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Sm. Siba Rani Devi and ors. Vs. Ramendra Nath Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 926 of 1960
Judge
Reported inAIR1963Cal46,66CWN828
ActsCourt-fees Act, 1870 - Section 7 - Schedule - Article 17 and 17(VA); ;Bengal Court-fees (Amendment) Act, 1935
AppellantSm. Siba Rani Devi and ors.
RespondentRamendra Nath Mukherjee and ors.
Appellant AdvocateJitendra Kumar Sen Gupta and ;Asoke Kumar Sen Gupta, Advs.
Respondent AdvocateP.N. Mitter and ;Dwijendra Nath Lahiri, Advs.
Cases ReferredNilmoni Haldar v. Upendra Nath Haldar
Excerpt:
- bachawat, j.1. this reference arises out of a suit instituted by amar nath since deceased against 9 defendants claiming declaration of the plaintiff's right to an one-third share in the suit properties and partition and separate possession of his share on the ground (a) that the plaintiff and defendants nos. 1 and 2 lokenath and chandra nath were co-owners of the properties, (b) that their brother tarak nath obtained schedule ka properties under a deed of settlement executed by raja pearymohon, (c) that on a true construction of the deed of settlement in the event of tarak dying sonless, the plaintiff and the defendants nos. 1 and 2 would become entitled to the schedule ka properties in equal shares subject to the rights given to tarak's widow, (d) that the schedule kha properties were in.....
Judgment:

Bachawat, J.

1. This reference arises out of a suit instituted by Amar Nath since deceased against 9 defendants claiming declaration of the plaintiff's right to an one-third share in the suit properties and partition and separate possession of his share on the ground (a) that the plaintiff and defendants Nos. 1 and 2 Lokenath and Chandra Nath were co-owners of the properties, (b) that their brother Tarak Nath obtained schedule ka properties under a deed of settlement executed by Raja Pearymohon, (c) that on a true construction of the deed of settlement in the event of Tarak dying sonless, the plaintiff and the defendants Nos. 1 and 2 would become entitled to the schedule ka properties in equal shares subject to the rights given to Tarak's widow, (d) that the schedule kha properties were in reality transformations of some of the other properties obtained by Tarak under the deed of settlement, (e) that Tarak Nath died sonless leaving behind him his widow defendant No. 3 Siba Rani and his daughters, defendants Nos. 4, 5 and 6, Amiyabala, Rekha and Anima, (f) that on the death of Tarak Nath the plaintiff and the defendants Nos. 1 and 2 became entitled to the schedule ka and kha properties in equal shares, (g) that defendant No. 7, Golamrnustafa was an izardar of Tarak Nath and defendant No. 8, Harish Chandra had a settlement from Tarak and defendant No. 9 Amulya Charan was a care-taker of the suit properties, (h) that Tarak Nath had no right to dispose of the suit properties by his will, if any, and (i) that a deed of release executed by the plaintiff and the defendant No. 2 in favour of Tarak Nath was void and inoperative. The plaint was later amended by adding as party defendant No. 10, Roy Sukhendra administrator pendente lite to the estate of Tarak Nath. On the death of Amar Nath his heirs were substituted as plaintiffs. The trial court held that the suit was chargeable with the fixed court-fee of Rs. 15/-. The defendants Nos. 3, 4, 5, 6 and 10 moved this Court in revision for setting aside this order. A question of law arising out of the revision case has been referred to this Bench under Chapter II Rule 1 Proviso (ii) of the Appellate Side Rules.

2. Mr. Mitter contended that the defendant has no right to move this Court in revision on a matter concerning court-fees. We cannot decide this point as the whole case has not been referred to us. Mr. Mitter will be at liberty to urge this point before the Division Bench.

3. The question referred to this Bench is as follows :

'Whether a suit, which otherwise satisfies the requirement of Clause (VA) of Schedule II, Article 17 of the Court Fees Act, would go out of the purview of that Clause, if the plaintiff joins as a defendant a stranger, that is, a person who is not a co-sharer or co-owner, for enforcing, in his presence, his (the plaintiff's) right to the share, claimed by him in the suit properties, and if the determination of the question that the suit properties are joint properties, as claimed by the plaintiff, and of the plaintiff's title to the same as a co-sharer, as aforesaid, depends upon the construction or avoidance -- though not necessarily, cancellation, of some document or transaction in respect of the suit properties or any of them, in which the said stranger is or claims to be interested.

If so, how is such a suit to be valued and stamped?'

4. For a proper appreciation of this question it is necessary to refer to Schedule II Article 17 (VA) and Section 7(VIA) of the Court Fees Act as amended by Bengal Act VTT of 1935. Schedule II Article 17 (VA) provides for payment of a fixed court-fee of Rs. 15/- on a plaint in a suit

'for partition and separate possession of a share of joint family property or joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property if the plaintiff is in possession of the property of which he claims to be a coparcener or co-owner'.

Section 7(VIA) provides for payment of court-fee in a suit

'for partition and separation of a share of joint family property or a joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property if the plaintiff has been excluded from possession of the property of which ho claims to be coparcener or co-owner'

according to the market value of the share in respect of which the suit is instituted.

5. The question referred to us assumes that the suit under consideration is a suit (1) for partition and separate possession of a share of joint property and/or (2) to enforce a right to a share in a property on the ground that it is joint property, (3) on the footing that the plaintiff is in possession of the property of which he claims to-be the co-owner. A suit of this type involves an implicit prayer for declaration of the plaintiff's right to a share in the property. Such a suit continues to be wholly within the purview of Schedule II Article 17 (VA) though the reliefs are sought in the presence of a defendant who though not a co-owner is interested in denying the plaintiff's right to a share in the property and in whose absence the right cannot be effectively enforced, e.g., a stranger in whose name the property stands, see Jugal Chandra Mondal v. Manindra Nath Mondal : AIR1958Cal537 ; Nilmoni Haldar v. Upendra Nath Haldar : AIR1957Cal651 . In its essential character the suit is still a suit to enforce a right to a share in a property on the ground that it is joint property.

6. Schedule II Article 17 (VA) on its true interpretation allows payment of a fixed court-fee of Rs. 15/- on a suit for a declaration of the right to a share in the property in the presence of a stranger and for partition and separate possession of the share. In this view of the matter no separate court-fee is chargeable for the declaratory relief under Schedule II Article 17 (iii) read with Section 17. Nor is a separate fee chargeable because the determination of the right to a share involves the construction of some document touching the property.

