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 of mundi 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: or, 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 is one 'for accounts,' inasmuch as in the former there is no question of surcharging he accounting party or accounting for past dealing with the property or of recovering from him on account of negligence, fraud or other grounds as in the latter, but the account s 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 as Lingamallu Varadha Raghaviah v. Lingamallu Venkataramemayya 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 specific portion of the properties ignoring its character as a claim for account.
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 mundi trade, and that items of stock-in-trade, debts and so on can be divided like any other item 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 account which could be taken.
6. Reference may also be made to two other cases, viz., the decision in Beni Madhob Sarkar v. Gobinda Chandra Sarkar 46 Ind. Cas. 165 and the very full order of reference which was adopted in the judgment eventually delivered in Putta Kannayya Chetti v. Rudrabhatla Venkata Narasayya 39 Ind. Cas. 439 . No doubt in the second of these cases and in Lingamallu Varadha Raghaviah v. Lingamallu Venkataramanayya 61 Ind. Cas. 772 the question of valuation was not raised directly; but in the Referring Order the language again is quite inconsistent with any view of cases similar to the present involving claims to specific items. And, further, the learned Judge's 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 ordinal partition suits, apparently followed in Calcutta, to make that decision in any way inapplicable in Madras on the point which I have to deal with.
7. Lastly, it would be most difficult to understand the defendant's contention, or to see how it works in actual practice. Ex hypothesi, the plaintiffs here, as in the ordinal suits for accounts against agents, partnership suits, etc., are 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 plaint in accordance with any fixed valuation, until that plaint 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 plaint in accordance with a merely tentative valuation, which they would be entitled to amend subsequently, paying additional duty after enquiry into the defendant objection. There is, however, no provision for 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 accounts, 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 VII, 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 to the cases I am dealing with at present and to cases involving surcharges, 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.
8. 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 re-admission and disposal on merits.
9. It has been pointed out that, quite apart from the question of valuation for purposes of jurisdiction, the valuation for purposes of Court-fee with reference to items of joint family property other than mundi 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.
10. The civil revision petition against the decision of the District Munsif is also allowed but no separate order is necessary.