Y. Geesbpati Gurukul vs Y. Subruhmanyam and Others

Chandra Reddy, J.—The Plaintiff is the Petitioner. He filed a suit for a declaration that the decree obtained by the 2nd Defendant in O. S. No. 27/1944, Sub-Court, Rajahmundry, for partition, is not binding on him, not being a party to the suit; and for partition of the plaint scheduled properties into two equal shares. He valued the two reliefs under Articles 17-A and 17-B respectively and paid Court-fee on that basis. The 1st Defendant is the father of the Plaintiff, the 2nd Defendant being the widow of the 1st Defendant''s brother.

The latter filed a suit O. S. No. 27 of 1944 against the 1st Defendant and others claiming a half share in the family properties on the ground that there was a division in status between her husband and the 1st Defendant in the year 1935 and obtained a preliminary decree for partition. The decree was confirmed by the High Count in A. S No. 263 of 1947. The present suit giving rise to this petition has been brought on the allegations that the above decree does not bind him for the several reasons mentioned in paragraph 7 of the Plaint, and with the prayers mentioned above.

The trial Court, on an objection taken by the Court-fee Examiner, directed the Plaintiff to pay Court-fee u/s 7 (iv) (A) of the Court Pees Act as in his opinion the whole suit was, in effect, for cancellation of the decree obtained by the 2nd Defendant. It is this order that is now under revision.

It is urged by Mr. Kuppuswami, the learned Counsel for the Petitioner, that the case does not fall . u/s 7 CIause (iv) (A) of the Court-fees Act for the reason that the Plaintiff was not economies a party to the suit and therefore was not required to have the decree set aside and that the prayer for the declaration mentioned supra is a surplus age. There is substance in this contention. When a person is not economies a party to a suit or a document, it is unnecessary for him to have the deed or the decree annulled, and he can proceed on the assumption that there was no such document or decree.

In this case, the Plaintiff could very well ignore the decree and ask for partition of the family properties on the basis of the non-existence of the decree. If he has asked for a declaration that the decree would not bind Vim, it was an unnecessary relief.

This principle leas men distinctly laid down by the Full Bench of the Madras'' Rich Court in C.R. Ramaswami Aiyangar, represented by his mother and next friend Lakshmi Ammal Vs. C.S. Rangachariar and Others, at p. 280 : AIR 1940 Mad 118 al p. 118) (A), that a Plaintiff who is not a nearly to a suit or a document is not Mound to sue for la declaration or cancellation of it. The learned Judges extracted a passage from the judgment, of the Privy Council in Bijoy Gopala Mukeeji v. Krishna Mahishi Debi, ILR 34 Cal 329 at p. 333 (B) and observed:

In such cases even if the plaint contains a prayer for a declaration or cancellation, there is good reason for holding it to be one for'' a purely incidental but unnecessary relief.

In other words, even if there is a prayer for a declaration or cancellation, it could be ignored and Court-fee need not be paid thereon. Though the Full Bench decision related to the decree for money, it would apply with equal force to a decree for partition also as there is no difference in principle between the two The doctrine of ILR (1940) Mad 259 at p. 280 : AIR 1940 Mad 113 at P. 118) (A), was applied by a Bench of the same Court to a case of compromise in In Re: S.R.M. AR. S. SP. Sathappa Chettiar,

That was a suit for partition ignoring a compromise between the father of the Plaintiff and the Defendant and the suit was valued under Article 17-B of Schedule. II of the Court-fees- Act. It was held that it was properly valued and the Plaintiff was under no obligation to ask for cancellation of the compromise decree and that therefore Section 7 CIause (iv) (A) was inapplicable to the case. The doctrine of that case governs the present one. It follows that the suit was properly valued and the court-fee paid is correct. The Civil Revision Petition is therefore allowed. No costs.