QHAMRUNISSA BEGUM Vs. FATHIMA BEGUM AND ORS.

JUDGEMENT

(1.) C .R.P. No. 1167 of 1958 is a petition to revise the order of the City Civil Judge in O.S. No. 2917 of 1955 holding that the plaint has not been properly valued and that the plaintiff should pay Court -fee on the market value of five items of properties, namely, items, 5, 10, 11, 17 and 18 of Schedule B to the plaint. The suit was one for partition between certain Muhammadan co -sharers of the estate of one Mohamed Ahmathulla Badsha Sahib, who died on 4th January, 1955. Defendants 1 to 8 are the co -sharers. Defendants 9 to 11 are the children of the 4th defendant, one of the co -sharers. They are strangers so far as the partition of the property is concerned. The plaintiff claims 21/192 share. There is no dispute about the shares of the various parties. The Immovable properties consisted of 9 items of properties. It is admitted that they all belonged to the estate of the deceased. C Schedule comprised outstanding due to the estate and there is no dispute in regard to that. B Schedule comprises moveable properties. The items to which I have made reference are items standing in the names of the various defendants in the books of the deceased.

(2.) The case for the plaintiff, who is the petitioner here, is that these items of properties though put in the names of the various defendants belonged to the deceased and as such are divisible between the sharers in proportion to the shares. There is no indication in the plaint that there is any adverse claim by the strangers in regard to the said items except in regard to a part of item No. 11. That comprises a sum of Rs. 6,000 standing in the names of defendants 9 to 11 in the books of the deceased. The plaintiff valued the plaint under Section 37(2) of the Court -Fees Act, 1955, and paid Court -fee as if he was entitled to a partition in respect of the properties in the joint possession of all the co -sharers.

(3.) Mr . G. Ramanujam, who appeared for the Additional Government Pleader, has sought to support the judgment of the lower Court by reference to the decision of the Andhra High Court reported in Srirama v. Lakshmidevamma : AIR1955AP200 . In that case a suit was filed for reopening of a partition on the ground that the previous partition was effectuated by fraud. The plaint stated the widow of the other deceased co -sharer was in possession of the property setting up an adverse claim to the same. The widow in that case was not a co -sharer with the plaintiff, as the deceased co -sharer had executed a will in respect of his share of the property in favour of his adopted son, the 2nd defendant in the case. Therefore, when the plaint stated that the widow of the deceased was in possession of the property adversely, it meant that the widow was not holding the property as a co -owner along with the others but in her own independent right adversely to all the co -owners. The learned Chief Justice of the Andhra High Court held that for ascertaining the Court -fee payable on the plaint the terminology used in the plaint could not be decisive, but the substance of the plaint had to be looked into and that a suit for partition and separate possession of the plaintiff's share, whether he was in actual or constructive possession of family properties, was incapable of valuation and therefore chargeable only with a fixed fee. But in a case where the plaintiff was not in such joint possession he had to value the suit as one for possession. The learned Chief Justice also observed at page 202 as follows: