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Karol Pulikkottukandi Govindan Nair (Deceased) and ors. Vs. Kiliyanamkandi Vatakke Kaithott Thattakandiyil Madhavi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1932Mad491; (1932)62MLJ712
AppellantKarol Pulikkottukandi Govindan Nair (Deceased) and ors.
RespondentKiliyanamkandi Vatakke Kaithott Thattakandiyil Madhavi
Cases ReferredRangiah Chetty v. Subramania Chetty
Excerpt:
- - the district munsif in that case, after overruling the contention of the plaintiffs (sons) that they were entitled to value it in any way they liked and also to ignore the sale-deed and simply bring a suit to recover possession of the properties paying court-fee on an amount equal to ten times the revenue due on the properties covered by the sale-deed, held that the plaintiffs were bound to set aside the sale-deed; the result of that will be that the incident of impartibility attaching to the property as marumakkathayam property would no longer hold good, and the members thereafter would hold the properties as-tenants-in-common......the properties covered by the sale-deed or only with reference to 2) 3rd share of the sons in the suit properties. the district munsif in that case, after overruling the contention of the plaintiffs (sons) that they were entitled to value it in any way they liked and also to ignore the sale-deed and simply bring a suit to recover possession of the properties paying court-fee on an amount equal to ten times the revenue due on the properties covered by the sale-deed, held that the plaintiffs were bound to set aside the sale-deed; the district munsif further held that the correct valuation of the relief was 2|3rds of the price mentioned in the sale-deed; and valuing the 2|3rd share of the plaintiffs in that case at a particular amount, he came to the conclusion that the suit was beyond the.....
Judgment:

1. The question raised in the present Revision Petition is as to the valuation of the plaint in accordance with the Court Fees Act and of the exact Court-fee payable thereon. A subsidiary question is raised whether the District Munsif has jurisdiction to entertain the plaint. This question of jurisdiction would depend upon the decision of the question of valuation and Court-fee payable in respect of the plaint.

2. The plaintiffs, who were minors when a, partition arrangement was entered into in 1921 among all the members of the: tarwad, being dissatisfied with that arrangement, filed the original suit in question (1) to recover possession of the immovable properties mentioned in the partition deed, and (2) as an alternative prayer, they asked for their shares of the properties. This very case came before us on a former occasion in CM.A. No. 206 of 1928 when Cornish, J. and I decided that the plaintiffs ceuld not ignore the partition deed in question but that the plaintiffs should pray for the setting aside of the partition deed so far as they were concerned. We accordingly directed that the plaintiffs may apply for amendment of the plaint, giving the defendants liberty to raise any questions that may arise consequent upon that amendment. The plaintiffs accordingly applied for amendment of the plaint, and they retained their old prayer to recover possession of the immovable properties covered by the partition deed and in respect of that relief they have paid Court-fee as per Section 7 of the Court Fees Act. There is no dispute with reference to that, as Court-fees have been paid on an amount calculated at ten times the revenue payable in respect of the properties in question. The dispute arose only with reference to the alternative prayer contained in the plaint. The valuation of the properties comprised in the partition deed is admitted to be Rs. 5,327, and if the plaintiffs are bound to adopt that valuation with reference to the present plaint and with reference to their prayer to set aside that partition deed, then it is clear that the suit instituted in the District Munsif's Court is not maintainable in that Court, and the plaint will have to be returned to the plaintiffs for presentation to the Subordinate Judge's Court. The plaintiffs, however, contended before the Lower Court that it is only with reference to their shares they are entitled to have the partition deed set aside, and as their share is said to be 3 j 16th of Rs. 5,327 mentioned above, the suit is within the cognizance of the District Munsif's Court, and that Court-fee is payable only on that amount. The learned District Munsif has upheld that contention of the plaintiffs, and the contesting defendant has preferred the present revision petition.

3. On behalf of the petitioner it was argued that the plaintiffs have to set aside the partition document and could not ignore the same and that the decision of this Court in CM.A. No. 206 has settled that point between the parties. I think that argument is sound. Following the decision of the Privy Council in Balkishen Das v. Ram Narain Sahu (1903) L.R. 30 I.A. 139 : : I.L.R. 30 C. 738 (P.C.) we held that the 'plaintiffs had to pray for the setting aside of the document so far as they were concerned.' The following passage from the decision of the Privy Council in that case is relevant to the consideration of the question now before me. Their Lordships observed:

No doubt if the partition was unfair or prejudicial to the minor's interests, he might, on attaining his majority, by proper proceedings, set it aside so far as regards himself.

4. The words 'so far as regards himself are the relevant words useful for the purpose of disposing of the present revision petition. So far as the plaintiffs are concerned, they claim only 3116th share in the properties covered by the partition deed. Are they, then, bound to value their plaint at the full value of the properties covered by the partition deed and pay Cofirt-fee thereon? I am inclined to answer this question against the defendant--petitioner--and in favour of the plaintiffs. If the plaintiffs are only entitled to have the partition deed set aside so far as their shares are concerned, and if the partition deed would have full operation as between the other members of the tarwad, then, prima facie, it would seem that the plaintiffs are bound to value the present suit only at 3116th of the value mentioned in the partition deed. But Mr. Govinda Menon, the learned advocate for the petitioner, argues that that is not so under the provisions of Section 7, Clause (iv-A) introduced by the Madras Act V of 1922. The relevant portion of that section is as follows:

In a suit for cancellation of a decree for money or other property having a money value, or other document securing money or other property having such value, Court-fee has to be paid according to the value of the subject-matter of 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 executed; if a part of the decree or other document is sought to be cancelled, such part oif the amount or value of the property.