7. Mr. Sen Gupta contended that a suit for a declaration of a right to a share in the property in the presence of a stranger involves a prayer for confirmation of possession and the court-fee on such a suit is therefore chargeable on an ad valorem basis. His contention is supported by the decision in Gagan Chandra v. Surendra Nath : AIR1951Cal410 : Subodh Kumar Banerjee v. Soshi Kumar Banerjee, 1958 Cal LJ 262. With respect I am unable to agree with these decisions. The plaintiff who seeks a declaration of his right to a share is obliged to seek for further relief if he is able to do so, but a prayer for partition and1 separate possession of the share may well be regarded as a sufficient prayer for consequential relief. A further prayer for confirmation of possession is not necessary for the success of the suit of a plaintiff who is in possession of the suit property.

8. Mr. Sen Gupta next contended that the suit for a declaration of the right to a share in the property and the consequential relief of partition and separate possession of the share is chargeable with a court-fee under Section 7(iv)(c). This contention is unsound. Section 7(iv)(c) is a general provision for a suit for a declaratory decree and consequential relief, which is not provided for elsewhere. Schedule II Article 17 (VA) having specially provided for a suit for a decree declaring the right to a share and for the consequential relief of partition and separate possession of the share, the operation of Section 7(iv)(c) is excluded. I may observe that this point was not raised and was not considered in the case of Tarapada Ghose v. Sailendra Nath : AIR1953Cal583 .

9. To come within Schedule II Article 17 (VA) the suit must be on the ground that the plaintiff is a co-owner of the property and has a right to a share therein. The suit satisfies this test though it involves an adjudication that some document or transaction touching the property is void ab initio and/or is not binding on the plaintiff. In such a case the plaintiff has a present right to a share in the property and to establish his right the plaintiff is not obliged to ask for cancellation or setting aside of the document or transaction. But in a case where the plaintiff has no present right to a share in the property because of some document or transaction which is binding on him until it is set aside; the plaintiff is obliged to pray for the cancellation or setting aside of the document or transaction and to pay the proper court-fee on such prayer. Such a suit involving a prayer for cancellation or setting aside of a document or transaction is not chargeable with a fixed court-fee of Rs. 15/-. The plaintiff will not be allowed to avoid payment of the proper court-fee by omitting to ask for a relief when the success of his suit depends on the granting of the relief. The case of Amar Nath Basu v. Bejoy Nath Basu, Civil Revision No. 234 of 1950, D/- 29-6-1950 (Cal) may have been correctly decided if the suit there involved the setting aside and/or cancellation of a document but the broad observations in the judgment in that case cannot be supported.

10. In this reference we cannot decide whether the suit out of which this reference arises involves the setting aside or cancellation of some document or transaction and whether the suit is wholly within the purview of Schedule II Article 17 (VA). We can only decide the question of law referred to us. The Division Bench will dispose of the civil revision case in the light of the answer given in this reference.

11. The question referred to us should be answered as follows :

A suit, which otherwise satisfies the requirements of Clause (VA) of Schedule II, Article 17 of the Court Fees Act, would not go out of the purview of that clause, merely because the plaintiff joins as a defendant a stranger, i.e. a person who is not a co-sharer or co-owner, for enforcing in his presence the right to the share in the suit properties claimed by the plaintiff, even if the determination of the question whether the suit properties are joint properties and whether the plaintiff has a right to 'a share therein involves the construction of some document in respect of the suit properties or any of them in which the stranger is or claims to be interested and/or an adjudication that some document or transaction in respect of such properties or any of them is void, and/or not binding on the plaintiff; provided that the determination of the above question does not involve the cancellation or setting aside of such document or transaction.

12. We direct that each party do pay and bear his own costs of this reference.

Sinha, J.

13. In this case, a suit was filed in the Court of the Second Subordinate Judge, Chinsurah, District Hooghly, by one Amarnath Mukherjee. Amar Nath has since died, and his two sons, Romendra and Samindra, together with his widow Sm. Bejoli Mukherjee, have been substituted in his place and stead as plaintiffs. The facts, as emerge from the plaint filed in the said suit are as follows: Raja Peary Mohan Mukherjee was a well-known Zamindar of Uttarpara. He bad a son, Rajendra Nath, who predeceased him, leaving four sons, Tarak Nath, Lokenath, Amarnath and Chandranath. Taraknath had no male children, but had three daughters, Amiya Bala, Rekha and Anima. Sm Sibarani is the widow of Taraknath. It is alleged in the plaint that the said Raja Peary Mohan Mukherjee executed a Deed of Settlement by which he allotted his properties to his four grandsons in separate allotments, but with the condition that if any of his said grandsons died without leaving him surviving any male children, then such property would devolve in equal shares on the surviving brothers, and in such a case the widow of the deceased grandson would get a maintenance of Rs. 50/- per month for life and a right of residence in the residential house of her deceased husband. It is then stated that during his life time, Tarak Nath sold part of such properties, mentioned in Schedule Ka, and with the consideration money, as also by taking loans, he acquired certain other properties as mentioned in schedule Ka. Mention is then made of certain land acquisition proceedings, whereby a house called 'Rajendra Bhavan' was acquired and compensation money was utilised by Tarak Nath for the purpose of purchasing other properties. With regard to the said acquisition proceedings, it is said that, at the insistence of Tarak Nath, his co-sharers, excluding Lokenath but including Amarnath, were persuaded to withdraw all objections in respect of the compensation money, and had executed a 'Nadabi' document declaring that they had no claim to the properties which had been acquired. It is stated that this 'Nadabi' document was void so far as the plaintiff was concerned for three reasons: The first reason was that Tarak Nath had a limited interest in the property subject to a defeasance clause, and as the plaintiff Amarnath did not have any right in praesenti he could not execute a deed of release. Secondly, Lokenath did not join in the deed of release and thirdly, Tarak Nath got the document executed by coercion and undue influence and neither Amarnath, nor Chandra Nath knew the contents thereof. The plaintiff claimed ,that all these properties were joint properties, having devolved on the three brothers of Tarak Nath, inasmuch as he died without leaving any male children, him surviving. Amar Nath Mukherjee filed this suit, and the defendants are as follows: Lokenath and Chandranath are the defendants Nos. 1 and 2. Besides them, there are eight pro forma defendants. The defendant No. 3 is Sibarani Devi, the widow of Tarak Nath. The defendants Nos. 4, 5 and 6 are the three daughters of Tarak Nath. The defendants Nos. 7, 8 and 9 are Golam Mustafa, Haris Chandra Patra and Amulya Charan Mallik, who are managing some of the properties. The defendant No. 10 is Rai Sukhendra Nath Chowdhury, Administrator-ad-litem of the Estate left by Tarak Nath. It is alleged that after the death of Tarak Nath, the plaintiff, together with the defendants Lokenath and Chandranath are in possession of the said joint properties, although the defendant Lokenath as the Karta of the joint family was managing the same, receiving the usufruct from the managers and/or care-takers of the same, but not properly making over the same to persons rightfully entitled thereto. Finally, it is stated that the plaintiff had asked Lokenath to partition the properties and to make over separate possession of the plaintiffs share, but he had treated such demands with indifference. The plaintiff, therefore, has asked for a decree for a declaration that the plaintiff has a one-third share in the properties mentioned in Schedule 'Ga' of the plaint, for a partition of the said properties by metes and bounds, for costs, and for the appointment of a Receiver. The plaintiff has filed this plaint with a Court-fee of Rs. 15/- only, under Clause (vA) of Article 17, Schedule II of the Court-fees Act. Thereupon, the defendants, Sibarani, Amiya, Rekha, Anima and the Administrator-ad-litem, preferred objections before the learned Subordinate Judge, stating that a fixed Court-fee of Rs. 15/- was inappropriate, and that the plaintiff should be directed to pay ad valorem court-fees on the value of the properties claimed by him. The learned Subordinate Judge took up the question as a preliminary issue in this suit and has held by an order dated 23rd. December, 1959 that the plaintiff was entitled to pay a fixed court-fee of Rs. 15/- under the provisions of Clause (vA) of Article 17 of Schedule 11 of the Court-fees Act. Thereupon, an application was made before this Court in its Civil Revisional Jurisdiction, asking for a rule to be issued upon the opposite parties to show cause why the order of the learned Subordinate Judge should not be set aside and for incidental reliefs. The rule was issued on the 21st March, 1960 and came up for hearing before a Division Bench presided over by Mookerjee. J. On the 17th June, 1960 the said Bench referred the matter to the learned Chief Justice under clause fill of Rule 1, Chapter II of the Appellate Side Rules for determination of the following question of law:

