Sudhindra Mohan Guha, J.
1. This Rule arises out of an order dated 3-5-75 passed by the learned Subordinate Judge, 5th Court, Alipore (24-Parganas) whereby he held that the payment of Court-fees of Rs. 15/- was sufficient and that the plaintiff need not pay the ad valorem Court-fee.
2. The opposite party No. 1 as plaintiff instituted a title suit being T. S. No. 95 of 1970 in the 5th Court of the Subordinate Judge at Alipore against the petitioners and opposite parties Nos. 2 to 10 for a preliminary decree for partition in respect of the suit properties declaring his l/14th share therein upon a declaration that the deed of trust dated 10-2-50 executed by late Bhusan Chandra Bay Sardar was invalid, void and inoperative and did not affect the plaintiff's title and for partition by metes and bounds. It was pleaded that late Bhusan Chandra Ray Sardar, the predecessor-in-interest of the parties died on 23-5-68 and the plaintiff being the eldest son by the predeceased wife was entitled to l/14th share in the properties left by him and thereafter the plaintiff demanded partition from the other heirs who however disclosed that the said Bhusan Chandra had executed a deed of trust on 10th Feb. 1950 whereby the plaintiff had been deprived of his share regarding items included in Schs. (A) to (F) of the plaint and according to him, the trust deed was void, illegal, inoperative and had never been acted upon and the said trust deed came to an end on 23-4-68 on the attainment of majority of his youngest son. So it did not create any interest in favour of any of his beneficiaries and the properties covered by the trust deed had all along been in the possession of the said Bhusan Chandra as an absolute owner, and the said trust deed had been brought into existence by exercise of undue influence, coercion and duress and therefore the plaintiff's right, title and interest in the suit properties was not affected in any way. It was further pleaded that on the death of his father, the plaintitff and the defendants jointly inherited all the properties left by him and had been in joint possession thereof.
3. The further case of the plaintiff was that his maternal grandfather died leaving a widow and on her death the plaintiff inherited all the properties of his maternal grandfather, but plaintiff then being a minor those properties (about 145 bighas) were being managed by his father who acquired some other properties either in his name or in the names of some of the other defendants and that a huge amount of money by way of income of the said property accumulated in the hands of Bhusan Chandra which again fell in the hands of defendants Nos. 1 and 2 and that defendant No. 2 had always been realising all incomes and usufructs of the joint properties giving the plaintiffs only a paltry sum and as such he was liable to render account to the plaintiff.
4. The suit was contested by Sm. Golapmoni Devi, defendant No. 1 and Shymal Prasad Roy, defendant No. 6 raising various pleas. It was contended that the suit as framed was not maintainable and that it was incumbent upon the plaintiff to pay ad valorem Court-fee.
5. It is argued by Mr. Mitra, the learned Advocate for the petitioners that the opposite party No. 1 having specifically prayed that the deed of trust executed by Bhusan Chandra, was invalid, void and inoperative, the opposite party No. 1 was bound to pay ad valorem Court-fee on the value of the properties included therein. According to him the learned Subordinate Judge failed and neglected to consider the amendment and on a proper construction of the plaint, as it stood after the amendment, the learned Subordinate Judge acted illegally and with material irregularity in not holding that the plaintiff was to pay ad valorem Court-fee at least on the amount claimed in the amended plaint. He ought to have held that the plaintiff had no possession in any of the items of the suit properties and as such it was incumbent upon him to pay ad valorem Court-fees thereon. It was his own finding that in order to pass a decree in the present suit it would be necessary for the Court to determine the validity, legality and operative force of the disputed trust deed and in such an event the plaintiff had no other alternative but to pay ad valorem Court-fees on the value of the relief sought for. In support of his argument he refers to the decision in the case of Tarai Tea Co. Pvt. Ltd. v. Life Insurance Corporation of India reported in : AIR1979Cal84 . In this case the plaintiff entered into an agreement with the Life Insurance Corporation of India for purchase of 14,907 fully paid up equity shares of New Tea Co. Ltd. on the face value of Rs. 60/- each at the rate of Rs. 150/- per share. The Life Insurance Corporation of India in breach of that agreement sold the shares to other parties who were made defendants in the suit. In the relief sought for the plaintiff had asked for a declaration that the property in the shares had passed to the plaintiff. It was held that the relief that the plaintiff wanted was the relief of declaration of ownership coupled with possession of the shares alleged to have been purchased by it. The value of the relief sought was clearly above Rs. 22 lakhs. And the minimum Court-fees that the plaintiff had to pay, according to Sch. I to the West Bengal Court-fees Act, 1970, was Rs. 10,000/-. Court had therefore powers to direct the plaintiff to pay balance of the Court-fees.
6. Next Mr. Mitra refers to the decision in the case of Hind Wire Industries Ltd. v. Uttar Pradesh Electricity Board, reported in (1977) 4 Cal HC (N) 829. In this case in terms of a contract, the appellant was to supply to the respondent No. 1 certain goods and a Bank Guarantee for Rs. 91,900/- was furnished by the plaintiff for due performance of his part of the contract. It was agreed that the guarantor the Bank will pay the said amount to the respondent No. 1 on demand without requiring the respondent No. 1 to invoke any legal remedy. The suit was valued at Rs. 200/- for the purpose of Court-fees and jurisdiction under Section 7(iv)(b) of the Court-fees Act. It is held that though the plaintiff is entitled to put his own valuation, he cannot put any arbitrary valuation of his own. The plaintiff was seeking to avoid forfeiture of a sum of Rs. 91,900/-which on terms of the contract the defendant No. 1 had forfeited. When the plaintiff was seeking to avoid forfeiture of such a liquidated amount, that amount really represented the value of the relief claimed. The case, therefore, was not one where there was no objective standard for valuing the relief. The relief claimed was in respect of a liquidated amount and the plaintiff was to value such relief at that figure of Rs. 91,900/-.
