Alfred Henry Lionel Leach, C.J.
1. This petition raises important questions with regard to the stamping of plaints in suits for the partition of estates of joint Hindu families. The petitioner is the minor son of a Hindu father. Through his mother as next friend he has filed a suit in the Court of the Subordinate Judge of Kumbakonam for partition of the family properties and for possession of his one-fifth share therein. He has joined as defendants his father, his three brothers, and twenty-two other persons. The stranger defendants are made parties either as alienees of family properties or as creditors of the family. In his plaint the plaintiff avers that the family is one engaged merely in agriculture and that before the matters complained of, it had large cash resources. He alleges that his father has engaged in reckless speculation in land, in trade, and in litigation with the result that the cash resources have disappeared, the family properties have been sold or mortgaged and numerous debts contracted. The plaintiff says that his father's transactions are not binding on the family, but he has not in terms asked for the setting aside of the alienations of family properties or for declarations that his father's other transactions are unenforceable against the estate. His prayers are for (i) an account of the movable and immovable joint family properties, (ii) the partition by metes and bounds of his. one-fifth share, (iii) the appointment of a receiver to manage the properties and collect the rents and income till the disposal of the suit, (iv) the costs of the suit, and (v) such further and necessary reliefs as in the circumstances may be considered necessary and proper. He values his share of the family properties at Rs. 40,000 but has merely stamped his plaint with a court-fee of Rs. 100 under Article 17B of Schedule II of the Court-Fees Act as amended in Madras.
2. On the filing of the plaint the Subordinate Judge called for a statement of the transactions which the plaintiff says are invalid as against the family and a statement was submitted. From this statement and the order of the Subordinate Judge with which this petition is concerned the following particulars have been extracted:
Person or personsItem No. Nature of alien- Amount In whose alleged to haveation or debt. Rs. favour. entered into thetransaction or havebeen held liable.1. Simple mortgage 45,000 5th defen- 1st defendant fordated 15-11-1932. dant. himself and as managerof the joint family.2. Simple mortgage dated 7-3-1934 7,600 6th and 7th 1st defendant.defendants.3. Simple mortgage dated 13-3-1934. 3,297 8th defendant. Do4. (a) Usufructuary mortgage dated 23-12-1933. 8,800 9th defendant. Do(b) Sale in Court auction in O.S. .. 9th defendant (Not stated.)No. 15 of 1933,Sub-Court, Kumbakonam.5. Promissory note, 4,000 10th defen- Defendants 1 anddated 14--3-1933. dant. 26.6. Charge decreedebt in O.S. No. 39 26,000 11th defendant. 1st defendant.of 1926 on the file of the Subordinate Judge's Court,Kumbakonam.7. Simple money 600 12th defendant (Not stated.)decree debt in S.C.No. 211 ofSubordinateJudge's Court.8. Simple money 3,000 13th defen- 1st defendant.decree debt ai O.S. dant.No. 42 of 1933 onthe file of the Sub-ordinate Judge'sCourt, Kumbakonam.9. Simple money 6,343-7.8 14th defen- Defendants 1 to 4decree debt in O.S. dant. and plaintiff.No. 23 of 1933,Mayavaram Subordinate Judge'sCourt.10. Simple money 6,000 15th defendant. Do.decree debt inO.S. No. 10 of 1933,Mayavaram Sub-ordinate Judge'sCourt.11. Sale dated 29th 18,879-5-8 18th defendant. 1st defendant.July, 1934.12. Simple money 9,000 19th defendant. Do.decree debt on the file of theSubordinateJudge's Court,Kumbakonam,O.S. No. 15 of1933.13. Decree in O.S. No. 3,680 20th defendant. (Not stated.)298 of 1934, on the file of the District Munsif'sCourt of Valangiman.14. Sale 750 21st defendant. 1st defendant.15. Simple money decree 675 22nd defendant. Do.in S.C. No. 400 of 1933 ofthe SubordinateJudge's Court,Kumbakonam.16.(a) Simple mortgage. 5,600 23rd defen- 1st defendant asdant. manager.(b) Simple money 978 .. 1st defendant.decree debt in S.CNo. 375 of 1933 on the file of theSubordinate Judge'sCourt, Kumbakonam.17. Simple money 246 24th defen- 1st defendant,decree debt in S.C. dant.No. 814 of 1933on the file of theSubordinate Judge'sCourt, Kumbakonam. 5,513-8-5 25th defen- Defendants 1 to 4,18. Simple money decree dant.debt in O.S. No. 66of 1933 on the fileof the SubordinateJudge's Court,Kumbakonam.19. Simple money 400 26th defen- (Not stated,)debt. dant.
