Jyotibati Chaudhrain vs Lackhmeshwar Prasad Chaudhuri and Others

Jwala Prasad, J.—The question in this case is as to the amount of Court-fee payable on the memorandum of appeal, and it has come to me on account of difference of opinion between Mr. Justice ROBS and Mr. Justice Chatterji.

The plaintiff is a member of a joint Mitakshara family. The defendant No. 1 his uncle, has been karta of that family from the time of the plaintiff''s father. On 31st August, 1911, defendant No. 1, brought a suit for partition, but that suit failed inasmuch as all the family properties were not included. The plaintiff then suspecting the bona fides of the defendant instituted the present suit for partition giving a list of such of the properties as he could ascertain and asking fora disclosure of all the properties belonging to the joint family. In para, 7 of. the plaint he gives the reason for bringing the action for partition in the following words.

The plaintiffs have also come to know that by making various sorts of golmal, defendant No. 1 has misappropriated lots of money and moveable properties, on account of which the plaintiffs do not like to live jointly with the defendants.

After specifying the shares which the plaintiffs claimed in the properties, the. plaintiffs say:

The plaintiffs are further entitled to ask defendant No. 1 to render account for the period of his management.

In the reliefs the plaintiffs seek that the properties be allotted to them according to their share by partition and separate possession over the same be allotted to the plaintiffs and "the defendant No. 1 be directed to render an account to the plaintiffs of all the properties of the joint family showing their receipts and expenditure from the beginning of the period of his management up to the date of the passing of the decree in the suit, and that on an adjustment of account a decree may be passed in favour of the plaintiffs against the defendants for the amount which may be found due to the former by the latter."

On the 25th April, 1919, the Subordinate Judge passed a preliminary decree for partition, directing defendant No. 1 to render an account "showing the existing state of affairs." Defendant No. 1 appealed to this Court on amongst others the ground that as a karta of the family he was not liable to render any account and that no decree for accounts could be passed against him. His contention was overruled, and it was held that in spite of the fact that the previous suit of 1911 operated as a separation of interest between the parties he was still as a karta of the family liable to account "to the coparceners for the joint family assets that are in his hand."

The Commissioner submitted his report on the 8th September, 1924, which was confirmed by the Court and the suit was ordered to be decreed in accordance therewith on the 25th November, 1924. The amount decreed against the defendant came to Rs. 60,4261-11 1/2. The plaintiffs had paid Rs. 185 as Court-fee on the plaint, consisting of Rs. 10 in respect of relief for partition and Rs. 175 in respect of Rs. 3,000 estimated as due to them on accounting, stating that they would pay more Court-fee if a larger sum would be found due to them. On 20th March, 1925, they paid the deficit Court-fee. The total) Court-fee paid by them amounted to Rs. 1,722. The defendant No. 1 filed an appeal to this Court on the 24th February, 1925, on a Court-fee of Rs. 15 only. This was reported by the Stamp Reporter to be sufficient, and the appeal was admitted on the 15th December, 1925. In July, 1928, the Stamp Reporter reported that the memorandum of appeal was insufficiently stamped and that the former report of 1925 was submitted through mistake and inadvertence. The matter was, therefore, placed for decision u/s 28 of the Court fees Act before a Bench presided over by Ross and Chatterji, JJ. Mr. Justice Ross held that the Court-fee paid was sufficient, it being merely a suit for partition, whereas Chatterji, J., held that the Court-fee paid was insufficient the suit being not only for partition but also for an account and the appellant was consequently liable to pay ad valorem Court-fee on Rs. 60,426 odd decreed against him and in favour of the plaintiffs.

Admittedly if it is a suit for partition, the Court-fee paid on the memorandum of appeal is sufficient under Article 17, Clause (vi), Schedule II of the Court Fees Act; whereas if it is a suit for accounts, and ad valorem Court-fee is leviable u/s 7(iv)(f) of the Act. Unquestionably this is primarily a suit for partition. The contention however, is that there has been a prayer in the plaint for rendition of account and for recovery of the sum found due to the plaintiffs on accounting. The argument is that a simple suit for partition is chargeable under Article 17 of Schedule II of the Court Fees Act; but if an additional claim is made for accounts, then an additional Court fee must be paid u/s 7(iv)(f) of the Act. In support of the contention that it was a suit for partition and for accounts, reliance is placed on the averments contained in paras 5 and 7 of the plaint and relief No. 4. The defendant No. 1 in this case is the karta of a joint Mitakshara family. Now such a karta is not responsible to the other members of the family for the management of the joint family property in respect of the income derived therefrom and the expenditure incurred by him. He is the sole master of the situation and is not in any way controlled by the junior members of the family. He has to use his own discretion unfettered in any way, and controlled only by his own sense of right or wrong. He is neither a trustee nor an agent and is not accountable to the members of the family. If any member happens to be dissatisfied with him, his remedy is to separate from the family and to ask for a partition. He is entitled to his share in the family properties, moveable and immovable, including cash, that may be in existence at the time of partition. He cannot ask for an account of a preceding period, except for the purpose of determining the properties including cash in the hands of the karta so as to be available for partition. The position given to a karta under the Hindu Law was affirmed by their Lordships of the Judicial Committee in Sreemutty Soorjeemony Dossee v. Denobundoo Mullick 9 M.I.A. 123 : 4 W.R.P.C. 114 : 1 Sar. P.C.J. 837 : 19 E.R. 688. In the case of Raja Setrucherla Ramabhadra v. Raja Setrucherla Virabhadra Suryanarayana 22 M. 470 : 26 I.A. 167 : 3 C.W.N. 533 : 1 B L.R. 388 : 7 S. P.C.J. 510 (P.C.) the Judicial Committee assumed the position that in a partition the karta would usually be liable only to account as to the existing state of the property. This has now become a settled law and is not capable of being re-opened. In the case of Parmesh-war Dubey v. Gobind Dubey 33 Ind. Cas. 190 : 43 C. 459 : 20 C.W.N. 25 Fletcher, J., upon a review of the authorities on the subject concluded as follows:

