ii of Act. On behalf of the respondents it was contended that the relief asked for in the appeal was not merely for change in the mode of enjoyment of the properties but to establish the appellant's title and possession of his alleged share in them and that such a relief was not incapable of being estimated in money and, thereforee. Article 17 (vi) did not apply. Repelling the contention of the respondents it was held that the appeal arising from a suit for partition of the alleged joint properties of which the plaintiff claimed to be in actual or constructive possession, the fee payable thereon was the same as in the suit and that it was immaterial what the findings of the Court below were and whether the appeal was presented by the plaintiff or the defendant.
(12) In Tutika Lakshummarayana and others v. Patharla Saraswali and another, : AIR1969Ori265 () it was held that if the suit was for partition and separate allotment of properties alleged to be in joint posession, even though possession may be constructive, the application of Article 17-A of Schedule Ii of the Act as amended in Orissa was attracted.
(13) In Roman Chandra Dey and others v. Gouralias Gharharan Gur and others, A.I.R. 1962 Ass 137 a Division Bench of the Court observed that possession contemplated under the provisions of the Act was not actual possession. When the plaintiff alleged that he had been in constructive possession of the property and asked for partition of his share, it could not be said that he had brought a suit for declaration of his title as a joint owner in respect of the property over which he had no possession attracting the provisions of section 7(iv)(b) of the Act.
(14) In Saladi Satyam ahan Satyanarayanamina v. Saladi Samanna and others, : AIR1960AP313 it was observed that it is well settled that for the purposes of ascertaining the court-fee payable one must have regard to the allegations in the plaint and it is not the function of the Court to ask itself whether those allegations were true or probable. It was further observed where the co-owner, in spite of a division in status, if there was no actual division by metes and bounds, claimed division by metes and bounds alleging joint possession., the court-fee payable was under Article 17-B of Schedule Ii of the Act as amended in Madras.
(15) In Nori Srirama Sastri v. Nori Lakshmidevamma and others, : AIR1955AP200 , it was held that a suit for partition and separate possession of the plaintiff's share where he is in either actual or constructive possession of the family property has been held to be incapable of valuation, and thereforee, chargeable with fixed courtfee under Article 17-B Schedule Ii of the Act as amended in Madras. It was further observed that conversely, where the plaintiff was not in joint possession of all or any of the common properties, the suit in respect of the plaintiff's share should be valued under section 7(v) of the Act.
(16) In Nikka and others v. Fazal Dad Khan and others, A.I.R. 1930 Lah 839, a Division Bench of the Court held that where the plaintiff definitely alleges that he was in joint possession, the proper provision of the Act applicable to the case was Article 17(6) of Schedule Ii of the Act.
(17) In the instant case the respondent had filed the suit as a co-paicener of the Joint Hindu Family property seeking a change in the mode of enjoyment, viz, instead of joint enjoyment of the family property, to enjoy his share separately therein. On his averment he is in constructive possession of the Joint Family property, viz, house in question. He being in possession of a part of the family property there is no merit in the contention advanced on behalf of the petilitiuners that the respondent should have separately valued his claim for share in the family jewellery and common family fund. On his claim the court-fee payable on the suit is the fixed court-fee as provided under Article 17(vi) of Schedule Ii of the Act. It is only when a person is out of possession of property to which he considers he was entitled on the strength of any right, title or interest that he claims in relation thereto and seeks to obtain possession thereof from the person who is keeping it bak from him that the suit is one for possession-bare and simple. In such a case there being no jointness of possession or title between the partics, the provisions of section 7(iv)(b) of the Act would apply, and not that of Article 17(vi) of Schedule Ii of the Act, (See Mt. Sat Bkawan v. Bedi Ram Kishan Smgh and. others, A.T.R. 1938 Lah 275.
(18) Before parting with this aspect of the matter case Santosh s|o Gopalci and another v. Rama s/o Ra'ho and others, , may be noted, wherein it was observed that if the plaintiff is in joint possession of the whole estate, be that either actual or constructive, only then Schedule It, Article 17 of the Act would be applicable.
