Shrimathi Mokhamatla Kondamma and Another vs Shrimathi Mokhamatla Yenkatalakshmidevi

Umamaheswaram, J.—An important question of law falls for determination in this reference. The respondent herein, i.e., the junior widow, filed O-S. No. 31of 1953 on the file of the Sub-Court, Elurur for" partition and recovery of possession of a half/ share in her deceased husband''s property against-the "senior widow and the son, alleged to have-been adopted by her. Her*case in the plaint was: that the adoption was not true and that the adopted son had no rights in the plain scheduled properties. She, however, prayed for a declaration-that the adoption of the 2nd Defendant by the; 1st Defendant was not true in fact and not valid-and binding on her under law. She paid a court-fee of Rs. 100 under Article 17-B of Schedule II of the Court-Fees Act in respect of the relief of partition and separate possession of her half share in the suit properties. She also paid a sum: of Rs. 500 by way of court-fee in respect of the-relief of declaration regarding the alleged adoption of the 2nd Defendant by the 1st Defendant. The Court below held that the adoption was not true and decreed a half-share to the Plaintiff.. The two relief''s prayed for her were granted by the Court below. The senior widow and the-alleged adopted son have preferred a regular appeal to this Court. They contend that it is not necessary for them to pay any court-foe in respect of the second relief, namely the declaration sought in regard to the alleged adoption of the 2nd Defendant by the 1st Defendant, as it was an unnecessary relief, and that the court-fee paid, in respect of relief No. 1, viz. for partition and! separate possession, is quite sufficient and adequate. The question for consideration in the-reference is, whether the prayer for a declaration. that the alleged adoption was not true, valid and binding is an unnecessary prayer and a suit for partition, ignoring the alleged adoption is maintainable.

It is clear law that the Defendant-Appellant is to pay only the court-fee that is required; to be paid according to law, in recpect of the-subject-matter of the appeal. The mere fact that the Plaintiff has over-valued the property claimed or paid a higher court-fee than required by law does not bind the Defendant and the Defendant is bound to pay only the Court-fee lawfully payable under the provisions of the Court-fees Act. Vide Bhagwan Puri and Others Vs. Secretary of State, .

It is well settled that in determining the question as to what court-fee should be paid, it is only the allegations in the plaint that nave to-be looked into. It is also clear that if no adoption has taken place or if the adoption is invalid, the adopted son acquires no rights in the adoptive-family and is only in the position of a trespasser. In the case of a reversioner, it is open to him to ignore the adoption as a nullity and file a suit for possession after the death of the widow-vide the observations at pages 235 and 242 (of Andh. WR): (at pp. 151 and 155 of AIR) in Janikamma v. Mattareddi, 1956 AP WR 220: AIR 1956 AP 141. Similarly, the junior widow is entitled to ignore the adoption and file a suit for recovery of her half share against the senior widow.

The next question that arises for consideration is, whether by reason of the alleged adopted son having been imp leaded as a party: and the declaration having-been prayed for by the Plaintiff and the Court granting that relief, -the Defendant is bound.to pay court-fee in respect of that relief in his memorandum of appeal." The Full Bench,decision:in Ramaswami Aivanger v. Rangachariar (1940) 1 Mad 32 : AIR 1940 Mad 113 throws, considerable light on This question. If, as held by me, the: Plaintiff is siot bound under substantive law to sue for a declaration that the adoption is invalid in order to obtain the relief of partition and separate possession, it does not matter whether the alleged adopted son is imp leaded, as a party or that an unnecessary relief for declaration is sought in the "plaint. The observations of the1 Privy Council in Bijoy Gopal'' Mukerji v. Krishna Mahishi Debi ILR 34 Cal 329 are directly in point'' The case no doubt related to a suit by a reversioner ignoring an alienation but the reasoning equally applies to this case. The observations are as follows:

There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary'' heir. It is true that the Appellants prayed by their plaint a declaration that the jar was inoperative as against them as leading up to their prayer for delivery to them of has possession. But it was not necessary for them to do so, and they night have merely claimed possession leaving it to the Defendants to plead and (if they could) '' prove the circumstances which they relied on for showing that the Ijara or any derivative dealings with the property were not in fact voidable but were binding on the reversionary heirs.

