1. This case raises a question of court-feces payable by the plaintiff in a suit which is ostensibly a suit for partition. The plaintiff who is the petitioner before us 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 and also of certain moveabled described in schedule Ga of the plaint. The defendants Nos. 1 and 2 are the two brothers of the plaintiff and the defendant No. 3 is the son of defendant No 1. The controversy with regard to court-fee Centres round the biri business. In the plaint the plaintiff alleges in para. 6 that the biri business was started with the income of the joint family consisting of the plaintiff and his two brothers; that biris used to be actually prepared in the ancestral house of the plaintiff and defendants Nos. 1 and 2 and at village Patua Mohanpur but the biris used to be sold from a shop in Kasba. Defendant No. 1 used to live near the shop for the purpose of selling the biris but the plaintiff used to prepare the biris at his'Villago home. In paragraph 11 of the .plaint it is stated that the defendant No. 1 with a view to deprive the plaintiff from his legitimate share of the income of the biri business, fraudulently & collusively purported to sell it in favour of one Keshab Chandra Pal and got a similar fraudulent reconveyance from Keshab Chandra Pal in favour of his minor son, defendant No. 3, who was fit that time reading in Class VII of the local school. Both these deeds of transfer, however, were fraudulent and sham documents. In spite of these aforesaid fraudulant transfers the biri business continued to be the joint family business of the plaintiff, Two of the account books of that business were in the 'possession of the plaintiff but the other account books were in the possession of defendant No. 1. In paragraph 17 the plaintiff states that all the properties described in the three schedules of the plaint wers in the ejmali possession of the plaintiff and defendants Nos. 1 and 2. The prayers made by the plaintiff in the plaint are: (a) preliminary decree for partition, (b) appointment of a commissioner for effecting partition, by metes and bounds, (c) separate possession of the plaintiffs allotment, (d) proper scheme for the management of the business during the pendency of the suit, (e) appointment of a Receiver for the preservation of the subject-matter of the dispute, (f) all the costs of the suit and (g) a decree for accounts from the year 1326 against the defendant No. l and allotment to the plaintiff of 1/3 share of the total amount realised by the defendant No. 1 during this period.
2. In paragraph 3 of the plaint, the plaintiff states that after the death of the plaintiffs father the defendant No. 1 as Karta of the joint family, used to manage all the ejmali properties Including the business.
3. Before the suit was taken up for hearing, the learned Subordinate Judge decided the question of court-fees payable by the plaintiff, as a preliminary issue, and he held that the plaintiff should pav ad valorem court-fee upon one-third share of the value of the business as claimed by him in the suit. On behalf of the defendant No. 1, It was contended that the plaintiff was liable to pay ad valorem court-fees upon his share of the business. The precise ground upon which this point was raised by the defendant No. 1 were that the plaintiff did not allege in his plaint that hewas in possession of that business and that the suit involved a declaration of the title against defendant No. 3, the son of defendant No. 1, who was not a co-sharer of the joint family.
4. With regard to the first point, the learned Subordinate Judge found as follows :
'The plaintiff has nowhere said that he was in actual possession of any portion of this property. What he says is that he is in joint possession thereof inasmuch as it was started and carried on by the ejmali funds and was managed by his elder brother as Karta of the joint family.' Upon this finding the learned Subordinate Judge should have held that the plaintiff has alleged all that was necessary to entitle him to a decree for partition. It is not necessary for a plaintiff in a suit for partition to allege that he is in exclusive possession. An allegation to the effect that be is in joint possession of the ejmali properties, is sufficient to entitle him to a decree for partition. Mr. Banerjee, appearing for the opposite parties, however, has strongly urged that what the learned Subordinate Judge really meant was that upon the allegations in the plaint the plaintiff was totally out of possession of the business. According to Mr. Banerjee. in order to be in possession of the business the plaintiff in a suit for partition, must allege that he has been receiving a part of the income of the business. I have no doubt in my mind that this argument is of no substance. What the plaintiff has alleged in The present case is that the business was started with ejmali funds and that he is in possession of two out of many account books of the business. This allegation, in my opinion, is sufficient to prove that the plaintiff was in joint possession of the business. Moreover, the allegation in the plaint to the effect that the business was under the management, of defendant No. 1 as the karta of the joint family, would also imply the constructive possession of the plaintiff. From these two facts, therefore there can be no doubr that the plaintiff has alleged in his plaint that he is in constructive possession of the business along with the karta. The first ground urged by the defendants before the Subordinate Judge for directing the plaintiff to pay ad valorem court-fee, therefore, fails.
