Ramachandra Iyer, J.
1. C.R.P. No. 1167 of 1958 is a petition to revise the order of the City Civil Judge in O.S. No. 2917 of 1955 holding that the plaint has not been properly valued and that the plaintiff should pay Court-fee on the market value of five items of properties, namely, items, 5, 10, 11, 17 and 18 of Schedule B to the plaint. The suit was one for partition between certain Muhammadan co-sharers of the estate of one Mohamed Ahmathulla Badsha Sahib, who died on 4th January, 1955. Defendants 1 to 8 are the co-sharers. Defendants 9 to 11 are the children of the 4th defendant, one of the co-sharers. They are strangers so far as the partition of the property is concerned. The plaintiff claims 21/192 share. There is no dispute about the shares of the various parties. The immoveable properties consisted of 9 items of properties. It is admitted that they all belonged to the estate of the deceased. C Schedule comprised outstanding due to the estate and there is no dispute in regard to that. B Schedule comprises moveable properties. The items to which I have made reference are items standing in the names of the various defendants in the books of the deceased.
2. The case for the plaintiff, who is the petitioner here, is that these items of properties though put in the names of the various defendants belonged to the deceased and as such are divisible between the sharers in proportion to the shares. There is no indication in the plaint that there is any adverse claim by the strangers in regard to the said items except in regard to a part of item No. 11. That comprises a sum of Rs. 6,000 standing in the names of defendants 9 to 11 in the books of the deceased. The plaintiff valued the plaint under Section 37(2) of the Court-Fees Act, 1955, and paid Court-fee as if he was entitled to a partition in respect of the properties in the joint possession of all the co-sharers.
3. Objection was taken on the side of defendants to the correctness of the Court-fee paid. The learned City Civil Judge held that the valuation in regard to the other items of properties was correctly made and that the valuation adopted in respect of items 5, 10 17 and 18 of B Schedule was not correct and the plaintiff should pay the Court fee on the amount claimed. This order cannot be sustained. The plaintiff does not allege in the plaint that any stranger to the family is interested in the money except in regard to a sum of Rs. 6,000, which stands in the name of defendants 9 to 11. In regard to the other items of properties she states that the moneys belonged to the deceased but were put in the books of the family in the names of the various defendants, who were holding it only on behalf of the family having no interest therein apart from being a co-sharer to the estate of the deceased. Under those circumstances I cannot understand how the plaintiff could be asked to pay the Court-fee in respect of this sum of money on the footing that it is a claim against the persons holding adversely to the co-sharers. According to the allegation in the plaint, moneys were standing in the names of persons, who were co-sharers, and it should be deemed to be that the plaintiff is in joint possession of those sums along with the respective defendants. Therefore, the valuation under Section 37(2) would be correct in regard to them.
4. Mr. G. Ramanujam, who appeared for the Additional Government Pleader, has sought to support the judgment of the lower Court by reference to the decision of the Andhra High Court reported in Srirama v. Lakshmidevamma : AIR1955AP200 . In that case a suit was filed for reopening of a partition on the ground that the previous partition was effectuated by fraud. The plaint stated the widow of the other deceased co-sharer was in possession of the property setting up an adverse claim to the same. The widow in that case was not a co-sharer with the plaintiff, as the deceased co-sharer had executed a will in respect of his share of the property in favour of his adopted son, the 2nd defendant in the case. Therefore, when the plaint stated that the widow of the deceased was in possession of the property adversely, it meant that the widow was not holding the property as a co-owner along with the others but in her own independent right adversely to all the co-owners. The learned Chief Justice of the Andhra High Court held that for ascertaining the Court-fee payable on the plaint the terminology used in the plaint could not be decisive, but the substance of the plaint had to be looked into and that a suit for partition and separate possession of the plaintiff's share, whether he was in actual or constructive possession of family properties, was incapable of valuation and therefore chargeable only with a fixed fee. But in a case where the plaintiff was not in such joint possession he had to value the suit as one for possession. The learned Chief Justice also observed at page 202 as follows:
It is a common phenomena among joint family that the properties are purchased sometime for various reasons, in the names of female members of the family, but the fact does not make the properties any the less joint family properties. If a member of the family files a suit for partition on the basis that the family is in possession of those properties, the plaintiff can pay Court-fee under Section 17-B of Schedule II of the Court-fees Act.
But in that case the widow was admittedly in possession of the properties claiming them to be her own properties to the exclusion of the plaintiff. It was held that the plaint had got to be valued as one for recovery of possession. In the present case the claims in respect of moneys in the names of defendants are against the members of the family on the allegation that they were put in their names benami nominally and they were for the benefit of the family. Under those circumstances on a fair reading of the plaint it follows that the plaintiff did not assert that the various members in whose names the moneys were kept, were claiming adversely to the family. But on the other hand the averment was that the moneys of the family were merely put in their names and that all the members of the family should be deemed to be in possession of the same. Under those circumstances it would be sufficient for the plaintiff to pay the fixed Court-fee under Section 37(2) of the Court-fees Act. Mr. N.C. Raghavachari, learned advocate for the 6th defendant, contends that while that may be so in regard to the other items of moneys, as regards the sum of Rs. 6,000 out of Rs. 7,750 claimed as item No. 11 in Schedule B that principle would not apply. I his sum of Rs. 6,000 is found m the books of the deceased in the names of defendants 9 to 11. The relevant averment in the plaint is contained in paragraph 4. They are in these words:
The plaintiff also understands that a sum of about Rs. 600 and Rs. 2,000, Rs. 2,000, Rs. 2,000 were also entered in the account books of the lungi business in the names of the defendants 7 and 9 to 11 respectively. Defendants 9 to 11 are grand-daughters of the said Mohammed Azmathulla Badsha Sahib through his daughter the 4th defendant. The plaintiff states that whatever sums stand to the credit of defendants 7 and 9 to 11 in the said books of account either as capital or loan really belonged only to the plaintiff's father and hence they form part of the divisible assets among his heirs. Not one of the said defendants 6, 7 and 9 to 11 had the means to contribute the sums standing to their respective credit in the said books of account.
5. I have already pointed out that defendants 1 to 8 were the co-sharers along with the plaintiff in regard to the estate of the deceased. Defendants 9 to 11 were the daughters of the 4th defendant, and though they are not co-sharers they would be members of the family. In such a case the observations of the learned Chief Justice of the Andhra High Court, which I have extracted above, would apply, as the plaint merely says that although these moneys were kept in the names of the various members of the family, they still formed part of the assets of the family. There is no allegation in the plaint to warrant an inference that defendants 9 to 11 were claiming adversely to the family. Under those circumstances I am of opinion that the valuation of the claim adopted by the plaintiff is correct and that the order of the lower Court directing her to pay Court-fee with reference to her share of the various items could not be sustained. It is set aside. The learned City Civil Judge has directed the plaintiff to pay Court-fee on the market value of items 1 to 36 in E Schedule after stating their value. I cannot understand how the learned City Civil Judge persuaded himself to direct the plaintiff to pay Court-fee in regard to 36 items set out in E Schedule to the plaint. The plaintiff seeks no relief in regard to E Schedule and it is stated by all the parties that no Court-fee need be paid for E Schedule, as no relief was prayed for in respect of that schedule.
6. It follows that the order directing defendants 4 and 7 to 11 to pay Court-fee on the valuation adopted by the learned Judge cannot be sustained. It is stated that they have already paid Court-fees in accordance with Section 37(3) of the Court-fees Act. The Civil Revision Petitions are allowed. No order as to costs.