3. It does not appear from the statement nor from the order of the Subordinate Judge why the 16th and the 17th defendants are made parties, though in the plaint it has been alleged that they are among the persons from whom the first defendant has borrowed.
4. The Subordinate Judge has held that as the plaintiff himself is 'constructively' a party to the mortgage for Rs. 45,000 he must pay in respect of this matter a court-fee in accordance with the ad valorem scale specified in Article 1 of Schedule I of the Court-Fees Act. He has also held that the plaintiff is constructively a party to the transactions which are items 9, 10, 11, 13, 16(a) and 18 in the above table and has directed the plaintiff to pay a court-fee in respect of these items also on the ad valorem scale. In the Subordinate Judge's opinion the plaintiff is not even constructively a party to the other transactions, but he has held that he should pay under Article 17A (1) of Schedule II a court-fee of Rs. 100 in respect of each 'for the relief of declaration.' The Subordinate Judge has also called upon the plaintiff to pay a Court-fee of Rs. 100 under Article 17B of Schedule II because he has asked for the appointment of a receiver. The total amount payable by way of court-fees under this order is Rs. 6,324-9-0. The plaintiff contends that as he has not expressly asked for relief in respect of the transactions which he challenges he can only be called upon to pay a court-fee of Rs. 100 under the provisions of Article 17B of Schedule II in respect of his prayer to be put in possession of his share in the estate.
5. Section 17 of the Court-Fees Act provides that where a suit embraces two or more distinct subjects the plaint shall be chargeable with the aggregate amount of the fees to which the plain in suits embracing separately each of such subjects would be liable under the Act. Before discussing the question of the stamping of the plaint in respect of the transactions which the plaintiff challenges it is necessary to decide under which provision of the Act the plaint requires to be stamped in respect of the general relief for partition and delivery to the plaintiff of his share. The plaintiff's contention that Article 17-B of Schedule II applies here is contrary to the majority decision of the Full Bench of this Court (White, C.J., Krishnaswami Aiyar and Ayling, JJ.) in Rangiah Chetty v. Subramania Chetty (1910) 21 M.L.J. 21 . It was there held by White, C.J. and Krishnaswami Aiyar, J., that a suit for partition of joint family property where the plaintiff is in joint possession with the other coparceners is governed by Section 7, Clause (iv)(b) and that therefore the plaint in such a suit should be stamped ad valorem on the amount at which the relief sought is valued Ayling, J., dissented and held that the case fell within Article 17(vi) of Schedule II which is now Article 17B of the Madras Court-Fees (Amendment) Act, 1922. The latter Act made extensive amendments in the Court-Fees Act of 1870 in certain other respects. The opinion of White, C.J. and Krishnaswami Aiyar, J., is not shared by any other Indian High Court. The Calcutta High Courthas applied Article 17(vi) of Schedule II. See Kirty Churn Miner v. Aunath Nath Deb I.L.R.(1882) , Bidhata Roy v. Ram Charitra Roy (1907) 6 C.L.J. 651, Rajani Kanta Bag v. Rajabala Dasi I.L.R.(1924) 52 Cal. 128 and Nandalal Mukherjee v. Kalipada Mukherjee I.L.R.(1931) 59 Cal. 315, The Allahabad and the Lahore High Courts are of the same opinion. See Tar a Chand Mukherjee v. Afzal Beg I.L.R.(1911) 34 All. 184 and Asa Ram v. Jagan Nath I.L.R.(1934)15 Lah. 531 . The Bombay High Court has held that even where the plaintiff is in joint possession of the family property the provisions of Section 7 (v) should be applied. Balwant Ganesh v. Nana Chintamon I.L.R.(1893)18 Bom. 209 and Dagdu v. Totaram I.L.R.(1909)33 Bom. 658. It is true that in Motibhai v. Haridoss I.L.R.(1896) 22 Bom. 315, Section 7(iv)(b) was applied, but in Dagdu v. Totaram I.L.R. (1909) 33 Bom. 658, an attempt was made to distinguish the former decision and it cannot be regarded as representing the Bombay view. The question having been raised we must consider whether Rangiah Chetty v. Subramania Chettyi (1910) 21 M.L.J. 21 , was correctly decided.
