MUNNI SINGH Vs. BASDEO SINGH

JUDGEMENT

(1.) The office reports that the court-fee paid on relief (2) in the plaint was insufficient. The plaintiffs case was that they and defendants 1 to 11 were all members of a joint Hindu family and no partition had taken place. On 21st December 1896 a document, purporting to be a deed of partition, had been executed, which the plaintiffs alleged, had been procured by fraud and was wrong, with the result that there was no disruption of the joint family. Accordingly the first relief claimed that: A decree may be passed and by means of partition under the Hindu Law of the joint family property, detailed below, possessed by the parties, a moiety share of the plaintiffs may be separated.

(2.) In the alternative, the plaintiffs put forward the case that, even if a partition had in fact taken place and were proved, the properties in list B (and not in list A) had been acquired with the joint funds of the parties, and the parties were in possession and occupation thereof jointly and the plaintiffs had a moiety share therein. As to this part of the case, the plaintiffs asked for the following relief: If in the opinion of the Court the plaintiffs are not found entitled to relief No. 1, then on declaration of the fact that the property mentioned in list B, was acquired with the joint funds of the parties and that the parties are in joint possession and occupation thereof, the plaintiffs may be put in possession of a moiety share jointly with defendants 1 to 11.

(3.) The learned Counsel for the plaintiffs urges before us that relief (2) falls under Section 7, Clause (v), being a mere suit for possession and nothing else. Obviously, if the relief be merely for possession and nothing else, then Section 7 (v) would be applicable. The office has however reported that the relief contains more than a mere relief for possession and is really a relief to obtain a declaratory decree where consequential relief is prayed, and accordingly it falls under Section 7(iv)(c). It seems to me that at the early stage at which the question as to the sufficiency or insufficiency of the amount of court-fee paid arises, it is really premature and may, in many cases, amount to prejudging the case to consider whether the relief asked for was a necessary relief or not, or whether it can be granted by the Court or cannot be granted by it. That is a matter for the plaintiff to decide. If he has come to Court asking for a distinct relief, it is not the function of the Court to decide whether this relief is necessary or not. The plaintiff and his legal adviser considered it necessary and have asked for it; and it is not the business of the Court to say that, on a proper construction of the whole plaint and on the case as put forward by the plaintiff in the body of the plaint, the relief was really unnecessary and that he might not have asked for it, and therefore it should be treated as a superfluous one and he should not be called upon to pay a court- fee thereon. As was pointed out by Daniels, J., in Mst. Ganga Dei V/s. Sukhdeo Prasad A.I.R. 1924 All. 612: It is therefore besides the mark to suggest that the suit might have been framed so as to ask for different reliefs, or in other words that it might have been framed purely as a suit for possession. The plaintiff has to pay court-fees on the relief which she seeks to obtain by the suit.