'Whether a suit, which otherwise satisfies the requirement of Clause (vA) of Schedule II, Article 17 of the Court-fees Act, would go out of the purview of that Clause, if the plaintiff joins as a defendant a stranger, that is a person who is not a co-sharer or co-owner, for enforcing, in his presence, his (the plaintiffs') right to the share, claimed by him in the suit properties, and if the determination of the question that the suit properties are Joint properties, as claimed by the plaintiff, and of the plaintiffs title to the same as a co-sharer, as aforesaid, depends upon the construction or avoidance, though, not necessarily, cancellation, of some document or transaction in respect of the suit properties or any of them, in which the said stranger is or claims to be interested. If so bow is such a suit to be valued and stamped.'

14. It is this reference which has now come before us for determination. The first thing to be observed is that the question that has been referred to us is a limited one, and does not dispose of the whole application. In order to appreciate the point raised, it would be necessary to consider the relevant provisions of the Court-fees Act 1870 (hereinafter referred to as the 'Said Act') As will appear from the question of law formulated above. The relevant provision is Clause (vA) of Article 17 of Schedule II of the said Act. It runs as follows:

'vA. for partition and separate posses Fifteen sion of a share of joint family property or of rupees, joint property or to enforce a right to a share in any property on the ground that it is joint family property, or joint property it the plaintiff is in possession of the property of which he claims to be a coparcener or co-owner.

15. This clause was introduced by a Bengal amendment, being Bengal Act VII of 1935. Prior to 1934, suits for partition were treated as coming under Clause (vi) of Article 17, Schedule II, which is a residuary clause applying to 'every other' suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by the Act. In 1933, a bill was introduced, being the Court-fees (Bengal Amendment) Bill 1933. I find from the statement of objects and reasons' that it was felt that the existing practice was not right, because such suits were often in the nature of title suits and were more troublesome and occupied more time of the Court and yet they could be filed under Clause (vi), of Article 17, Schedule II upon payment of a fixed Court-fee of Rs. 15/- only. It was proposed therefore to amend Section 7 of the Act, by introducing Clause (viA) after Clause (vi). The proposed clause dealt, both with suits where the plaintiff was in possession and where he was not in possession. The proposal was to levy an ad valorem court-fee at half the usual rate, in suits where the plaintiff was in possession, but at full ad valorem rates if he was out of possession. The matter then went to a Select Committee and certain alterations were made. The case where the plaintiff was in possession, was taken out of the scope of Section 7(viA) and a paragraph was introduced in Article 17 of Schedule II, being Clause (v-A) which has been set out above. So far as Clause (viA) of Section 7 is concerned, it became limited to cases where there was ouster from possession. The recommendations were given effect to by an amending Act. being Bengal Act VII of 1935. Clause (v-A) of Article 17, Schedule IT has been set out above. Para (vi-A) of Section 7 runs as follows:

'In suit for partition and separate possession of a share of joint family property or joint property or to enforce a right to a share in any property on the ground that it is joint family property or joint property if the plaintiff has been excluded from possession of the property of which he claims to be a coparcener ox co-owner according to the market value of the share la respect of which the suit is instituted.'

16. The question referred to us stipulates that the suit in question, 'otherwise satisfies the requirements of Clause (v-A) of Schedule II, Article 17.' We are, therefore, not called upon to decide the question as to whether the plaintiff is in possession or not, or whether there has been an ouster. In any event, in the plaint there is an allegation that the plaintiff is in possession. At this stage, it is the allegations in the plaint that have to be considered, and it is not possible to assess the truth or otherwise of such a statement. The question formulated has two hypothetical conditions mentioned therein, which are as follows:

(1) If the plaintiff joins as a defendant, a stranger, that is, a person who is neither a co-sharer nor a co-owner, for enforcing in his presence the plaintiffs right to the share in the said properties.

(2) If the determination of the question that the suit properties are joint properties, as claimed by the plaintiff and of the plaintiff's title to the same as a co-sharer, as aforesaid, depends upon the construction or avoidance, though not necessarily cancellation, of some document or transaction in respect of the suit properties or any of them, in which the said stranger is or claims to be interested.

