1. This petition raises some questions as to the court, fee payable on a plaint filed by the petitioner, in the Subordinate Judge's Court at Calicut, for partition of certain Tavazhi properties on the footing that the plaintiff is a junior member thereof and that the suit properties are tavazhi properties. The plaint makes reference to certain mortgages and debts and alleges that these mortgages and debts are not binding on the tavazhi. The relief portion is very inartistically drawn and rightly or wrongly she lower Court has construed it as praying for certain declarations. On objection taken to the sufficiency of the court-fee paid, the lower Court has directed the plaintiff to pay Court-fee Under Section 7, Clause V, Court-fees Act, In respect of the plaintiff's share in items 1570 to 1595 of the plaint schedule and to pay court-fee under Article 17-A(i), Schedule 2, in respect of the debts referred to in paras. 8 to 10 of the plaint. The petitioner has accepted the order of the lower Court in so far as the direction relating to items 1570 to 1594 is concerned.
2. As regards item 1595, he contends that as the karnavan is still in possession of that item the plaintiff should not be called upon to pay court-fee so far as the plaint relates to that item. This contention is opposed to the decision of a Division Bench in Kandunni Nair v. Raman Nair (1930) 17 A.I.R. Mad 597. Mr. Warrier, the learned Counsel for she petitioner, seeks to distinguish that case on the ground that there the Tavazhi was never in possession of the disputed items of property which all along remained in defendant 1's possession; whereas here, the plaint alleges that till 1933, the Tavazhi has been in possession of item 1595 through its Karnavan and it is only after that date that defendant 1 began to mortgage that item stating that it is his separate property. I do not think that this distinction on the facts makes any difference in the principle applicable. For the purpose of determining the court-fee payable, the point for consideration is, whether on the date of suit it can be said that defendant 1's possession was, possession on behalf of the Tavazhi. There can be no doubt that on the allegations in the plaint in this case, defendant 1 could not, after 1933, be held to be in possession of this item on behalf of the Tavazhi. The lower Court's direction that court-fee Under Section 7, Clause V should be paid in respect of the plaintiff's share of item 1595 will therefore stand.
3. Objection is next taken to the lower Court's direction in respect of the debts. In para. 8 of the plaint, reference is made to five mortgiges created by defendant 1 on item 1595, on the footing that that item was his separate property. The decision of a Division Bench in Balwant Singh v. Rev. Rockwell, Clancy (1912) 34 All 296 supports the view that if the plaintiff in a partition suit attacks a mortgage of joint family property made by the manager and asks for a declaration that the mortgage is not binding on his share he is bound to pay court-fee in respect of such declaration under Article 17-A(i). With respect I feel bound to state that I have some doubts as to the correctness of that judgment because it does not consider the question whether such a suit can be regarded as a suit for declaration where no consequential relief is prayed for. Article 17-A(i) governs only cases where no consequential relief is prayed for. If as incidental to his remedy by way of partition, a plaintiff contends that a mortgage said to have been effected on the joint, family property is not for family purposes1 I am not as at present advised prepared to say that the suit is one in which no consequential relief is prayed. I may refer by way of analogy to another familiar class of cases, i.e., where a reversioner sues for possession of property mortgaged or alienated by a widow. Such suits often times involve a declaration that a mortgage or sale made by the widow is not binding on the estate. The Court in such cases is bound to investigate the binding character of the alienation before decreeing possession. If in this class of suits, the prayer for a declaration does not require separate court-fee, I do not see how partition suits stand on, a different footing.
4. The decision in Secy, of State v. LakhannA (1933) 20 A.I.R. Mad 430 is however that of a Division Bench and it is not open to me to differ from it. If necessary, I would have placed the matter before the Chief Justice for further directions to post the matter before a Pull Bench, but Mr. Warrier has relieved me of this necessity by offering to make an amendment of the plaint in respect of this part of this case. Belying upon the decision of the Privy Council in Balwant Singh v. Rev. Rockwell, Clancy (1912) 34 All 296 he is prepared to limit the prayer in the plaint to a decision of the question whether item 1595 is Tavazhi property or the personal property of defendant 1. He contends that if the Court finds it to be Tavazhi property, the mortgages effected thereon by defendant 1 on the footing that the property was his separate property will not avail against the Tavazhi and he therefore wants no declaration as to the binding character of the deeds of mortgage. It is not for me at this stage to express any opinion as to whether this contention is supported by Balwant Singh v. Rev. Rockwell, Clancy (1912) 34 All 296 or not. That is a matter which the plaintiff must be left to decide for himself. But I accept Mr. Warrior's application that the allegations in the plaint relating to this item may be allowed to be amended in the manner suggested by him in the draft which he has placed before me, omitting the prayer for declaration as to the validity of the mortgages and limiting his contention to the Tavazhi character of item 1595. In this view, the plaintiff need not pay any court-fee in respect of the mortgage amounts and it will be sufficient if ho pays the court-fee already referred to Under Section 7, Clause V.
