Manohar Pershad, J.
1. These appeals are on behalf of the plaintiff. In these appeals, the only question to be decided is one of Court-fee. The plaintiff filed the present suits against the respondent for cancelling the notification of the permanent under-tenure village of Sivanathapaliem in the former permanently settled Estate of Kalahasti as illegal, ultra wires and without jurisdiction.
2. The appellant claims to be the owner of the village having purchased the same from a representative of the original grantee. The Government of Andhra Pradesh notified the village as a Zamindari Estate on 12-11-1953 and took over possession of the same on 4-12-53 depositing the advance compensation on the basis of a zamindari estate . The appellant pleaded that the action of the State Government in notifying the village as a zamindari estate and taking over possession thereof was illegal, ultra vires and without jurisdiction and liable to be set aside. He valued the suit in C. F. R. No. 7443 of 1956 for the purpose of jurisdiction at Rs. 50,000/- and paid a fixed court-fee of Rs. 300 and he valued C. F. R. 4742 of 1956 at 30,000/-; C. F. R. 4740 at 40,000/- C. F. R. 248/57 at 10,000/- and C. F. R. 4741 of 1956 at 10,000 and paid different court-fees on the same. The office took an objection that the relief sought by the appellant in the suits was one of Declaration and that Court-fee was payable under Section 24(d) of the Andhra Court-fees Act. The appellant relying on Sections 47 and 50(2) of the Andhra Court-fees Act contended that the court-fee paid was proper. The Court below did not accept the plea of the appellant and found that court-lee 'had to be paid under Section 24(d) of the Andhra Court-fees Act. Holding so, it directed the appellant to pay the deficit court-fee by 20-2-1957 and as he failed to make the deposit the Court on 21-2-1957 rejected the plaints . It is this order that is now challenged in these appeals.
3. As stated earlier, the only point to be decided in these appeals is 'what is the Court-fee payable?' In order to determine the class under which a suit falls for the purposes of court-fee the substance of the relief as disclosed in the plaints taken as a whole should be looked into and not the form of the prayer in which relief is cast. It follows therefore that it is the allegations in the plaint that determine the court-fete. The relief claimed in the plaints on the face of it is one for cancellation of the notification issued by the respondent with regard to the village of Alatoor, In the plaints, there is no mention that the appellant seeks the relief of declaration that the said notification is illegal, ultra vires and without jurisdiction. But it may be noted that the relief of the cancellation of the notification prayed for by the appellant can only be granted if it is established that the said notification is illegal, ultra vires and without jurisdiction. Considering these circumstances, it appears to me that the allegations in the plaints disclose that the substance of the relief sought for is one for a declaration. Cancellation of the notification, in my opinion, is merely ancillary to the relief of declaration.
4. Sri Subrahmamyam, the learned counsel contended that Section 47 of the Court-fee Act was applicable and not Section 24(d). He further urged that Section 24(d) embodies within it the provisions of Section 7(iv) (c), (d) and (e) of the Madras Court-fees Act and Article 17-A of Schedule II of the said Court-fees Act whereas Section 47 embodies the provisions of Article 17(B) of Schedule II.
5. In order to appreciate the contention of the learned counsel, a reference to the above provisions is necessary:
6. Section 24(d) of the Andhra Court-fees Act runs thus:
'24. In a suit for a declaration with or without consequential relief not falling under Section 25:-
(a) Where the prayer is for a declaration and for possession of the property to which the declaration relates fee shall be computed on the market value of the moveable property or three-fourths of the market value of the immoveable property or on rupees three-hundred, whichever is higher.
(b) Where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees three hundred, whichever is higher;
(c) Where the prayer relates to the plaintiffs exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right; fee shall be computed on the amount at which the relief sought is valued in the plaint or at which such relief is valued by the Court whichever is higher.
(d) In other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which such relief is valued by the Court, whichever is higher'.
Section 47 of the Act is to the following effect:--'In suits not otherwise provided for, fee shall be payable at the following rates:
When the amount or value of the subject-matter in dispute.
(i) is less than Rs. 3000/- Rupees fifty.
(ii) is not less than Rs. 3000/- but does not exceed Rs. 5000/- Rupees one hundred.
(iii) exceeds Rs. 5000/- but does not exceed Rs. 10,000/- Rupees two hundred,
(iv) exceeds Rs. 10,000/. Rupees three hundred.'
7. Section 7(iv) (c), (d) and (e) is to the following effect:
'7 (iv) In suits:
(c) to obtain a declaratory decree or order where consequential relief is prayed;
(e) for a right to some benefit (not herein otherwise provided for) to arise out of land; according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.
Provided that in suits coming under Sub-clause (c), in cases where the relief sought is with reference to any immoveable property, such valuation shall not be less than half the value of the immoveable property calculated in the manner provided for by paragraph (v) of this Section'.
(7a) Article 17-A of Schedule II runs as follows:
17A. Plaint or memorandum of appeal in a suit :
When the plaint is presented to or the memorandum of appeal is against the decree of -
(i) to obtain a declaratory decree whereno consequential relief is prayed.
(a) District Munsif's Court or the City Civil Court
(ii) to set aside an award*
(iii) to obtain a declaration that an alleged adoption is invalid or never in fact took place or to obtain a declaration that an adoption is valid.
(b) District Court or a Sub-Court
Hundred rupees if the value for purpose of jurisdiction is less than 10,000 rupees; 500 rupees if such value is ten thousand rupees or upwards'.
Article 17-B runs as follows : ''Plaint or memorandum of appeal in every suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by this Act.