17. The question asked is as to whether a suit, which otherwise satisfies the requirements of para (v-A) of Article 17, Schedule II would go out of its purview, if either of these two conditions exists. We are, therefore, restricted to a case where the plaintiff claims to be in possession of joint property or joint family property and he files a suit, not only making the co-sharers as parties, but also strangers, and the plaintiff's title depends upon the construction or avoidance of some document or transaction in respect of the suit property, but does not necessarily involve the cancellation thereof. The controversy before us was of the following nature: According to the petitioners such a suit would not come within the ambit of Clause (v-A) of Article 17. Schedule II of the said Act, but would come under Clause (vi-A) of Section 7. In other words, instead of a fixed court-fee of Rs. 15/- it is urged that what should be paid is ad valorem court-fees. Coming back to the frame of the suit as disclosed in the plaint, we find that the cosharers are Amar Nath (now his heirs) Lokenath and Chandranath. Apart from them, we have as defendants, the widow and daughters of Tarak Nath, the administrator-ad-litem of the estate of Tarak Nath, and three persons who are said to be managing certain properties which are claimed to be joint properties. Therefore, we find that this is a suit for partition of joint properties wherein all the co-sharers are impleaded and, that strangers have been made parties. The next question is as to whether the plaintiff's title in this suit depends upon the construction or avoidance of some document or transaction. From the statement in the plaint it appears that Tarak Nath Mukherjee dealt with certain properties on the footing that they belonged to him exclusively. According to the plaintiffs, Tarak Nath got certain properties under a deed of settlement made by Raja Peary Mohan Mukherjee, in which he had a limited interest, because they were to devolve on his brothers in case he died without leaving a son. It is claimed that such a contingency has occurred. Then, there are certain properties which are said to have been acquired by the sale proceeds of some of these properties and by incurring loans. It is then said that Tarak Nath died leaving a will and the widow and daughters of Tarak Nath are claiming all the said properties under the Will, although according to the plaintiff, all such properties should devolve on the brothers of Tarak Nath or their heirs. Next, comes the question of the acquisition proceedings. It appears that a certain property was acquired, and the co-sharers of Tarak Nath, other than Lokenath, executed a deed of release in respect of the said properties, and did not claim the compensation money received therefrom. Out of this compensation money, certain other properties were acquired, and it is the case of the plaintiff that those properties also are joint properties, in which the brothers of Tarak Nath, or their heirs are interested and not the widow or the daughters of Tarak Nath. So far as the defendants Nos. 7, 8 and 9 are concerned they do not claim any share in the estate but are merely managers or care-takers. The fight therefore is between the plaintiff on the one hand and on the other hand we have the widow or daughters of Tarak Nath and the Administrator-ad-litem of his estate. We are not concerned with the question as to whether the defendants, other than the alleged co-sharers should have been made parties to the suit. The question asked, postulates that they have been deliberately made parties to the suit, as the plaintiff wishes to enforce his right in their presence. Next, it postulates that, in order to establish that the suit properties are joint properties, it is necessary to construe or avoid some documents or transactions in respect of them. We are not therefore concerned with the question, as to whether, as a matter of Law, any document of transaction has got to be construed or avoided. That must be assumed. It must also be assumed that in order to get complete relief, it was not necessary for the plaintiffs to ask for the cancellation of any document or transaction. I must mention here that, but for these stipulations, questions of difficulty might have arisen. For example, we might have had to answer the question as to whether it was necessary in this suit to ask for the cancellation of the Instrument under which Amarnath and Chandranath gave up their rights to the property acquired by Land acquisition proceedings and which is said to have been obtained by Taraknath by exercising pressure and without giving them an opportunity of knowing the contents.

18. In order to decide the question propounded before us, it will be necessary to consider certain authorities. The first is an unreported judgment of a Division Bench of this Court, presided over by Sen J., C. R. No. 234 of 1950 (Cal), judgment dated 29-6-50. The facts were as follows: Certain properties belonged to the mother of the plaintiff, being her absolute stridhan properties. The plaintiff filed a suit, stating that his mother had created a trust, but the trust deed was invalid for various reasons. He also advanced the alternative argument that all the beneficiaries had agreed that the trust would cease to operate and the trustees has agreed to give effect to the same. On these allegations, he claimed that the properties descend ed upon him and his co-sharers, and he asked for a partition, making the trustees and certain beneficiaries who were not co-sharers as parties, paying a court-fee of Rs. 15/-. The contention on behalf of the trustees and certain beneficiaries was that this was not a suit for partition simpliciter, but was really a suit for the declaration of the plaintiff's title to the properties, brought in the garb of a partition suit. Reliance was placed on a Madras decision Ramaswami Ayyangar v. C. S. Rangachariar, ILR (1940) Mad 259: (AIR 1940 Mad 113). It was held that the suit as framed could not be allowed to proceed on the fixed court-fee payable in a suit for partition pure and simple. The Madras case was distinguished on the ground that there, the plaintiff had brought a suit against his co-sharers in respect of the property which was admittedly joint family property at some time or other. The allegation in the Madras case was that the father had alienated some of the joint properties without just cause, and the plaintiff joined as parties to the suit the transferees, in order to recover them. It was pointed out that the properties dealt with by the mother were her own stridhan properties and the plaintiff was really seeking to set aside the deed of trust, and this was not a partition suit in which a court-fee of Rs. 15/- only was payable. The next case is also of a Division Bench of this Court, presided over by Sen, J. : AIR1951Cal410 . The plaintiff there, brought a suit, alleging that the defendant No. I who was a member of the joint family, had purchased some properties in the benami names of certain persons who were strangers to the family. The suit was brought for partition of the joint properties, including these properties and the stranger benamidars were made parties. It was held that a prayer for partition of properties in the presence of these strangers involved a prayer for declaration of title to these properties and confirmation of possession as against them. Therefore, court-fees should have been paid on an ad valorem basis and not a fixed court-fee, as in a partition suit. It does not appear that the provisions contained in Clause (vA) of Article 17, Schedule II were brought to the notice of the learned Judges at all. In fact, it is not mentioned in the judgment, which contains very little reasoning. The next case to be considered is the judgment of a Division Bench of this Court presided over by Lahiri, J. (as he then was) : AIR1957Cal651 . The facts of that case were as follows: The plaintiff instituted a suit for partition of certain immovable properties described in Schedule 'Ka' of the plaint, and of a Biri business described in Schedule 'Kha', as also of certain moveables described in Schedule 'Ga'. The defendants Nos. 1 and 2 were the two brothers of the plaintiff, and the defendant No. 3 was the son of the defendant No. 1. The plaintiff paid a fixed court-fee of Rs. 15/-, as in a partition suit. The controversy with regard to court-fees centered round the Biri business. In the plaint, the plaintiff stated that the Bin business was started with the income of the joint family consisting of the plaintiff and his two brothers. This business was carried on in a number of places, and it was stated that the defendant No. 1, with a view to deprive the plaintiff of his legitimate share of the income from the said business, fraudulently and collusively purported to sell it in favour of one Keshab Chandra Pal and thereafter got a fraudulent reconveyance from him in favour of his minor son, the defendant No. 3. He stated that these deeds of transfer were fraudulent and sham documents and that in spite of these fraudulent transfers, the Biri business continued to be a joint family business. It was stated that all properties were in the joint possession of the parties. The learned Subordinate Judge held that the plaintiff had stated that he was in joint possession, but not in actual possession, and he held that the plaintiff should pay ad valorem court-fees upon an one-third share of the value of the business. The plaintiff thereupon made an application challenging this finding. The learned Judges held that it was not necessary for the plaintiff in a suit for partition to allege that he was in exclusive possession. It was sufficient to allege joint possession. They then proceeded to discuss the effect of the introduction of para (v-A) of Article 17, Schedule II of the said Act. Lahiri, J. (as he then was) said as follows:

