1. This revision-petition is directed against an order of the learned Senior Subordinate Judge, Mahasu, calling upon the petitioner to pay additional court-foes, on the plaint filed by him.
2. The petitioner had brought a suit, against respondent No. 1 and others, for a declaration that the lands and houses, described in the plaint, were joint Hindu family property of the petitioner and respondent No. 1, for separate possession, by partition, of his half share, in the houses and for rendition of accounts. The suit was based in brief, on the following allegations:
3. The petitioner and respondent No. 1 are real brothers Respondent No. 2 is their step-brother. Their father died in August, 1932, leaving behind movable and immovable property. The petitioner and respondents Nos. 1 and 2 held the properly, after the death of their father, as members of a joint Hindu family. After some lime, respondent No. 2 separated, but the petitioner and respondent No. 1 continued to be joint. With joint funds the petitioner and respondent No. 1 acquired more lands, built more houses and also laid an orchard and nursery. The property, acquired with joint funds, was the joint Hindu family properly of the petitioner and respondent No. 1. The petitioner, who was in service at Simla, used to visit his house in Kotkhai, occasionally. Respondent No. 1 used to manage the joint Hindu family property, on behalf of and for the benefit of the joint family. The petitioner had been receiving profits of the joint orchard and other joint property till 1960. The petitioner was, thus, in possession of the joint family property actually and constructively. After 1960, respondent No. 1 failed to render accounts of the joint property. The petitioner found it difficult, to live under a joint roof, with respondent No. 1. He, therefore, applied for the partition of the joint lands. Respondent No. 1 challenged the right of the petitioner in the joint family property. The petitioner, therefore, instituted the suit for a declaration, separate possession of his share, by partition, and rendition of accounts.
4. The suit was contested by respondent No. 1. He substantially denied the allegations, made in the plaint. He denied that the property, in suit, was the joint property of himself and the petitioner or that the petitioner was in possession, actually or constructively, of the property. The main plea of respondent No. 1 was that he was the owner of the property and was in its possession. It was pleaded that the petitioner had not included, in the suit, the properly, situated at Simla, and fixed deposits etc., which stood in his name, and that a suit for partial partition was not maintainable. It was, further, pleaded that the suit was not properly valued for purposes of Court-fees.
5. The learned Senior Subordinate Judge, Mahasu, struck ten issues, preliminary as well as on merits, in the case. The parties led evidence. Arguments were also addressed. After hearing arguments, the learned Senior Subordinate Judge came to the conclusion that the petitioner had not properly valued his suit for purposes of court-fees and had not paid the full court-fees on the reliefs, claimed. He ordered the petitioner to pay additional court-fees of the value of Rs. 3,200.60 nP. on the plaint.
6. The petitioner has come up in revision, against the order of the learned Senior Subordinate Judge. The revision has been opposed on behalf of respondent No. 1 and the Government. A preliminary objection was taken up against the competency of the revision. It was contended that the order of the learned Senior Subordinate Judge was merely an interlocutory order and was not a 'case' decided and that revision did not lie against such an order. It was, further, contended that as the final decree, which may be passed in the suit, will be appealable, no revision could lie against any order, passed in the suit. Both the aforesaid contentions were considered in Major S.S. Khanna v. Brig F. J. Dillon, AIR 1964 S. C. 497, and were rejected. Their Lordships held that the word 'case', used in Section 115 C. P. C., was a word of comprehensive import and included civil proceedings other than suits and a part of a proceeding and that an interlocutory order directly affecting the rights and obligations of parties was a 'case decided'. After recording the above finding, their Lordships observed:--
'Once it is granted that the expression 'case' includes a part of a case, there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order passed in the suit. Any other view would impute to the Legislature an intention to restrict the exercise of this salutary jurisdiction to those comparatively unimportant suits and proceedings in which the appellate jurisdiction of the High Courts is excluded for reasons of public policy ... . .... ... .......If an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction, but where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded.'
