Mohammad Raza Khan vs Saheb Raza Khan and Others

H.L. Agrawal, J.—The plaintiff has come to this Court against an interim order in the Court-fee matter holding that he must pay ad valorem court-fee u/s 7(iv)(c) of the Court Fees Act.

He instituted a suit for partition in respect of various items of properties on the following allegations. His father, Dubar Khan left behind four sons including himself and one daughter. According to the plaintiff''s case on the death of his father his brother Afjal Karim Khan who became the manager of the family acquired out of the ancestral property some landed property in his own personal name as well, over which all of them were in joint possession. On the death of Afial Karim the plaintiff demanded partition of those properties standing either in the name of Dubar Khan or in the name of other members. The defendants having refused to accede to his prayer, he instituted a suit for partition on a fixed court-fee of Rs. 22.50.

The defendants raised an issue on the question of sufficiency of the court- fee and by the impugned order, the learned Subordinate Judge has held that on looking to the real substance of the plaintiff''s case and the reliefs claimed by him, he must pay ad valorem court-fee with respect to those properties which were standing in the names of the members other than Dubar Khan, his father.

Mr. Sahay appearing in support of this case contended that the learned Subordinate Judge has committed an error by referring to the case of the defendants while deciding the question of court-fee. He cited some decisions in support of the contention that the question of court-fee has got to be decided on the allegation in the plaint alone. It is not necessary to refer to those decisions as this proposition is well settled and cannot be disputed. The question, however, arises as to whether on the plaintiff''s own allegation and the case made out by him in the plaint, he can be permitted to claim a partition in the properties standing in the name of members different than his father on whose death admittedly he is not entitled to a share unless his further allegations that those properties acquired in the names of those members were joint family properties in which the plaintiff had necessarily a share.

Learned counsel firstly placed reliance upon a decision of this Court in Mst. Bibi Bintul Fatma and Another Vs. S.M. Aftab Ahmad, . The Bench in that case was considering the question of a grant of an injunction. The facts were that the mother of the plaintiffs who were all sisters owned immovable properties as well as jewellery, ornaments and cash. The defendant their only brother was managing the movable and immovable properties of their mother. In order to defraud them, he had deposited the cash in various bank accounts and the jewelleries in lockers in his own name. On these allegations they prayed for a temporary injunction restraining the defendant from withdrawing the money and dealing with the ornaments kept in the lockers. The prayer having been rejected by the trial court they had come to this Court where it was held that the plaintiffs had made out a prima facie case which entitled them to the grant of a temporary injunction as prayed for. The question of court-fee was not a matter for consideration. There is no doubt an observation that a Mohammadan family living in commensality possessing family property in common and jointness, the person in whose name the bank accounts and the lockers of the family properties were standing he being the managing member of the family, his position was of a trustee against whom the other members had a right to claim partition.

As already said above in this case I am not called upon to decide the question of the right of the plaintiff to get a share in the properties. The considerations for payment of court-fee are quite different. This decision is, therefore, of no assistance to the petitioner.

Reference may be made to the case of Sk. Md. Zafir Vs. Sk. Amiruddin and Others, where it was held that although the members of a Mohammadan family might live in commensality, yet they do not form a joint family in the sense in which that expression can be used according to Hindu Law. Hence, in the case of an acquisition in the name of one or the other member of the family, there is no presumption, as under Hindu Law, that it was joint and it cannot be held to be divisible amongst all the members.

Once this proposition of law is correctly appreciated it has got to be held that the plaintiff by necessary implication has gone to the court for enforcing his right to share in the properties in question on an adjudication of his right to get that which, admittedly, do not stand in the name of a person on whose death when the succession opened, he ipso facto by operation of law became entitled to get a share. In the instant case the plaintiff has to prove various facts to show that the properties which were acquired in the name of different members were acquired out of the nucleus of the ancestral properties.

In a case where the properties, admittedly happen to be ancestral in the hands of the parties, in a suit for partition only a fixed court-fee under Article 17(VI) of the Second Schedule of the Court Fees Act is payable for the simple reason that in such cases what is sought in the plaint in substance is a mere change in the mode of enjoyment of the properties as every member of the coparcenery has joint interest and joint possession over the entire property. But in cases where a plaintiff will have to prove a bundle of facts before a court can hold that he is entitled to claim partition in the property then it amounts to adjudication of various disputed facts with respect to the subject-matter of the suit itself and the court has to enter into the realm of investigation of disputed questions of fact to decide as to whether the property can be brought or held to appertain to the common hatch potch. The consensus of the judicial opinion now is that where a plaintiff seeks partition with respect to such properties in which he apparently cannot get any share, such as, properties standing in the name of strangers benamidars members of the family who are not coparceners or the like, he shall have to pay ad valorem court-fee on the value of his share claimed therein within the meaning of Section 7(iv)(b) of the Act. Therefore, it must be held that once a court is called upon to enter the disputed questions to find out the right of the plaintiff itself as to whether he is entitled to any share in the property or not he must pay ad valorem court-fee as indicated above. The position of muslim family may, however, be still different. In the case of Mitakshara Hindu family property may be acquired in the names of different coparceners and in view of the legal presumption existing under the Hindu Law the properties will be deemed joint family properties. There is no such presumption, however, in the case of a Mohammadan family.

In the case of Kaulasan Singh v. Ramdut Singh AIR 1951 Pat 633 it has been clearly laid down that a suit for partition of the joint Hindu family property, so far as the properties sought to be partitioned stand in the name of strangers to the coparcenary, must be regarded as a suit for declaration of title and consequential relief, and consequently ad valorem court-fee was payable.

The case of the present petitioner does not stand on a better footing. As already said above the properties standing in the names of Afjal Karim or anybody else, must be deemed to be in the names of strangers in which the plaintiff has got no apparent claim of any kind. For such an adjudication and decision of the right of the plaintiff to get any relief in relation to those properties, he must pay ad valorem court-fee on the value of his share claimed in those properties.

The learned Subordinate Judge, has, therefore, taken a correct view of the law. I would, accordingly, dismiss this application but without costs.