Lahiri, J.:— This Rule has been obtained by the plaintiff in a suit for partition against an order of the Subordinate Judge, First Court, Alipore, dated the 19th June, 1956 by which the learned Judge directed the plaintiff to pay ad-valorem Court fees upon certain properties included in the Schedule to the plaint.
2. Briefly stated, the plaintiff's case in the plaint is that the plaintiff and the defendant No. 1 are two brothers having equal shares in all the joint family properties. Defendants Nos. 2 to 8 have been impleaded in the suit on the ground that certain properties which were claimed by the plaintiff as joint family properties stand in their names. Defendant No. 2 is the wife of defendant No. 1, Defendant No. 3 is the son of defendant No. 1. Defendant No. 4 is the wife of defendant No. 3 and defendant No. 5 is the widow of a predeceased son of the plaintiff. Defendant No. 6 is a private tutor of the family. Defendant No. 7 is a pleader of the Alipore Court and defendant No. 8 is a relation of defendant No. 1 by marriage. In paragraph 4 of the plaint, the plaintiff states that although defendants Nos. 2 to 8 are ostensible owners of the properties standing in their names, all these properties were acquired with joint family funds, and these defendants are, in fact, mere benamidars of the joint family. It is also stated that the income from all the properties standing in the names of defendants Nos. 2 to 8 is brought into the common till and entered in the ejmali rokar. In paragraph 6 the plaintiff states that out of the ejmali funds defendant No. 1 gives the plaintiff a monthly allowance which is hardly sufficient for his maintenance. The plaintiff further alleges that originally the plaintiff himself was the manager of the joint family properties, but after the death of his only son and after the death of his wife the management of the properties was taken over by defendant No. 1. There are also various other allegations in the plaint about the various acts of mismanagement by defendant No. 1. Those allegations are not strictly breaking necessary in a suit for partition. The plaint is unnecessarily prolix, but it contains essential averments that the properties claimed by the plaintiff as joint family properties were acquired with joint family funds and the further averment that the plaintiff is in receipt of a share of the income of all the joint family properties. The learned Subordinate Judge has held since the plaintiff has included in this suit properties standing in the names of strangers, and since the plaintiff wants an adjudication of title as against strangers to the family, he must pay ad-valorem court fees in respect of the properties which, according to the allegations in the plaint, stand in the names of strangers. In coining to this conclusion, the learned Subordinate Judge has followed a judgment of this court in Gagan Chandra v. Surendra Nath (1) A.I.R 1951 Calcutta 410, and also a decision of the Patna 633. In Nilmoni v. Upendra (2) 61 C.W.N 875, Guha J. and myself had an occasion to consider the correctness of the aforesaid decisions in view of the introduction of clause (V-A) to Article 17 of Schedule 11 of the Court-fees Act following the Bengal Amendment of the Court fees Act by Bengal Act VII of 1935. I am glad to have this opportunity of further explaining the view which I expressed in the aforesaid decision.
3. Mr. Mukherjee appearing for the petitioner has contended that the present case should also be governed by Schedule 11, Article 17 clause (V-A) of the Court-fees Act, and therefore, the plaintiff is entitled to maintain the suit with a fixed court fee of Rs. 15/- as provided for in that clause. Mr. Mukherjee further contends that the present case is to be governed by the principles laid down in Nilmoni v. Upendra (2) 61 C.W.N 875.
4. There are two provisions in the Court-fees Act which apply to suits for partition. The first provision is in Schedule 11 Article 17, clause (V-A) which runs as follows:—
“Plaint or memorandum of appeal in each of the following suits., ***(va) for partition and separate possession of a share of joint family property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property if the plaintiff is in possession of the property of which he claims to be a co-parcener or co-owner” a fixed court fee of Rs. 15. The second provision in the Court fees Act about partition suit is in section 7, paragraph (viA) which runs as follows:
“In suits for partition and separate possession of a share of joint family property or of joint property or to enforce a right to a share in any property on the ground that it is joint family property or joint property—if the plaintiff has been excluded from possession of the property of which he-claims to be coparcener or co-owner, according to the market value of the share in respect of which the suit is instituted.”
5. These two provisions envisage four kinds of suits—(a) suit for partition and separate possession of a share of joint family property; (b) partition and separate possession of a share of joint property; (c) to enforce a right to a share in any property on the ground that it is joint family property: and (a) to enforce a right to a share in any property on the ground that it is joint property. A suit for partition may come under any one of these four clauses to enforce a right to a share in any property on the ground that it is joint family property or joint property, in my opinion, connotes something more than a mere suit for partition and separate possession of joint family property or joint property. The adjectival phrase “to enforce a right to a share in any property on the ground that it is joint family property or joint property” entitles the plaintiff to ask for an adjudication of title should be confirmed to cases where the property stands in the name of a near relation, of the family e.g a wife, a son or a grandson, or whether that adjudication can also be claimed against any person even though he is not related to the joint family in any way.