6. Section 7 (iv)(b) says that suits to enforce the right to share in any property on the ground that it is joint family property shall be stamped according to the amount at which the relief sought is valued in the plaint. The reasons for the majority view in Rangiah Chetti v. Subramania Chettyi (1910) 21 M.L.J. 21 are to be found in the judgment of Krishnaswami Aiyar, J., in which White, C.J., concurred. The reasons given by Krishnaswami Aiyar, J., can be shortly stated in this way. It would not be likely that the Legislature in enacting a measure with regard to court-fees would have omitted to make specific provision for such a common form of suit as a suit for partition by a member of a joint Hindu family and the Privy Council had applied a clause similarly worded in the Limitation Act of 1859 to such suits-The clause referred to in that Act is Clause 13 of Section 1, which fixed a period of twelve years for suits to enforce the right to share in any property movable or immovable on the ground that it is joint family property. Ayling, J., agreed with the opinion expressed in Dagdu v. Totaram I.L.R.(1909) 33 Bom. 658. that a suit to recover by partition a definite and ascertained share of a specified property could not fall under Section 7(iv)(b), but he did not accept the Bombay view that Section 7(v) was the appropriate section. He accepted the decision in Kirty Churn Mitter v. Aunath Nath Deb I.L.R.(1882) 8 Cal. 757, as embodying the correct view. In that case Garth, C.J., observed that it was impossible to say what would be the value to the plaintiff of the change in the nature of his property. A partition suit changes the form of enjoyment of the property. Instead of an undivided share the plaintiff claims a divided share. Ayling, J., agreed that it was impossible to estimate in money the value of such a suit. In this connection it may be mentioned that in Gill v. Varada Raghavayya (1919) 38 M.L.J. 92 : I.L.R. 43 Mad. 396, Wallis, C.J. and Sadasiva Aiyar, J., held that a suit for partition of immovable property by a person who alleged that he was in possession of it as co-tenant on behalf of himself and others was governed by Article 17(vi) of Schedule II (now Article 17B) because the value of the subject-matter was not capable of valuation.
7. The Bombay High Court stands alone in its application of Section 7(v). That section says that in suits for the possession of land, houses and gardens the stamp fee shall be paid according to the value of the subject-matter, and states how that value shall be arrived at. In my opinion this Sub-section cannot be deemed to apply to a partition suit where the plaintiff is in joint possession. A joint owner who is in possession does not need to sue for possession. He has possession and the fact that his possession is shared by others does not affect the position, I consider that Section 7(v) can only apply where the plaintiff is seeking relief in respect of immovable property when he is out of possession.
8. If Section 7(v) is ruled out the only other provisions of the Court-Fees Act which call for consideration are Section 7 (iv)(b) and Article 17B of Schedule II. The language of Section 7(iv)(b) is, however, incompatible with a claim for partition when the plaintiff is in joint possession, with the other members of his family. A suit to enforce a right to share in any property on the ground that it is joint family property is. a suit of a different nature from a suit to enforce the right to a share. Where the claim is to share, it implies that the plaintiff is not in possession; whereas a suit to obtain possession of a share is compatible with the plaintiff being in joint possession of the whole.
9. With regard to the reasoning of Krishnaswami Aiyar, J., based on Section 1, Clause 13 of the Limitation Act of 1859, it falls to be observed that the wording of this clause was changed by the Limitation Act of 1871 and that the change has been maintained in the Acts of 1877 and 1908. The corresponding Article to Section 1, Clause 13 of the Act of 1859 in the two later acts is Article 127, which provides a period of limitation of twelve years in respect of a suit by a person excluded from joint family property to enforce a right to share therein. The article now clearly only refers to a suit by a person who is excluded from joint family property. Krishnaswami Aiyar, J., did not think that this amendment made any difference in the interpretation of the article, but in my opinion the alteration of the wording certainly robbed the argument of any force it might have had. As altered its applicability is expressly limited to a case where the member suing is not in joint possession. If the words of Section 7(iv)(b) are to be given their ordinary meaning they cannot apply to a suit for partition by a member of a joint family who is still in joint possession. It follows that I consider that the majority decision in Rangiah Chetty v. Subramania Chetty (1910) 21 M.L.J. 21 is erroneous and should be overruled. In these circumstances the only provision in the Court-Fees Act which is applicable is Article 17B of Schedule II and in stamping his general relief under this provision the plaintiff acted rightly.
10. I am unable to accept the plaintiff's contention that he should not be called upon to pay court-fees in respect of any of the transactions which he challenges because he has not asked for specific relief in respect of them. His plaint challenges the validity of transactions entered into by his father as manager of the family, and particulars of these transactions have been supplied. The plaintiff must pay court-fees in accordance with the relief which he is actually seeking. He cannot be allowed to evade payment by omitting to ask for relief when the success of his suit depends on relief being granted to him. The Court must look at the real nature of the suit and decide what the plaintiff is asking for. In this case he is asking for possession of his share in the estate to be calculated after certain transactions have been set aside. Mr. V.V. Srinivasa Aiyangar has rightly conceded that if it is necessary for the plaintiff to ask for relief in respect of any of the transactions he must pay extra court-fee. The plaintiff is in effect asking in respect of alienations where possession has passed to the alienees that they be set aside and that he be placed in possession of his share of the properties alienated. In respect of these transactions the plaintiff clearly has to stamp his relief in accordance with the provisions of Section 7(v). This will apply to items Nos. 4, 11 and 14 of the table set out above.
