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 the Petitioner in the appeal preferred 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 Original Suit No. 172 of 1961, District Munsifs 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 there 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 entirely 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 Appeal Suit 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 Petitioners was again held entitled to a sum of Rs. 12,500 in respect of the exclusive allotment of the entirely 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. 60-60 u/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 paid a son the former occasion on the value of the suit would we sufficient. It is also further urged that the provision for liability, 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 Veluchami Pillai by Next Friend Chellathayee alias Meenakshi Ammal Vs. K.R. Sankaralingam Pillai and Others, On the other hand, Mr. N.R. Chandran, the learned Additional Government Pleader-II, contends that though the decree is one which has been passed 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 as certained and awarded it is not open to the Petitioner to value the appeal differently. In this connection, reliance is also placed, upon Explanation (1) to Section 52 of the Tamil Nadu Court fees and Suits Valuation Act, 1955, to the effect that the court fee payable in the appeal against the grant of he 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 the firsts 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 Article 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 the 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 circumstances 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 in In re: Dhanakodi ILR (1938) Mad. 598 (F.B.) by a Full Bench of this Court that where a Defendant appealed against a final decree, he should pay a court-fee on the amount of the decree passed against him, except in cases where the appeal 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 In Re: Krishnappa Chettiar and Anr. (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 Peravadhannulu Vs. Kadiyala Peravadhannulu by Mother and Guardian Subbamma, it has been held that if in a decree in a partition suit, there is a specific direction to pay the Plaintiff a certain amount, for purposes of appeal, Article 17-B of Schedule II of the Court Fees Act cannot be pressed into service for payment of court-fees adopting the plaint valuation and that in 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 ILR (1921) 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 Article I of Schedule I of the Court Fees Act, calculating on the amount of mesne profits in dispute. Article 17-B of the Court Fees 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 specified under the decree appealed against and therefore, Article 17-B can have no application whatever at all. Even otherwise, having regard to the provisions of Section 52 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, Article 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 my assistance to the Petitioner in the present case.

u/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, 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 (1) would be attracted to the instant case as the Petitioner appeals against the rant 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 the 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 Appeal Suit 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 negatived valorem court fee on Rs. 12,500/- is therefore, perfectly correct and does not merit any interference in revision. The civil revision petition fails an is dismissed. No. costs.

The Petitioner will have three weeks time from this day to pay the deficit court-fee.