5. The second ground that has been given by the learned Subordinate Judge for directing the plaintiff to pay ad valorem court-fees upon his share of the business is that according to the allegations in the plaint, the business now stands in the name of defendant No. 3 who is not a co-sharer of the joint family. The prayer for partition, therefore, will involve a decision on the question whether defendant No. 3 has any title to the business. This decision, according to the learned Subordinate Judge, will take the suit out of the category of a suit for partition. Mr. Banerjee, appearing for the opposite parties, has made a strenuous attempt to support this reasoning of the learned Subordinate Judge. He has argued that if in a suit for partition the plaintiff claims a declaration of title against a stranger and that stranger is impleaded as a party to the suif, the suit cannot be said to be a simple suiv for partition but a suit for declaration with a consequential relief. Prior to 1935, the court-fee payable in a suit for partition was governed by Schedule II, Article 17, Clause (vi) which nuns as follows:
'Every other suit where it is not possible to estimate at a money value subject-matter in dispute and which is not otherwise provided for by this Act.'
Under that article, if a suit for partition involved a declaration of title against a stranger to thejoint family who was a party to the suit, it was held in some cases that the court-fee was payable not under Article 17 (vi) of Schedule II but under Section 7(iv)(c) of the Court-fees Act.
6. This was the view taken by the Patna High Court in the case of Kaulasan Singh v. Ramdut Singh, ILR 29 Pat 219 : (AIR 1951 Pat 633) (A). This was also the view taken by a Division Bench of this Court in the case of Gagan Chandra Hazara v. Surehdra Nath, : AIR1951Cal410 (B), decided by Sen and Chunder JJ. In the year 1935, however, by the Bengal Amendment of the Court-fees Act by Bengal Act VII of 1935, Clause (V-A) was introduced in Article 17 and the language of clausa (V-A) is as follows :
In a plaint or memorandum of appeal 'for partition and separate possession of share of joint family property or of 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 co-parcener or co-sharer', the court-fee payable is Rs. 15.
It is to be noticed that there is nothing corresponding to Clause (V-A) in Bihar and the Patna High Court in the case of ILR 29 Pat 219 : (AIR 1951 Pat 633) (A), had to consider the effect of Clause (vi) only. Clause (vi) is in the nature of a residuary clause and if a particular class of suits falls under any of the specific provisions of the Court-fees Act, the operation of Clause (vi) is excluded. The Patna High Court held that if a suit for partition involves a decision on a question of title of a stranger, the suit falls under Section 7(iv)(c) of the Court-fees Act which excludes the operation of Clause (vi). In Bengal, however, the effect of the introduction of cl, (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: (l) The unit 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 is well-known that in this country properties, though acquired with joint family funds, stand in the names of the wives or minor children of 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. In the case of : AIR1951Cal410 (B), the attention of their Lordships doss not appear to have been drawn to the provision of Clause (V-A) of Article 17 of Schedule II of the Court-fees Act and from the decision in that case it dees not appear whether the plaintiff alleged in the plaint that in spite of the transfer to the stranger to the family the plaintiff was in joint possession of the property. For these reasons, We are unable to follow the decision in that case.
7. Prom the earliest times, it has been held In a series of decisions of this Court that if the plaintiff is in possession, actual or constructive, of the joint family properties and merely seeks to change the form of enjoyment by obtaining a divided instead of an undivided share, the suit is to be treated as a suiC for partition for whicha fixed court-fee is payable. The question whether a suit for partition, which involves a declar ration of the title of a stranger to the joint family, is also to be treated as a suit for partition, in my opinion, seems to have been solved by the legislature by the introduction of Clause (V-A) in Article 17 of the 2nd Schedule of the Court-fees Act,
8. Applying the above principles to the facts of the present case, I find that the plaintiff petitioner before us seeks to enforce his one third share in the properties described in the plaint. Those properties, according to the allegations in the plaint, are joint family properties and upon the allegations made in the plaint, there can be no doubt that the plaintiff is in joint possession of all the properties described in the three schedules of the plaint.
9. The learned Subordinate Judge has directed the plaintiff to pay ad valorem court-fees upon one third share of Rs. 16,000 which, according to schedule Kha of the plaint, is the value of the biri business. AS I have come to the conclusion that the suit falls under Clause (V-A) of Article 17, Schedule II of the Court-fees Act, that order of the learned Subordinate Judge must be set aside and the court-fee paid by the plaintiff upon the plaint must be held to be sufficient.
10. Before parting with this case, we must place it on record that in view of the importance of the question raised before us, we would have directed a notice to be issued upon the Government Pleader but having regard to the fact that Mr. Banerjee, appearing for the opposite parties has placed all possible points of view we did not consider it necessary to hear the Government Pleader in support of the order made by the learned Subordinate Judge.
11. The Rule is accordingly made absolute and the order of the learned Subordinate Judge is set aside. The petitioner is entitled to his costs.
12. I agree.