Deaf and Dump Semba Goundr and others 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., O. S. 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 Ammal who instituted a suit for a declaration among various reliefs that the decree passed in O. S. 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 O. S. 90 of 1948. According to the Court Fee Examiner the petitioners had to pay advalorem court fee on the market value of the properties, namely, about 30 acres in Coimbatore District comprised in O. S. 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 O. S. 90 of 1948 has been correctly valued.

The petitioners are the sons of one Sambarakkia Gounder. The petitioners'' mother died in 1929. Their father died in 1934. The 2nd 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 2nd defendant in O. S. 44 of 1926 on the file of the Sub-Court, Coimbatore. In execution of the decree, the suit properties were brought to sale OH 5-3-1930. Having purchased the property in court auction, the first defendant has obtained possession of the same on 10-4-1931, and ever since the first defendant and subsequently the transferee from him, defendant 4 to 13 are in unlawful possession of the properties. Subsequently, the petitioners'' brother i.e., the 2nd defendant representing as the next friend of the petitioners herein instituted a suit O. S. 90 of 1948 for partition and for a declaration that the execution sale in O. S. 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 4th plaintiff there and the present 2nd defendant obtained a decree so far as he is concerned. It is after a period of 14 years the petitioners who, figured as plaintiffs 1 and 3 filed the present suit for a declaration that the execution proceedings in O. S. 44 of 1926 are not binding on them, that the dismissal of the suit O. S. 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 O. S. 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 O. S. 90 of 1948 falls under S. 40 of the Madras Court Fees and Suits Valuation Act, which is in the following words:

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 the present or in future, any right, title or interest in money, moveable immoveable 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 O. S. 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 O. S. 44 of 1926 is Invalid and not binding on them. The suit was dismissed so far as the petitioners were concerned. From the particulars of valuation in O. S. 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 Kulandaivelu Nachiar v. Ramaswami Pandia 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 immoveable properties was withdrawn. In effect, he did not get any relief in regard to immoveable properties. Subsequently he filed a suit in respect of the immoveable properties wherein the question that arose for consideration before the learned Judge was, what was the effect of the withdrawal in the previous proceeding in regard to the claim for possession of immoveable 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 immoveable 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 learned Chief Justice held:

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 S. 7 (iv-A) of the 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. There fore, at the worst the petitioners may be directed to pay court-fees only on the value of the decree.

In Weavers Mill''s Ltd. v. Balkis Ammal (1961) 1 M.L.J. 156 at page 157 Ramachandra Iyer, J. has made the following observation:

Under S. 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 O. S. 90 of 1948. If we look into the plaint in O. S. 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 O.S. 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 O. S. 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.