V.N. Alagar Aiyangar vs Srinivasa Aiyangar and Another

Justice Odgers, J.—This is an application to revise the order of the District Judge of Ramnad in C.M.A. No. 1 of 1924. The plaintiffs in

O.S. No. 954 of 1922 on the file of the Principal District Munsif''s Court of Srivalliputtur seek for a declaration that certain alienations made by the

1st defendant in respect of certain items of property are not valid and binding as against the two-thirds share of the plaintiffs and for partition and

possession of two-thirds share in these and other plaint properties. The plaint properties are the joint properties of the plaintiffs and their father, the

1st defendant, who was the family manager. They originally valued the plaint as if it were one for possession of their two-thirds share in all the

plaint schedule properties and paid ad valorem Court-fee apparently in accordance with Section 7(5) of the Court Fees Act. The learned District

Munsif held that the suit although in form for a declaration was really one for setting aside or cancellation of the sale-deeds executed by the 1st

defendant in so far as they related to the shares of the plaintiffs, and valued the plaint reliefs at Rs. 3,965. This was outside his pecuniary

jurisdiction. He accordingly returned the plaint for presentation to the proper Court. The learned District Judge, to whom an appeal was taken,

was of opinion that the plaintiffs were entitled to treat the alienations in question as absolutely void and that they were entitled to proceed on that

footing and that if the alienation should! subsequently be found in the suit not to be so void the suit in respect of these items should simply be

dismissed. I am unable to agree that this is the policy of the Court Fees Act. If that were so, there is no difficulty in seeing that anomalies would

arise. A plaintiff could grossly undervalue his suit, plead that his plaint is only for a declaration and then say: ""If it is found that my plaint is for more,

dismiss my prayers with regard to the rest."" This would lead not only to great waste of judicial time and would also encourage absolutely

unsustainable claims. These alienations were made by the father of the plaintiffs not only as manager of a joint Hindu family but also as their

guardian, in my opinion, therefore, the minors appear as parties to these alienations which are prima facie binding on them. The power of a Hindu

father may be more or may be less than the power of a guardian to bind his minor sons, but unless it can be established that the alienations were for

unnecessary or illegal purposes (for which the onus is on the minors) the alienations are prima facie good. See Subba Goundan v. Krishnamachari

(1921) 42 MLJ 372 Of the cases cited on the other side in Unni v. Kunchiamma (1890) Mad 26 the document was not executed by the plaintiffs

or by any person under whom they claimed. Khaji Mir Majavath Alli Vs. Khaji Mir Mujafar Alli and Another, was not a case of Court-fee. There

a vendor of the plaintiffs sold the property to them on the footing that a sale by his mother made during his minority as his guardian was not binding

on him.He had chosen to avoid it and obtained a complete title which would become effective if the Court ultimately found that the sale by the

mother was not binding as alleged. I cannot see that this case has any bearing on the present, whereas in Malikka Meladathil Karnavan Kunji

Achammal Vs. Malikka Meladathil Karnavan Kunji Achammal, a case very similar to the present, where all the plaintiffs but one were parties to

the deed through their mother as guardian, it was held that a suit in which the plaintiffs ask for a declaration that a jenm sale deed of the suit

properties was not valid and binding on their tarwad must be treated as a suit for the cancellation of the deed and an ad valorem feewas requisite.

Further it. was held that the application of any particular clause of Section 7 must depend on the substance of the claim and not on the mere words

used in the plaint. In 1922 by Madras Act V of that year a further sub-clause (a) was added to Section 7(4) whereby in a suit for cancellation of a

document securing property having a money value the amount or value of the property for which the document was executed is. the amount on

which the ad valorem Court-fee is to be paid. See also Logan Bart Kuer v. Khakhan Singh (1917) 3 PLJ 92 In Arunachalatn Chetty v.

Ranyaswami Pillai (1914) 28 MLJ 118it was held that a suit for a declaration that a decree or a document is not binding is a suit under sub-clause

4(c) and must be stamped ad valorem. In my opinion, the learned District Judge is wrong and the plaint must be construed as a plaint for

cancellation or avoidance of these alienations to which the minors were parties and which prima facie bind them. The order of the learned District

Judge must be set aside and that of the learned District Munsif restored with costs throughout.