A.G.T.N. Chidambaram Chettiar and Another vs A.G.T.N. Nagappa Chettiar and Others

King, J.—This appeal arises out of a suit originally brought as O.S. No. 203 of 1938 in the Court of the learned Subordinate Judge of

Devakottah. It was renumbered as O.S. No. 26 of 1940 and disposed of by the learned Subordinate Judge of Ramnad. The suit was by two

brothers in a Nattukottai Chetti family and was brought for a declaration that a compromise decree passed in 1939 was not binding on them. That

decree was passed in a suit originally filed in 1924 by the two plaintiffs and their father. That suit was based upon an agreement of 1921 by the

father of the plaintiffs with the other members of the family and the object of the suit was to set aside that agreement as having been extorted from

the father of the present plaintiffs in circumstances which would make it not legally binding upon him. In the suit of 1924 the present plaintiffs who

were then minors were at first represented by their mother as next friend, but it is clear that they and their father jointly filed a single plaint and were

represented by a single legal adviser. While the suit was pending, the plaintiffs'' father entered into a compromise with the defendants. On 6th

November 1929, orders were passed by the Court substituting the plaintiffs'' father as their next friend in place of the plaintiffs'' mother. On 7th

November the plaintiffs represented by their father, their father himself and the defendants in that suit filed a memorandum of compromise which

was certified by the Court to be for the benefit of the minors concerned and formed the basis of the decree. As already stated the plaintiffs now

sue to have it declared that this compromise and decree are not binding on them. The court-fee paid by the plaintiffs was Rs. 500 under Article

17A of Schedule II, Court-fees Act and this court-fee was held by the learned Subordinate Judge to be correctly paid in spite of objections raised

to it by the defendants. The suit was in due course disposed of and the present plaintiffs have now approached this Court in appeal. u/s 12 (ii),

Court-fees Act, if it appears to the Court of appeal that the decision of the Court of first instance on a question of court-fee is wrong and to the

detriment of the revenue, the appellant may be required to pay such additional fee as would have been payable had the question been rightly

decided and this is the matter which is now before us.

It is contended for the appellants that the decision of the Court of first instance is correct, and that it is impossible to value in terms of money the

relief which the plaintiffs seek in this suit. On the other hand, the respondents rely upon Section 7 (iv) (a) and say that the suit ought to be valued ad

valorem upon reliefs which the plaintiffs themselves estimate at rupees two lakhs. It seems to us upon a careful investigation of the plaint that the

contention of the respondents and the Court-fee Examiner is correct. It is true that the plaintiffs'' do not in terms ask for a cancellation of the decree

in the previous suit, but it will be obvious from what has been said as well as from a scrutiny of the plaint that before the plaintiffs can obtain any

decree in this suit, the decree in the previous suit must of necessity be cancelled. It is however argued that there is no need legally to cancel the

previous decree because it is a mere nullity. It is not binding upon the plaintiffs in any sense of the word as the plaintiffs were not properly-

represented at the time when it was passed. The plaint sets out that the plaintiffs'' father was not appointed as their next friend until after he had

irretrievably committed himself to receiving a particular sum under the compromise which he was then effecting with the defendants in that suit, and

that he was therefore precluded from exercising any kind of independent judgment in the interests of his sons. Therefore the plaintiffs'' father must

be deemed to be a person whose interests were adverse to those of his sons and no minor party to a suit can possibly be properly represented by

any one whose interests are adverse to him. We are unable to agree with this appreciation of the situation. It is clear from the records in the

previous suit that the interests of the father and his sons were identical and that all three were joining together to pursue them. There has been

nothing whatever suggested other than the reprehensible conduct of the defendants in that suit to show that even in effecting a compromise, the

father''s interests were in any way adverse to those of his children. He was doing the best he could, subject to the superior subtlety of the

defendants, to settle the matter in dispute and the result of that settlement was to benefit himself and his sons equally. There can, we think, be no

justification for the view that at any time during the progress of the previous suit, there was any adversity of interest whatever between the present

appellants and their father. If this is so, it cannot now be argued that the present appellants were improperly represented, and therefore not parties

to the decree in the previous suit. If they were parties to that decree it follows inevitably that they can get no relief in the present suit without having

the decree cancelled. Though they may not ask specifically for the cancellation of the decree, we must look at the spirit and real meaning of the

plaint and hold that such a prayer is necessarily implied in it. It is clear to us therefore that this is a plaint which does fall prima facie u/s 7 (iv) (A).

The only question that remains is whether the decree against the plaintiffs is one which can be assessed at a money value. It seems to us that that

is a task of no difficulty, and as stated it has already been performed by the plaintiffs themselves. They have stated very clearly that the result of the

decree in the previous suit is to deprive them of portions of the family property which they value at not less than two lakhs of rupees. It has been

held by the Master in dealing with the question of the proper court-fee to be paid on appeal that that court-fee is Rs. 2632-7-0 as the court-fee

payable ad valorem on a sum of rupees two lakhs. It is not now disputed by the Learned Counsel for the appellants that if court-fee ought to have

been paid in the Sub-Court also upon two lakhs of rupees, that is the correct figure to fix. Rupees 600 has already been paid in the Subordinate

Judge''s Court. There remains therefore a deficit court-fee of Rs. 2132-7-0 and time is granted to the appellants for five weeks from this date for

the payment of that deficit court-fee. The appeal will be posted for further hearing on 18th April.