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Varughese Varughese Vs. Mathew Joseph and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 1170 of 1969
Judge
Reported inAIR1972Ker61
ActsKerala Court-fees and Suits Valuation Act, 1960 - Sections 40
AppellantVarughese Varughese
RespondentMathew Joseph and ors.
Appellant Advocate George Vadakel,; Varghese Kalliath and; Jose Vithayathil
Respondent Advocate P.J. Varghese,; C.K. Sivasankara Panicker and;Govt. Pleader
DispositionRevision dismissed
Cases ReferredMohamad Ibrahim v. Vedachala Mudaliar
Excerpt:
- .....no court-fee was paid therefor.the court-fee superintendent pointed out that the plaintiff has to value the relief for setting aside the udampadies and pay court-fee on rs. 42,837.50 for which the plaintiff has made himself liable thereunder. the learned subordinate judge of kottayam upheld the view of the court-fee superintendent and called upon the plaintiff to pay the deficit court-fee. the revision petition is directed against that order.2. the plea on behalf of the plaintiff is that since the two udampadies are attacked on the ground of fraud and undue influence they are not binding on him and it is not necessary for him to have these documents set aside and the said relief need not be separately valued and no court-fee need therefore be paid. in view of the submission we asked the.....
Judgment:

Krishnamoorthy Iyer, J.

1. The plaintiff is the revision petitioner and the question relates to the sufficiency of the court-fee paid for the suit. The revision petitioner and the first respondent entered into a partnership evidenced by a partnership deed of 12-11-1960. The second respondent joined as a partner in the partnership in the year 1965 when a fresh partnership deed was executed between the parties on 15-10-1965. The plaintiff's case is that subsequent to 15-4-1967 the partnership ceased to function. It is pleaded by the plaintiff that by coercion and undue influence practised by respondents 1 and 2 he was made to execute two udampadies dated 24-8-1967and 26-12-1967 in their favour. The suit is instituted by the plaintiff for dissolution of partnership and for rendition of accounts and also to set aside the udampadies dated 24-8-1967 and 26-12-1967. The plaintiff valued the suit under Section 36 of the Kerala Court-fees and Suits Valuation Act. 1959 and paid court-fee on Rs. 5600/- the estimated value of the plaintiff's share in the partnership. The relief for setting aside the two udampadies was not separately valued and no court-fee was paid therefor.

The Court-fee Superintendent pointed out that the plaintiff has to value the relief for setting aside the udampadies and pay court-fee on Rs. 42,837.50 for which the plaintiff has made himself liable thereunder. The learned Subordinate Judge of Kottayam upheld the view of the Court-fee Superintendent and called upon the plaintiff to pay the deficit court-fee. The revision petition is directed against that order.

2. The plea on behalf of the plaintiff is that since the two udampadies are attacked on the ground of fraud and undue influence they are not binding on him and it is not necessary for him to have these documents set aside and the said relief need not be separately valued and no court-fee need therefore be paid. In view of the submission we asked the plaintiff's counsel to delete the relief in the plaint which relates to the setting aside of the udampadies for which he was not prepared. We are therefore not concerned in the revision petition whether in the circumstances pointed out a prayer to set aside the udampadies is necessary or not. The plaint contains such a prayer and the only question is whether the plaintiff has to value the said relief and pay court-fee thereon.

3. Counsel for the plaintiff contended relying on the decision in Mohamad Ibrahim v. Vedachala Mudaliar, 1958-2 Mad LJ 442 = (AIR 1959 Mad 387) that no separate court-fee need be paid for the prayer to set aside the udampadies. In our view, the decision cannot help the petitioner. 1958-2 Mad LJ 442 = (AIR 1959 Mad 387) arose out of a suit by the heirs of a deceased partner for dissolution and settlement of accounts after setting aside the receipts executed by them in settlement of accounts. The heirs have by the receipts executed by them released their rights for the amounts due from the surviving partners. There was a prayer in the plaint to set aside the receipts on the ground that they were never intended to relinquish their interests in the partnership.

The learned single Judge in considering the question as to the proper court-fee for setting aside the receipts held thatthe relief has to be valued under Section 7. Clause (iv-A) of the Court-fees Act, 7 of 1870 as amended in Madras. Rama-chandra Iyer, J., then observed:--

'I am. therefore, of the opinion that the plaintiffs cannot be compelled to adopt the consideration recited in the receipts as value of the property released. What is released is not the amount mentioned in the receipt but their further interest in the assets of the partnership or a right to obtain relief by way of accounting. If the receipts are set aside they would be bound to pay back or at least give credit to the sums acknowledged by them to have been received under the receipts and that cannot properly be said to be any property secured by the documents. In the case of a release the value of the property released should be the value for purposes of Section 7 (iv-A) of the Court-fees Act. The learned Judge was further not correct in saying that not merely the amount mentioned in the receipts but also subsequent interest on the amounts and the share of the profits of the defendants should be included in the valuation. If the receipts were to be set aside the plaintiffs would get only a relief by way of accounting and that right alone they gave up by means of the release under Exhibits B1 to B3. It is that accounting that has got to be valued and that has been valued already in the original plaint itself. Though the substantial relief would be the setting aside of Exts. Bl to B3, the value of the relief would be the same as the consequential relief of accounting for which court-fee has been paid.'

The above decision shows that the prayer for setting aside the document has to be separately valued and the learned Judge was in the above passage dealing only with the quantum of court-fee payable.

4. It is not the plaintiff's case that the udampadies sought to be set aside are sham. The plea is only that they are vitiated by fraud and undue influence. If, according to the plaintiff, it is not necessary to set aside the udampadies to get a decree for rendition of accounts the said prayer could have been deleted. So long as the prayer is in the plaint it has to be valued under Section 40 of the Kerela Court-fees and Suits Valuation Act which reads as follows:

'40 (1) in a suit for cancellation of a decree for money or other property haying a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matterof the suit, and such value shall be deemed to be--

if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;

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

(2) if the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less.

Explanation.-- A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section.'

By the udampadies Impeached the plaintiff has not only his interest relinquished in the partnership but has also undertaken a liability of Rs. 42.837.50. To enable him to secure his interest in the partnership which he has, to separately value, he must get rid of the liability in favour of the respondents under the udampadies. He has valued only his interest in the partnership and paid court-fee thereon. He can get this relief only after the udampadies are set aside. The udampadies cannot be construed as mere releases of the interest of the petitioner in the partnership. The prayer for setting aside the udampadies in the case before us is primary and the relief regarding settlement of accounts is incidental. In these circumstances, the view taken by the court below is correct. We, therefore, dismiss the revision petition. but we make no order as to costs.


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