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Beni Madhab Sarkar Vs. Gobinda Chandra Sarkar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.165
AppellantBeni Madhab Sarkar
RespondentGobinda Chandra Sarkar and ors.
Excerpt:
partition suit, frame of - election--court-fee payable in partition suit in which accounts are claimed--court fees act t vii of 1870), sections 5, 7 and 11. - .....the question of the propriety of an order putting the plaintiff to his election as regards his claim in respect of moveable properties and his claim in respect of immoveables. on both these questions we are of opinion that the courts below have fallen into error, and the error is obviously due to the fact that they have treated this suit as a suit for recovery of possession of immoveable property and a suit for recovery of possession of moveable property. it is not a suit for recovery of possession. we have examined the plaint and we find that it is clearly a suit for partition, and in his plaint the plaintiff has very properly included the whole of his claim, that is to say, the whole of the properties which are alleged by him to be the properties of the joint family, immoveable.....
Judgment:

1. This is an appeal against the decree of the District Judge of Alipur rejecting a plaint on the ground that the plaintiff had failed to comply with an order of the Court requiring him to supply the requisite stamp paper or Court-fees. The appeal also involves the question of the propriety of an order putting the plaintiff to his election as regards his claim in respect of moveable properties and his claim in respect of immoveables. On both these questions we are of opinion that the Courts below have fallen into error, and the error is obviously due to the fact that they have treated this suit as a suit for recovery of possession of immoveable property and a suit for recovery of possession of moveable property. It is not a suit for recovery of possession. We have examined the plaint and we find that it is clearly a suit for partition, and in his plaint the plaintiff has very properly included the whole of his claim, that is to say, the whole of the properties which are alleged by him to be the properties of the joint family, immoveable properties, moveable properties and funds which according to him have resulted from the joint business carried on by members of the family on behalf of all.

2. On this plaint the plaintiff paid a Court-fee of Rs. 10, and in respect of his claim for accounts in order to ascertain the amount of joint funds resulting from the business he has paid the sum of Rs. 7-8 annas on his approximate valuation of Rs. 100. It is settled law that under Schedule II, Article 17, Clause 6, of the Court Fees Act a Court-fee of Rs. 10 is the fee properly payable on a plaint in a partition suit. In respect of his claim for accounts it is clear that under Section 7 of the Court Fees Act the plaintiff is entitled to put an approximate value upon his claim in that matter, and should it turn out on investigation that that Court-fee is insufficient, the course to be pursued is laid down in Section 11 of the Court Fees Act.

3. For these reasons we decree this appeal. We hold that the Court-fee paid is sufficient that the plaintiff should not be put to any election in respect of his claim for moveable or immoveable properties, and we remand the suit to the first Court in order that it may be tried and determined on the merits.

4. As regards the costs of this hearing we direct that the costs be paid by the defendants. We assess the hearing fee at five gold mohurs. The costs in the Courts below will abide the result.


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