11. In respect of decrees passed against him in suits in which he had been eo nomine impleaded as a party, it is plain that he must pay the fee prescribed by Section 7(iv)(a). Such decrees bind him until set aside, and therefore he cannot seek to obtain a decision on the footing that his interest in the joint family property is not affected by them. It makes no difference that the plaintiff is a minor or merely a junior member of the family, as the considerations which apply to the decree of a competent Court once it is passed, are essentially different from those applicable to the transactions of a party. The plaintiff must be held to have impliedly asked for a cancellation of the decrees passed against him and must accordingly stamp his plaint ad valorem on the amount of the decrees and not merely on his share fraction, as his liability is for the full amount, though necessarily limited to the extent of his share in the joint family assets. These remarks apply to items Nos. 9 and 10 in the table.
12. The other transactions of the first defendant, whether the plaintiff is made a party thereto or not, stand on a different footing. He is not bound under the substantive law by which he is governed, to sue for a declaration or cancellation in respect of any of them. The legal position has been correctly explained in Unni v. Kunchi Amma I.L.R.(1890)14 Mad. 26 , in the following words which were taken from an unreported decision of this Court:
If a person not having authority to execute a deed, or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary for persons who are not bound by it to sue to set it aside, for it cannot be used against them. They may treat it as non-existent and sue for their right as if it did not exist.
13. The same principle has been distinctly laid down by the Privy Council in Bijoy Gopal Mukerji v. Krishna Mahishi Debi (1907) 17 M.L.J. 154 : L.R. 34 IndAp 87 : I.L.R. 34 Cal. 329 , where their Lordships point out the jural basis underlying such transactions. In that case the reversioner sued for a declaration that a lease granted by the widow of the last male owner was not binding on him and for khas possession. It was objected that the omission to set aside the lease by a suit instituted within the time limited by Article 91 of the Indian Limitation Act was fatal to the suit. The following observations which are equally applicable to a father or manager of a joint family are apposite:
A Hindu widow is not a tenant for life but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Courts, and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. It is true that the appellants prayed by their plant a declaration that the ijara was inoperative as against them as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession leaving it to the defendants to plead and (if they could) prove the circumstances which they relied on for showing that the ijara or any derivative dealings with the property were not in fact voidable but were binding on the reversionary heirs.
14. In such cases even if the plaint contains a prayer for a declaration or cancellation, there is good reason for holding it to be one for a purely incidental, but unnecessary relief. As I have indicated there is no such prayer in the plaint, and in the light of the principles explained there is no justification for implying them and then demanding a fee for it. Nor can I see any force in the argument that the position is altered by the joinder in the suit of the parties to the transactions who are interested in supporting them. Whether they are before the Court or not, the Court is bound as between the members of the family to decide which are the debts binding on the family, before directing a division. Vide Venku Reddi v. Venku Reddi (1926) 52 M.L.J. 387 : I.L.R. 50 Mad. 535 , and Sat Narain v. Sri Kishen Das (1936) 71 M.L.J. 812 : L.R. 63 IndAp 384 : I.L.R. 17 Lah. 644 . The presence of the third parties would no doubt invest the decision with a finality, but this is scarcely a ground for reading into the plaint a prayer which the member suing is not obliged to seek under the law in the face of the provision in Order 1, Rule 10(2) of the Civil Procedure Code, which permits the name of any person to be included in a suit, whose presence before the Court would enable it effectually and completely to adjudicate upon and settle all questions involved in the suit. I am unable therefore to appreciate the argument that by reason of his impleading the several creditors, the plaintiff must be deemed to have asked for declarations in respect of each of the transactions impugned, and must pay a separate court-fee as regards each one of them.
15. It follows that in my opinion the plaintiff cannot be called upon to pay any additional court-fee in respect of the transactions challenged other than the transactions described in items Nos. 4, 9, 10, 11 and 14. It will be for the respective defendants to establish their right to rank as creditors in the other transactions when the account is taken. Neither can the plaintiff be called upon to pay a separate court-fee in respect of his prayer for the appointment of a receiver. This relief is entirely of an interlocutory character.
16. The record will be remitted to the trial Court and the plaintiff will be given an opportunity of stamping his plaint in accordance with this judgment. Notice of this petition was served on the Government Pleader but as the plaintiff has succeeded in part, there will be no order as to costs.
Pandrang Raw, J.
17. I agree with my Lord.
Krishnaswami Aiyangar, J.