Leach, C.J., applied those observations in the Full Bench decision in In Re: Kanakasabai Pillai, (C) and held that even if the plaint contained a prayer for a declaration or ..cancellation there was good reason for holding to be one for a purely incidental but unnecessary relief. The further held that there was of force in the argument that the position was altered by the joiner in the suit of the parties to the transactions who were interested in supporting them. The same view is laid down in Sahul Hameed Rowther Vs. K.C.P. Mohideen Pichai, (E). The learned Judges held that the relief sought for in the plaint, viz., for a declaration that the sale deed was sham and nominal, was superfluous and that in deciding whether the Plaintiff was entitled to an injunction or possession, the Court had necessarily to decide whether the document was sham and nominal. It was therefore held that Section 7 (IV-A) did not apply. A similar view was taken in a recent decision of the Madras High Court in In Re: S.R.M. AR. S. SP. Sathappa Chettiar, ) (F). The learned; Judges discussed, the scope and -effect of the Full Bench decision in In Re: Kanakasabai Pillai, (C) and held that there was no difference in principle between a �deed and a decree and that it was not necessary to the Plaintiff to sue for setting aside the decree and pay court-fee on that relief. Following these decisions. I hold that it was not necessary for the junior widow to set aside the adoption in order to obtain the relief of partition and separate possession or pray for a declaration that the alleged adoption was not true and valid.

There is a direct decision of the Allahabad High Court (Lucknow Bench) in Chief Inspector of Stamps.v. Babu Ram (1949) DLR 128 supporting this view. The observations are quite apt and are in the following terms:

The question whether in a suit like that brought by Mst. Kisan Dei, it is necessary for the Plaintiff to seek adeclaration that the adoption of the Defendant was invalid has been the Sublet of a number of decisions by the Judicial CommKtee. Reference in this connection may be made to Thakur Tirbhuwan Bahadur Singh v. Raja Rameshwar Baksh Singh ILR 28 All 727 Mohammad Umar Khan v. Muhammad Niaz-ud-din Khan ILR 39 Cal 418 and Kalyandappa v. Chanbasappa, ILR 48 Bom 411 : AIR 1924 PC 137 It is now definitely settled by the last-mentioned case that the article of Limitation Act applicable to a suit by a reversioner for possession of Immovable property on the death of a Hindu female is Article 141 (and not Article 118) even if it is necessary to decide in the suit whether an adoption was or was not valid. We are of opinion that the same rule would1 apply to a case where a suit for possession is brought by a Hindu female, even though it be necessary to. decide whether an adoption made by heir husband was or was not valid.

The last question that has to be decided is, whether the Appellants are bound to pay court-fee on the relief as to declaration by reason of the Court below having granted the relief and embodied it in the decree. If, as pointed out above, the declaration was purely incidental and the relief superfluous and unnecessary for the purpose of decreeing partition and directing delivery of possession, it follows that no court* fee need be paid even though a decree had been passed granting, that prayer. No direct decision bearing on the question has been pointed out to me. The learned advocate for the Petitioner relied by way of analogy, on the line of cases holding that Article 1 of Schedule I is not applicable even though a particular sum is determined by the final decree and that only a fixed court-fee is payable under Article 17-B of Schedule II Vide the decision in S.R. No. 8007 of 1956 in Ramachandra Rao v. Bhavanna 1956 Andhra WR (SN) 101 (J), wherein all the relevant case''s are discussed by me. Though the analogy is not very apt, still I think, on principle, that the Defendant need not pay separate court-fee on the unnecessary relief granted by the Court below and incorporated in the decree. In deciding the question whether the junior widow is entitled to a half share, the question of the truth and validity of the adoption has to be necessarily gone into. I, therefore, hold that the Court-fee paid by the Petitioner is quite adequate and the reference is answered accordingly.