SHANKAR MARUTI GIRME Vs. BHAGWANT GUNAJI GIRME

JUDGEMENT

(1.) This revision application raises the point as to the court-fee payable in a suit for partition of the joint family properties belonging to a joint Hindu family, when the plaintiff asserts that he is in joint possession with the defendants of those properties. The matter has come before a full bench, I understand, because, following the recent decision of the Madras High Court in Ramaswami V/s. Rangachariar, [1940] Mad. 259, F.B. it now appears, in the words used by the learned Chief Justice at p. 276 of that report, that "the Bombay High Court stands alone" in its application of Section 7(v) of the Court-fees Act to such cases. The view of the Bombay High Court is expressed in three decisions: (1) Mahadeva Balwant Karandikar V/s. Laxuman Balwant Karandikar (1893) P.J. 13, (2) Balvant Ganesh V/s. Nana Chintamon (1893) I.L.R. 18 Bom. 209, and (3) Dagdu V/s. Totaram (1909) I.L.R. 33 Bom. 658 It was held in all those cases that the plaintiff in a partition suit such as the present must pay court-fee ad valorem on the value of his share in the joint family property under Section 7, paragraph (v), of the Court-fees Act. This view apparently has stood unchallenged for more than fifty years, and we should, I think, be very reluctant to disturb it, except for good reason. At the same time the ordinary principles of stare decisis do not apply with their usual force where the question involves no possibility of disturbance of titles, but is a fiscal matter between Government and the litigant. Notice has been issued to the learned Government Pleader, and we have had the assistance of the arguments of Mr. Jathar, Assistant Government Pleader, in addition to those of Mr. Desai, who for the opponents in this revision supports the view taken by the trial Court, which naturally felt itself bound by the Bombay decisions.

(2.) Mr. Desai has suggested a preliminary objection to the competence of this revision application. He points to the two paragraphs of Section 12 of the Courtfees Act. In paragraph (i) every decision by the Court, in which a plaint is filed, relating to the valuation for the determination of court-fees, is expressed to be final as between the parties to the suit. But finality of decision between parties is laid down in various enactments, and there are numerous decisions of this and other High Courts that this of itself in no way restricts the jurisdiction of the High Court to revise under Sec. 115 of the Civil P. C., in proper eases, orders to which such finality is given by the statute [see Vinayak Pandurangrao V/s. Sheshadasacharya (1944) 46 Bom. L.R. 711, and cases cited therein at p. 713]. The second paragraph of Section 12 does not support the argument that this Court has no power to interfere in revision. Paragraph (ii) of Section 12 lays a duty upon a Court of appeal, reference or revision, when a suit comes before it, to interfere in the matter of court-fees, when the question of the amount of those court-fees has been wrongly decided to the detriment of the revenue. This in no way requires that the discretionary power of the High Court to interfere in cases where the wrong decision has not been to the detriment of the revenue no longer exists. It was held as long ago as 1886, Vithal Krishna V/s. Balkrishna Janardan (1886) I.L.R. 10 Bom. 610, F.B., and as recently as a year ago, Mahadeo Gopal V/s. Hari Waman (1944) 47 Bom. L.R. 350, that this Court has power to interfere in revision under Section 115 of the Code of Civil Procedure in proper cases where the trial Court has placed a suit under a wrong provision of the Court-fees Act, and the competence of the present revision application, therefore, calls for no further discussion.

(3.) Mr. Desai has also sought to base an argument upon Section 17 of the Court-fees Act. He points out that in the present case the joint family property, according to the plaint, consists of both immovable and movable property. He also point;; to the fact that the amounts of certain outstandings are stated by the plaintiffs not to be within their knowledge, and the plaintiffs in terms have asked that in the suit an account should be taken of those outstandings. He suggests, therefore, that the suit is really a composite suit by which the plaintiffs seek three reliefs: (1) possession of certain immovable property; (2) possession of certain movable property; and (3) accounts. The relief stated to be for accounts is, however, really a relief for ascertainment of property. The defendants said to be in physical possession of that particular part of the joint family property are in no way liable to account to the plaintiffs in the technical sense of the word, and all that the plaintiffs have sought is determination of the quantum of this part of the joint family property. It might be said that, if a suit for partition of joint family property, when such joint family property is wholly immoveable, falls under Section 7, para, (v), of the Courtfees Act, and if a suit for partition of joint family property, when such joint family property is wholly movable, falls under Section 7, para (iii), of the Act, then, when the joint family property is both movable and immovable, Section 17 of the Act will come into operation. Mr. Desai has not been able to cite any case in which a partition suit has been held to be a composite suit because the subjectmatter of it is both movable and immovable property. By its very nature, it seems to me a partition suit is not a composite suit. There is a single cause of action, and I should expect such a suit to be referable to a single provision of the Court-fees Act. If the application of Section 17 is the logical consequence of regarding a partition suit as one for possession, that consequence, in my opinion, weakens rather than strengthens the assumption from which it arises, that a partition suit is a suit for possession.