18. I concur in the opinion expressed by my Lord the Chief Justice.
Patanjali Sastri, J.
19. I concur in the judgment just delivered by my Lord the Chief Justice.
Abdur Rahman, J.
20. I agree with my Lord the Chief Justice in regard to the conclusions at which he has arrived on the various questions involved in this revision except on one and would therefore give my reasons.
21. Three divergent views have been expressed by different High Courts in regard to the court-fee to be put on a plaint for partition of joint family property where the plaintiff happens to be in joint possession of the same with his coparceners. The Calcutta and Allahabad High Courts have consistently taken the view that the fee in such a case would have to be fixed under Article 17(vi) of Schedule II to the Court-Fees Act. Vide Kirty Churn Mitter v. Aunath Nath Deb I.L.R.(1882) 8 Cal. 757, Bidhata Roy v. Ram Charitra Roy (1907) 6 C.L.J. 651, Rajani Kanta Bag v. Rajabala Dasi I.L.R.(1924) 52 Cal. 128, Nandalal Mukherjee v. Kalipada Mukherjee I.L.R.(1931) 59 Cal. 315 and Tarachand Mukherjee v. Afzal Beg I.L.R.(1911) 34 All 184. The Lahore High Court was taking a different view before but has in a recent Full Bench case decided to fall in with the view of the Calcutta and the Allahabad Courts. Vide Asa Ram v. Jagan Nath The Bombay High Court has been, except in one case, Motibhai v. Haridoss I.L.R.(1896) 22 Bom. 315 of opinion that inasmuch as a suit for partition involves a claim for possession, it should be governed by Section 7(v) of the Act. The view adopted in this presidency after the Full Bench decision in Rangiah Chetty v. Subramania Chetty (1910) 21 M.L.J. 21 , has been that the fee was to be paid in accordance with the rule contained in Section 7(iv)(b) of the Act. In view of this conflict of judicial opinion I referred the revision raising this and three other questions when it came up before me for an authoritative decision by a larger Bench. It was placed before a Full Bench which decided to place this and other questions for a decision by five Judges and this Bench was constituted in consequence.
22. The questions which arise for determination in this revision are: (a) What is the requisite fee payable in cases where a plaintiff asks for partition of family property of which he is or claims to be in joint possession? (b) What would be the court-fee payable in respect of a property which a plaintiff has included in his suit for partition but which property has been alienated by a manager of the family and its possession has passed out of the family? (c) Whether it is incumbent upon the plaintiff, if he wishes to get rid of any decrees or alienations to which he was eo nomine a party, to sue for their cancellation. If so, what fee would he be liable to pay for that relief? (d) Was it essential for the plaintiff to sue for a declaration or cancellation in regard to transactions (decrees or alienations) to which he had not been made a party? Or in other words, would he be justified in ignoring these transactions altogether and claiming partition although he impleads the decree-holder or the alienee, thus desiring to have a final adjudication as between him and them in regard to the binding character of the decrees or alienations? If he is not justified in ignoring these transactions and is bound to ask for a relief, what should he sue for and what is the requisite fee for that relief?
23. As to the first question, it was conceded by the learned Judges of this Court whose decision prevailed in the Full Bench case Rangiah Chetty v. Subramania Chetty (1910) 21 M.L.J. 21 , that the subject-matter in dispute which was nothing but a convenience sought by the plaintiff in the form of his enjoyment, was not capable of being estimated at a money value. They however declined to apply the provisions of Article 17(vi) to a suit of this nature as they found the second condition necessary for its application to be wanting. They felt that Section 7(iv)(b) in terms applied to a suit for partition even when the plaintiff claimed to be in joint possession of the family property and since the provision's of Article 17(vi) could not be attracted as long as a provision could be found in the Act for a suit of this kind, they held the above-stated article to be inapplicable. There is no doubt that if Section 7 (iv)(b) applied to a suit of this nature, Article 17(vi) would have no application. But the question is if Section 7 (iv)(b) is applicable. It reads as follows:
To enforce the right to share in any property on the ground that it is joint family property.
24. It has to be admitted that the language of this clause is clumsy and has now been repealed in Bengal where a new section has been enacted in its place which provides a fixed fee in suits for partition where the plaintiff is in joint possession of property. The same course has not been adopted in other provinces, although in the interests of the litigant public it might have been properly so. Since the old section of the Act still exists on the statute book, we have to determine if this clause was rightly applied by the learned Judges of the Madras High Court to this class of cases.
25. It might be stated at the outset that this Sub-section is apparently applicable to persons who own joint family property in the sense in which that expression is used in the Hindu Law and could not be applied to persons who are merely tenants-in-common. The only Lahore case which was brought to our notice in which the present section was extended to Muhammadans has been dissented from by a Full Bench of that Court. Vide Asa Ram v. lagan Nath I.L.R.(1934) 15 Lah., .
