1994 PLP 1664 (CLC)

2. The petitioner's learned counsel submits that respondents Nos. 1 to 6 were out of possession (as admitted in para 6 of the plaint) and were bound to pay ad valorem court‑fee on the 1/3rd share claimed by them in the disputed property. Moreover * the plaintiffs had stated in the plaint that the petitioner/defendant was occupying the first and second floor of the house, therefore, ad valorem court‑fee had to be paid for the relief of possession as well. In support of his contention he places reliance on the following judgments:‑ Kaluram and another v. Mehtab Bad and another (AIR 1959 Madhya Pradesh 181), Jogesh Chandra Das v. Amulya Kumar Majumdar and others (AIR 1957 Tripura 7), Santosh s/o Gopala and another v. Rama s/o Ragho and others (AIR 1949 Nagpur 305), Nawab Syed Muhammad Hashim Ali Khan and another v. Iffat Aia Hamidi Begum and others (AIR 1942 Calcutta 180) and Maung Ohn Tin v. PRMPSRM. Chettyar Firm and others (AIR 1929 Rangoon 311).

3. On the other hand, the learned counsel for the respondents urged that the exact value of the property was not ascertainable at present and the suit could be filed on payment of Rs.15 as court‑fee and balance paid at the time of final decree. He adds that the respondents can give their own valuation of the property for purposes of court‑fee and jurisdiction. They have paid proper court‑fee at present and shall make good the deficiency of the court‑fee at the appropriate stage. He places reliance on the following judgments:‑ Muhammad Sakhi and another v. Abdul Rahim and another (1990 ALD 219), Muhammad Sohail and others v. Ghulam Rasul and another (NLR 1991 SD 375), Muhammad Sohail and others v. Ghulam Rasul and another (1989 ILJ 91 Comp 41 (Lahore (India)) and ]Mst. Razan Bibi and others v. Haji Muhammad Younus and 6 others (1990 ALD 338(2) (Karachi).

4. The suit filed by the respondents is essentially one of partitions of the property jointly owned by the parties. Such a suit can be filed on payment of Rs.15 as court‑fee under Article 17 (vi) of the Court Fee Act which provides fixed court‑fee of Rs.15 only for certain cases. Article 17 (vi) covers a suit where it is not possible to estimate at a money value the subject matter in dispute and which is not otherwise provided for under the Court Fee Act. In a partition suit ordinarily it is not possible to estimate the money value of the subject‑matter correctly and is left to be decided finally after recording evidence of both the parties. Thereafter, the Court requires the plaintiff to pay the deficit court‑fee on the basis of the final determination of the value of the subject matter in dispute. The provision of section 7 (iv)(b) are not applicable in such cases as held in Santosh and another v. Rama and others (AIR (36) 1949 Nagpur 305), P.R. Srinivasa Iyer and others v. K.S. Krishnaswamy Iyer and others (AIR 1931 Madras 49) and Secretary of State v. A.R. Lakhanna (AIR 1933 Madras 430). It is only in cases where a person is ousted from the property and. his claim to a share therein is denied by the other co‑owners that the court‑fee is payable under section 7(iv)(b) for enforcing a right to share in the joint family property. In the present case, there is no denial of the respondents, entitlement to a share in the property in dispute. The mere fact that in the evidence sortie estimate of the value of the property has been given is not enough to apply the provisions of section 7(iv)(b) for payment of ad valorem court‑fee at this stage. P.W.1. Mst. Sarwar Sultana had stated that she was unable to give the value of the property and then stated that according to her estimate it would be worth Rs.5/6 lacs. P.W.2 Mrs. Azra Riaz stated that the value of the house in dispute exceeds Rs.4 lacs. P.W.3 Shahidah Rizmi stated that she did not know the price of the house and could not say whether it was more‑or less than Rs.4 lacs. Thus the question regarding the estimate of the value of the property still remains in a liquid form and has to be determined after recording evidence of the defendant. The 8 plaintiffs/respondents have rightly affixed the court‑fee of Rs.15 at this stage and cannot be required to pay ad valorem court‑fee under the provision of section 7(iv)(b) of the Court Fees Act. This view finds support from the judgments in the cases of Mst. Razan Bibi, and Muhammad Sohail and others relied upon by the respondent's learned counsel. The judgments relied upon by the petitioners' learned counsel proceed on their own distinguishable facts and are not applicable in the present case.' As mentioned above the plaintiffs are not excluded claimants from the joint family property. Their claim as heirs of the common ancestor Khushi deceased as admitted by the petitioner/defendant. Therefore, the judgment in the case of Kaluram and another heavily relied upon by the petitioner's learned counsel which relates to suit for partition by an excluded co‑parcener is not relevant. The case of Jogaish Chandar Das relates to the question of jurisdictional value of the suit. It was held that the plaintiff who seeks partition of his share out of a larger property should not be compelled to value his suit for the purposes of jurisdiction on the value of the entire property and that valuation for the purposes of jurisdiction is to be determined according to the value of the plaintiffs' share. Similarly the other judgments relied upon by the petitioner's learned counsel relate to cases of ouster requiring determination of entitlement in the property first and therefore, are not relevant.

5. For the foregoing discussion, I find no merit in this petition which is dismissed. The parties are left to bear their own costs. AA/M‑1452/L Revision dismissed.