In Re: S.R.M. AR. S. SP. Sathappa Chettiar

By an order of the learned Chief Justice, this matter was referred to this Bench u/s 5, Court-fees Act, for determination of the proper court-fee

payable on the memorandum of appeal presented by the plaintiff against the decree dismissing his suit, C. S. No. 311 of 1951.

The suit relates to the estate belonging to the S. RM. AR. family. The plaintiff, Sathappa Chettiar, the son of one Subbiah Chettiar who, it was

claimed, was the adopted son of Sathappa, the eldest brother of the defendant''s father Ramaswami. One Arunachala had three sons Sathappa,

Veerappa and Ramaswami. Ramaswami''s son is Ramanatha, the defendant in the action. Sathappa and Veerappa having predeceased, the entire

family property devolved on Ramaswaml''s branch and Ramanatha became the sole surviving coparcener, and he held the property.

One Subbiah Chettiar, claiming to be the son, by adoption, of Sathappa by his widow Lakshmi Achi, in or about 1922, instituted suit O. S. No. 33

or 1930 on the file of the Sub-Court, Devakottai, against Ramanatha, the present defendant, claiming a half share in the estate of S. RM. AR. and

partition of that share and separate possession. The claim was based on the adoption by the widow of Sathappa. The suit was hotly contested and

after an elaborate trial, the suit was decreed in favour of Subbiah Chettiar in November 1934.

Against that decision, Ramanatha preferred an appeal to this Court in January 1935 -- ''A. S. No. 16 of 1935 (Mad) (A)''. While this appeal was

pending, the suit was compromised. At or about the same time the suit O. S. No. 109 of 1930, Sub-Court, Devakottai, which was transferred to

the Original Side of this Court and numbered as C. S. No. 234 of 1935, was also settled. That suit was by Ramanatha, the present defendant,

against Rajah Sri Annamalal Chettiar for an account of the management by Rajah Sri Annamalat Chettiar of Ramanatha''s estate.

After the suit O. S. No. 33 of 1930 was instituted by Subbiah Chettiar, the present plaintiff Sathappa was born some time in October 1930 but

he was not impleaded as a party to the suit and was not even made a party to the compromise. The compromise entered into between the parties

in A. S. No. 16 of 1935 is dated 19-4-1938.

Under the terms of this compromise decree, it was agreed between the parties that Ramanatha was to be entitled exclusively to the entire S. RM.

AR. estate in consideration of Ramanatha paying to Subbiah Chettiar a sum of Rs. 5,34,000 in instalments as agreed between the parties, that

Subbiah Chettiar was to vacate the S. RM. AR. house in Kanadukathan within 18 months from the date of the decree, that Subbiah should

execute a release of all claims on behalf of himself and his minor son, the present plaintiff, that Subbiah should be given possession of five sites

described as items 8 and 9 in the schedule attached to the decree, that the decree in O. S. No. 185 of 1935 amounting to Rs. 3,80,000 should be

treated as fully satisfied, that Subbiah should be exonerated from all liabilities under that decree, that Subbiah should retain the sum of Rs. 28,186

drawn by him as costs in O. S. No. 33 of 1930 and that Ramanatha was to give up the sum of Rs. 69500 advanced by him to Subbayya.

On the question of the truth and the validity of the adoption, as asserted by Subbiah and denied by Ramanatha, it was agreed between the parties

that there should be no decision either way.

In pursuance of the compromise, a release deed was executed by Subbiah, both for himself and on behalf of his minor son, the present plaintiff,

on 18-4-1938. The release deed sets out the terms of the compromise decree and also includes the release by Subbiah both on behalf of himself

and on behalf of his minor son as his guardian and as family manager, of all claims of himself and his minor son to the Section RM. AR. estate

consisting of Immovable and moveable properties, cash, jewels, outstandings, etc.

