BHOLANATH CHAKRAVARTY Vs. GIRISH CHANDRA CHAKRAVARTY

JUDGEMENT

(1.) THIS application in revision is directed against an order of the learned Subordinate Judge of Dhanbad dated 4-3-1952, by which the learned Subordinate Judge has asked the petitioners, who were plaintiffs in the suit pending before the learned Subordinate Judge, to pay court-fees on Rs. 66,666 and odd annas in the following circumstances.

(2.) THE petitioners brought a suit numbered Title Suit No. 54 of 1950 in which they made the following prayers in paragraph 17 of the plaint : "Paragraph 17. THE plaintiffs pray-- (a) For a decree for declaration that the plaintiffs have title to the 2/3rd share in the properties described in schedule II below and that the partition of 1911 referred to in the plaint was illusory, fraudulent, inequitable and void. (b) For a decree for partition by metes and bounds of the properties described in schedule I. (c) For costs, of the suit together with interest. (d) For any other or further reliefs which the plaintiffs may be found entitled to." THE facts which the petitioners alleged in support of their prayers were the following. Ramhriday Chakravarty had four sons. Rameshwar, Kailash (father of plaintiffs 1 and 2). Ananta (father of plaintiffs 3 and 4 and husband of plaintiff No. 5), and Girish, who is defendant No. 1 in the suit. Ramhriday died leaving the aforesaid four sons who came into possession of the joint family properties. Subsequently, Rameshwar died leaving behind two widows, Rohini and Motibaia. During the life time of Rameshwar, in the year 1911, a memorandum of partition was written which was signed by the other three brothers and according to which certain properties mentioned in Schedule II were given to Rameshwar. In the year 1931, the two widows of Rameshwar brought a title suit. This suit was compromised and the memorandum of partition of 1911 was affirmed. THE present petitioners, it appears, were parties to the compromise. THE case of the petitioners as sought to be made out in the plaint was that the memorandum of partition of 1911 was an illusory, make-believe arrangement which was not given effect to. In Paragraph 3 of the plaint it was alleged that the other three brothers of Rameshwar signed the deed of partition at the dictation of Rameshwar without knowing the implication and effect of the document; in paragraph 9 it was stated that the distribution of properties under the document of 1911 was grossly unfair and inequitable and the document was brought into existence for some ulterior motive by practising fraud on the other three brothers. With regard to the compromise decree the case of the petitioners as sot out in the plaint was that the two widows of Rameshwar were allowed to hold possession of the properties entered in the document of 1911 as allotted to the share of Rameshwar, by way of maintenance only and it did not give any other right to the two widows. Two schedules were appended to the plaint. Schedule II gave details of the properties which were shown as allotted to Rameshwar by the document of 1911 and which were in possession of the two widows after Rameshwar's death. Schedule I gave details of all the properties, including the properties of schedule II. In paragraph 12 of the plaint the petitioners said that the defendant had filed a succession certificate case in the court of the Sub-ordinate Judge and in the application for a succession certificate the defendant Girish, one of the brothers of Rameshwar, claimed that he was the sole heir of Rameshwar after the death of the two widows. THE petitioners alleged that this claim of Girish had thrown a cloud on their title, and in paragraph 14 the petitioners said that they had demanded partition of the properties described in schedule I, but partition had been refused. THEn they said : "Hence the plaintiffs are compelled to sue for a declaration of their right to the properties described in schedule II and for partition of the properties described in schedule I". Tn paragraph 18, the petitioners said that the first relief marked (a) had the value of Rs. 50,0007-and the total value of the properties was Rs. 1,00,000/-. THEy paid court-fees of Rs. 20-10-0 for the declaratory relief and a separate court-fee for the relief of partition.

(3.) FOR the reasons given above, I hold that the decision of the learned Subordinate Judge on the preliminary issue is correct and there are no grounds for interference with that decision.