V. Somasundaram vs Nalini Somasundaram

Balakrishna Ayyar, J.—In 1938 Somasundaram, the petitioner before me, married the respondent Nalini, By 1953 the relationship between

the two got very strained and in that year Nalini filed O. P. No. 181 of 1953 on the file of the City Civil Court, Madras, for dissolution of her

marriage with the petitioner u/s 5 of Madras Act VI of 1949. On 28-11-1953 a decree was passed dissolving the marriage between the parties.

Among other things, the court also directed that Somasundaram should pay Nalini Rs. 600 per month for her maintenance, the payment to continue

so long as she remained unmarried In November 1956 Somasundaram filed O. S. No. 2090 of 1956 on the file of the City Civil Court, Madras,

for setting aside that portion of the decree in O. P. No. 181 of 1953, which directed that he should pay Nalini Rs. 600 per month. That relief was

sought for on the ground that Nalini had given birth to a child in November 1953, that Somasundaram could have had no access to her at any time

when the child could have been begotten, that the child was the off-spring of adultery and that these facts had been fraudulently concealed at the

time when the O. P. No. 181 of 1953 was disposed of. The plaintiff valued the suit for the purpose of court-fee at Rs. 7200 that is to say on the

amount payable for one whole year,

The Court-fee Examiner took the view that the court-fee paid was insufficient. According to him the decree sought to be cancelled created in

effect a life estate and the value of the decree should be ascertained and court-fee collected on that basis. Further a sum of Rs. 23,000/- was the

amount of the maintenance payable from the date of the decree in O. P. No. 181 of 1953 upto the date of the filing of the present suit and hence

court-fee should be paid on that amount. He submitted that on this computation the court-fee paid was short by Rs. 1192-8-0. The learned Judge

in the City Civil Court agreed with the view of the court-fee examiner and called upon the petitioner to pay the additional court-fee. In this civil

revision petition the correctness of this order is questioned.

The direction that court-fee should be paid on the amount of Rs. 23000 may be disposed of on one short ground. Mr. Srinivasan, the learned

advocate for the petitioner, stated that this amount has been already paid to Nalini and that he is not seeking to recover it back. If this is so no

court-fee would naturally be payable on this amount. But the paragraph in the plaint which contains the prayer is not very clear on the matter. So

subject to the plaint being amended in order to make it explicit that no relief is being asked for in respect of this amount of Rs. 23000, I direct that

no court-fee need be paid on this amount.

The view that Nalini must be treated as the holder of life estate of the value of Rs. 600 per month appears to me to be clearly erroneous. Apart

from everything else the decree in O. P. No. 181 of 1953 makes it clear that the payment of Rs. 600 would cease in the event of Nalini

remarrying. I do not see how in view of this contingency any idea of a life estate would be appropriate. The court-fee examiner states ""A decree

for maintenance allowance for life has to be valued with reference to the actuarial tables about the expectancy of the life estate holder."" Proceeding

for the moment on the assumption that the theory behind this observation is sound the question at once arises: How is the expectation of life of

Nalini to be determined? Is her life a normal life or is it an impaired life? Is she to be required to appear before a Board of doctors? If she declines

to appear can she be compelled to do so? The Court-fees Act does not visualise such a situation. Section 23 of the Court-fees Act provides:

In the suits hereinafter mentioned fee shall be computed as follows:

(a) In a suit for maintenance on the amount claimed to be payable for one year. And then there is Section 40 which enacts, ''''In a suit for

cancellation of a decree for money or other property having a money value ..... fee shall be computed on the value of the subject matter of the suit

and such value shall be deemed to be-

If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.

In an Act like the Court-fees Act we cannot have two different valuations for the same thing. A person who seeks to get rid of a decree cannot

be required to pay more than what he would have had to pay had he been seeking to obtain such a decree himself. Sections 23 and 40 must be

read together and if that is done it will be at once found that court-fee will be payable only on Rs. 7200.

In Bank of Upper India Ltd. v. Abdul Ali, AIR 1936 Oudh. 317, the question arose as to how the value of maintenance amounting to Rs. 200

per annum which had been declared by decree should be assessed in a suit for its cancellation. The court ruled:

If the suit were for establishment of a right to receive maintenance amounting to Its. 200 per annum then u/s 7 Clause 2 Court-fees Act, the value

of the subject matter of the suit would be deemed to be ten times the amount claimed as payable for one year, In the absence of any provision to

the contrary we think that a similar principle may be adopted for assessing the valuation when the suit is for getting rid of a liability to pay

maintenance at that rate of Rs. 200 per annum.

In other words the court held that valuation should be on the same basis whether the plaintiff sought to obtain a decree or the cancellation of a

decree that the opposite party had obtained.

In the result, subject to the direction I have given as regards the amendment of the plaint in respect of Rs. 23,000, this civil revision petition is

allowed. There will be no order as to costs. The amendment should be carried out within ten days.