It is common ground that all the terms of the compromise were implemented on both sides. The plaintiff filed the present suit in August 1951 in

which he claimed that the compromise and the release were not binding on him and that they were brought about by coercion, that, in any event, he

continues to be a member of the joint family and that, therefore, he is entitled to a half share in the entire estate. He claimed partition of the joint

family properties moveable and Immovable and separate possession of his half share.

He also claimed an account of the assets and liabilities of the family and other reliefs. He valued the suit for purposes of jurisdiction at Rs.

15,01,000. Treating it as a suit for partition of joint family property, he paid court-fee Rs. 100 under Schedule II, Article 17-B of the Court-fees

Act. He estimated the relief for accounts at Rs. 1000 and paid a court-fee thereon of Rs. 112-7-0.

After the plaint was filed, the Master took the view that the court-fee paid was not correct and, therefore, referred the question of proper court-

fee payable on the plaint to the learned Judge sitting in Chambers, Mr. Justice Krishna(sic)ayudu. According to the Master, court-fee should have

been paid u/s 7(v), Court-fees Act, but this view was not accepted by the learned Judge. The question that was canvassed before the learned

Judge was whether the plaintiff was bound to sue to set aside the compromise decree and pay court-fee on that footing, though he was not ''eo

nomine'' a party to the compromise decree.

As there was no specific prayer in the plaint regarding the compromise decree, the learned Judge, held that Section 7(v), Court-fees Act, had no

application and that there was no need for a prayer for setting aside the compromise. He, therefore, ruled that the court-fee paid on the plaint was

sufficient. This reference to the learned Judge was not u/s 5, Court-fees Act,--we have verified this fact from the records in the office but was in

the usual course referred by the Master to the Judge sitting in Chambers.

Under Section 5, Court-fees Act, if there is a difference of opinion regarding the court-fee payable, the taxing officer, when he considers the

question to be one of general importance, has to refer it to the final decision of the Chief Justice or of such Judge of the High Court, as the learned

Chief Justice shall appoint either generally or specially in this behalf. The importance of following this procedure is to give finality to the decision.

The suit was tried on the preliminary issue, whether the compromise decree and the release deed which formed part of the same transaction do

not bind the plaintiff and the learned Judge,. Ramaswami Goundar J. after an elaborate discussion of the question, arrived at the conclusion that the

compromise decree was binding on the plaintiff and that on this ground alone, the suit should be dismissed and he passed a decree accordingly.

Against this decision the present appeal was preferred by the plaintiff. On the memorandum of appeal the court-fee paid was on the same basis as

on the plaint.

The Master felt considerable doubts regarding the adequacy of the court-fee paid on the memorandum of appeal and as the question of the

adequacy of the court-fee payable on the memorandum of appeal was of general importance, he referred the question to the Taxation. Judge to

obtain a ruling oh the point. Under the orders, of the learned Chief Justice, the matter is posted before us for final determination u/s 5, Court-fees

Act. We gave notice to the Government Pleader as Government it is that is primarily interested in the determination of this question and heard

counsel on behalf of the plaintiff.

Learned counsel for the plaintiff at the outset contended that as there was a decision of the learned Judge, Krishnaswami Nayudu J. on a

reference by the Master, that decision is final and should also govern the question of proper court-fee payable on the memorandum of appeal As

observed above, we have verified from the records of the Court that the reference to the learned Judge was not u/s 5, Court-fees Act, and

therefore the decision of the learned Judges has not the finality contemplated by Section 5, Court-fees Act.

Of course, the opinion of a learned Judge of this Court is entitled to the highest respect apart from the provisions of Section 5, Court-fees Act, and

we have considered, in deciding the question the judgment of the learned Judge also. But unfortunately before the learned Judge the question now

raised was not raised and, therefore, the learned Judge had no opportunity or occasion to express his opinion on the matter. The necessity to set

aside the compromise and to pay court-fee on the footing that the plaint included such a prayer was the only point debated before the learned

Judge and considered by him.

