Sellammal vs Jothimani Nadar and Others

Varadachariar, J.—This revision petition raises a question of court-fee. The point having been decided by the lower Court in plaintiff''s

favour, I should ordinarily have declined to interfere in revision but for the fact that it has been held by a Bench of this Court in Kattiya Pillai v.

Ramaswami Pillai 1929 119 IC 35, that, where the decision on the court-fee question also bears upon the valuation of the suit for purposes of

jurisdiction and the suit may have to be filed in a higher Court if the court-fee question should be decided in a different way, this Court is justified in

interfering in revision. The suit has been filed by two sons of a Hindu father against their step brother and step mother. The plaint alleges that certain

properties which really belonged to the joint family were made to appear to have been sold away by the father on 27th September 1923 in favour

of his junior wife, defendant 4, that, in fact, there was no sale and no payment of consideration and that the properties were put in her name for the

purpose of concealing them from the plaintiffs at the time of the partition which took place by a registered partition deed dated 23rd December

1923. On these allegations the plaint prays to have it declared that the plaint properties are undivided ancestral properties and that the sale-deed in

favour of defendant 4, cannot bind the plaintiffs and it also asks for separate possession of the plaintiffs'' two-thirds share after a partition by metes

and bounds. Though the sale-deed purports to value the property at about Rs. 13,000 it was stated in the plaint that the property was at the date

of suit worth only Rs. 4,000 and court-fee u/s 7, Clause 5, was paid on two-thirds of this amount.

On objection taken by the defendant, a Commissioner was appointed and on a consideration of his report the lower Court has now held that the

total market value of the properties must be taken to be Rs. 7,971. The question then arises whether court-fee should be paid on the suit valued at

two-thirds of this amount or only one-third of this amount. If the case is governed by Clause 5 of Section 7, two-thirds of this amount will

undoubtedly be the proper basis but the learned District Munsif was of opinion that the case fell under Sub-clause (c) of Clause 4 of Section 7,

Court-fees Act and thought it sufficient that the suit was valued at one half of the value under Clause (5). If this basis is the correct basis, the suit

will be within the Munsif''s jurisdiction but if two-thirds should be the correct basis, the plaint will have to be returned for presentation to the

Subordinate Judge''s Court. Hence the justification for my dealing with this matter in revision. I am unable to agree with the lower Court that the

case falls under Sub-clause (c) of Clause 4, Section 7. The reference to consequential relief in that sub-clause must be read along with other

clauses providing for particular reliefs which in a sense are also concequential reliefs. Where the relief asked for is by way of possession, the suit

will prima facie fall under Clause 5 and not under Clause 4-0, and it can make no difference for this) purpose that a prayer for a declaration is also

included in the suit. It is in the circumstances of this case not possible to bring the suit under Sub-clause (b) of Clause (4) because, even according

to the plaintiffs, defendant 4 is claiming the property adversely to the plaintiffs insisting ""on her own title under the sale-deed. It cannot therefore in

any sense be said that the plaintiffs are even constructively in possession of the property. I am not prepared to hold that the case falls under Sub-

clause (4-A) introduced by the Madras Amendment of 1922.

The case must therefore go back to the District Munsif to deal with it on the footing that the suit is governed by Section 7,. Clause 5, Court-fees

Act. It will be for him to return the plaint for presentation to the proper Court. I am not satisfied that this is a case in which I should direct the

respondents to pay the petitioner''s costs. There will therefore be no order as to the costs of this Civil Revision Petition.