RANGAMANI DASI Vs. JOGENDRA NATH MANNA

JUDGEMENT

(1.) The plaintiff in this case is the widow of one Lokenath, the son of Beni Madhab Manna. Beni Madhub died leaving five sons and a widow named Srimati Anandamoyi Dasi. During her life-time the family property was partitioned by an arbitration award dated the 13 November 1887 and Anandamoyi obtained certain property absolutely and a life-estate in a garden and a sum of Rs. 3,000. Lokenath died during Anandamoyi's life-time and his widow now sues for partition of a fifth share in the garden and the sum of Rs. 3,000.

(2.) The Subordinate Judge found that the plaintiff was not and never had been in possession of the disputed property jointly with the defendants and, therefore, was not entitled to sue for partition. The suit was brought on a Court-fee stamp of Rs. 10 and an issue was framed as to whether the suit could proceed on that Court-fee. The Subordinate Judge, however, neither decided the issue nor required the deficiency in Court-fees to be made good, as he should have done. He then proceeded to come to a decision to which the parties were not entitled, on the question whether under the partition award of 1887, the plaintiff was entitled to inherit a share of the property in suit. This point he decided against the plaintiff who accordingly appeals.

(3.) The learned Counsel for the appellant has argued that the possession of the other members of the family was possession on behalf of the plaintiff, and that, therefore, she is entitled to sue for partition on a Court-fee stamp of Rs. 10. Bat as her whole case rests on a complete partition made years ago, and it is proved beyond doubt that she has never possessed the property in dispute, it seems to us clear that the Subordinate Judge was right and that she is not entitled to sue for partition without suing at the same time for possession of her share, a course entailing payment of Court-fees calculated ad valorem both in the plaint and the memorandum of appeal. The appellant has taken this course and paid in the proper Court-fees; and accordingly we proceed to dispose of the appeal on the merits.