5. As regards the debts referred to in paras. 9 and 10 of the plaint, the view of the lower Court is no doubt supported by the decision of Venkatasubba Rao J. in Perraju v. Subba Rao (1935) 22 A.I.R. Mad 419 which has been followed recently by Venkataramana Rao J. in Narayanaswami v. Swaminatha Iyer : AIR1937Mad876 . Here again, with all respect, I must express my doubts as to the correctness of the view taken in Perraju v. Subba Rao (1935) 22 A.I.R. Mad 419. So far as I can gather from the judgment in Venkataramana Rao J. in Narayanaswami v. Swaminatha Iyer : AIR1937Mad876 the learned Counsel for the petitioner in that case does not seem to have question ad the decision in Perraju v. Subba Rao (1935) 22 A.I.R. Mad 419. In the earlier case Venkatasubba Rao J. admits that in a partition suit, it is proper to make provision for the discharge of family debts before effecting partition. This was so laid down by this Court in Venku Reddi v. Venku Reddi (1927) 14 A.I.R. Mad 471 and the propriety of that view was recognized by the Privy Council in Sat Narain v. Sri Kishen Das . If that is the correct position, I find it difficult to say that a prayer in a partition suit; relating to the binding character of particular debts can be regarded as a prayer in a suit where consequential relief is not prayed for. Suppose for instance the plaintiff in a partition suit merely says that he understands that the managing member has borrowed a number of debts and leaves it to the Court to decide which of them are binding on the joint family and make provision before partition for the discharge of the debts that may be found to be binding, I presume that no question of separate court-fee will arise in that case, as regards those debts.
6. I am reluctant to think that the liability of the plaintiff to pay court-fee in a matter of this kind should be made to depend upon the way in which the plaint is drafted. Once it is recognized that it is the duty of the Court to make provision for discharge of binding debts before partition is decreed, I am inclined to think that the suit should be dealt with as one in which consequential relief is prayed for. Here again I should have hesitated to act on this opinion of mine, but for the fact that Mr. Warrier has offered to make certain amendments in the plaint which avoid the necessity of deciding this question finally. He states that his client is anxious to press on with a Receivership petition pending in the lower Court and he is prepared to adopt such a course as will avoid further delay in the decision of this court-fee question. He has accordingly agreed1 to omit in para. 9 of the plaint and to omit certain portions of para. 12 and also amend the prayer portions as to limit his prayer to the avoidance of the award mentioned in para. 10 of the plaint. The lower Court will see that proper amendments are made in the plaint to carry out the above offer. I direct that the draft amendment presented before me may be attached to the records for the information of the lower Court. On these amendments being made, it will be sufficient if the plaintiff is called upon to pay court-fee Under Article 17-A(i) of Schedule 2 in respect of the award amount. The order of the lower Court will be varied accordingly.
7. Before taking leave of this case, I must refer to a request made to me by Mr. Warier on behalf of the plaintiff that I should direct the lower Court to deal with the Receiver petition without further delay. I do not feel that I can straightway give any such direction but it seems to me right to ask the lower Court not to allow that petition indefinitely to lie over on account of any disputes relating to the payment of court-fee. Mr. Warier apprehends that objection may be raised in the lower Court about the valuation of item 1595 and that may involve delay. I must leave it to the discretion of the lower Court to see that the matter is not allowed to be dragged on frivolous grounds. I have no doubt that if the plaintiff's counsel before the lower Court will give an undertaking to pay such Court-fee as may be finally assessed, all adjournments on the score of non-payment of court-fee can be overcome.
8. The points raised before me are not by any means free from doubt and difficulty. In the circumstances, I therefore make no order as to the costs of this Revision Petition. On the plaint being amended on the lines above indicated, the issues will be re-cast so as to bring them into conformity with the amended plaint.