'In Bengal, however, the effect of the introduction of Clause (v-A) is important. It seems to me that by the introduction of this clause the legislature deliberately made provision for partition suits where the decision on the title of a stranger is involved. In order to bring a case under the second alternative of Clause (v-A) of Article 17, three elements are necessary:

(1) Suit must be to enforce a share in any property,

(2) That property must be joint family property,

(3) The plaintiff must be in possession of the property of which he claims to be a co-sharer. It' these three conditions are satisfied, it does not matter whether the partition suit involves a decision on the title of a stranger. It is well known that in this country properties, though acquired with joint family funds stand in the names of wives or minor children or some of the co-sharers and it seems to me that Clause (v-A) was deliberately introduced by the Legislature in the Court-fees Act for the purpose of including a suit for partition in which a declaration is claimed against such third parties within the category of a suit for partition.'

18a. The learned Judge pointed out that in Gagan Chandra Hazra's case : AIR1951Cal410 (Supra) the attention of the learned Judges had not been drawn to the provisions of Clause (v-A) of Article 17 Schedule II. It was held that the decision of the learned Subordinate Judge was erroneous and that the fixed court-fee paid by the plaintiff upon the plaint must be held to be sufficient. The next case is also a decision of a Division Bench of this Court presided over by Lahiri, J. (as he then was) Ranjit Kumar Pal Choudhury v. Murari Mohan Pal : AIR1958Cal710 . It was not a case in which the point of court-fees arose. But it is of interest because it lays down certain principles regarding the frame of a suit for partition. The plaintiff's case was that the Karta of the joint family had resorted to various kind of fictitious transactions for the purpose of transferring the ostensible title in certain joint family properties in favour of strangers. Then again, some properties were acquired benami in the name of strangers. Also, some fraudulent transactions were entered into in order to defeat the claim of the co-sharers, in properties purchased out of joint family funds. Upon these allegations, the plaintiff claimed for a declaration of his 1/4th share In all the properties which were included in the schedule to the plaint. The co-sharers were made defendants, together with certain strangers who were the alleged benamdars and transferees of the suit properties. It was argued that all the defendants were not interested in a partition of all the properties mentioned in the plaint and the suit was bad for misjoinder of defendants as also for multifariousness. These contentions were negatived, and it was held that in a partition suit, the co-sharers may be made defendants as well as strangers. It is not the law that those properties in which all the defendants do not claim interest have to be left out in a suit for partition, but it is the law that only those properties have to be left out which, upon the allegations in the plaint, are not properties in which all the co-sharers are interested. Otherwise, no question of title or benami could be investigated at all in a suit for partition whereas it is a settled law that such question can and should be decided in a partition suit. (See Ramcaran v. Hart Charan, 18 Cal LJ 556, Rajendra Kumar v. Brojendra Kumar, 37 Cal LJ 191: (AIR 1923 Cal 501) and Annapurna Devya v. Amiya Nath, 35 Cal LJ 530: (AIR 1922 Cal 307). The point of court-fee arose in the next case, which is also a decision of a Division Bench of this Court, presided over by Lahiri, J. (as he then was) : AIR1958Cal537 . The facts in that case were as follows: The plaintiff and the defendant No. I were two brothers having an equal share in all the joint family properties. The plaintiff brought a suit for partition, not only making the brother a defendant, but various other parties were impleaded as parties to the suit. The defendant No. 2 was the wife of defendant No. 1, the defendant No. 3 was the son of defendant No. 1, the defendant No. 4 was the wife of the defendant No. 3, the defendant No. 5 was the widow of a predeceased son of the plaintiff, the defendant No. 6 was a private tutor of the family, the defendant No. 7 was a pleader of the Alipore Court, and the defendant No. 8 was a relative of the defendant No. 1 by marriage. The case of the plaintiff was that certain properties, which were claimed by the plaintiff as joint family properties, stood in the name of these defendants. In other words, the defendants Nos. 2 to 8 were the ostensible owners and the properties were standing in their names, although those properties were acquired with joint family funds. It was alleged that these defendants were mere benamdars and the properties were joint family properties. There was, of course, the allegation that the plaintiff was in possession of all the properties. The learned Subordinate Judge held that, as the plaintiff had included in the suit, properties standing in the name of strangers and since the plaintiff wanted an adjudication of his title as against them, he must pay ad valorem court-fees in respect of all the properties which stood in the name of the strangers. The learned Subordinate Judge followed the decision of : AIR1951Cal410 , Lahiri, J. pointed out that in : AIR1957Cal651 , it had already been held that Gagan Chandra's case : AIR1951Cal410 was not correctly decided, because the provisions of Clause (v-A) of Article 17, Schedule II had not been brought to the notice of the learned Judges. The learned Judge discussed both the provisions namely, Clause (v-A) of Article 17, Schedule II and Clause (v-A) of Section 7 and said as follows:

'These two provisions envisage four kinds of suits--(a) suit for partition and separate possession of a share of joint family property; (b) partition and separate possession of a share of joint property; (c) to enforce a right to a share in any property on the ground that it is joint family property; and (d) to enforce a right to a share in any property on the ground that it is joint property. A suit for partition may come under any one of these four classes.... To enforce a right to a share in any property on the ground that it is joint family property or joint property, in my opinion, connotes something more than a mere suit for partition and separate possession of joint family property or joint property. The adjectival phrase 'to enforce a right to a share in any property on the ground that it is joint family property or joint property' entitles the plaintiff to ask for an adjudication of title............'