7. Their Lordships were dealing with the exercise of revisional powers conferred by Section 115 C. P. C. That section is not applicable to Himachal Pradesh. Revisional jurisdiction is exercised in Himachal Pradesh, under paragraph 35 of the Himachal Pradesh (Courts) Order, 1948. That paragraph confers wider revisional powers on this Court than the powers exercisable under Section 115 C. P. C. Clause (a) of paragraph 35(1) substantially corresponds to Section 115 C. P. C., with the only difference that the word 'illegally' occurring in Clause (c) of Section 115 C. P. C. does not occur in Clause (a) of paragraph 85(1). Clause (b) of the said paragraph gives additional powers of revision to this Court. Under that clause, this Court: can entertain revision, subject to certain limitations, against an erroneous decision on a question of law or custom. The observations, made, by their Lordships, with respect to the interpretation of Section 115 C. P. C. apply with full force to the interpretation of Clause (a) of paragraph 35(1), aforesaid.
8. The order of the Senior Subordinate Judge directing the petitioner to pay an additional court-fee of Rs. 3,200.60 nP. affected his rights directly. The order, though interlocutory, was a case decided within the meaning of paragraph 35(1), aforesaid. Admittedly, no appeal lies against the order. The mere fact that an appeal would have been competent against the final decree which might be passed in the suit does not bar the exercise of revisional powers. It was held in Ramkhelawan Sahu v. Surendra Sahi, AIR 1938 Pat 22 (FB), Murthiraju v. Subbaraju, AIR 1944 Mad 315 (FB) and Shankar Maruti v. Bhagwant Gunaji, AIR 1947 Bom 259 (FB), that a revision is competent, against an order calling upon a plaintiff' to pay additional court-fees. The revision against the order of the Senior Subordinate Judge, directing the petitioner to pay additional court-fees, is competent. The preliminary objection, against the competency of the revision, is overruled.
9. Coming to the merits of the revision-petition, the petitioner had paid court-fees as under:-- A fixed Court-fee of Rs. 15 on the relief of declaration with respect to lands that they were joint property and liable to partition. A fixed Court-fee of Rs. 15, under Article 17(vi), Schedule II, Court-Fees Act, with respect to the relief of separate possession, by partition, of certain houses and ad valorem Court-fees on the amount of Rs. 4100 with respect to the partition of the other houses. The value for purposes of Court-fees for rendition of accounts was tentatively fixed at Rs. 5000.00 and Court-fee was paid on that amount.
10. The learned Senior Subordinate Judge was of the view that the Court-fee paid on the reliefs of rendition of accounts and declaration was correct but that the Court-fees were not correctly paid on the relief of partition. He accepted the plea of respondent No. 1, taken up in the written statement, that the petitioner was neither actually nor constructively in possession of the property in suit and held that Article 17(vi), Schedule II of the Court-Fees Act was not applicable to the relief of partition but that the Court-fees on that relief should have been paid either under Section 7(iv) (b) or Section 7(v) of the Court-Fees Act. He, further, held that the correct Court-fee, payable on the plaint, was Rs. 4121. 25 np and that there was a deficiency of Rs. 3200.60 np in Court-fees.
11. The learned counsel for the petitioner contended that the learned Senior Subordinate Judge acted without jurisdiction in taking into consideration the plea of respondent No. 1 that the petitioner was not in possession of the property in suit. The argument of the learned counsel was that in determining, which provision of the Court-Fees Act, was applicable to the suit, only the averments, made, in the plaint, by the petitioner, should have been taken into consideration, and not the plea raised by respondent No. 1. The argument of the learned counsel is well founded. It was held in S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar, AIR 1958 S. C. 245, that the question of Court-fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits.
