ABINASH CHANDRA CHAKRAVERTY Vs. SM KAMLA DEVI

JUDGEMENT

(1.) The plaintiff-appellant filed a suit for partition in respect of a house which formerly belonged to himself and his brother, the respective shares being one-sixth and five-sixth. The brother executed a sale deed in favour of the defendant-respondent in respect of the entire house. The plaintiff in this suit asks for the declaration of his title to one-sixth share, for recovery of possession and for partition. Further, he asks for an order under Section 4, Partition Act of 1893 permitting him to buy out the defendant. On his plaint, he paid ad valorem court-fee on his prayer for declaration of his title and recovery of possession on the value of his one-sixth share, and paid besides a partition court-fee of Rs. 18-12-0. The Court of first instance found the plaintiff's title and decreed possession. As regards the remaining prayers, in view of considerable improvements found by it to have been made by the defendant to the house, the Court directed that the plaintiff, instead of getting any portion of the house, should get the equivalent value amounting to RS. 700. In appeal to the District Court, the plaintiff asked for the relief under Section 4, Partition Act, namely, to be permitted to buy out the defendant. His appeal being dismissed, he has filed the present appeal. In both the appellate Courts, he has paid merely the court-fee for partition. The court-fee payable on the memorandum of appeal in this Court; has been determined by the taxing officer under Section 5, Court fees Act. We are concerned with the court-fee payable on the plaint and on the memorandum of appeal in the lower appellate Court.

(2.) According to the Stamp Reporter, the suit is one for confirmation of possession or recovery of possession, and, as the plaintiff wants to get the whole house for himself, ad valorem court-fee is payable also in respect of the value of the five-sixths share of the house.

(3.) It appears to us that the view taken by the Stamp Reporter is incorrect. The relief in question is of an equitable nature and does not follow as a consequence of any finding as to the title of the plaintiff. The relief in this case is one under Section 4, Partition Act, which provides that, where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family the Court in a suit for partition shall, if a member of the family being a shareholder undertakes to bay the share of the transferee, make a valuation of such share and direct the sale of such share to such share-holder, and may give all necessary and proper directions in that behalf. The section does not in terms require any particular form of application to be made by the share-holder member of the family, and it is open to the share-holder to get this relief at any stage of the suit. The section in teems applies to a suit for partition brought by a transferee, but has been extended to such a said brought by a member of the family, Satyabhama De v. Jatindra Mohan, 49 C. L. J. 136 : (A. I. R. (16) 1929 Cal. 269). Section 2, Partition Act is also relevant. It provides that, when in a suit for partition it appears to the Court that, by reason of the nature of the property to which the Bait relates, or of the number of the share-holders or of other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property, and distribution of the proceeds would be more beneficial for all the share-holders, the Court may, if it thinks fit, on the request of any of such share-holders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds. This provision as also the provision in Section 4, appears to prescribe modes in which a partition can be made. In this aspect of the matter, it appears to us that the plaintiff, in asking for relief under Section 4, Partition Act, was doing no more than asking for partition and indicating the manner in which the partition should be made.