RANGASWAMI CHETTI Vs. GOPALA CHETTIAR

JUDGEMENT

(1.) This revision petition has-been filed against an order of the learned. Subordinate Judge of Coimbatore in respect of the court-fee payable on the plaint in O.S. No. 265 of 1934 on the file of that Court. The plaintiff is the son of defendant 1 in the case. It appears from the plaint that a release deed has been obtained from defendant 1 by his father and the other coparceners and some years later another release from defendant 2 who is the elder son of the plaintiff. The contesting defendants are defendants 3 to 7 who are defendant 1's cousins. The plaintiff challenges these release deeds as not binding upon him and not depriving him of his right to a full share in the properties of the family. He prayed by his plaint for a declaration that he is entitled to a sixth share in the family properties and for possession thereof and also asked for the appointment of a commissioner to take accounts of the family dealings, moveables, outstandings, assets and the income from the family properties and for a direction to the defendants to give the plaintiff his share of the outstandings on the taking of accounts.

(2.) Several objections were raised with respect to the court-fee payable on the plaint. The learned Subordinate Judge has decided most of them in the plaintiffs favour but on one point his decision was against the plaintiff and it is to this last point that this revision petition relates. The prayer for accounts has been valued by the plaintiff at Rs. 1,000. It however appears that in O. P. No. 128 of 1933 and 54 of 1934 filed by or on behalf of the plaintiff for leave to sue in forma pauperis for reliefs practically identical with those claimed in the present suit, the outstandings due to the family were valued at Rs. 79,000. The learned Judge has accordingly held that the present valuation of the relief for accounts at Rs. 1,000 is unjustifiably arbitrary and cannot be accepted. He expressed a doubt whether the suit is one for accounts at all and he finally called upon the plaintiff either to give a valuation as per the figures given in O. P. No. 54 of 1934 or to confine his relief to the figure which he would now give. In the former alternative, the plaintiff was directed to pay court-fee on that basis.

(3.) I have had the benefit of an argument from Mr. T. M. Krishnaswami Iyer in support of the lower Court's order. I do not think I can uphold that order. There has been some difference of opinion between the various High Courts in India and sometimes even in the same High Court as to the provisions of the Court-fees Act applicable to the partition suits. We may now take it as well established, so far as this Court is concerned, that in certain types of partition suits the plaint may be governed by Art. 17, Schedule 2 to the Court-fees Act, and that in other cases the plaint will have to be valued according to Section 7, Clause (4) (b). Cases have also held that where immoveable properties belonging to the joint family have gone into the possession of persons claiming adversely to the family, a suit for recovery of possession thereof on the footing that their alienation was not binding on the family and for consequent partition of the plaintiffs share in such property must be valued as a suit for possession under Clause (5), Section 7. But so far as the taking of accounts of the assets of the family for the purpose of partition is concerned, I am not aware of any case which justifies the assimilation of such a claim to a claim for money governed by Clause (1), Section 7. Mr. Krishnaswami Iyer contends that as even according to the plaintiffs case there is at present no joint family, the contesting defendants must be regarded as in the position of strangers claiming adversely to the family. I cannot agree that that is the correct position. The release deed executed by the father no doubt stands in the way of the plaintiff claiming partition in the ordinary course. But if and when that release deed is set aside, it must follow as a matter of law that the plaintiff must be regarded as a member of a joint Hindu family entitled to all the legal rights of such a member. The prayer for the setting aside of that release deed has been separately valued and court-fee paid thereon.