The decision of the question of proper court-fee payable on the memorandum of appeal depends largely upon a proper interpretation of the

plaint. In interpreting the plaint, the Court must look at the real nature of the suit in whatever language the plaint might have been couched and

decide what exactly is the plaintiff asking for and on what basis. Before the year 1940, there were conflicting decisions regarding the court-fee

payable in suits for partition. The sections of the Court-fees Act, which came up for consideration and which occasioned conflict of judicial opinion

in this Court, were Schedule II, Article 17-B, Court-fees Act, Section 7(v) and Section 7(iv)(b), Court-fees Act.

This conflict was however to a large extent resolved by a Full Bench decision of this Court in -- ''Ramaswami Ayyangar v. Rangachariar'', AIR

1940 Mad 113 (B). This decision, therefore, has lightened our task and make it unnecessary for us to deal with the conflicting decisions afresh and

reach our own conclusions. In our opinion, the Pull Bench decision, the majority view, establishes the following propositions;

If the plaintiff is in joint possession of the property with the other members of the family and as in such an event a suit for partition is intended

only to bring about a change in the form of enjoyment of the property, court-fee is to be paid under Article 17-B of Schedule II, Court-fees Act,

and not u/s 7(iv)(b). Such a suit is a suit to a share in the property and not a suit therefore to a right to share in any property on the ground that it is

joint family property.

If the suit is to enforce a right to share in any property on the ground that it is joint family property, the plaintiff not being in possession but the

property however continues in the possession of the other members of the joint family, such a suit is governed by Section 7(iv)(b), Court-fees Act.

If the plaintiff is seeking relief in respect of possession of Immovable property of which he is out of possession, and the property has also passed

by alienation or otherwise from the possession of the other members of the joint family, a relief for possession of that property from the persons in

possession is governed by Section 7(v), Court-fees Act.

If the plaintiff is impugning a decree passed against him in a suit, in which he was ''eo nomine'' impleaded as party, he must pay court-fee

provided for by Section 7(iv-A), as such a decree binds him until it is set aside and he cannot seek to obtain a decision on the footing that his

interest in the joint family property is not affected by it. It makes no difference in such a case even if the plaintiff was a minor or merely a junior

member of the family. Even if there is no specific prayer in the plaint on such a suit to set aside the decree, it must be deemed that the plaintiff

impliedly asked for cancellation of the decree against him.

In respect of transactions by the manager of a joint family, whether the plaintiff is made a party thereto or not, he is not bound under the

substantive law by which he Is governed, to sue for declaration or cancellation of any of the transaction.

It would be noticed that among the transactions, of which particulars were given at p. 115 of the report of the Full Bench decision items 9 and

10 were decrees obtained against the plaintiff and the other members of the family, and the plaintiff, being ''eo nomine'' a party, was required to

stamp his plaint ''ad valorem'' on the amount of the decrees and not merely on his share u/s 7(iv-A), Court-fees Act.

In respect of items 4, 11 and 14, a usufructuary mortgage and two sales under which the property passed out of the family, he was required to pay

court-fee u/s 7(v), Court-fees Act. In respect of the other transactions including decrees obtained against the first defendant, (the joint family and

the father of the plaintiff) he was not directed to pay separate court-fee but as he was in possession of the property along with other members, it

was held that it would be sufficient to pay court-fee under Schedule II, Article 17-B, Court-fees Act.

The importance of this Is that though the first defendant in the suit was the father-manager of the family, and it might be contended that he

represented the other members as well, though they were not ''eo nomine'' parties, it was held that he was not bound to sue to set aside the decree

by reason of the representative capacity of the father-manager but that so long as the property was in the possession of the family, it was sufficient

if court-fee was paid under Schedule II, Article 17-B, Court-fees Act. Sufficient attention was not paid to this aspect of the Full Bench decision in

some of the decisions of single Judges, which have been before us. In -- ''Unni v. Kunchi Amma'', 14 Mad 28 (C), cited at p. 118 of the reports

(Pull Bench), it was observed as follows:

If a person not having authority to execute a deed or having such authority under certain circumstances which did not exist, executes a deed, it is

not necessary for persons who are not bound by it, to sue to set It aside, for it cannot be used against them. They may treat it as non-existent and

sue for their right as if it did not exist.