Again, their Lordships observed in Rathnavarmaraja v. Smt. Vimla, AIR 1961 S. C. 1299, that the Court-Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. The question, whether in determining the Court-fees, payable, on a plaint, the allegations in the plaint alone should be considered or also the defendant's denial or admission of the plaintiff's alleged title or possession, was referred to a Full Bench, in Asa Ram v. Jagannath, AIR 1934 Lah 563. The answer of the Full Bench was that in determining the provisions of Court-Fees Act applicable to a particular suit, the allegations made by the plaintiff alone must be considered and the pleas raised by the defendant do not affect the question. The authority, Onkar Mal v. Ram Sarup, AIR 1954 All 722, relied upon by the Senior Subordinate Judge, for holding that the pleas, raised by the defendants, are, also, to be taken into consideration while determining the point of the Court fees, was decided on the basis of a local amendment, made in the Court-Fees Act, namely Sub-section (vi-A), added to Section 7 by Section 11 of the U. P. Amending Act, 1938. That sub-section, as quoted; in the authority, was:--
'In suits for partition. . . . .according to one quarter of the value of the plaintiff's share of the property, and according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a co-parcener or co-owner, and his claim to be a co-parcener or co-owner on such date is denied.'
12. It is clear that the aforesaid sub-section contemplated two modes of valuation in a partition suit. If the plaintiff was in joint possession of his share in the property, he had to pay Court-fees equivalent to one-fourth of the value of the plaintiff's share. If, however, the plaintiff was out of possession of the property and if his claim to be a co-sharer or his title as coparcener or co-owner was denied, then the plaintiff was required to pay Court-fees on the full value of his share. Thus, according to the provisions of Sub-section (vi-A) aforesaid, the Court is to take into consideration the plea of denial of the title or possession, which may be raised by the defendant, while determining the question of Court-fees. The Court-Fees Act, as applicable to Himachal Pradesh, does not contain any provision, similar to the provisions of Sub-section (vi-A), aforesaid. The decision, in the Allahabad case, was not applicable to the present case.
The question of Court-fees, in Himachal Pradesh, is to be determined, in the light of averments, made in the plaint, uninfluenced by the pleas in the written statement. This is not to say that a defendant is debarred from placing material, before the Court, which might lead it to think that proper Court-fee has not been paid. But the plea of a defendant, that the plaintiff has no title to the property or is not in its possession cannot be taken into consideration, while determining the question of Court-fees, in a partition suit. If the Court finds, on a plea being raised by the defendant, that the allegation of the plaintiff that he is in possession of the properly is untrue, then the suit will be dismissed solely on the ground that the plaintiff being out of possession is not entitled to sue for partition without asking for possession unless for special reasons the Court deems it proper to allow an amendment of the plaint, vide AIR 1984 Lah 563 supra. But the question of Court-fees is to be decided in a partition suit, on the allegations, made in the plaint, alone.
13. The averments, made in the plaint, in the present case, have been set forth, in brief, in an earlier part of this order. The sum and substance of the averments is that the property in suit is joint family property of the petitioner and respondent No. 1 and the petitioner was actually and constructively in possession of the property. The petitioner sought partition of the houses. According to the allegations of the petitioner, he is already in enjoyment of a part of the property and merely seeks to change the mode of enjoyment of the joint property. The relief, in such a case, is not capable of being valued in money and Article 17(vi), Schedule II of the Court-Fees Act applies. The Court-fees payable, on the relief of partition, on the allegations, made, in the plaint, by the petitioner, were fixed Court-fees of Rs. 15, under Article 17(vi), Schedule II.
