Banku Behari Pandey and Others vs Chatur Pandey and Others

We are unable to agree with the view taken by the Stamp Reporter.

The suit was a simple suit for partition and so far as the Schedule II properties are concerned they stand in the names of the different members of the joint family. The Stamp Reporter says as follows:

But the Courts below have concurrently found that the Sob. II properties were acquired in the names of various Defendants and the lower Appellate Court has further found as a fact that the Schedule II properties were shown in the name of Defendants in the (sic).

That may be so; but the Settlement record does not decide any question of title between the parties although it does show that the properties wore in the possession of different members of the joint family. But it is the case of the Plaintiffs in the plaint that the family is joint, and it is well settled that where the family is joint the possession of one is the possession of all. I know of no authority which entitles the Stamp Reporter to determine the question of court-fees by reference to what is afterwards decided by the Court. If the Plaintiff''s case is untrue, it must fail, but I know of no authority which entitles the Court to compel the Plaintiff to pay Court-fees, not on the footing of the plaint, but on the footing of what is afterwards decided by the Court.

The Stamp Reporter refers to an order of this Court, dated the 2nd May 1923 in F.A. No. 64 of 1923, to which was a party. That order does not support the view presented before us by the Stamp Reporter. In that case the properties entered in Schedule I stood in the names of the different members of the joint family. We came to the conclusion that no ad valorem fee was payable in respect of the Plaintiffs'' claim for those properties. So far as Schedule II properties were concerned, we came to the conclusion that as those properties stood in the name of strangers it was necessary for the Plaintiffs to displace the apparent title of strangers, and it was therefore obligatory on them to pay an ad valorem Court-fee. But in this case so far as Schedule II properties are concerned, they stand in the names of the different members of the joint family. As I have said before, the possession of the member of the joint family is the possession of all the members of the joint family.

We hold that correct fee was paid by the Plaintiffs on the plaint and on the memorandum of appeal in the Court below.