The result of these authorities I think is that in an ordinary suit for partition in the absence of fraud or other improper conduct, the only account the karta is liable for is as to the existing state of the property divisible. The parties have no right to look back and claim relief against the past inequality of enjoyment of the members or other matters.

The final decree in this case was dealt with by the Patna High Court in Gobind Dubey v. Parmehwar Dubey 62 Ind. Cas. 83 : 2 P.L.T. 365. vide also Sri Ranga Thathachariar, late a minor by next friend Komalathammal, but now declared major and next friend discharged Vs. Srinivasa Thathachariar alias Srinivasa Raghavachariar, . Ordinarily, therefore, there can be no suit for accounts against a karta. He can be asked not to render an account as an agent on behalf of the other members, but only to disclose the properties including cash in his hands and that might necessitate looking into the accounts. A disclosure of property is not rendition of account, the word "account" in a suit for partition and accounts against karta being used for convenience sake, and not in the legal sense to bring it within the expression used in Section 7(iv)(f) of the Court Fees Act. Section 7(iv)(f) applies to a suit for account. The test is--can a junior member, without claiming partition bring a suit for accounts against a karta? If he cannot, then the relief as to accounts becomes subsidiary to the [principal relief of partition. Therefore it will not be correct to say that wherever there is a relief asking for accounts in the sense of disclosure as to the existing state of the family finances, the suit embraces two subject-matters, namely, a partition and an account. A suit for accounts implies a liability to account. In the case of Kshetra Nath Bhaiya v. Kali Dasi 41 Ind. Cas. 929 : 21 C.W.N. 784 : 27 C.L.J. 98 it was pointed out that there cannot in essence be a suit for accounts by the plaintiff against the defendant, unless the defendant is under a liability to render accounts to the plaintiff. The fact that in a suit for recovery of money the account may have to be looked into does not bring the suit for accounts u/s 7(iv)(f) of the Court Fees Act. The relationship between the plaintiff and the defendant should be such as to entitle the plaintiff to claim, as a matter of right, an account from the defendant. It has been pointed out in the case of Pochalal Ranchhod Vs. Umedram Kalidas, . 904 that the expression "suit for an account" has been taken from the English Law where it had a special and technical meaning. I do not think that in any circumstance a suit for partition by a junior member against the karta of the family can become a suit for accounts even if fraud or improper conduct is pleaded. These words used in the judgment of Fletcher, J., in the case referred to above only mean that when a fraud or an improper conduct is proved, the karta will be liable to disgorge the property appropriated by him by means of a fraud or an improper conduct and would bring it into the common hotchpot to be distributed among the other members. In other words, he would not be permitted to take advantage of his fraud and conceal any property which really belonged to the joint family. For that purpose he will have to render an account with respect to such property. Supposing he purchases some property out of the family income in the farzi name of a third person. He has committed fraud and has acted dishonestly in shielding the property. He will be liable to bring that property into the common hotchpot and, to render an account in respect thereof; but that will not convert the suit into a suit for accounts so as to bring it within Section 7(iv)(f) of the Court Fees Act. Allegations such as those made in para. 7 of the plaint do not at all change the character of the suit That only gives the reason for the plaintiffs to bring a suit against the defendant as karta of the family, the plaintiffs suspecting him of unfair dealings. The Court below gave the ''plaintiffs a decree for Rs. 60,426 1-11 1/2 consisting of Rs. 86,432-5-0 as their share in the bonds that were found to be in existence at the time of partition and as belonging to the joint family. Another item is Rs. 1,657-13 0 representing value of the plaintiffs'' share in the ornaments, etc, the existing properties of the family at the time of partition. The last item Rs. 22,335-1511 1/2 unquestionable represents the existing income from the Immovable properties. The Commissioner''s account represents the existing state of affairs at the time of the partition of the properties that were found as belonging to the family at that time. Though it is expressed in figures the aforesaid sum of Rs. 60,426 and odd is the value of the properties, etc., that fell to the share of the plaintiffs at the time of partition,

I would, therefore, hold that the present suit is one for partition and is governed by Article 17, Clause (vi) of 8ch. II of the Court Fees Act, and the memorandum of appeal is sufficiently stamped.