26. As for the words used in Section 7(iv)(b), ordinarily the expression 'to enforce the right to share' would convey the meaning that the plaintiff wanted to enforce a right which he had been deprived from sharing and not. that he wished to exercise a right which he had been enjoying although in a different form or manner. I am not at present considering cases where a person has not been permitted to enjoy even joint rights in the family property, or in other words where he has been ousted from joint enjoyment of the property, but only those in which he had been enjoying and in regard to which he wished to seek a partition, that is to say, where he wished to enjoy his specific share in the property separately after severing his rights from those of the other members of the coparcenary or joint family as the case may be. In the latter type of cases the plaintiff can only be said to have asked for a change in the mode of enjoyment and it would not be, to my mind, quite correct to say that in seeking this changed mode of enjoyment he was trying to enforce a right to share a joint property, a right which he had been enjoying heretofore without any hindrance by the other members. If a plaintiff has been in joint enjoyment and he does not wish to continue to enjoy the property in that manner, all that he need ask for is, not possession which is already with him, but partition, a relief for which no provision has been specifically made in the Court-Fees Act. The language of the section, if construed grammatically, does not help us in arriving at the result that the provisions of the Sub-section were meant to cover cases of partition at the instance of a person who had been in joint enjoyment of the family property. Let me then examine the reasons given by the learned Judges in the Full Bench decision, Rangiah Chetty v. Subramania Chetty (1910) 21 M.L.J. 21 , for coming to the conclusion that this section was applicable in regard to suits of the nature mentioned therein. The first reason given by them was that the language of the section if it was not construed in the manner suggested, would lead to the startling result, that while provision in regard to, what they call, rare cases that is, cases where coparceners bring suits for joint possession after being excluded from the enjoyment of or for participation in the profits of the joint property) might be found to have been contained in this Sub-section, no provision for common cases, that is, suits for partition by coparceners in possession, would be found to have been made at all. This reasoning would not, with great deference to the learned judges, justify us in bringing cases within the scope of this Sub-section if they would not otherwise fall within it. Where has the very common case of a suit for partition of property owned jointly by a tenant-in-common been, one might well ask, provided under the Act? Is there any reason to hold that while cases of partition by tenants-in-common of property which cannot fall within the expression 'joint family property' should be held to fall under Article 17(vi) of Schedule II to the Act suits for partition by joint tenants should be deemed to come under this clause? I find none for drawing this distinction.
27. The second reason given by the learned Judges was drawn by an analogy from the construction placed on similar words by their Lordships of the Judicial Committee and by the High Courts in India occurring in Article 127 of the Limitation Acts of 1871, 1877 and 1908 or its corresponding provision in the earlier Limitation Act of 1859. See Hari v. Maruti The words of that article in the first column in the present Limitation Act and in its predecessor (Act XV of 1877) read as follows:
By a person excluded from joint family property to enforce a right to share therein.
28. It is manifest from the language that this article was meant to apply to a person who was excluded from the joint family property. The same language was employed in Act IX of 1871 with the difference that the 'Hindu' was used instead of the word 'person'. This would be of no consequence. In all these Acts of Limitation the period of limitation was to begin from the date when the exclusion became known to the plaintiff. As for Act XIV of 1859, Section 1, Clause 13 contained a provision for suits 'to enforce the right to share in any property, movable or immovable, on the ground that it is joint family property'. The period prescribed was twelve years and it was to run from the death of the person from whom the property alleged to be joint was said to have descended or from the date of the last payment to the plaintiff or any person through whom he claimed by the person who was in possession or enjoyment of such property on the ground of such alleged share. It would thus be seen that it applied only to persons who were not in joint enjoyment of the property which was claimed to have descended to them from the deceased or to those who did not get their shares of income from the persons who were actually in possession. The provisions contained in the various Limitation Acts were thus not applicable to persons who were in joint enjoyment of the property but to those only who had been excluded from its enjoyment either actually or by non-payment of any income on account of their share. There would have been no difficulty if, in applying the analogy of the construction placed on the words of the Limitation Acts to the language enployed in Section 7(iv)(b) of the Court-Fees Act, the same assumption of exclusion could be made here as well; but unfortunately it is not so. It was taken to cover cases where the plaintiff had been in joint enjoyment of family property. If an excluded person wishes to enforce his right against a person in possession, he would necessarily have to establish it before he can be permitted to enforce it and in attempting to enforce his right to share a property, when the right is one of joint enjoyment he must confine his claims to share its enjoyment and cannot ask for its actual participation by getting a share or a slice out of the joint property. It would therefore seem to follow that the demand for a share was not contemplated or in any case covered by this Sub-section.