19. The learned Judge did not accept the argument that the words 'to enforce a right to a share in any property on the ground that it is joint family property or joint property' should be given a narrow construction. It was held that it was intended to apply to the enforcement of a right to a share in any property even though standing in the name of others, including strangers. All that was necessary to attract the operation of this clause was that the plaintiff should seek to enforce his right to a share in the property on the ground that it was joint family property or joint property, and that he was in possession. It was pointed out that the distinction between Clause (v-A) of Article 17, Schedule II and Clause (viA) of Section 7 does not turn on the question as to who was the ostensible owner or whether the ostensible owner was a member of the family or a stranger, but on the question whether upon the averments in the plaint, the plaintiff was in possession of the properties of which he claims to be a co-sharer. If he was, Clause (vA) of Article 17, Schedule II applies. If ha was not, Clause (viA) of Section 7 will apply. It was further pointed out that initially, the matter of Court-fees has to be decided upon the allegations made in the plaint. If there was an allegation in the plaint that the plaintiff was in possession, he took the risk of going to trial and having to prove, not only that he was in possession of the ejmali properties, but also of properties which stood in the names of strangers. If he failed to prove these allegations, the Court-fees paid would be insufficient. It was held that the plaintiff, upon the allegation in the plaint, was liable to pay fixed court-fees of Rs. 15/- only, as in a partition suit.

20. In my opinion, the case of : AIR1951Cal410 was not correctly decided, but that the cases of : AIR1957Cal651 and : AIR1958Cal537 were decided correctly. In the background of these decisions, I shall proceed to consider the arguments advanced before us . The first contention advanced before us by Mr. Sen Gupta was that Clause (vA) of Article 17, Schedule II does not apply, unless it is found that the properties in suit are the joint properties of the plaintiff and all the defendants. This is a point that has been specifically dealt with by Lahiri, J. (as he then was) in Ranjit Kumar Pal Choudhury's case : AIR1958Cal710 , (Supra). The learned Judge has rightly pointed out that in a suit for partition it is not necessary that all the defendants should be interested in all the joint properties. It is sufficient if all the co-sharers are interested in all the properties claimed to be joint. Otherwise, it would be impossible to implead strangers in a partition suit. Whatever be the position outside West Bengal, the law on the point in West Bengal must be read in the background of the amendment in Article 17. The manner in which the amendment came into being shows the background of the particular statutory provision and the evil which it was intended to remedy. At first, there was no specific clause in the Court-fees Act relating to partition suits. Now there are two provisions, so far as West Bengal is concerned. Clause (v-A) of Article 17, Schedule II applied to suits for partition where the plaintiff avers in his plaint that he is in possession. The other provision is Clause (viA) of Section 7, which is applicable when the plaintiff is not in possesson that is to say, where the suit is a partition suit but there has been an ouster from possession. In the first case, the court-fee payable is a fixed court-fee of Rs. 15/-; in the second case, ad valorem court-fee is payable. As long as all the co-sharers are parties and they would all be entitled to a share in all the properties found to be joint, the suit has been rightly framed and is a partition suit, even if strangers are impleaded. It is not necessary that all the defendants should be interested in all the properties. The second point taken is that as strangers have been made defendants to the suit, it means that the suit involves a declaration of title in respect of strangers. Therefore, the suit is bad, because (a) different causes of action have been joined together and the suit is bad for multifariousness and (b) the suit is really one for confirmation of possession against the strangers. In my opinion there is no substance in either of these points. As long as it is averres in the plaint that there are joint properties in which all the co-sharers are interested, this is enough. Some of these properties may stand in the names of strangers, but provided that the plaintiff claims to be in possession, either by himself or through his co-sharers, a suit for partition lies and comes within the scope of Clause (v-A) of Article 17, Schedule II. In such a suit, it is not only permissible, but it may be highly desirable to join strangers as parties, because the properties or some of them may be standing in their names and it would be impossible to deal with them in the absence of these persons. One principle however, must be borne in mind. A suit for partition must start with the proposition that there exist joint properties or joint family properties. Where it is stated that properties have been acquired in his own name or benami by a co-sharer out of joint funds, or that property has been acquired out of such funds, then this test is satisfied. In such a case, strangers or persons in whose names the property stands may be made parties to the suit and it is not a valid argument to lay that the suit will then involve a declaration of title against a stranger or confirmation of possession against a stranger and that the suit is no longer a suit for partition. Provided that the facts alleged can be proved, these properties were always joint properties and are capable of being partitioned. Such adjudication will be covered by the words 'to enforce a right to a share in any property on the ground that it is joint family property or joint property'. Where, however, the plaintiff does not start by alleging the existence originally of any joint property or joint family property, or that the property claimed has been acquired out of joint funds, or that in law it should be treated as an accretion or an adjunct to a joint estate, then in that case different principles will apply. An instance of this is the unreported decision cited above namely, C. R. No. 234 of 1950 (Cal), judgment dated 29-6-50. It will be remembered that in that case, certain properties belonged to a lady as her absolute stridhan property. The lady executed a deed of trust. A son of hers brought a suit challenging the deed of trust and alternatively, alleged 'that the trust had come to an end. He then claimed a partition. There was therefore, no joint property or joint source of income to start with and the plaintiff could not succeed unless he had the deed of trust set aside or had it declared that the trust had come to an end. Until then, the property was trust property and not joint property capable of being partitioned. In such a case, the suit cannot be called a suit for partition which would come under Clause (v-A) of Article 17 Schedule II. The reason is that even upon, the averments in the plaint, an initial hurdle has to be passed before the suit could be described as a partition suit. In the case of benami or fraudulent purchases out of joint funds, upon the averments in the plaint, such properties must be taken always to have been joint. It is true, that in order to succeed the plaintiff will have to establish by evidence that the properties were purchased benami or out of joint family funds or joint funds. These are, however, within the legitimate scope of a partition suit, and there is no initial hurdle to get over. A more difficult case is where an item of joint property is transferred fraudulently to a stranger. A typical example will be where a karta of a joint family transfers property, alleging it to be for family necessity, when no such' necessity existed. Whether in such a case, it will be necessary to ask for a cancellation of the Deed of transfer is a difficult question. We are, however, not called upon to consider such a case here because our question postulates that in the instant case, no order of cancellation of any document is involved. All that cannot be done in a partition suit, which comes under Clause (v-A) of Article 17, Schedule II is to ask for recovery of possession, because the condition precedent for the applicability of that clause is that the plaintiff should be in possession. If it transpires during the hearing of the suit that the plaintiff was not in possession, then he will have to pay ad valorem court-fees.

