Thulasibai Ammal vs Kanna Pandithar and others

Ratnam, J.—The question that arises for consideration in this Civil Revision Petition is whether the court-fee paid by her before the District

Court, North Arcot at Vellore, is correct. The area of controversy, factual as well as legal, is very small. In the course of the final decree passed in

O.S. No. 172 of 1961, District Munsif Court, Ranipet, the site of item No. 1 of the suit properties has been allotted to the share of the petitioner,

while items 2 to 4 have been allotted to the share of the first respondent herein While the value of the site allotted to the share of the petitioner had

been fixed at Rs. 30,000, items 2 to 4 allotted to the share of the first respondent were valued at Rs. 5,000 and in view of the allotment of the

entirety of the site of the value of Rs. 30,000 to the share of the petitioner, the petitioner was directed to pay the first respondent a sum of Rs.

12,500 in order to equalise the value of the shares allotted to the petitioner and the first respondent under the decree. The decree directed the

payment of this sum of Rs. 12,500 by the petitioner to the first respondent, in addition to directing the allotment of items 2 to 4 of the suit

properties to the first respondent. It appears that the petitioner earlier preferred an appeal in A.S. No. 279 of 1978, District Court, Vellore and

that the matter was remanded for disposal in accordance with the directions given therein. It is thereafter that the matter came to be dealt with by

the learned District Munsif, Ranipet, on 4th September, 1980 and the petitioner was again held entitled to a sum of Rs. 12,500 in respect of the

exclusive allotment of the entirety of item 1 to the share of the petitioner. Against this final decree, the petitioner preferred an appeal again to the

District Court, North Arcot at Vellore, paying a court-fee of Rs. 60.50 under S. 52 of the Tamil Nadu Court-Fees and Suits Valuation Act on the

value of the suit, viz., Rs. 799.65. The matter was heard by the learned District Judge, on the question of the correct court-fee payable by the

petitioner in respect of the appeal and it was held that the appeal had to be valued at Rs. 12,500 and the court-fee thereon has to be paid and in

this view, the memorandum of appeal was returned for the payment of deficit court-fee granting three weeks time to the petitioner to do so. It is the

correctness of this order that is challenged in this Civil Revision Petition. Notice of this Civil Revision Petition was ordered to the Additional

Government Pleader and Mr. N.R. Chandran represents the State of Tamil Nadu before me. The learned counsel for the petitioner contends that

the suit out of which the appeal has arisen, still continues to be one for partition and separate possession and therefore, the court-fee maid as on

the former occasion on the value of the suit would be sufficient. It is also further urged that the provision for owelty, as in this case, is only an

incidental relief to the main relief of partition and therefore, no court-fee need be paid on the amount of Rs. 12,500 as directed by the court below.

Reliance in this connection is placed by the learned counsel for the petitioner on the decision in Minor Veluchami Pillai, by next friend, Chellathavee

alias Meenakshi Ammal v. K.S. Sankaralingam Pillai and others 1949-2-M.L.J. 782 . On the other hand, Mr. N.R. Chandran, the learned

Additional Government Pleader II, contends that though the decree is one which has been pissed as a final decree in the course of a partition suit,

in filing an appeal against such a decree, the petitioner is attempting to get rid of a liability of Rs. 12,500, fastened upon the petitioner by the final

decree and that therefore, when the amount has been ascertained and awarded, it is not open to the petitioner to value the appeal differently. In this

connection, reliance is placed also upon Explanation 1 to S. 52 of the Tamil Nadu Court-Fees and Suits Value Act, 1955, to the effect that the

court-fee payable in the appeal against the grant of the relief in favour of the first respondent to the tune of Rs. 12,500 should be the same as the

fee that would be payable on the relief, in the court of of the first instance. In other words, the court-fee payable on the memorandum of appeal

would be the court-fee payable on the relief in the court of first instance viz, the court-fee on a sum of Rs. 12,500. It is also further pointed out by

the learned Additional Government Pleader that the decision relied on by the learned counsel for the petitioner related to Art. 17-B of Schedule II

of the Court-Fees Act VII of 1870.

No doubt, the appeal sought to be preferred by the petitioner arises out of a suit instituted by the first respondent herein for partition and

separate possession of a half share in his favour. Under the terms of the decree referred to earlier, the petitioner has been directed to pay the first

respondent a sum of Rs. 12,500 which is attempted to be got rid of by preferring an appeal. In these circumstances, having regard to the

quantification of the liability of the petitioner under the terms of the decree, which is sought to be got rid of, it is not possible to value the appeal at

any other figure and pay court-fee thereon. Therefore, the mere circumstance that the final decree appealed against arises out of a suit for partition

cannot justify the payment of the same court-fee as was done prior to the passing of the preliminary decree.