14. The learned counsel for respondent No. 1 invited the attention of the Court to paragraph 11 of the plaint wherein it is stated that respondent No. 1 had refused to render accounts after 1960 and to paragraph 12 wherein it is stated that respondent No. 1 had denied the right of the petitioner, and contended that the clear inference from the aforesaid statements was that the petitioner admitted in the plaint that he had been ousted from the enjoyment of the joint property, and that, therefore, either Section 7 (iv) (b) or Section 7 (v), and not Article 17(vi), Schedule II, of the Court-Fees Act, was applicable to the relief of partition. The contention of the learned counsel does not appear to be correct. A reading of the plaint, as a whole, shows that the allegations of the petitioner were that he had been occasionally visiting the property in suit which was being managed by respondent No. 1, on behalf of and for the benefit of the joint Hindu family, that he had been receiving profits of the orchard and that it had become difficult to enjoy the property jointly. The petitioner did not state in the plaint that he had been ousted from possession of the property. The refusal to render accounts and denial of title, by respondent No. 1, had furnished cause of action to the petitioner, for the suit. Those facts were stated, in the plaint, in that context. The allegations, in the plaint, read as a whole, amounted to an averment that the petitioner was in actual possession of some property and in constructive possession of the other. Therefore, the relief of partition, claimed by the petitioner, did not fall within the ambit of either Section 7 (iv) (b) or Section 7 (v) of the Court-Fees Act, but fell within the four corners of Article 17 (vi), Schedule II.
15. There is authority for the proposition that Article 17(vi), Schedule II applies to a suit, brought for partition of joint family property, by a member, who alleges that he is in possession, actual or constructive, of the property. Reference may be made to AIR 1934 Lah 563 supra. The facts, in that case, were similar to the facts in the present case. The plaintiffs had brought a suit for separate possession of one-half share, by partition, alleging that the properties belonged to a joint Hindu family of which the plaintiffs and the defendants were members and that the plaintiffs were in possession of some of the properties. The plaint was stamped with Court-fees of Rs. 10/- only under Article 17(vi), Schedule II of the Court-Fees Act, though the market value of the half share was one lac. The defendants denied that the plaintiffs were members of the joint Hindu family or had a share in the properties in suit or were in possession of any of the properties. The defendants raised an objection that proper Court-fees had not been paid, on the plaint. The Full Bench held that Court-fee, on the suit, was payable under Article 17(vi), Schedule II and not under Section 7 (iv) (b), of the Court-Fees Act.
Similarly, it was held in, AIR 1947 Bom 259 (FB) supra, that a suit for partition of joint family property, when the plaintiff was alleged to be in constructive possession, is not a suit for possession of property within the meaning of Section 7(v) Court-Fees Act, but fell under Article 17(vi), Schedule H. In C. R. Ramaswami Ayyangar v. C.S. Rangachariar, AIR 1940 Mad 113 (FB), it was laid down that neither Section 7(iv) (b) nor Section 7(v) of the Court-Fees Act applied to a suit for partition of joint family property by a member who was in joint possession and that Article 17(vi), Schedule II was applicable to such a suit. The Madras Full Bench overruled the decision of a previous Full Bench which had held that a suit for partition of joint family property was governed by Section 7(iv) (b) of the Court-Fees Act.
16. It follows from the above discussion that the petitioner was liable to pay fixed Court-fees of Rs. 15/-, with respect to the declaratory relief that the lands, including the orchard, were joint property and were liable to be partitioned and fixed Court-fees of Rs. 15/-, with respect to the relief of separate possession of one-half share of houses, by partition. The payment of additional Court-fees on the amount of Rs. 4100.00, the market value of one-half share in certain houses, was unnecessary. The petitioner had paid much more Court-fees on the reliefs, claimed, than he was liable to pay under the Court- Fees Act. The refusal of the learned Senior Subordinate Judge to accept the plaint of the petitioner, which was not only properly stamped but was stamped with more Court-fee than was required under law amounted to failure to exercise jurisdiction. The order of the learned Senior Subordinate Judge, directing the petitioner to pay additional Court-fees of the value of Rs. 3200 60np is, illegal and liable to be set aside.
17. The revision petition is allowed. The order of the learned Senior Subordinate Judge, directing the petitioner to pay additional Court-fees of Rs. 3200.60np is set aside.The suit is remitted to him for an early disposal in accordance with law. The costs inthe revision-petition will abide the result ofthe suit.