21. It was argued before us that the matter comes under Clause IV(c) of Section 7 which applies to suits to obtain a declaratory decree or order, where consequential relief is prayed. That however is the general heading for declaratory decrees or orders, where consequential relief is prayed. But when it comes to partition suits, a specific provision is to be found in Clause (v-A) of Article 17, Schedule II or Clause (vi-A) of Section 7. Where, these specific provisions apply, the general provision will not be attracted. Next, it is argued that in any event, the suit is a composite suit, and since it embraces both a partition suit as well as a declaratory suit against strangers, Section 17 should be applied and each part should be separately assessed. We need not consider this, because the question put to us stipulates that the suit otherwise satisfies the requirements of Clause (v-A) of Article 17, Schedule II. The only point for our determination is as to whether, it should be assessed under some other heading, merely because strangers are impleaded and because it was necessary to interpret or avoid certain documents and transactions, without it being necessary to order the cancellation thereof. I have already held that the making of strangers as parties to such a suit, under such circumstances is within the legitimate province of a partition suit and Clause (v-A) of Article 17, Schedule II is the appropriate heading for such a suit. If however it becomes absolutely necessary to have a document cancelled or a transaction declared void, before the plaintiff is entitled to a decree, that is a different matter altogether and might taken it out of the scope of either Clause (v-A) of Article 17, Schedule II or Clause (viA) of Section 7.

22. For the reasons aforesaid, I am of the opinion that the questions asked should be answered, as has been answered in the judgment of my Lord Bachawat, J.

P.N. Mookerjee, J.

23. An acute divergence of judicial opinion has necessitated this Reference. It concerns the assessment of Court fees for a suit for partition, in which certain strangers have been impleaded as pro forma defendants with a view to have the point of the plaintiffs' title decided in their presence. In the suit, the incidental question of its valuation for purposes of Court fee and Jurisdiction is also Involved, me point under reference has been put by the referring Bench as follows:

'Whether a suit, which otherwise satisfies the requirements of Clause (VA) of Schedule II, Article 17, of the Court-fees Act, would go out of the purview of that clause; if the plaintiff joins as defendant a stranger that is, person who is not a co-sharer or co-owner far enforcing, in his presence, his (the plaintiff's) right to the share, claimed by him in the suit properties, and if the determination of the question that the suit properties are joint properties, as claimed by the plaintiff, and of the plaintiffs' title to the same as a co-sharer, as aforesaid, depends upon the construction or avoidance, though not necessarily, cancellation of some document or transaction in respect of the suit properties or any of them, in which the said stranger is or claims to be interested.

If so, how is such a suit to be valued and stamped?'

As quoted above, the point under consideration consists or two parts, of which the last is really subsidiary and dependent upon the first or the primary part or, rather, upon the answer to the same. That primary part is confined solely to the question of Court-fees. Accordingly, I would address myself to the said primary question, namely, the question of Court-fees.

24. Upon the said primary aspect, two matters preeminently arise for determination. One is whether such a suit is within Schedule II, Article 17 (VA) of the Court-fees Act, as applicable to West Bengal, or whether it attracts Section 7(iv)(c) of the said Act and the other raises the question whether it is a multiple suit, that is, a suit for multiple reliefs, for purposes of the Court-fees Act, as contemplated in Section 17 (Bengal Amendment) of the said Act.

25. On the first question, authorities in this Court have differed and differed basically. We are, not concerned here with decisions of the other High Courts, as the point relates exclusively to the relative Bengal Amendments of the Court-fees Act but incidental reference will be made to two Patna decisions (Kaulasan Singh v. Ramdut Singh, ILR 29 Pat 219 : (AIR 1951 Pat 633) and Ramautar Sao v. Ram Gobind Sao, AIR 1942 Pat 60), the first of which has often been cited and relied upon in the above connection and the second is relevant for an intelligent approach on one fundamental aspect of the matter.

26. In : AIR1951Cal410 , this Court (Sen and Chunder, JJ.) took the view that the presence of strangers was sufficient to take the suit out of the purview of a suit for partition and thus of the specific provision (Schedule II, Article 17 (VA)) of the Court-fees Act in that behalf and place it under the general provision of Section 7(iv)(c) of the said Act. This was followed by Mitter and Guha, JJ. in 1958 Cat LJ 262. A similar view appears to have been taken in the unreported case: Civil Revn. Case No. 234 of 1950 (Cal), decided by Sen and Chunder, JJ. on June 29, 1950, which case, however, had one special feature, namely, that it involved cancellation of a document, and may, possibly, be distinguished from the above two earlier cases and from the instant case too on that ground. Thereafter, the trend appears to have changed and, in the next two reported cases of this Court : AIR1957Cal651 and : AIR1958Cal537 , the contrary view was taken and Article 17 (VA) of Schedule II of the Court-fees Act (Bengal Amendment) was held to be more comprehensive and given an extended application to cover such a suit too. Lahiri, J. who presided over the Bench on either of these two occasions, took the view that, notwithstanding the presence or necessary presence of strangers, the suit may well be regarded, at least, as a suit to enforce a right to a share in any property on the ground that it is joint family property within the amended Article 17 (VA) of Schedule II of the Court-fees Act (Bengal Amendment).

27. Analysing the aforesaid provision, Lahiri, J. made the following observations in Nilmoni Haldar v. Upendra Nath Haldar : AIR1957Cal651 :

'In Bengal, however, the effect of the introduction of Clause (VA) is important. It seems to me that by the introduction of this clause the legislature deliberately made the provision for partition suits where the decision on the title of a stranger is involved. In order to bring a case under the second alternative of Clause (V-A) of Article 17, there elements are necessary: (1) The suit must be to enforce a share in any property (2) that property must be Joint family property, (3) the plaintiff must be in possession of the property of which he claims to be a co-sharer. If these three conditions are satisfied, it does not matter whether the partition suit involves a decision on the title of a stranger ....... it seems to me that Clause (V-A) was deliberately introduced by the legislature in the Court-fees Act for the purpose of Including a suit for partition In which a declaration is claimed against such third parties within the category of a suit for partition.'

28. He repeated the same observations just in a slightly different form in : AIR1958Cal537 , when he said that 'all that is necessary to attract the operation of this clause is that the plaintiff should seek to enforce a right to a share in that property an the ground that it is Joint family property and that he Is in possession.

29. Indeed, the decision in : AIR1957Cal651 , appears to be the leading exponent of this point of view and it was followed and relied upon in : AIR1958Cal537 , where the said point of view was further elaborated and the said earlier decision : AIR1957Cal651 , was explained and affirmed. It Is significant to note that Mitter, J. and Guha, J. who sat with Lahiri J, on the above two later occasions, constituted the Bench which took the contrary view in 1958 eat LJ 262, following the earlier Bench decision in : AIR1951Cal410 .

