V. Somasundaram vs Srimathi 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 28th November, 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. 7,200 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 up to 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. 1,192-8-0. 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. 23,000 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. 23,000. I direct that

no Court-fee need be paid on this amount.

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

Apart from everything also 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 that 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 die 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 is payable only on Rs. 7,200.

In Bank of Upper India Limited 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 a 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 Rs. 200 per annum then u/s 7 Clause (a), Court-fees Act, the value

of the subject-matter of the suit should be deemed to be 10 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.