NILMONI HALDAR Vs. UPENDRA NATH HALDAR

JUDGEMENT

(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 he was 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.