Deaf and Dumb Semba Gounder and Another vs Alagia Gounder and Others

Venkatadri, J.—This revision petition arises out of an order passed by the learned Subordinate Judge, Erode, in respect of an additional

Court-fee to be paid by the Petitioners in a suit instituted by them, viz., Original Suit No. 69 of 1962.

The short facts that are necessary for the disposal of this petition are as follows: The present Petitioners are deaf and dumb represented by their

next friend Rakkayi Animal who instituted a suit for a declaration, among various reliefs that the decree passed in Original Suit No. 90 of 1948 is

not binding on them. The Petitioners valued this relief notionally at a sum of Rs. 1,000. But the Court-fee examiner is of opinion that they had to

pay the Court-fee on the value of the properties comprised in Original Suit No. 90 of 1948. According to the Court-fee examiner the Petitioners

had to pay ad valorem Court-fee on the market value of the properties, namely about 30 acres in Coimbatore district comprised in Original Suit

No. 90 of 1948, which may amount to several lakhs of rupees. The Petitioners claim that if they are to pay ad valorem Court-fee on the market

value of the properties, they would be prevented from pursuing the matter in the present suit; we are not concerned with their financial difficulties in

paying the Court-fees; but the only question to be considered is whether the relief for setting aside the decree in Original Suit No. 90 of 1948 has

been correctly valued.

The Petitioners are the sons of one Semburakkia Gounder. The Petitioners'' mother died in 1929. Their father died in 1934. The second

Defendant in the present suit is the son by the second wife. A stranger obtained a decree against the father of the present Petitioners and the

second Defendant in Original Suit No. 44 of 1926, on the file of the Sub-Court, Coimbatore. In execution of the decree, the suit properties were

brought to sale on 5th March 1930. Having purchased the property in Court auction, the first Defendant has obtained possession of the same on

10th April 1931 and ever since the first Defendant and subsequently the transferees from him, Defendants 4 to 13 are in unlawful possession of the

properties. Subsequently, the Petitioners'' brother, i.e., the second Defendant representing as the next friend for the Petitioners herein instituted a

suit, Original Suit No. 90 of 1948 for partition and for a declaration that the execution sale in Original Suit No. 44 of 1926 as invalid and not

binding on them. So far as the present Petitioners who figured as Plaintiffs 1 and 3 were concerned, the suit was dismissed; but the fourth Plaintiff

there and the present second Defendant obtained a decree so far as he is concerned. It is after a period of fourteen years the Petitioners who

figured as Plaintiffs 1 and 3 filed the present suit for a declaration that the execution proceedings in Original Suit No. 44 of 1926 are not binding on

them, that the dismissal of the suit, Original Suit No. 90 of 1948 is also not binding on them and that they are entitled to a share in the properties

now in the possession of the various alienees from the first Defendant. As stated previously it has to be considered what is the Court-fee payable

so far as this relief is concerned, namely for a declaration that the decree in Original Suit No. 90 of 1948 is not binding on them. The Court-fee

examiner is of opinion that this suit for the declaration prayed for in respect of the decree in Original Suit No. 90 of 1948 falls u/s 40 of the Madras

Court Fees and Suits Valuation Act, which is in the following words:

(1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to

create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee

shall be computed on the value of the subject matter of the suit, and such value....

Now, it has to be considered what is the effect of the dismissal in Original Suit No. 90 of 1948. Can it be valued for money or can it have any

money value or can it be a document purporting or operating to create declare, assign, limit or extinguish, whether in present or in future, any right,

title or interest? That was a suit by the next friend on behalf of the Petitioners for partition and for declaration that the execution sale in Original Suit

No. 44 of 1926 is invalid and not binding on them. That suit was dismissed so far as the Petitioners were concerned. From the particulars of

valuation in Original Suit No. 90 of 1948, it is found that the value of the suit has been calculated at 10 times the kist in respect of the suit

properties and on that basis a sum of Rs. 4,248-2-0 has been arrived at.

The learned Counsel for the Petitioners pointed out to me a Bench decision of our High Court in Kulandaiveln Nachiar v. Ramaswami Pandia

(1927) 27 L.W. 286 wherein a question arose regarding the payment of Court-fee. From that decision it is seen that a suit filed to recover a

zamindari with mesne profits past and future or in the alternative for maintenance at Rs. 250 a month was valued at Rs. 1,00,000 and filed on a

Court-fee of Rs. 2,300. That suit was compromised to the effect that only the maintenance portion was retained; but the claim in regard to the

declaration that he was entitled to possession of immovable properties was withdrawn. In effect, he did not get any relief in regard to immovable

properties. Subsequently he filed a suit in respect of the immovable properties wherein the question that arose for consideration before the learned

Judges was what was the effect of the withdrawal in the previous proceeding in regard to the claim for possession of immovable properties. It is

stated by their Lordships at page 291 that:

The effect of setting aside the compromise decree will be that the suit which has been withdrawn and in respect of which full Court-fee or the value

of the property has been paid would have to be proceeded with and it is clear that the setting aside of the compromise decree would not by itself

give any property to the Plaintiffs but would only give them the right to prosecute a suit which according to them has been terminated in a manner

which is not binding on them owing to fraud and other circumstances set out in the present plaint.

Relying on the above principle, the learned Counsel for the Petitioners contended before me that the effect of the withdrawal or dismissal of the

suit is the same. There is no decree as such in his favour. There was no adjudication in respect of the immovable properties in the previous

proceeding. The dismissal of the suit does not decide any matter in controversy or confer any right on the parties. At the worst, he may be

precluded from bringing a fresh suit on the same cause of action. He also pointed out another decision reported in M.P.M.RM.M.N. Muthiah

Chettiar Vs. M.P.M.RM.M.N. Narayanan Chettiar and Others, wherein the head note reads:

A preliminary decree in a suit for partition which declared the shares of the parties and directed an account to be taken of the assets and liabilities

of the joint family can in no sense be called a decree for money or property within the meaning of Section 7 (iv-A) of Court Fees Act, as it would

be difficult to predicate at the stage of the preliminary decree for partition as to what property would be allotted to the Plaintiff.

In that case, a subsequent suit has been filed for setting aside the preliminary decree. Therefore, at the worst the Petitioners may be directed to pay

Court -fee only on the value of the decree.

In Janakamma and Another Vs. A. Govindraj Mudaliar and Another, as he then was, has made the following observation:

Under Section 40 the question would not be exactly the same but rather what would be the value of the decree which was sought to be set

aside....

Therefore, we have to consider what is the value of the decree in Original Suit No. 90 of 1948. If we look into the plaint in Original Suit No. 90

of 1948, it will be seen that the value of the claim has been calculated at ten times the kist and the value is given as Rs. 4,248-2-0. That must be

the value of the decree. It is only on that basis he could be asked to pay the Court-fee. Therefore, I do not think it is just and proper to ask them

to pay the Court-fee on the market value of the property which comprised the subject-matter of Original Suit No. 90 of 1948 which suit was

dismissed so far as these Petitioners were concerned.

In view of the above, the order of the lower Court regarding the appointment of a commissioner to ascertain the market value of the properties

comprised in Original Suit No. 90 of 1948 is set aside. The lower Court is directed to arrive at the revised calculation on the lines indicated above.

The petition is allowed. No order as to costs.