SAJJAD HUSSAIN Vs. AMINAKHATUNBI

JUDGEMENT

(1.) THIS order governs the disposal of Civil Revision No. 392 of 1960 and Civil Revision No. 393 of 1960. These two petitions for revision are directed against the order of the 1st Civil Judge (Class -I). Bilaspur, passed on 16 -7 -1960, directing the applicants to pay court -fees on their prayer for partitioning their separate shares in the joint family properties.

(2.) IT would be convenient to refer to the parties in this order as they were arrayed in the trial Court. The suit was filed by non -applicant No. 1 for partition of family properties. She impleaded the applicants in Civil Revision No. 392 of 1960, who are her brothers, as defendants 1 and 2, and the applicants in Civil Revision No. 393 of 1960, who are her sisters as defendants 3 to 6. Non -applicants 6 to 11 were impleaded as defendants 7 to 12. They are transferees of portions of the family properties from defendant No. 1 and 2 after the preliminary decree was passed.

(3.) PRIOR to 1953, a fixed court -fee of Rs. 20/ -was payable by the plaintiff in a suit for partition where he claimed to be in joint possession of the property. After the amendment of 1953, court -fee is leviable on half the value of his share if he claims to be in joint possession and on the full value of the share if he does not claim to be in joint possession. It will thus be seen that a fixed court -fee on partition suits has been replaced by ad valorem court -fee under the amendment made of the Court -fees Act in 1953. We shall consider the position as it existed prior to the amendment. In a suit for partition, it is necessary under Order 20, rule 18, Civil Procedure Code, that the Court should declare the shares held by the several parties to the suit. This implies that the shares of the defendants separately have also to be declared in such a suit. The Court -fees Act nowhere provides for payment of court -fees by the defendant and therefore the defendant is not liable to pay court -fees in respect of the separation of his share in the property. The question was considered in Hemchandra Vs. Prem Mahto A.I.R. 1926 Pat 154. It was laid down :?