6. In Gagan Chandra v. Surendra Nath (1) A.I.R 1951 Cal. 410, Sen and Chunder, JJ. took the views that the plaintiff is entitled to ask nor such an adjudication of title on a fixed court fee of Rs. 15 only when the property stands in the name of a near relation, but the plaintiff has to pay ad valorem court fees if the property stands in the name of stranger. It does not appear from the report that the attention of their lordships was drawn to the provisions of clause (va) of article 17 of Schedule II of the Court-fees Act. Upon the language of that clause, I find no justification for this distinction. If the other conditions of clause (va) are fulfilled, it does not in my opinion, make any difference whether the property stands in the name of a near relation or a stranger.
7. Mr. Sanyal appearing for the opposite party in this case has invited us to put a narrow construction upon the words “enforce a right to a share in any property on the ground that it is joint family property or joint property” and to hold that this clause applies only to a case where the properties in respect of which partition is sought is admittedly joint or stand in the names of co-sharers. I am unable to accept this narrow interpretation of this clause. “To enforce a right to a share in any property” in my opinion means to enforce a right to a share in a property which stands in the names of others, including strangers. All that is necessary to attract the operation of this clause is that the plaintiff should seek to enforce a right to a share in that property on the ground and it is joint family property and that he is in possession. I nave already stated that in paragraph 4 of the plaint in the present case, the plaintiff has stated that although some of the properties mentioned in the schedule ostensibly stand in the names of defendants Nos. 2 to 8, all of them were acquired with joint family funds and that the income of those properties are entered in the ejmali Roker Book. This, in my opinion, is sufficient to attract the operation of the provision that this is a suit to enforce a right to a share in a property on the ground that it is joint family property.
8. The next question is whether the plaintiff in the present case has alleged in the plaint that he is in possession of the joint property. I have already said that in paragraph 6 the plaintiff alleges that he is in receipt of the income of the joint family property though he alleges that he does not get his share. This is sufficient to bring the case within the purview of clause (va). The averment is that the plaintiff is in possession of the property of which he claims to be a co-sharer.
9. Mr. Sanyal appearing for the opposite party has also contended that if a property stands in the name of a co-sharer, there is a presumption of jointness but if it stands in the name of a stranger, there is no such presumption, and the ordinary rule of law to the effect that the ostensible owner is the real owner will apply. That is undoubtedly true. The onus is certainly upon the plaintiff to show that the properties which stand in the name of strangers were, in fact, acquired with joint family funds, and the onus is also upon the plaintiff to prove that the income of those properties are brought into the common till out of which the plaintiff receives his allowance. If the plaintiff fails to prove these allegations made in paragraphs 4 and 6 of the plaint his suit will fail to that extent, but upon the averments in the plaint, as it now stands, I am not prepared to hold that the plaintiff is not in possession of the properties of which he claims to be a co-sharer. If the property is in the possession of a co-sharer the plaintiff should be deemed to be in constructive possession of the property through his co-sharer, but if it is in the possession of a stranger, that principle will not apply, and the plaintiff should be deemed to have been excluded from possession of those properties, and the case will come under section 7(viA) of the Court Fees Act.
10. The distinction between Schedule II, Article 17, clause (va) and Sec- tion 7(viA) does not turn on the question who is the ostensible owner, or whether the ostensible owner is a member of the family or a stranger, but on the question whether upon the averments in the plaint, the plaintiff is in possession of the properties of which he claims to be a co-sharer. If he is, Schedule II, Article 17, clause (va) will apply. If he is not, section 7 (viA) will apply. But at this stage, the matter must be decided upon the plaint. The plaintiff takes the risk of going to trial upon the averment that he is in possession, not only tin respect of ejmali properties, but also of properties which stand in the names of strangers. If he proves these allegations the suit is liable to be dismissed to the extent to which the plaintiff fails to prove his allegations.
11. Upon a consideration of the relevant paragraph of the plaint, I have no doubt in my mind that the plaintiff has fulfilled all the requirements enumerated in (Schedule II, Article 17, clause (va) of the Court-fees Act, and the learned Subordinate Judge was wrong in directing the plaintiff to pay ad valorem court fees in respect of the properties which stand in the names of strangers.
12. With regard to the Patna case relied upon by the learned Subordinate Judge and also the Allahad decision relied upon by him, I have pointed out in Nilmoni v. Upendra (2) (supra) that the provisions of the Court-fees Act are different in West Bengal from the provisions prevailing in Bihar and Uttar Pradesh. In the State of West Bengal, litigants are governed by clause (va) of Article 17, Schedule II but in Bihar there is no such clause in Article 17 of Schedule II.
13. For the reasons given above, 1 would make the Rule absolute and direct that the order of the learned Subordinate Judge be set aside and that the suit do proceed upon the court fees already paid by the plaintiff.
14. The petitioner is entitled to get the costs of this Rule from the opposite parties. The hearing fee is assessed at five gold mohurs.
Mitter, J.:— I agree.
S.N.S