Though these observations were made with reference to a deed, we do not see any difference in principle between a deed and a decree. If the

liability is imposed under the decree against the family in a suit to which the manager alone was made a party, merely because under certain

circumstances the father-manager had a right to represent the other members of the family in suits by or against the family, there is no reason or

Justification in law to compel the other coparceners to sue to set aside the decree.

When the question of the binding nature of the decree on principles well-established in law could be canvassed in the suit Itself without any

detriment to the other party to the decree, the necessity and the need to compel the plaintiff to sue to set aside such a decree and to pay court-fee

thereon seems to us not justified on the principles enunciated in the Pull Bench decision and considered at p. 118.

In the light of these principles, we have to consider the essential nature of the suit. As the plaintiff was not ''eo nomine'' a party to the

compromise decree, we agree with Krishnaswami Nayudu J. that it is unnecessary for him to sue to set aside the decree. As possession of the

property now in suit did not. pass from Ramanatha outside the family by any alienation, there is no justification for demanding court-fee u/s 7(v),

Court-fees Act. The only question that remains is whether the suit falls under Schedule II Article 17-B or u/s 7(iv-b), Court-fees Act.

The choice lies between these two provisions. One has to be decided on a consideration of the fact whether the plaint proceeds on the basis that

the plaintiff is still in joint possession of the property along with other members and is therefore merely claiming a share in the pr(sic) perty or

whether the plaintiff was out of possession on the date of suit and was excluded and is therefore now seeking right to share in joint family property.

The compromise decree and the release shares are referred to in the plaint and both of them proceeded on the basis that the adoption of Subblah

was not either asserted or denied, and there is no admission that he was a coparcener on the date of the compromise decree.

At any rate, that was not the basis on which the compromise proceeded. The compromise recognises the exclusive right of Ramanatha to Section

RM. AM. estate, which implies that from that day onwards, he was claiming exclusive title to the property, and the release deed also proceeds on

the same basis. No doubt in para 32 of the plaint, it was asserted by the plaintiff that there was no partition in the family and he has been always in

joint possession with the defendant of all the family estate and his status has never been affected or disturbed and the defendant''s possession is

also in law the plaintiff''s.

In view of the assertion of exclusive title by Ramanatha, at any rate from the date of the compromise, and his possession thereunder from that date

onwards, it is obvious notwithstanding the language In para 32 of the plaint, that the plaintiff was out of possession on the date of the suit and had

no joint possession with Ramanatha. The suit is not merely one to convert or change joint enjoyment into separate enjoyment by partition.

The suit is on the footing, as we understand the plaint, that the properties are joint family properties and continue to be such, that without authority

or, at any rate, either by coercion, fraud or undue influence the father was influenced to give up the rights of the family in favour of Ramanatha and

therefore he was holding possession of the property exclusively. In such a case, as decided by the Full Bench, the plaint has to be valued u/s 7(iv)

(b), Court-fees Act. The plaintiff has to value the relief he claims in the memorandum of appeal on that basis.

There is only one other aspect of the arguments to which we have to refer. The re ference of the Master purported to be u/s 12(2). The

learned counsel for the appellant contended that this Court had no Jurisdiction to deal with the matter u/s 12(2), as the appeal arose out of

proceedings on the original side of this Court to which Chapter II of the Act applied. It is not necessary for us to express any opinion on this

contention as we have dealt with the reference as one u/s 5 of the Act. We were concerned only with the valuation for the purposes of court-fee

on the memorandum of appeal. We direct the appellant to value the relief for partition u/s 7(iv)(b), Court-fees Act, and pay court-fee on that basis.

For this purpose time is granted till one week after the reopening of this Court after the summer vacation.