29. These were the only two reasons given by the learned Judges in coming to the conclusion that Section 7(iv)(b) applied to a suit for partition by a member of a joint Hindu family in respect of property of which he had been in joint possession g With the other members. The other reasons given by them were advanced really to repel the arguments put before them to show that the section was inapplicable. Stress was laid by the Counsel who appeared in the case on the facts that the clause uses the verb 'to share' and not the noun 'share' and on the use of the words 'on the ground that it is joint family property'. They were repelled by Krishnaswami Aiyar, J., who wrote the leading judgment in the Full Bench case, on the ground that the use of the verb instead of the noun was justified as 'until partition no member of a joint Hindu family is entitled to a definite portion of the family estate'. As for the use of the expression 'on the ground that it is joint family property', it was met by saying that the words could not be construed to mean 'on the ground that it is property of a continuing joint family.' It may be true that if a person has not communicated his intention to sever himself from a joint Hindu family before he files a suit for partition he would be a member of a joint Hindu family at the time when the suit is instituted. But the moment the plaint is actually presented by him or on his behalf a disruption of the joint family comes into effect and what the plaintiff would be entitled to, and that is plainly the object of his suit which is one for partition, is a share in the joint family property. He cannot, after a severance has taken place, ask to share the joint family property but only for a share in that property. It goes without saying that as soon as a severance in status takes place in the eye of law, the property does not retain the character, which it had before partition, of joint family property. Hence in a suit for partition the property, although undivided, cannot continue to be described to be that of a joint family. It would be thus clear that is a suit for partition - whatever be the plaintiff's status before suit - his share must be held to be definite after its institution and he must be held to be claiming a share in the property which was once joint family property and not to share the property on the ground that it is joint family property. I am therefore of opinion that Section 7(iv)(b) could not be held to apply to a suit for partition instituted by a member of a joint Hindu family against the other member when the former was in joint enjoyment of the property.
30. The question then is whether Section 7(v) as held by the Bombay High Court in Balwant Ganesh v. Nana Chintamon I.L.R.(1893)18 Bom. 209 and Dagdu v. Totaram I.L.R.(1909) Bom. 658, is applicable to the facts of this case. The facts have not been very clearly stated in these cases and it is not possible to say whether the plaintiff's were in joint possession of the property on the dates on which those suits were instituted. If they were in possession or claimed to be so we would have to say, with very great respect to the learned Judges who decided those cases, that sufficient weight was not given by them to that fact. If a plaintiff is required in cases where he has been in joint enjoyment of property to pay court-fee as he would be when suing for possession, it would follow that his joint possession of the property which he has had at the time of the suit has been wholly ignored and at all events regarded of no consequence or value. If the view was taken in cases even when the plaintiff was in joint enjoyment, it cannot be supported. If the plaintiffs were on the other hand out of possession on the date on which they had filed these suits, they were rightly required to pay a ourt-fee under Section 7(v).
31. Section 7(iv)(b) and Section 7(v) have been found to be inapplicable. There is no other provision in the Court-Fees Act which would cover suits of this nature. If the convenience which the plaintiff desires in having his share partitioned is incapable of being estimated at a money value, as it undoubtedly is the only article applicable to a suit of this kind would be Article 17(vi) or Article 17(b) as enacted in Madras.
32. The second question presents no difficulty. If the plaintiff was not in possession, either actual or constructive, of the property at the time when he instituted the suit, the provisions contained in Section 7(v) of the Court-Fees Act would apply and he would have to pay court-fee in accordance with rules contained therein. Of course it is the allegation of the plaintiff himself which is material in this respect. But the plaintiff on his own showing was not in possession of some of the properties such as those which were sold or given under a usufructuary mortgage.