When the plaint is presented to or the memorandum of appeal is against the decree of - (a) Revenue CourtTen rupees. (b) District Munsif's Court or City Civil CourtFifteen rupees. (c) District Court or a Sub-CourtOne hundred rupees.
8. A reading of the above provisions would go to show that under the Madras Court-fees Act, relief of declaration is provided for in several provisions of the Act. For instance, a suit for a declaration where a consequential relief is prayed has to be valued under Section 7(iv)(c). Section 7(iv) (d) only applies to cases of an injunction and it does not include therein a relief of declaration, and if the relief of declaration is also asked along with the relief of injunction, then the appropriate provision applicable is Section 7 (iv) (c).
9. Section 7(iv) (c) relates to a suit for a right to some benefit (not herein otherwise provided for) to arise out of land. Though the provision does not specifically involve the relief of declaration the prayer in such cases is generally in the form of declaration and injunction. Article 17-A of Schedule II of the Madras Court-fees Act covers only certain types of declarations.
10. Clause (i) of Article 17-A refers to a suit to obtain a declaratory decree where no consequential relief is prayed. Clause (iii) of Article 17-A refers to a suit to obtain a declaration that an alleged adoption is invalid or never in fact took place or to obtain a declaration that an adoption is valid.
11. The wording of Section 24(d) shows that it covers all cases of declarations, with or without consequential relief not covered by Sub-clauses (a), (b) and (c) and whether the subject-matter is, or is not capable of valuation. It also appears to me that all suits for declaration which formerly fell under Article 17-B of Schedule II also fall within the scope of this sub-clause. Section 47 of the Andhra Court Fees Act is a residuary provision governing all suits which are not otherwise provided for. This corresponds to Article 17-B of Schedule II of the Madras Court Fees Act. Merely because Section 47 of the Andhra Court Fees Act corresponds to Article 17-8 of Schedule II of the old Court-fees Act it would not follow that all suits for declaration which were previously valued under Article 17-8 have perforce to be valued under Section 47 Andhra Court Fees Act. Under the old Court-fees Act suits for declaration which fell beyond the scope of Section 42 of the Specific Relief Act were not specifically provided for and therefore naturally they had to be valued under the residuary provisions viz., Article 17-B of Schedule II. Under the Andhra Court-fees Act, the course is no longer open. The distinction brought out with regard to a relief of declaration as understood under Article 17-A (i) and the relief of declaration valued under Article 17-B seems to have been provided for in the single provision enacted under Section 24(d) of the Andhra Court Fees Act. Section 24(d) covers a suit for a declaration and possession of property as a consequential relief. Section 24(d) covers a suit for a declaration with an injunction as a consequential relief where the relief sought is with reference to immoveable property. Section 24(d) is a new provision specifically providing for cases of different infringements of copy-rights, trade marks etc. Section 24(d) is in the nature of a residuary provision with respect of suits for declaration. As discussed above, though the appellant in clear terms has not asked for declaration, a reading of the plaints as a whole and taking into account the relief claimed, I am definite that the suits are for declaration.
12. The cases cited -- Venkateswararao v. Municipal Council, Masulipatam, : AIR1954Mad284 and Thirugnana. Sambanda Pandara Sannadigal v. State of Madras, : AIR1954Mad262 do not help the contention of the learned counsel for the appellant. The first case was one for declaration that a resolution passed by the Municipal Council relating to a market was illegal, ultra vires and void. It was held that it comes under Article 17-B of Schedule II of the Madras Court Fees Act and not under Article 17-A thereof. The second mentioned case was one for a declaration that particular villages were not estates within the meaning of Estates Land Act and that the Madras Act XXX of 1947 was not applicable to such villages. It was held such a suit fell within Article 17-B of Schedule II of the CourtFees Act. The above decisions would suggest that under the old Court Fees Act, Article 17-A (i) of Schedule II applies to all cases of a declaration within the meaning of Section 42 of the Specific Relief Act and other cases of declaration which fall beyond the scope of Section 42, of the Specific Relief Act have to be valued under the residuary Article 17-B of Schedule II. Section 42 of the Specific Relief Act lays down that a person may obtain a declaratory decree only if he says that he has some legal character or some right to property and that his opponent is either denying or interested in denying such legal character or title. The section does not sanction every form, of declaration but only a declaration that the plaintiff is 'entitled to a specific legal character or of any right as to property'. There may be cases of a declaratory decree apart from section 42, Specific Relief Act. The court below in my opinion rightly held that the appellant had to pay court-fees under Section 24(d) of the Andhra Court Fees Act.
13. The learned counsel for the appellant contended further that if this Court is of the view that the court-fee paid by the appellant is not proper, he is prepared to file a petition putting the valuation for the purpose of court-fee. The learned counsel accordingly has filed petitions for amendment of the plaints putting the valuation for the purpose of court-fees. The other side has filed a counter denying the valuation put by the appellant.
14. The office is directed to make a report as to what would be the correct court-fee payable after giving notice to the learned counsel for tho parties. The matter may be posted immediately after the report of the office.
15. As per my order dated 17-8-1961, the office has submitted report to the effect that under section 24(d) of the Andhra Court Fees Act, the plaintiff can give the valuation as he likes. The plaintiff has now valued his relief in those five appeals at Rs. 10,000/-, Rs. 5,100/-, Rs. 6,000/-, Rs. 10,000/- and Rs. 5,100/- respectively under the amendment petition C. M. Ps. 7817 to 7821 of 1961. These petitions are allowed and the matter is sent back to the Court below with a direction that it should after allowing the plaintiff to amend the plaint and giving him time to pay the court-fees proceed with the case according to law. Costs of these appeals to abide the result. Appellant would be entitled to the refund of the court-fees.
16. Office is directed to send back the record immediately to the Court below.