Vijay Kumar vs Harish Chand alias Hari Chand

G.R. Majithia, J.

This revision petition is directed against the order of the trial judge holding that the courtfee is payable on the market value of the property and after so saying he deferred the final decision on the issue.

The plaintiff/petitioner filed a suit for possession by partition of the joint property inter alia alleging that he had 1/2 share in the same. The trial judge found that ad voleram courtfee had to be paid on the market value of the property. The view taken by the trial judge is patently erroneous. This Court has taken a consistent view that the real relief claimed and granted in such a suit for partition is the change it the mode of enjoyment of the properties from joint possession to separate possession and that it is not possible to estimate its value in money and that such a suit falls under clause (vi) of Article 17 of Schedule II of Court Fees Act (for short the Act). Reference can usefully be made to a Full Bench decision rendered in Asa Ram and others v. Jagan Nath and others, 1934 (Vol. 36) Punjab Law Reporter 48 where Jia Lal, J. speaking for the Bench held as under :

"To sum up my view is that in a suit to enforce the right to share in joint family property. i.e., a suit to be restored to joint possession or enjoyment of joint family property, courtfee would be payable under section 7(iv)(b), ad volorem on the value of the relief as fixed by the plaintiff and in a suit for partition of joint property, whether owned by a joint family or otherwise, where the plaintiff alleges that he is in actual or constructive possession thereof, Courtfee payable would be Rs. 10 under Article 17(vi) of the Second Schedule of the Court Fees Act."

This view was again reiterated in Diwan Chand v. Dhani Ram and others, 1941 PLR 153 where Tek Chand, J. speaking for the Bench observed thus

"My answer to the reference, therefore, is that in an appeal arising from a suit for partition of alleged joint properties, of which the plaintiff claimed to be in actual or constructive possession, a court fee of Rs. 10 is payable on the memorandum of appeal, even though the trial Court had found the plaintiff not to be in possession of some or all such properties."

The Act was amended in Haryana and it is not disputed that Article 12(iv) of Schedule II of the Act, as amended is equivalent to Article 17(vi) of Schedule II of the Act. The observations in the aforesaid Full Bench judgments are fully attracted to the instant case. Consequently, there is no escape from the conclusion that in a suit for possession by partition of 1/2 share the courtfee has to be fixed under Schedule II Article 12(vi) of the Act, as amended in Haryana. Article 12(vi) of Second Schedule of the Act, as amended, prescribes a fixed courtfees stamps of Rs. 25/ which has been, paid in the instant case.

For the reasons aforesaid the civil revision is allowed; the order under challenge is quashed and it is held that the courtfee has been correctly paid. The trial Court will dispose of the suit in accordance with law.