Kandaswami Udayan and Another vs Annamalai Pillai and Others

Subba Rao, J.—The question that arises in this revision petition is one of pecuniary jurisdiction. It is conceded that if Section 7(iv-A) of the

Court-Fees Act applies to the relief claimed in the plaint, the District Munsiff''s Court of Salem., will have no jurisdiction to entertain the suit.

The suit was for partition of the properties by metes and bounds into four equal shares and for the allotment of three such shares to the plaintiffs.

It is alleged in the plaint that the properties described therein were the ancestral properties of the plaintiffs and their father, the first defendant. The

first defendant had executed a mortgage in respect of the said properties in favour of the second defendant for Rs. 2,320. The first defendant being

addicted to bad habits, was prevailed upon to execute a sale deed on 22nd January, 1937, for discharging the mortgage debt and other fictitious

considerations recited in the sale. It is also stated that there was no necessity to alienate the entire property as the mortgage debt could have been

discharged by selling a one-fourth part of the properties. It is also alleged in the plaint that the plaintiffs were willing to pay their share of the

mortgage amount due to the second defendant if the Court found that the shares of the plaintiffs also should pay up the mortgage proportionately.

The plaint also discloses that immediately the plaintiffs came to know of the alienation a year back, they called upon defendants 2 and 3 to give

back the lands to them. It will therefore be seen that the suit is a simple suit for partition by members of a joint Hindu family and for possession of

their shares after electing to treat the said sale as not binding on them.

The plaintiffs valued the suit u/s 7(v) of the Court-Fees Act at Rs. 62-5-6 and have given the same valuation for purpose of jurisdiction also.

The defendants contended in the lower Court that the plaintiffs should have asked for the cancellation of the sale deed and paid court-fees u/s 7(iv-

A) of the Court-Fees Act. If that section applied, as the market value of the suit property was beyond the pecuniary jurisdiction of the District

Munsiff''s Court the plaint should be returned for presentation in the proper Court. The learned District Munsiff rejected this contention relying

upon the decision in C.R. Ramaswami Aiyangar, represented by his mother and next friend Lakshmi Ammal Vs. C.S. Rangachariar and Others,

Learned Counsel for the petitioners contended that Section 7(iv-A) of the Court-Fees Act applies to the reliefs claimed in the plaint. He made a

distinction between a case where the plaintiff alleges that a sale deed is not supported by consideration at all and a case where he admits the

binding nature of at least a part of the consideration. Basing on that distinction he argued that as in the present case the binding nature of the

mortgage is not questioned by the plaintiffs and as they have also indicated their intention to redeem a proportionate share of the mortgage amount,

they are bound to ask for a cancellation of the sale deed. In support of his contentions he relied upon the decisions in 5 CWN 10 (Privy Council)

and 24 CWN 954 (Privy Council) . In 5 CWN 10 (Privy Council) the Court refused redemption of a mortgage to the plaintiff on the ground that

the properties were sold in execution of a decree. The sale took place after notice had been wrongly served upon a person who was not the legal

representative of the judgment-debtor''s estate. Their Lordships held that the decree was not a nullity and it was necessary for the plaintiffs to set

aside the sale in order to clear the ground for redemption of the mortgage. That decision does not in any way support the distinction sought to be

made by the learned Counsel for the petitioners. The question of court-fee or of pecuniary jurisdiction did not arise for decision in that case. The

decision in 24 CWN 954 (Privy Council) is also that of the Judicial Committee. In that case a decree was made on the 20th January, 1902, in

execution of which the mortgaged property was sold and purchased by the mortgagee. In a suit in 1909 by the sons of the mortgagor they

impeached neither the debt nor the mortgage but admitted they were binding on them and they did not in their plaint seek to set aside the decree or

the sale under it but only claimed to be entitled to redeem the mortgaged property on the ground that they had been minors at the time of the suit.

Their Lordships held that the right of redemption had been extinguished by the decree and that until the sale had been set aside it could not be

exercised. The point decided in the case was that the plaintiff could not claim a right of redemption after the decree and sale without getting them

set aside. It has no bearing on the question that is raised in this revision petition.

The principle applicable to this class of cases has been laid down by the Privy Council in 11 CWN 424 (Privy Council) . The relevant passage

from the decision has been extracted in the Full Bench decision in C.R. Ramaswami Aiyangar, represented by his mother and next friend Lakshmi

Ammal Vs. C.S. Rangachariar and Others, and I need not therefore quote it in extenso. An alienation by a limited owner, or a manager, is not

absolutely void but is prima facie voidable at the election of the reversionary heir or the other members of the family. He can elect to treat it as a

nullity without the intervention of the Court and the commencement of an action to require possession of the property may amount to such election.

In the present case it is stated clearly that the plaintiffs have elected to treat the sale as not binding on them and the suit was filed on the basis of

such election. They are not therefore bound to ask for cancellation of the sale deed but can claim the relief of possession of the property covered

by the sale deed, ignoring the sale. They are not bound under substantive law to sue for a declaration or cancellation in respect of the said

alienation. In the same decision, K. Kalianna Gounder Vs. Balasubramaniam and Others, Leach, C.J., held that in regard to an alienation where

possession had passed to the alienee and where the plaintiff asked for setting aside the same and be put in possession of the share of the properties

so alienated, the plaintiff had to stamp his relief in accordance with the provisions of Section 7(v) of the Court-Fees Act. Though no argument was

addressed in that case seeking to apply Section 7(iv-A) to such alienations and though there was no discussion in regard to the application of the

said section, this is a direct decision on the point and I am bound by the same. Bell, J., followed the observations of the Full Bench decision and

held in similar circumstances in K. Kalianna Gounder Vs. Balasubramaniam and Others, , that Section 7(iv-A) has no application. In that case a

suit was filed by three sons by their next friend, their mother, for a declaration that a sale deed executed by their father for himself and as guardian

of the first and second plaintiffs was not binding on them, not having been executed for family necessities, and for partition and recovery of the

properties. The learned Judge held that the suit was in essence one for possession and should be dealt with u/s 7(v). He rejected the plea that the

plaint was governed by Section 7(iv-A) of the Court-Fees Act. With respect I agree with the reasoning of the learned Judge in the judgment.

For the aforesaid reasons I hold that the plaint has been properly valued and the District Munsiff has jurisdiction to entertain the suit. No other

point was argued in the revision. In the result the revision petition is dismissed with costs.