(19) Although the consensus of the judicial opinion is that if the plaintiff alleges in the plaint that he is in possession of ail or any of the common properties while seeking partition of his share in the properties the suit has to be valued for the purposes of court-fee under the provisions of Article 17(vi) of Schedule Ii of the Act no reasons were assigned by the Nagpur High Court in the above-cited case for taking the view that the aforesaid Article was applicable only if the plaintiff was in joint possession of the whole of the estate involved in the suit.
(20) In view of the discussion above the contention that the suit should have been valued for the purposes of court-fee qua the immoveabic property in question as contemplated by the provisions of section 7(iv)(b) of the Act and that separate value should have been put on the share of the respondent of jewellery and common fund, on which ad valorem court-fee ought to have been paid, has to be negatived.
(21) There is. however, substance in the second contention of the learned counsel for the petitioners that the trial Court was wrong in holding that the value of the suit for the purposes of jurisdiction would be Rs. 22910 being the value of the respondents 1/7 share in the suit properties.
(22) Section 9 of the Suits Valuation Act, 1887 (vii of 1887) envisages that when the subject-matter of suits of any class, other than suits mentioned in the Court-fees Act, 1870, section 7. paragraphs v and vi, and paragraph x, clause (d), is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High Court may with the previous sanction of the State Government direct that the suits of that class shall, for the purposes of Courtfees Act, 1870, and of the Suits Valuation Act and any other enactment for the time being in force, be treated as if their subjectmatter were of such value as the High Court thinks fit to specify in that behalf.
(23) Pursuant to its aforesaid power the Punjab High Court has framed Rule 8 in Chapter 3-C of the Punjab High Court Rules and Orders, Volume 1. which are applicable to Delhi, providing for the value regarding court-fee and jurisdiction which a plaintiff is required to state in the plaint in suits for partition of property. The said rule for facility of reference is re-produced below:
'8.Suits for partition of propetry- Court-fee-(a) as determined by the Court-fees Act, 1870. Value-(b) For the purposes of the Suits Valuation Act, 1887, and the Punjab Courts Act, 1918-the value of the whole of the property as determined by sections 3, 8 and 9 of the Suits Valuation Act, 1887'
(24) It would, thereforee, be seen that so far as value for the purpose of jurisdiction is concerned, for the purposes of Suits Valuation Act, 1887, value of the whole of the property, sought to be partitioned, as determined by sections 3, 8 and 9 of the Suits Valuation Act has to be stated.
(25) Sections 8 and 9 of the Suits Valuation Act indicate that value for court-fee and jurisdiction must be the same except in case of a contrary rules made under section 9 of the Suits Valuation Act. Rule 8 of Chapter 3-C of Punjab High Court Rules and Orders, Volume I, being a contrary rule requiring that value for the purposes of jurisdiction shall be the value of the whole of the property, the trial Court was wrong in determining the value turn the purpose of jurisdiction at Rs. 22910 being the value of the 1/7111 share of the respondent in the joint family propetry. The value for the purpose of jurisdiction should have been stated as the value of the whole of the property in terms of Rule 8 of Chapter 3-C of Punjab High Court Rules and Orders, Volume I, in accordance with section 9 of the Suits Valuation Act.
(26) I am fortified in the above view from a decision of the Punjab & Haryana High Court in case Mangal Dass v. Nannihal Shigh and others, 1974 P.L.R. 255, in which it was observed that the jlirisdictional value of suits for partition of property had to be determined on the value of the whole of the property in accordance with the provisions of Rule 8 of Chapter 3-C of Punjab High Court Rules and Others, Volume I and provisions of section 9 of the Suits Valuation Act.
(27) In this view of the matter cases cited by the learned counsel for the respondent to the effect that the jurisdictional value shall be the value of the share of the respondent need not be noted because of the mandatory requirement of rule 8 of Chapter 3-C of the Punjab High Court Rules and Orders, Volume I, framed by the High Court under the powers conferred by section 9 of the Suit Valuation Act, 1887.
(28) In view of my discussion above, the revision petition is accepted on the question that the value of the suit for the purposes of jurisdiction would be the value of the whole of the property, partition whereof is sought. In the circumstances of the case the parties are left to bear their own costs.