30. Lahiri, J. (In both : AIR1957Cal651 and : AIR1958Cal537 ), distinguished the case of : AIR1951Cal410 , on the ground that on the occasion this new or amended provision (Article 17 (VA)) was not placed before the learned Judges. The record) however do not support the above distinction. Basically, then, there is a conflict and It Is necessary to examine the statute to ascertain the true view of taw.

31. Article 17 (VA) of Schedule II of the Court-fees Act (Bengal Amendment) contains the relevant statutory pro-vision and it is worded as follows:

Schedule II.

Number Proper Fee.17 (VA), for partition and separate posses. Fifteen sion of a share of joint family property or of rupees, joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property if the plaintiff is in possession of the property of which he claims to be a coparcener or co-owner.

32. This is really complementery to Section 7(VIA) of the Court-fees Act (Bengal Amendment) which applies to a suit for partition and separate possession where the plaintiff is not in possession and between them they appear to cover inter alia all suits for partition and separate possession so far as this State is concerned.

33. Ex facie, the language of the statute is wide and comprehensive and contains no restriction or limitation. It is urged, however, by Mr. Sen Gupta that it applies only to a suit between co-sharer or co-owners and is inapplicable in the presence of a stranger. If a stranger claims to to Interested in the property and his Interest is likely to be prejudiced or affected by the suit, then, contends Mr. Son Gupta, it ceased to be a suit within either of the above two provisions. This contention appears to say the least, to be too broad. If, apart from partition and separate possession or enforcement of a right to a share in we alleged joint property or joint-family property, any other substantive relief, e.g. cancellation or setting aside of any document, be necessary -- and necessary as against the stranger, -- it may, possibly, be argued that the suit is not merely of the character, contemplated in either of the above two statutory provisions. If, however, the determination of the question whether the suit property is joint property or joint-family property of the persons-between or amongst whom partition or joint possession is claimed, that is, of the plaintiff and the persons against whom the said relief Is claimed, depends only on the construction or avoidance of any document, -- not necessitating its setting aside or cancellation, -- it is in substance, -- and may well be in form too, -- a suit for partition and separate possession or enforcement of a right to a share of the alleged joint property or joint-family property, even though a stranger may be interested in or affected by the result or decision of the suit. There is, in such a case, no material, presenting any obstacle or impediment, which has to be removed to declare or establish the plaintiff's title or right to pre-sent possession but such declaration follows on, or, in spite of, all the existing materials and without displacement or removal of any of them. The decision of the suit may, no doubt, depend on a finding against the stranger on the question of title and it may rest practically upon that finding alone but, even then, and, howsoever much it might involve a declaration of title, that will not, in such circumstances, be a necessary or substantive relief for purposes of Court-fees or a relief, relevant for such purposes (vide in this connection AIR 1942 Pat 60) -- not, at least for taking the suit out of the specific provision or provisions (Schedule II, Article 17 (V-A) and Section 7(VIA)). Any declaration against the stranger would not, in such circumstances amount to a necessary or substantive relief or relevant relief for purposes of Court-fees so as to alter the nature and character of the suit and take it out of the purview of the above statutory provisions. A declaration may be Inherent In the substantive relief, that is the relief for partition and separate possession, prayed for In the suit but it would not, so far as the question of court-fees is concerned, amount to a necessary or substantive or relevant relief, as aforesaid carrying with It the above consequence.

34. To illustrate 1 may cite the familiar instance of a suit for possession under Section 7(V) of the Court-tees Act. Such a suit, or, rather, the relief for possession there necessarily involves a finding of title and thus a declaration of title but that is never regarded as a necessary or relevant relief for purposes of Court-fees so as to take the suit out of the purview of the said Section 7(v) and place it within the other provision (Section 7(iv)(c)) on the ground of declaration aforesaid and, as in that case, in the instant case too, the special provision (Section 7(v) and Schedule II, Article 17 (VA) respectively) would exclude the general provision (Section 7(iv)(c)). This will also sufficiently answer Mr. Sen Gupta's contention that Section 7(iv)(c) would apply, as the instant suit, coming, as it does, within the special provision (Schedule (I, Article 17 (VA) ) would exclude the general provision (Section 7(iv)(c) ).

35. In that view, the point under Section 17 also would not arise as the suit would not be a multiple or multifarious suit or a suit for multiple reliefs as contemplated in that section.

36. In the light of the above, the decision in ILR 29 Pat 219 : (AIR 1951 Pat 633), may well be explained and distinguished. There, as here too, before the above Amendments of the Court-fees Act, court-fee in a suit for partition and separate possession was governed by the residuary Article (Article 17 (vi) ) of Schedule II of the Court-fees Act and, accordingly, the contest was between the general provision (Section 7(iv)(c) ) and the said residuary provision (Schedule II, Article 17 (vi) ), there being no special provision, as here, applicable to the suit in question and necessarily the first or the former prevailed the declaratory relief, following, by necessary implication, from the substance of the plaint, being relevant and sufficient for excluding the residuary provision vis-a-vis the general.

37. As I have said above the statutory language is wide and comprehensive and does not necessarily contemplate joint property of all the parties to the suit but, even assuming that the other interpretation is possible or permissible, it will, at the worst, be a case of ambiguity and the statute in question being a fiscal enactment, must yield to a favourable or liberal construction in favour of the plaintiff. So construed it will support the above view of the law on the question of Court fee.

38. For the foregoing reasons, I would answer the first part of the question before us in the negative rendering unnecessary any answer to the second.

39. I would, accordingly, agree that this reference should be answered by overruling the decisions, reported in : AIR1951Cal410 and 1958 Cal LJ 262, upon this question of court-fees and returning an answer to the point under reference as follows: A suit which otherwise satisfies the requirements of Clause (VA) of Schedule II, Article 17 of the Court-fees Act, would not go out of the purview of that clause, merely because the plaintiff joins as a defendant a stranger, I.e. a person, who is not a co-sharer or co-owner, for enforcing, in his presence, the right to the share in the suit properties, claimed by the plaintiff, even if the determination of the questions, whether the suit properties are joint properties and whether the plaintiff has a right to a share therein, involves the construction of some document in respect of the suit properties or any of them, in which the stranger is or claims to be interested and/or an adjudication that some such document or transaction in respect of such properties or any of them is void and/or not binding on the plaintiff provided that the determination of the above question does not involve the cancellation or setting aside of such document or transaction.

40. I agree also that the parties should bear their own costs of this reference.


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