NARESH SINGH Vs. JIREKHAN CHOUDHARY

JUDGEMENT

(1.) The present judgment will govern both the revision applications. Civil Revision. No. 1385 of 1974 preferred by the plaintiffs is directed against an Order dated the 9th of October, 1974, by which the plaintiffs were called upon to pay court-fee of Rs. 2,171.25 by the 11th of October, 1974. failing which the amendment, which had been allowed, was ordered to stand expunged. In Civil Revision No. 1384 of 1974, the plaintiffs have challenged the order, dated the 14th of October, 1974. by which the aforesaid amendment has been expunged for not paying the aforesaid amount of court-fee.

(2.) The plaintiffs have filed a partition suit in the court below claiming 1/4th share in the suit properties. The question for determination is as to whether the order for payment of court-fee, amounting to Rs. 2,171.25, is correct. The plaintiffs' case, in short is as follows: Previously, the mother of the plaintiffs filed a partition suit being T. S. No. 74 of 1957, claiming 1/4th share in the suit properties. The said suit was filed in the court of the Subordinate Judge, 1st, Court at Arrah. The petitioners' further case is that these petitioners and their brothers were minors then and the pairvi was entrusted to one Sheodahin Choudhary. The mother of the petitioners being an illiterate lady, defendant No. 2 was on the look out to grab the properties of the petitioners and so he got a compromise petition filed in the aforesaid suit in collusion with the aforesaid pairvikar Sheodahin Choudhary. In the compromise petition it was alleged that the mother of the plaintiffs relinquished her title in the suit properties under the compromise and took Rs. 4,200/- as consideration. According to the plaintiffs, their mother died in the month of March, 1969, leaving behind them and opposite party -- second set as legal heirs; but as defendant first set began to create trouble after the death of the plaintiffs' mother, they filed originally suit for partition. Subsequently, by amendment, one more relief was added to the plaint for a declaration that the decree and compromise in the previous suit were collusive and not binding upon the petitioners. The suit properties in the plaint have been valued at Rs. 30,000/- in which the plaintiffs have claimed 1/4th share. Because of the aforesaid amendment, by an order, dated the 9th of October, 1974, the Court below directed the plaintiffs-petitioners to pay ad valorem court-fee of Rs. 2,171.25 upon Rs. 30,000/-which is the valuation of the whole properties in suit. Subsequently a petition was filed on behalf of the petitioners for recalling the said Order on the ground that the court-fee was payable only on the valuation of 1/4th share and not on the valuation of all the suit properties. According to the plaintiffs, the court-fee that is payable is on the valuation of the 1/4th share of Rs. 30,000/- and not on Rs. 30,000/- which is the valuation of the whole properties. However, the Court below, by its order, dated the 14th of October, 1974, rejected the said application and expunged the amendment which was allowed. Hence, these two revision applications aforesaid have been filed.

(3.) Learned counsel appearing on behalf of the petitioners has contended that the Court below has committed material irregularity in the exercise of its jurisdiction in demanding court-fee on the valuation of the suit properties, i.e., on Rs. 30,000/- and, thus, has acted without jurisdiction in passing the said order. His contention is that the court-fee is payable on the valuation of 1/4th share and not on the valuation of the whole properties. Reliance was placed in the case of Dukhi Singh v. Harihar Shah, (AIR 1921 Pat 78) in which a compromise decree Was challenged and a declaration was sought for to the effect that the decree that was passed in that case be declared as void and inoperative and a relief for separate possession of plaintiff's takhta was also claimed. In that case, it has been held that the ad valorem court-fee is payable on the share claimed by the plaintiff and that the valuation of the relief claimed by the plaintiff should be the criterion for the purpose of determining jurisdiction. The next case that has been relied upon is the case of Bhairab Chandra Rai v. Sat Narain Sarkar, (AIR 1953 Pat 342). In that case. Dukhi's case (supra) has been referred to and has been followed. Their Lordships have also noticed the case of Shevantibai v. Janardan Raghunath, (AIR 1944 PC 65). It was a case where their Lordships of the Judicial Committee were dealing with Section 110 of the Civil Procedure Code while deciding as to whether the valuation of the suit was Rs. 10,000/- or according to the plaintiff's share. The suit that was filed was a partition suit and the assignee of the purchaser from a member of the joint family of 1/6th share in the joint family sued for partition and to have her 1/6th share separated. The value of the interest which the plaintiff claimed in that suit was, probably, about Rs. 3,000/-. The total value of the properties in that suit exceeded Rs. 10,000/-. Claim for partition was dismissed and ultimately after it was affirmed in appeal by High Court, certificate for special leave was granted to the appellant for leave to appeal to His Majesty in the Council. While granting leave, liberty was reserved to the respondents on their appearance to contend that such leave to appeal ought not in the circumstances of the case to have been granted. Accordingly when the matter was taken up for hearing the respondents raised objection as to the maintainability of the appeal before that Court. The contention of the respondents' counsel that the value of the subject-matter in the dispute on appeal is the value of interest claimed by the appellant was accepted. While dealing with this point their Lordships said that "the question as to the title of the plaintiff to the share which he claimed in the joint property did not become_ a question respecting the whole of the joint family estate merely because if his title was established it would result in the joint family estate being partitioned". Thus, it is settled by authority that court-fee that is payable in a pure title-cum-partition suit is ad valorem court-fee on the share claimed by the plaintiff and not on the valuation of the whole properties. I, therefore, hold that the court below has acted with material irregularity in the exercise of jurisdiction in demanding ad valorem court-fee on Rs. 30,000/-, i.e., on the valuation of the whole properties in suit and, thus the Order of the court below is liable to be set aside, I, accordingly, set aside the order, dated the 9th of October, 1974. Consequently, the subsequent Order of the Court below dated the 14th of October, 1974. which was passed on the basis of the previous Order dated the 9th of October, 1974, is also set aside.