Doraiswami Reddiar and Others vs Thangavelu Mudaliar and Others

Venkatasubba Rao, J.—This petition raises a question relating to Court-fee as well as jurisdiction. The point in regard to Court-fee having

been decided by the lower Court in favour of the plaintiffs, the reason for my interfering in revision is, that its decision is wrong on the question of

jurisdiction: see the judgment in Kattiya Pillai v. Ramaswami Pillai AIR 1929 Mad. 396.

The plaintiffs allege in their plaint that their father entered into a partnership with defendants 1 to 3 which was to remain in force till 1931, that,

after their father''s death in 1925, their mother agreed with the said defendants to release the plaintiffs'' rights in the partnership and executed a

release deed, dated 10th April 1926. After plaintiff 1 attained majority in 1927, this suit was filed for obtaining a declaration that the release deed

is not binding upon the plaintiffs. They allege that the deed was brought about by fraud and undue influence and that their rights are ''not affected by

the release deed. The plaintiffs pray for a declaration that it is invalid and. for an injunction restraining the defendants from interfering with their

participation in the business of the partnership. The lower Court has held that the suit falls within Section 7 (iv) (c), Court-fees Act, which relates to

a suit,

to obtain a declaratory decree or order where consequential relief is prayed

If this section applied, the plaintiffs would be at liberty to value the relief at any amount fixed by them. In this case, they valued the relief at Us.

2,100 and filed the suit in the Court of the District Munsif.

The question to be decided is: are the plaintiffs bound to get the release deed set aside? If they are, the form of the plaint may be disregarded,

for, in substance, the relief claimed is one for can collation. The transaction was entered into by the mother of the plaintiffs as their guardian. Can it

be said that such a transaction is an absolute nullity?'' In my opinion, Article ii. Dim. Act, clearly applies. I am not now concerned with cases which

have held, that in the case of alienations by managing members of a Hindu coparcenary it is unnecessary to get the transaction set aside. The case

relied upon by the lower Court: Arumilli Veeraragavalu Vs. Arumilli Sreeramulu and Others, , is a case of this description. In the present case, I am

not called upon to consider whether this decision is correct or not. The alienation in question was made by the mother of the plaintiffs, their

guardian under the Hindu law. In such a case the transaction is voidable and not void. Then again, the question does not arise whether Article 44

does or does not apply to an alienation by an unauthorized person. In this case, the complaint in short is that an authorized guardian effected an

unauthorized transfer. An alienation by a guardian mu3t be regularly set aside: see Madugula Latchiah v. Mukkalinga [1907] 39 Mad. 393;

Muthukumara Chetty v. Anthony Udayan [1915] 38 Mad. 867; Kandasami v. Irusappa [1918] 41 Mad. 102 and Arumugham Pillai v. Ambalam

AIR 192. Mad. 425. I am therefore disposed to read the plaint as if contains a prayer for the cancellation of the release deed. In this view, the

section of the Court fees Act applicable is Section 7 (iv) (a). It reads thus:

In a suit for cancellation of a decree for money or other property having a money value or other document securing money or other property

having such value, according to the value of the subject-matter of the suit.

The words "" securing money or other property "" are not happy; but the question is: Is this or not a suit for cancellation of a document securing

property having money value? I think it clearly is. I have no doubt that the release deed in question is a document securing property; in other

words, by that document, the property covered by it is made secure to the defendants. Can there be any doubt that a sale-deed comes within the

terms of this section? The present instrument does not materially differ from a sale-deed. By that, the rights of the plaintiffs in the partnership and its

property have been transferred for consideration to the defendants. The word "" secure "" may mean according to the Oxford Dictionary, "" to make

the tenure of a property secure to a person."" I am, therefore, of the opinion that the proper section applicable is Section 7 (iv) (a).

If that applies, what is the proper valuation of the suit. The section says:

The value of the suit shall be deemed to be if the whole decree or other document is sought to be cancelled, the amount or the value of the

property for which the decree was passed or the other document executed.

What then is the value of the property for which the release deed was executed? It recites that the consideration paid to the plaintiff''s mother is

Rs. 3,461-8-0. The plaintiffs do not suggest in their plaint that this amount was not in fact paid. Their complaint is that the deed is vitiated by fraud

and undue influence and is even otherwise not binding upon thorn. I am disposed to read the plaint as meaning that their rights, which their mother

gave up, are worth to them much more than Rs. 3,461-8-0. It is not to be understood that I decide that the plaintiffs are precluded from proving

that consideration did not pass either wholly or partly. At present, I am concerned with the plaint as it stands and I cannot help thinking that,

according to the plaintiffs, the property which their mother gave up, that is, their interest in the partnership, is worth to them more than the amount

mentioned in the deed. If that be so, the suit is beyond the pecuniary jurisdiction of the District Munsif. The order of the lower Court is reversed,

and the Civil Revision Petition is allow-ad. I direct the plaint to be forwarded to the District Munsif''s Court for being returned by that Court to the

plaintiffs for re-presentation to the proper Court. The respondents shall pay the costs of this petition.