7. Lastly, with reference to the decision of the Supreme Court in the case of Shamsher Singh v. Rajindra Prasad, reported in : 1SCR322 it is contended by Mr. Mitra that the Court in deciding the question of Court-fee should look into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for. The learned Subordinate Judge is said to have failed to appreciate the real claim which was in the nature of cancellation of the trust deed, though the plaint was drafted in the garb of a declaration simpliciter. According to him there is no escape of the plaintiff from payment of ad valorem Court-fees on the value of the entire suit property.
8. It is contended by Mr. N. M. Saha, the learned Advocate for opposite party No. 1 that the suit in question is a simple one for partition on a declaration that the deed of trust executed by his father was invalid, void, inoperative and not binding on the plaintiff without any prayer for having it set aside. In such a suit, according to him, the plaintiff cannot be called upon to pay the ad valorem Court-fee. The decision in the case of Sm. Siba Rani Devi v. Ramendra Nath Mukherjee reported in (1962) 66 Cal WN 828 (SB) relied on by the trial Judge is placed before us in support of the argument advanced by Mr. Saha. It is held therein that a suit, which otherwise satisfies the requirements of Clause (VA) of Article 17, Sch. II of the Court-fees Act, would not go out of the purview of the 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 plantiff, 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.
9. So it is argued that in the absence of any prayer for cancellation or setting aside the deed of trust the plaintiff cannot be required to pay the sd valorem Court-fee in a suit for partition on certain declaration.
10. The West Bengal Court-fees Act, Act 10 of 1970 provides two provisions which apply to suits for partition, viz., Section 7(viii) (corresponding to Section 7 (vi-A) of the old Act) lays down that ad valorem Court-fee is to be paid on the market value of plaintiff's share and Article 15 (vi) of the Second Schedule (corresponding to Article 17 (V) of Sch. II of the old Act) provides for payment of a fixed Court-fee of Rs. 15/-. The determination of Court-fees hinges on the question whether upon averments in the plaint, the plaintiff is in possession of the properties of which he claims to be a co-sharer. If he is found to be out of possession on trial, Section 7(viii) will apply and the Court would direct the plaintiff to make amendment of the plaint without dismissing the suit. On the other hand, if he (is) found to be in possession, Sch. II, Art 15 (vi) will apply. So in a suit for partition the main criterion is possession. The position would be the same even if the prayer for partition depends on certain declaration. In Nil-moni Halder v. Upendra Nath Halder : AIR1957Cal651 it has been held that a suit for partition which involves a declaration of title of a stranger to the joint family may fall within the scope of Article 17 (V-A) of Sch. II (old), if the plaintiff alleges himself to be in possession or joint possession. Similarly when a suit is one for partition but is essentially a suit to set aside alienation by defendant and for possession oi plaintiff's share the suit does not fall within Article 15 (VI) of the II Sch. of the present Act which provides for payment of a fixed Court-fee of Rs. 15/-but it falls under Section 7(iv)(c) of the Act.
11. The Orissa High Court had occasion to consider the payment of Court-fees in a suit of such a nature in the case of Suryamani Sahu v. Darsani Sahu reported in : AIR1962Ori47 . In that case the plaintiff not being a party to the various alienations was not bound to pray for setting aside the alienations and could sue for partition by ignoring the alienations. Held that the test was whether the plaintiff was a party to the document so that he might be required to pray for the relief to set aside the document. On the other hand, if the documents had not been acted upon and were initially illegal and void, the plaintiff need not necessarily claim a relief for setting aside the documents and could ignore the alienations. The proper Court-fee to be paid by the plaintiff was that which was required for a pure suit for partition and not the ad valorem Court-fee.
12. The same principle, in our opinion, is applicable to the facts and circumstances of the present case. The decisions cited by the learned Advocate for the petitioners do not relate to the suits for partition. The reliefs sought for therein were otherwise than that for partition. On the other hand, a Special Bench of this Court in the case reported in (1962) 22 Cal WN 823 held that in a suit for partition the plaintiff need not pay ad valorem Court-fee, if he does not pray for cancellation or setting aside the impugned document. In the instant case of partition the plaintiff wanted a declaration that the deed of trust, to which he was not a party, was void, illegal and inoperative, and not binding on him. So following the law on the point we are of opinion that the learned Subordinate Judge was perfectly justified in holding that the plaintiff was to pay on the averments made in the plaint, a fixed Court-fee of Rs. 15/- and not ad valorem Court-fee.
13. Lastly, it is contended by Mr. Mitra that the plaintiff valued the suit for accounts tentatively at Rs. 100/- for the properties worth more than Rupees 50,000/-. The plaintiff according to him is to pay Court-fee of Rs. 50,000/-. His argument does not appeal to us. The plaintiff might be required to pay additional Court-fees on the ascertainment of the actual amount after the preliminary decree and not at this stage of the suit.
14. In the result, all his submissions fail. The Rule is discharged. We, however, make no order as to costs.
N.C. Mukherji, J.
15. I agree.