1. It seems to me that this case can be shortly dealt with. The real question is simply this: whether the plaintiffs suing for partition; part of'the property to be divided being composed of Mandi trade, were bound to value that item of property in accordance with its value as afterwards ascertained in the course of the trial by the Commissioner appointed by the District Munsif, of whether they were at liberty to put on it an approximate valuation in accordance with Section 7 Clause 4(f) of the Court Fees Act. It is argued that they were not at liberty to take the latter course because the account which has to be taken in a family partition differs from that to be taken in a suit ordinarily described as one 'for accounts', inasmnch as in the former there is no question of sur charging the accounting party or accounting for past dealings with the property or of recovering from him on account of negligence, fraud or other grounds as in the latter but the account is to be simply of the assets and liabilities available for division at the date on which the division is made. This distinction between the two classes of suits for accounts was drawn in connection with a suit apparently very similar to the present, reported in Raghavayya v. Ramanayya (1920) 13 L.W. 262 , by a Bench of this Court, and I of course follow this decision. The existence of this distinction was however not kept in mind by the lower courts which treated the suit as one for a specific portion of the properties, ignoring its character as a claim for accovint.
2. The defendants (respondents here) have however, consistently with the suit being of the latter class contended that it must be regarded as a suit for the specific chattels or choses in action, which were available as the assets of the Mandi trade and that the items of stock in trade, debts, and so on can be divided like any other items of ascertained property. This, it seems to me, is entirely inconsistent with any practical view of the matter. For it would be impossible until the assets and liabilities of the' trade are ascertained to tell what each sharer in it would be entitled to. The language of the decision I have just referred to is moreover entirely inconsistent with such a view of the matter since the learned Judges referred throughout to the ' taking of an account', in spite of their distinguishing the two possible classes of accounts, which could be taken.
3. Reference may also be made to two other Cases, viz., the decision in Beni Madhab Sarkar v. Gobind Chandra Sarkar (1917) 22 Cal. W.N. 669 , and the very full Order of Reference, which was adopted in the judgment eventually delivered in Kannayya Chetty v. Venkata Narasayya I.L.R. (1916) Mad. 1 (F.B.). No doubt, in the second of these cases and in Raghavayya v. Ramanayya (1920) 13 L.W. 262, the question of valuation was not raised directly; but in the Referring Order the language is quite inconsistent with any view of cases similar to the present involving claimfc to specific items. And further the learned Judges' description of possible claims, in which an approximate valuation can be adopted by the plaintiff, refers specifically to all suits for accounts without distinction. It does not therefore in any way suggest the inference that a suit for accounts incidental to the partition of joint family assets stands on any special footing. The Calcutta decision is directly in point, and there is nothing in the special procedure regarding the valuation of ordinary partition suits apparently followed in Calcutta to make that decision in any way inapplipable in Madras on the point, which I have to deal with.
4. Lastly, it would be most dimcutt to understand the defendant's contention or to see how it would work in actual practice. Ex-hypothesi, the plaintiffs here, as in the ordinary suits for accounts against agents, partnerships suits, etc., The ignorant of the amount they have to claim, because the information available regarding it is in their opponent's hands. The plaintiffs can in fact only get at the information with the assistance of the court at the trial. It is impossible to understand how they can stamp the pLalnt in accordance with any fixed valuation, until that pLalnt has been accepted by the court or until some sort of enquiry has been held. The answer attempted is that the plaintiffs would be bound to file their pLalnt in accordance with a merely tentative valuation, which they would be entitled to amend subsequently, paying additional duty after enquiry into the defendants' objection. There is, however, no.provision for a tentative valuation of that kind in the Court Fees Act. The only tentative or approximate valuation, which that Act contemplates, is in connection with the general categories of suits under Section 7, Clause 4, comprising suits for account, while the general procedure is quite different additional duty which may be found due not being payable until the decree has been passed and has to be executed in accordance with Section 11. Reference may also be made to the terms of Order 7, Rule 2 of the Civil Procedure Code. The essence of this allowance of an approximate valuation is that the plaintiff is suing for an amount which is unascertained and, which cannot be ascertained until after the trial ; and that is,equally the case with reference tothe case I am dealing with at present and to cases involving surcharge, etc., claimed in suits for what I may call 'accounts proper'. The facts that the accounts may be gone into further in the suits of the latter kind than in suits of the former and that specific items will be open to surcharge or other attack in the latter and not so in the former are not sufficient to justify a distinction.
5. In these circumstances the orders of the lower courts cannot be affirmed and must be set aside, the plaintiff's suit being remanded to the District Munsif's Court for readmission and disposal on merits.
6. It has been pointed out that quite apart from the question of valuation for purpose of jurisdiction, the valuation for purpose of court fee with reference to items of joint family property other than Maiidi trade requires correction in accordance with the results of the Commissioner's enquiry. The District Munsif will call upon the plaintiffs to pay the necessary additional stamp duty in accordance with the usual procedure. Costs in all the three courts will be costs in the cause.
7. The Civil Revision Petition against the decision of the District Munsif is also allowed but no separate order is necessary.