33. As for the third question a perusal of the plaint would show that the plaintiff, after referring to a large number of transactions in paragraphs 6, 7 and 8 of the plaint and after alleging that the debts contracted by the first defendant, who was the plaintiff's father, were wholly for speculative objects and that the family enjoyed no benefit at all from the debts borrowed by him, asserted in paragraph 13 of the plaint that the alienations made by him in favour of defendants were null and void and did not bind the plaintiff's share in the joint family property. The plaintiff was ordered by the trial. Court to furnish a statement of the various transactions which he wished to impugn and this was submitted by him. A perusal of this statement shows that he has impugned decrees for money to which he was a party and certain alienations of joint property some of which have passed out of the family's possession. It has not been shown in this statement whether the mortgages executed by defendant 1 as a father or manager of the family describe the plaintiff eo nomine to be a party to those documents. But the lower Court holds that he was made a party to some of them. The mortgagees, the decree-holders and the creditors have been impleaded as parties to the suit and although the plaintiff has asked for no specific relief and has contented himself with the prayer that an account of the movable and immovable joint family properties be taken yet it is obvious, that if the Court must have regard to the substance of the thing and not to the mere form in which the relief has been prayed for the plaintiff must be, in formulating his relief in that manner, taken to have asked for the questions of the binding nature, of these alienations, decrees and debts to be adjudicated finally in this suit. If the plaintiff was eo nomine a party, to the decrees as he is shown to be or any of the mortgages it would be incumbent upon him to ask the Court to go into the question whether they were binding on him. Unless that is done the Court would be fully justified in assuming a decree to have been rightly passed against the plaintiff or an alienation to have been prima facie properly effected on his behalf by his father. I am not concerned just now with any question of burden of proof and consider it to be irrelevant for this purpose. If the plaintiff wishes to get rid of the decrees or alienations to which he was made a party, he must ask for a specific relief in regard to these transactions. The question then is as to what that relief should be. Not only has a cancellation of the whole of the decree or document been provided for in Section 7(iv)(a)(Madras Amendment) of the Court-Fees Act but the amendment covers cases where a plaintiff wishes to have a part of the decree or other document cancelled. In the presence of this provision, it is impossible to come to any conclusion other than that the plaintiff must sue in such cases for cancellation and pay a court-fee in accordance with the rule contained in Section 7(iv)(a) of the Court-Fees Act.
34. The last question to be decided is in respect of transactions or decrees to which the plaintiff was not eo nomine a party. It has been argued and not without some force that the plaintiff may well ignore decrees passed against or instrument executed by a member of the family even though that member be his own father and manager of joint family and that he could ask for a partition of the property without having any regard to such alienations and could insist that no funds need be reserved at the time of partition for payment to such decree-holders. The argument would have been unassailable if the plaintiff had not impleaded such alienees or creditors in the suit and had not asked for a decree for accounts. The course adopted by him suggests that he wanted the Court to go into these questions and adjudicate on them once and for all. If the plaintiff desired the Court to go into these questions and prayed for a relief which must in the circumstances be taken to be as tantamount to asking for an adjudication of the questions relating to his liability for the decrees passed against his father or to the binding nature of the alienation of family property; there is no reason why he - the plaintiff should not pay a court-fee in regard to them. He may not have been liable to pay any court-fee if such an objection was raised by one of the defendants and the Court had impleaded a creditor or an alienee at the defendant's suggestion and had gone into that question or even when he, that is, the plaintiff himself had impugned a debt or a transaction but had not impleaded the creditor or the alienee. These can be explained however on different grounds. In the first case the plaintiff cannot be held liable to pay as the matter would have to be gone into at the instance of the defendant and in the second case, the matter would be decided as between the parties to the partition suit only. Naturally the alienee or the creditor would not be bound by that decision in that case and cannot take advantage of it even if it is settled in his favour although in his absence. In such cases the plaintiff cannot be said to have asked for any final adjudication of these questions except for purposes of partition and is not liable to pay the court-fee for anything else except for that suit. But when he does ask for this adjudication either expressly or in such a manner that he must be deemed to have asked for these questions to be gone into and finally decided, there is no reason why he should not be required to pay for the relief which he has asked to be given to him. The plaintiff's allegations that the alienations or debts were not binding on him made against the parties whom he had impleaded as defendants can only be attributed to his desire to have final adjudication of these questions as between him and them. In view of these assertions, his prayer for accounts must be taken to be equivalent of a prayer for declaration that these debts and alienations were not binding on the plaintiff. A prayer for declaration cannot be, and I say so with great deference, regarded under the circumstances as either superlluous or even ancillary. A suit for partition in which the plaintiff wants an adjudication against a creditor or an alienee comprises two causes of actions and although permitted by procedure to be included in one suit, it covers two distinct subject-matters, both of which should be paid for. The fact that two periods of limitation are applicable to these causes of action would show that both of them are not only separate but independent. It is unnecessary to say what the result would have been if no such prayer had been made by him at all in the plaint although it is quite possible to conceive that in the absence of an express prayer by him, he might have been taken to have done so and the court-fee demanded as if that, prayer had been made by him. In the circumstances of this case he should in my opinion be asked to pay court-fee as for simple declarations under Article 17(a)(i). The prayer for partition cannot in my opinion be considered to be one for consequential relief as the relief for partition cannot be said to directly flow from the declaration although it may be that in the event of such a declaration being granted his share may be augmented to a certain extent. It must not be overlooked that the plaintiff's prayer for the declaration is against the creditors or the alienees while the relief for partition is being asked for by the plaintiff not against them, that is, the creditors or the alienees but against his co-sharers,