K.C Chunder, J.:— This Rule was issued at the instance of two defts., deft 24 & deft 25, in a suit for partition in a matter relating, to court-fees payable. The pltf. brought the suit on the allegation, among other things, that with regard to some of the properties deft 1, who is a member of the joint family had purchased the same in the name of defts. 24 & 25 who were strangers to the family. Had these strangers not been made parties the present question would not have arisen. The pltf. wanted a decree for partition in the presence of these two defts. who were alleged to be the ostensible or apparent owners of the properties in dispute but who were not according to the pltf. the real owners. Therefore till the declaration was made that they were not the real owners but the joint family was the real owner, no partition as far as these properties were concerned could be asked for.
2. The very prayer of the partition of the properties in the presence of these defts. involved a prayer for declaration of title to these properties as against these defts. & confirmation of possession as against them. Therefore the court-fee should have been paid as far as these properties of defts. 24 & 25 are concerned on the ‘ad valorem’ basis & not on the fixed court-fee basis for a partition suit.
3. The pltf. will be at liberty to exclude defts. 24 & 25 from the category of defts. in which case no ‘ad valorem’ court-fee for those properties will be payable.
4. The Rule is accordingly made absolute with costs.
5. Sen, J.:—I agree.
K.S
6. Rule made absolute.