' Office has raised objection in respect of the valuation of this suit for the purposes of court-fees. I have heard Mr. Hasan Akbar, Advocate for the plaintiffs.
2. Learned counsel for the plaintiff argued that this case would be covered by section 7(iv) (c) of Court-fees Act and it would require ad-valorem court-fee of Rs,
10. In support learned Counsel for the plaintiffs cited the cases of (i) Mst. Shahjehan Begum v. Mohammad Siddique and others PLD 1971 Kar. 920, (ii) Mohammad Sharif v. Mst. Natho and another PLD 1965 Lah. 686, (iii) Mst. Bibi Lal Bibi v. Mir Baluch Khan and another PLD 1962 Quetta 28 and (iv) Ajiruddin Mondal and another v.
Rahman Faqir and others PLD 1961 SC 349.
3. In his plaint the plaintiff prayed as below:--
(a) Preliminary decree declaring the rights of the parties be passed and such further directions be given as deemed fit in the circumstances of the case for partition of the property and thereafter a final decree for partition of the said property amongst the plaintiffs and the defendants by metes and bounds and or in such a manner, as may be deemed fit be passed.
(b) Declare that neither of the co-owners of the said property that is to say; defendants and the plaintiffs; is entitled to act unilaterally and/or collect rent without the consent of all, each and every other co-owners.
(c) Direct that status quo be observed by all the parties.
(d) The defendants and such of the other defendants as are found to be occupying excess property and/or collecting rents and income from the property be directed to render account and on ascertainment of the account final decree be passed.
(e) Costs of the suit.
(f) Such other and further relief/reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.
4. Perusal of the prayer clause of the plaint shows that in substance the plaintiff seeks to enforce his right to share in the property which he contends to be the joint family property. Such a prayer would be covered by sub-clause (b) and not sub-clause (c) of clause (iv) of section 7 of the Court-fees Act (hereafter to be mentioned as the Act). However, in the suits falling under section 7(iv) of the Act, the plaintiffs can no more be permitted to give their own valuation to the reliefs sought in the plaint after promulgation of Sindh Finance Act, 1974. Sindh Finance Act has added clause (iv-a) to section 7 of the Act. Clause (vi-a) reads as below:-- "Not withstanding anything contained in clause (iv) in suits for a declaratory decree with or without consequential relief as to right in or title to immovable ' property based on alleged sale, gift, exchange or mortgage thereof, according to the value of the property."
' After addition of clause (vi-a) to section 7 of the Act, the position has substantially changed. Now the provisions contained by clause (iv) of section 7 of the Act are controlled by clause (vi-a) of section 7 of the Act. Hence the valuation of the suit for purposes of court-fees would be according to value of the property claimed.
5. Even before addition of clause (vi-a) to section 7 of the Act, the legal position on the point was different in the Province of Sindh, as mentioned in the cases given below:--
(i) Lakhomal and others v. Deepchand and others AIR 1937 Sindh 241, Imamuddin v. Abdul Ghani PLD 1959 Kar. 802, (iii) Z. Zafar Ahmed v. Abdul Khaliq PLD 1964 Kar. 386, (iv) Mohammad Siddiq and others v. Haji Ahmed & Co. PLD 1967 Kar. 468, (v) Badrul Islam v. Qamarul Islam and others PLD 1971 Kar. 682, (vi) Mst. Shah Jehan Begum v. Mohammad Siddiq and others PLD 1971 Kar. 920 and (vii)
Haji Gul v. Aishia PLD 1973 Kar.
653. In (i) above it was held that in a suit for declaration with consequential relief of injunction, it was not open to the plaintiff to put any arbitrary value upon the injunction sought and pay the court-fee on such value. In (ii) above, the view taken was that the Courts have the right to correct the plaintiff's valuation on suits falling within section 7(iv) of the Act. In (iii) above, the case of Lakhomal and others v. Deepchand and others was followed and the view taken was that the valuation for purposes of court-fee under section 7(iv) (c) of the Act in a suit for setting aside a decree should be the amount involved in the impugned decree. In (iv) above, the view taken was that in suits falling under section 7(iv) (c) of the Act a plaintiff is entitled to put his own valuation but in case the Court comes to the conclusion that it is arbitrarily fixed, it can put its own valuation and ask the plaintiff to pay court-fee on the valuation. In (v) above, the case at (ii) above was followed and it was held that the principle that a plaintiff cannot be permitted to value his claim arbitrarily, is as applicable to suits for accounts as to suits for declaratory relief. In (vi) above the view taken was that a suit for partition and separate possession brought by a co-owner claiming to be in joint possession would fall under Article 17(vi) of the Second Schedule below the Act.
Reliance for this view was placed on the case of Diwanchand v. Dhani Ram AIR 1941 Lah.
123. In (vii) above it was held that although in the suits falling under section 7(iv) (c) of the Act the amount of court-fee is payable according to the amount at which the relief sought is valued in the plaint but section 7(iv) (c) does not stand by itself as it has to be read with section 6 of the Act which prescribes with certain exceptions that the fees prescribed under the relevant articles of First or the Second Schedule of the Act, as the case may be, are required to be paid on plaint, and as such in a suit for declaration with consequential relief of injunction the relevant article is Article I of the First Schedule which provides for payment of ad valorem fees in accordance with the amount or value of the subject-matter in dispute.
6. The cases cited by learned counsel for the plaintiff were decided before promulgation of Sindh Finance Act, 1974. In the case of Ajiruddin Mondal PLD 1961 SC 349 the majority view taken was that the value for jurisdictional purposes of a suit for partition is the value of the plaintiffs share in the joint property, where the plaintiff is in joint possession. In the case of Mst. Shah Jehan Begum PLD 1971 Kar. 920 it was held that a suit for partition and separate possession brought by the co-owner claiming to be in joint possession, falls under Article 17(vi) of the Second Schedule below the Act. In the case of Mohammad Sharif PLD 1965 Lah. 686 the view taken was that in a suit in which the plaintiff alleged that he was in joint possession either actual or constructive and claimed by partition separate possession of his share in the alleged joint family property the court-fee payable is to be determined according to Article 17(vi) of the Act. In the case of Bibi Lal Bibi PLD 1962 Quetta 28 the view taken was that if the parties are in joint possession of the property in dispute a court- fee stamp of Rs,10 is sufficient in partition suits.
7. In the case of Hiranand Deoomal v. Murijmal Kundanmal and others AIR 1945 Sindh 128 it was observed that if in essence the suit for partition is one to obtain a decree for money or a decree for immovable property and the plaintiff is not, on his averments, in joint possession, an ad valorem court-fee must be paid.
8. In view of addition of clause (vi-a) to section 7 of the Act by the Sindh Finance Act, 1974, there is no scope to take a view different from the one intended to be taken by the legislature for adding clause (vi-a) to section 7 of the Act. Intention of the legislature in adding said clause to section 7 appears to be to put a stop to the discretion exercised by the plaintiffs in valuing their suits falling under clause (iv) of section 7 of the Act, at their whim. I, therefore, agree with the view taken in the office note, with qualification that the suit would be valued according to value of share of the plaintiffs in the suit property, and not according to the entire value of the suit property. With these observations I uphold the office objection.