In relation to a suit for accounts, it has been pointed out in Dhanukodi Nayakar and others In re 47 L.W. 488 = 1938-1-M.L.J. 628 (F.B.), by

a Full Beach of this Court that where a defendant appeals against a final decree, he should pay a court-fee on the amount of the decree passed

against him except in cases where he appeals only against a portion of the decree. It is also stated that when a defendant appeals against a final

decree, he knows exactly the value of his relief. Even otherwise, it has been held by Horwill, J. in Krishnappa Chettiar and another App. No. 447

of 1941--1941-2-M.L.J. 92 (S.N.), that where in a suit for partition, a coparcener claimed to have lent a certain sum of money to his father who

was the manager of the family and that sum should also be taken into account in partitioning the property and that was negatived, ad valorem court

fee has to be paid as the claim in the appeal cannot be said to be incapable of valuation. Again, in Kadiyala Pervadhanalu v. Kadiyala

Pervadhanalu, minor by mother and guardian 1949-2-M.L.J. 402 it has been held that if in a decree in a partition suit there is a specific direction to

pay the plaintiff certain amount, for purposes of appeal Art. 17B of Schedule II of the Court-Fees Act cannot be pressed into service for payment

of court-fees adopting the plaint valuation and that if the subject matter had been clearly determined, viz, a specific amount court-fee will have to

be paid on that amount by the party seeking to get rid of that decree. In Balarama Naidu v. Sangan Naidu 45 Mad. 280 , where appeals were

preferred in a suit for partition by both sides against the final decree determining the mesne profits, the Division Bench held that the appeals must be

treated as appeals against the final decree and ad valorem court-fee must be charged under Art. 1 of Schedule I of the Court-Fees Act, calculating

on the amount of mesne profits in dispute. Art. 17B of the Court-Fees Act (Act VII of 1870) provided for the payment of the fixed court-fee on

plaints or memorandum of appeals in every suit where it is not possible to estimate at a money value the subject-matter in dispute and which was

not otherwise provided for. On the facts of the present case, the money value has been estimated, quantified and specified under the decree

appealed against and therefore, Art. 17-B can have no application whatever at all. Even other wise, having regard to the provisions of S. 52 of the

Tamil Nadu Court-Fees and Suits Valuation Act, 1955, Art. 17-B cannot be taken advantage of by the petitioner to justify the payment of the

court-fee on the memorandum of appeal on the basis of the valuation in the plaint. Therefore, the decision relied on by the learned counsel for the

petitioner cannot be of any assistance to the petitioner in the present case.

Under S. 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, a general provision has been made that the fee payable in an appeal

shall be the same as the fee that would be payable in the court of first instance on the subject-matter of the appeal. In the present case, a reference

to the memorandum of valuation in the intended appeal by the petitioner discloses that the value of the subject-matter of the appeal is stated to be

Rs. 12,500. Under the decree passed in the suit, the first respondent herein has been directed to pay the court-fee on this amount and therefore, if

the petitioner wants to prefer an appeal against this decree, the court-fee has to be paid on the same value, viz., Rs. 12,500 on which the first

respondent has also been directed to pay the court-fee. In any event, Explanation I would be attracted to the instant case, as the petitioner appeals

against the grant of a relief of payment of Rs. 12,500 in favour of the first respondent herein and the court-fee payable in that appeal should be the

same as the fee that would be payable by the first respondent herein on the relief in the court of first instance. It is clear from the above that the

petitioner cannot escape from the payment of court-fee on Rs. 12,500, which is the amount for which she has been made liable and for which the

first respondent herein has also been made liable for payment of court fee even under the terms of the decree. Having regard to these

considerations, the argument of the learned counsel for the petitioner that since she had been allowed to pay a court-fee of only Rs. 60.50 in A.S.

No. 279 of 1978 earlier, she cannot be called upon to pay higher court-fee now, is unacceptable. The order of the court below holding that the

petitioner has to pay ad valorem court-fee on Rs. 12,500 is therefore, perfectly correct and does not merit any interference in revision. The civil

revision petition fails and is dismissed. No costs.

The petitioner will have three weeks time from this day to pay deficit court-fee. The Court fee directed to be paid by the petitioner in C.R.P.

No. 3425 of 1980 may be paid on or before 16th June, 1981.