JUGAL CHANDRA MONDAL Vs. MANINDRA NATH MONDAL

JUDGEMENT

(1.) This Rule has been obtained by the plaintiff in a suit for partition against an order of the Subordinate Judge, First Court, Alipore, dated 19-6-1956, by which the learned Judge directed the plaintiff to pay ad valorem Court-fees upon certain properties included in the schedule to the plaint.

(2.) Briefly stated, the plaintiff's case in the plaint is that the plaintiff and the defendant No. 1 are two brothers having equal shares in all the joint family properties. Defendants Nos. 2 to 8 have been impleaded in the suit on the ground that certain properties which were claimed by the plaintiff as joint family properties stand in their names. Defendant No. 2 is the wife of defendant No. 1. Defendant No. 3 is the son of defendant No. 1. Defendant No. 4 is the wife of defendant No. 3 and defendant No. 5 is the widow of a predeceased son of the plaintiff. Defendant No. 6 is a private tutor of the family. Defendant No. 7 is a pleader of the Alipur Court and defendant No. 8 is a relation of defendant No. 1 by marriage. In paragraph 4 of the plaint, the plaintiff states that although defendants Nos. 2 to 8 are ostensible owners of the properties standing in their names, all these properties were acquired with joint family funds, and these defendants are, in fact, mere Benamidars of the joint family. It is, also stated that the income from all the properties standing in the names of defendants Nos. 2 to 8 is brought into the common till and entered in the Ejmali Rokar. In paragraph 6 the plaintiff states that out of the Ejmali funds defendant No. 1 gives the plaintiff a monthly allowance which is hardly sufficient for his maintenance. The plaintiff further alleges that originally the plaintiff himself was the manager at the joint family properties, but after the death of his only son and after the death of his wife the management of the properties was taken over by defendant No. 1. There are also various other allegations in the plaint about the various acts of mismanagement by defendant No. 1. Those allegations are not strictly speaking necessary in a suit for partition. The plaint is unnecessarily prolix, but it contains essential averments that the properties claimed by the plaintiff as joint family properties were acquired with joint family funds and the further averment that the plaintiff is in receipt of a share of the income of all the joint family properties.

(3.) The learned Subordinate Judge has held that since the plaintiff has included in this suit properties standing in the names of strangers, and since the plaintiff wants an adjudication of title as against strangers to the family, he must pay ad valorem Court-fees in respect of the properties, which, according to the allegations in the plaint, stand in the names of strangers. In coming to conclusion, the learned Subordinate Judge has followed a judgment of this Court in Gagan Chandra v. Surendra Nath, and also a decision of the Patna High Court in Kaulasan v. Ramdnt Singh, ILR 29 Pat 219: (AIR 1951 Pat 633) (B). In Nilmoni v. Upendra. Guha J., and myself had an occasion to consider the correctness of the aforesaid decisions in view of the introduction of Clause (V-A) to Article 17 of Schedule II of the Court-fees Act following the Bengal Amendment of the Court-fees Act by Bengal Act VII of 1935. I am glad to have this opportunity of further explaining the view which I expressed in the aforesaid decision.