Dip Chand Rai and Others vs Chhetru Lal and Others

Roe, J.—The first relief sought is a declaration that a Solenamah is void. On this the fee of Rs. 10 need not be paid for the immediate consequence of the declaration will be that the plaintiff will obtain an eight pies share more than is given him in the Solenamah. On this an ad valorem fee must be paid [see Midnapur Zemindary Co. v. Secretary of State for India 40 Ind. Cas. 96 : 21 C.W.N. 834 : 44 C. 352. This ad valorem fee will be merged in some cases with another ad valorem fee due on that part of the suit which is in effect a title suit in the guise of a partition suit. Mr. Hasan Imam contends that even though the defendants may have denied in their written statement the plaintiffs'' title to some of the property of which partition is sought, the whole suit will bear a Court fee of Rs. 10 as a partition suit, and to support this contention quotes Bidhata Rai v. Ram chariter Roy. This case and Tara Chand v. Afzal Beg 13 Ind. Cas. 185 : 34 A. 184 : 8 A.L.J. 1329 and Shashi Bhuthan Bid v. Jotindra Nath Roy Chotedhury 10 Ind. Cas. 463 : 38 C. 681 : 15 C.L.J. 443 are authority only for the proposition that where the plaintiff alleges that he is in possession of his undivided share in the property in suit, a Court-fee of Rs. 10 only is required. The distinction between this class of case and cases in which the partition suit is merely a title suit in disguise has been clearly drawn in Kirty churn Mitter v. Aunath Nath Deb 8 C. 757 : 11 C.L.R. 95 : 4 Ind. Dec. (N.S.) 488, Balvant Ganesh v. Nana Chintanon 18 B. 209 : 9 Ind. Dec. (N.S.) 647 and Waliullah v. Durga Prasad 28 A. 340 : 3 A.L.J. 181 : . (1906) A.W.N38. Plaints in all suits for partition should be carefully examined. Where it is patent that the defendants are in possession of any part of the property to be partitioned and have denied, the. plaintiff''s title therein, the suit is obviously a suit to recover possession of that part of the property at least, and a Court-fee ad valorem on the share claimed in that part mast be levied. Paragraph 6 of the plaint clearly states that there is considerable property in the defendants'' immediate possession, and that the defendants have set up an adverse title therein. On these properties ad valorem fees must be paid. The plaintiff has not specified these properties, but it will be clear from the Khewats of the recent surveys in the Santhal Pergannas, Monghyr and Bhagalpore what is the exact nature of the dispute between the parties. The Registrar should call upon him to produce these Khewats. With the Khewats he must fi1e a statement showing the value of the relief sought, calculated according to the calculations set forth above. Wherever a plaintiff has failed to value the Actual relief sought he may be required to place a value on it, and if he fails to do so the Registrar will be justified in taking the value of the relief sought as the full value of the property in dispute. If he fails to produce the Khewats and statements of value within such, time as the Registrar thinks reasonable, the Registrar will fix such Court-fees as seem obvious to him to be night. In this particular case it is obvious that the Court fee ad valorem should not be calculated on more than one fourth of the values given in Schedule B, Part I, (a) to (g). In Schedule B, Part I (6), the plaintiff clearly states that he is in possession of more than his one fourth share. On this he need pay nothing. The mortgage deeds and bonds and money-lending business specified in Schedule II are all in the names of the defendants, Chetu, Kripal, Pitamhar, Baikunth, Hazmri and Basuki Rai. The value of the relief sought in regard to them must be calculated at one-third of the value set on them, less the value, Rs. 82,000, set on the plaintiff''s business i. e., if the defendants'' business is worth less than Rs. 2,46,000, the total business is worth less than Rs. 3,28,000 and the plaintiff is in possession of more than his one-fourth share and need pay nothing. On anything in excess of Rs. 2,46,0C0 the relief sought is one third of the excess. In Part II(f) to (i) the plaintiff says he is in possession of more than his share and need pay nothing. On the cash (f) he must pay on a quarter share. On the decrees (k) he must pay on a quarter share if they are in the names of the defendants. If he produces the Khewats, be need pay on an eight pies share only on the properties for which he has already been recorded for three annas and four pies.