SHANKAR MARUTI GIRME Vs. BHAGWANT GUNAJI GIRME

JUDGEMENT

(1.) THIS revision application raises the point as to the court-fee payable in a suit for partition of the joint family properties belonging to a joint Hindu family, when the plaintiff asserts that he is in joint possession with the defendants of those properties. The matter has come before a full bench, I understand, because, following the recent decision of the Madras High Court in Ramaswami v. Rangachariar, [1940] Mad. 259, F. B. it now appears, in the words used by the learned Chief Justice at p. 276 of that report, that "the Bombay High Court stands alone" in its application of Section 7 (v) of the Court-fees Act to such cases. The view of the Bombay High Court is expressed in three decisions: (1) Mahadeva Balwant Karandikar v. Laxuman Balwant Karandikar (1893) P. J. 13, (2) Balvant Ganesh v. Nana Chintamon (1893) I. L. R. 18 Bom. 209, and (3) Dagdu v. Totaram (1909) I. L. R. 33 Bom. 658, S. C. 11 Bom. L. R. 1074, It was held in all those cases that the plaintiff in a partition suit such as the present must pay court-fee ad valorem on the value of his share in the joint family property under Section 7, paragraph (v), of the Court-fees Act. THIS view apparently has stood unchallenged for more than fifty years, and we should, I think, be very reluctant to disturb it, except for good reason. At the same time the ordinary principles of stare decisis do not apply with their usual force where the question involves no possibility of disturbance of titles, but is a fiscal matter between Government and the litigant. Notice has been issued to the learned Government Pleader, and we have had the assistance of the arguments of Mr. Jathar, Assistant Government Pleader, in addition to those of Mr. Desai, who for the opponents in this revision supports the view taken by the trial Court, which naturally felt itself bound by the Bombay decisions.

(2.) MR. Desai has suggested a preliminary objection to the competence of this revision application. He points to the two paragraphs of Section 12 of the Courtfees Act. In paragraph (i) every decision by the Court, in which a plaint is filed, relating to the valuation for the determination of court-fees, is expressed to be final as between the parties to the suit. But finality of decision between parties is laid down in various enactments, and there are numerous decisions of this and other High Courts that this of itself in no way restricts the jurisdiction of the High Court to revise under Section 115 of the Code of Civil Procedure, in proper eases, orders to which such finality is given by the statute [see Vinayak Pandurangrao v. Sheshadasacharya (1944) 46 Bom. L. R. 711, and cases cited therein at p. 713]. The second paragraph of Section 12 does not support the argument that this Court has no power to interfere in revision. Paragraph (ii) of Section 12 lays a duty upon a Court of appeal, reference or revision, when a suit comes before it, to interfere in the matter of court-fees, when the question of the amount of those court-fees has been wrongly decided to the detriment of the revenue. This in no way requires that the discretionary power of the High Court to interfere in cases where the wrong decision has not been to the detriment of the revenue no longer exists. It was held as long ago as 1886, Vithal Krishna v. Balkrishna Janardan (1886) I. L. R. 10 Bom. 610, F. B. , and as recently as a year ago, Mahadeo Gopal v. Hari Waman (1944) 47 Bom. L. R. 350, that this Court has power to interfere in revision under Section 115 of the Code of Civil Procedure in proper cases where the trial Court has placed a suit under a wrong provision of the Court-fees Act, and the competence of the present revision application, therefore, calls for no further discussion.

(3.) THE first case of the Bombay High Court, Mahadeva Balawant Karandikar v. Laxman Balwant Karandikar is based upon a decision of the Calcutta High Court, Kirty Churn Mitter v. Aunath Nath Deb. (1882) I. L. R. 8 Cal. 757 THE judgment merely affirms that in agreement with that decision the court-fee must be ad valorem on the value of the share claimed by the plaintiffs. THE case of Kirty Churan Mitter v. Aunath Nath Deb was on a reference under Section 5 of the Court-fees Act by the Taxing Master of the High Court, and the decision there, strangely enough, was directly the reverse of the decision in Mahadeva Balwant Karandikar v. Laxman Balwant Karandikar, THE suggestion before the Taxing Master appears to have been that the suit was one falling under Clause (b) of para. (iv) of Section 7, which provides for suits to enforce the right to share in any property on the ground that it is joint family property. Garth C. J. upheld the opinion of the Taxing Master that the suit did not fall under Clause (v) of para. (iv) of Section 7, because the suit was not brought to "enforce the right to share in any property on the ground that it was joint family property," but the plaintiff was in actual possession of his share in the joint estate, and merely sought for the partition of the estate, the separation of his share, and for khas possession of such share when separated. THE Taxing Master's opinion that a courtfee of ten rupees, presumably under Article (vi) of Clause 17 of Schedule II of the Court-fees Act, therefore, was correct. THE material part of the learned Chief Justice's judgment is as follows (p. 758) : If the plaintiff's suit had been to recover possession of, or establish his title to, the share which he claims in the property, he must have paid an ad valorem stamp-fee upon the value of that share. But, as I understand, he is already in possession of his share, and all that he wants is, to obtain a partition, which is merely, as explained by the learned Judges in the ease of Rajendro Loll Gossami v. Shama Churn Lahoory (1879) 4 C. L. R. 417, 418 to 'change the form of his enjoyment of the property, or, in other words, to obtain a divided, instead of an undivided, share. It seems to me impossible to say what will be the value to the plaintiff of this change in the nature of his property, and I, therefore, think a stamp-fee of Rs. 10 is sufficient. "