1. This appeal arises out of a suit for partition of the estate of one Munuswami Naicker. The facts out of which this suit arises may be shortly stated. One Veerasami Naicker, a resident of Teynampet, was the common ancestor of the parties. He was carrying on business of supplying milk to European houses and he died about 1867 or 1868. He left four sons, namely, Deva Naicker, Govinda Naicker, Logappa Naicker and Narayanaswami Naicker. The milk business was carried on for some time and then Deva Naicker took to abkari or toddy business. He seems to have prospered in this business He died in 1893 leaving two sons, Munuswami Naicker and Parthasarathi Naicker. The former died on 16th February, 1924, possessed of properties worth nearly 3 lakhs. His widow is the 1st defendant, the daughter the 2nd defendant and the son-in-law the 3rd defendant. He left a will and the defendants have taken out probate. Narayanaswami Naicker's son is Kuppuswami Naicker, the 4th defendant. His son Elumalai is the 1st plaintiff. Logappa Naicker left no issue but left only his widow Kanniammal, who is P.W. 4. Govinda Naicker left a son Munuswami Naicker, who is P.W. 5. The plaintiffs' case is that Deva Naicker and his three brothers were all members of a joint family for some time and that Govinda Naicker and Logappa Naicker gave up their shares in the family, but Deva Naicker and Narayanaswami Naicker continued to be members of a joint family. Some time in 1904 Narayanaswami Naicker left Teynampet on account of some misunderstandings for Royapuram, but Kuppuswami, the 4th defendant, continued to be joint with Munuswami. The plaintiff brings the suit for a partition and division of property and recovery of his half share, the other half share belonging to his father, the 4th defendant. Obviously the 4th defendant supports the plaintiff and has probably instigated the suit. The other members of the family, P.Ws. 4 and 5, also support the plaintiff. It is clear that they have all got the feeling that the property of Munuswami Naicker has gone out to strangers without benefiting' themselves. The learned Trial Judge dismissed the suit and the ' plaintiff appeals.
2. When Deva Naicker changed the business from milk to toddy and abkari, the other members were following their own professions; Govinda Naicker was a jutka driver under P.W. 2, Logappa Naicker was a gardener in the house of an European Judge and Narayanaswami Naicker was keeping a petty shop selling snuff, coffee-seeds, jaggery, etc., and after leaving Teynampet for Royapuram, he was for some time selling drugs. Finally, he became a broker in straw carts. It is unlikely that all the four brothers could have been members of a joint family, Deva Naicker being very prosperous in his business while the other three brothers were following such low professions as those just now described. However it is conceded that Govinda Naicker became separate being content with a few cows and buffaloes. This concession shows that at the time when Govinda Naicker separated from the family, the property of the family consisted of a few cows and the toddy business had not yet begun. (See also P.W. 4.) As to Logappa Naicker, it was said that he did not care to claim a share in the family property because he had no issue. Their mother was living by selling cakes in the street. These concessions had to be made because the plaintiff had to explain in Ex. D, a partition deed, dated 8th December, 1897, between Munusami Naicker and his brother Parthasarathi Naicker. This partition deed proceeded on the footing that these two brothers were (he only members of the joint family. It is conceded that Munusami Naicker is younger than his three uncles. This shows that the uncles could not have been members of the joint family at that time. The suggestion that the share allotted to Munusami Naicker represented his and his uncle's is falsified by the document and there is nothing to show that Munusami Naicker and Parthasarathi Naicker did not get equal shares. A partition of that kind between brothers is practically indicative of an adverse right to all the other branches. At the end of 12 years after such a deed the other members right would be barred by limitation. It is, however, contended that Kuppuswami Naicker, the 4th defendant, remained with Munusami Naicker and was participating in the enjoyment of the family properties. The suit was filed by the plaintiff as a minor with his maternal grandfather as his next friend. There is afterwards a change in the next friend, the original next friend dropping out of the suit and his brother Raju Naicker continuing it. Raju Naicker and his brothers are persons occupying wealthy positions, they being labour suppliers to the Madras Port Trust and to a number of European mercantile firms and it is said that at the time of the negotiations for the marriage of Kuppusami Naicker, Munusami Naicker said that Kuppusami Naicker had equal shares with Munusami Naicker. This evidence was discredited by the learned Trial Judge. We entirely agree with him. Some time in 1915 or 1916 Munusami Naicker had a bakery business and in this business he seems to have taken Kuppusami Naicker as a partner. In connection with that business they were having dealings in flour with one Narayanaswami Naicker, whose gumastah is examined as P. W. 3. He says that Munusami Naicker and Kuppusami Naicker were partners. The account books stand in the name of both. But towards the end Munusami wanted to close the business because it was a losing concern. Finally, it was handed over first to Kuppusami Naicker. He leased it to one Madurai Pillai and finally it was sold for a small sum of Rs. 250. A part of this sum went towards the payment of a promissory note executed by both of them. Though some of these transactions appear in the names of both, they are explained by the fact that they were partners and are not inconsistent with there being no joint family. Again in 1922 there are a number of documents executed by Munusami. One is a gift deed of a house to Kuppusami Naicker. This recites the partition deed of 1897 and Kuppusami Naicker had to deny the knowledge of this gift deed to avoid the inference that has necessarily to be drawn against him. But it is conclusively shown that he knew the gift deed and that he offered the deed as security to the Collector of Madras for the Abkari business which he continued. Another document is a will of Munusami attested by 4th defendant and Parthasarathi. We entirely agree with the conclusions drawn by the Trial Judge. We also agree with the Trial Judge in the estimate of the oral evidence in the case. We think that there was no joint family from the time when Deva Naicker started the toddy business and that there was scarcely any nucleus for the acquisition of joint family property and the subject-matter of the suit was the self- acquisition of Munusami Naicker. The appeal fails and is dismissed with costs of respondents 1 to 3.
3. The learned Advocate for the appellant raised a question as to the propriety of the order made by the Trial judge relating to payment of Court-fees by the next friend of the plaintiff, the suit being filed in forma pauperis in the Lower Court. He contended that under Order 33, Rule 11, Schedule I, Civil Procedure Code, it is only the plaintiff that is liable for the Court-fee and no order can be made against the next friend. But we think that Order 33, Rule 11 should be read along with Section 35 of the Code. Section 35 gives a very wide discretion to the Court to make any order relating to costs. In a recent decision of myself and my brother Jackson, J., we held that the Court had jurisdiction to direct the next friend or guardian to pay the costs of the proceeding in the place of a minor. In that decision we referred to other decisions of this Court and also to an English decision. It is true that the Allahabad High Court has taken a different view in Sibt Ahmad v. Amina Khatun I.L.R.(1928) A. 733. But we adhere to the decision in Yellamma v. Suryanarayanamurthy : AIR1929Mad782 . But it is contended by the learned Advocate for the appellant that even if Section 35 applies, it cannot help the present case as the order relates to Court-fee and not to costs. He relies on the observations in Collector of Trichinopoly v. Siva-ratnakrishna Sastrigal I.L.R.(1899) M. 73 : 9 M.L.J. 265 where it was said that Court-fee when paid to Government is revenue and not costs. It is true that when Court-fee is paid to Government, it is paid to Government as revenue and not as costs. But this consideration is not enough to dispose of the matter. The plaintiff who pays Court-fees incurs them as expenses or costs of the suit. In ordinary cases the plaintiff incurs these costs in the beginning while in pauper suits these costs are incurred at the end of the suit. If the plaintiff fails, he bears his own costs, that is, he is to pay Court-fees to Government. But if he succeeds, the defendant should pay the Court-fees to Government. This is merely another way of saying that the plaintiff pays the Court-fees in the first instance but recovers them from the defendant. This can be only on the footing that Court-fees are included in the costs payable by the defendant. Again, after a pauper plaintiff loses the suit and has paid Court-fees to Government under Order 33, Rule 11, Schedule I, Civil Procedure Code, suppose he files an appeal and succeeds in it. He will then recover the amount of Court-fees from the defendant. This can be so only on the footing that it is part of his costs. It is, therefore, clear that though when the Government takes the amount, it takes it as revenue, so far as the person who pays the amount is concerned, he incurs it as costs of the suit and Section 35, Civil Procedure Code, which refers to the costs of, and incident to, all suits is wide enough to cover even Court-fees.
4. We may also refer to Rule 14 of Order 32, Clause (2), Schedule I, Civil Procedure Code, which provides that when a minor on attaining majority wishes that a suit instituted in his name by his next friend should not continue, the Court may order the next friend to pay costs of all the parties in respect of the application. This we take it to mean that the Court may order the next friend to pay costs of the minor including the Court-fees, seeing that between the next friend and the minor the Court-fee is regarded as the costs of the suit. As to the argument based on the literal wording of Order 33, Rule 11, .Schedule I, Civil Procedure Code, the reply is that' the rule was intended to lay down that the defendant is not liable but the plaintiff's next friend is liable. Which person is liable whether the minor or the next friend is a matter governed by the general discretion given to the Court under Section 35 of the Civil Procedure Code. We, therefore, disallow the argument of the learned Advocate and confirm the order of the learned Trial Judge. The appellant will pay the costs of the Government which is fixed at Rs. 175. The respondents will be at liberty to recover the costs from the next friend or from the minor appellant as they choose.
5. There is one other matter to be dealt with. The 5th defendant is a mortgagee of Munisami Naicker. He was impleaded on certain allegations which are found in paragraph 3 of the plaint. The validity of the mortgage was not questioned. In the Schedule to the plaint the value is given as Rs. 19,000. In the written statement the 5th defendant said that Rs. 30,000 was due on the mortgage. The plaintiff made the statement in paragraph 3 probably as a conjecture and not with a view to question the validity of the mortgage. After the 10th issue was framed, it does not appear that the plaintiff at any time raised any contention regarding either the validity of the mortgage or the amount clue on it. But as he has chosen to implead the 5th defendant, we think that he ought to pay the costs of the 5th defendant in the Court below as in an undefended suit. To this extent we modify the decree regarding costs of the 5th defendant in the Court below. In appeal there is really no ground raised against him except as to costs. It is unnecessary for him to appear so far as the merits of the appeal are concerned. We direct him to bear his own costs.