5. Reading this section by itself, it seems to me that, when, a plaintiff seeks only to cancel part of a decree or other document, it is only in respect of such part of the amount or value of the property covered by the document that the plaintiff will have to pay Court-fee. But the learned Advocate for the petitioner drew my attention to a decision in Alagar Aiyangar v. SrinivaSa Aiyangar a decision of the learned Judge, Odgers, J. On going through that judgment, I find that the point before the learned Judge for decision was whether in a case where a Hindu father alienated the joint family property for purposes alleged by the sons to be not binding upon the family, when two of his sons file 'a suit for partition after setting aside the sale-deed executed by the father both on his own behalf and on behalf of his two minor sons,' Court-fee payable was in respect of the whole value of the properties covered by the sale-deed or only with reference to 2) 3rd share of the sons in the suit properties. The District Munsif in that case, after overruling the contention of the plaintiffs (sons) that they were entitled to value it in any way they liked and also to ignore the sale-deed and simply bring a suit to recover possession of the properties paying Court-fee on an amount equal to ten times the revenue due on the properties covered by the sale-deed, held that the plaintiffs were bound to set aside the sale-deed; the District Munsif further held that the correct valuation of the relief was 2|3rds of the price mentioned in the sale-deed; and valuing the 2|3rd share of the plaintiffs in that case at a particular amount, he came to the conclusion that the suit was beyond the jurisdiction of the District Munsif since the valuation so arrived at by him exceeded Rs. 3,000. On appeal the learned District Judge in that case reversed the District Munsif's judgment and held that the plaintiffs were entitled to value the plaint as in a suit to recover possession1 of the properties and that the plaintiffs were not bound to set aside the sale-deed executed by the father ' as aforesaid. The plaintiffs preferred a revision petition, and the learned Judge held that the District Munsif was right in deciding that the plaintiffs were bound to set aside the ?document of sale. The words used by the learned Judge in that judgment1 are no doubt general as regards the liability of the plaintiffs to set aside the deed of sale executed by the father as mentioned above, but one should not forget the fact that the District Munsif had held that the plaintiffs were bound to value their relief only at 2J3rd of the value of the sale-deed, and that even on that valuation the suit was beyond the jurisdiction of the District Munsif. I do not understand the learned Judge to lay down that in such a case the plaintiffs have to value their relief at the whole of the amount of the sale-deed and not simply with reference to the 2|3rd share they claimed. There is no discussion in the learned Judge's judgment about the two-third or the whole, and that, I take it, was because, accepting the District Munsif's finding on that point that the plaintiffs were bound to set aside the sale-deed, the value of the two-third share exceeded the District Munsif's jurisdiction. In the circumstances, I am unable to agree with the learned Advocate's contention that Alagar Aiyangar v. Srinivasa Aiyangar (192S) SO M.L.J. 406 compels me to hold that the plaintiffs in the present case should value their plaint at Rs. 5,327, the value mentioned in the partition deed.

6. The words of Section 7 (ivA) by themselves also seem to' be clear. In cases where it is not possible to claim a share but the whole of the document has to be set aside, then the valuation in respect of the whole property may have to be given. Take the case of a document of sale executed by a karnavan and other members of the tarwad, and some of the junior members subsequently bring a suit to recover possession of the properties after setting aside the document, no question of share would arise in such a case, because unless all members agree there could be no partition in such circumstances. In the case before me all the members have, agreed to have a partition. The result of that will be that the incident of impartibility attaching to the property as Marumakkathayam property would no longer hold good, and the members thereafter would hold the properties as-tenants-in-common. The alternative prayer of the plaintiffs in the present case is to recover 3116th of the property. As I already remarked, it is only with reference to their shares that the plaintiffs are entitled to set aside the partition, and I think that the finding of the District Munsif on this question is correct. The learned Advocate for the respondent relied upon the, decision in Venkaianarasiniha Raju v. Chandrayya: (1926) 53 M.L.J. 267. That Was a decision of Krishnan and Odgers, JJ. Their Lordships decided that it is not the market value of the property that should be taken as valuation for purposes of Section 7 (ivA) but the statutory value fixed by the. legislature with reference to each one of the clauses of Section 7. The decision by itself would not go the whole length to which the plaintiffs want me to go in this case. But it would help them to this extent, namely, that, unlike the old view which prevailed prior to 1922, as the-plaintiffs are entitled, to have the document set aside in part, it is only the value in respect of that part as fixed by Section 7 (iv-A) that would be the proper valuation of the relief claimed by the plaintiffs in the plaint. In a suit for partition, it has been held by this Court in Rangiah Chetty v. Subramania Chetty (1910) 21 M.L.J. 21 (F.B.), that it is only the value of the share of the plaintiff that would determine both the jurisdiction and the Court-fee. The view of the Calcutta High Courc on this point would seem to be different. But we are bound by the Full Bench decision of this Court. My decision, therefore, that it is only with reference to the plaintiffs' 3|16th share that they have to pay Court-fee for setting aside the partition deed would seem to be in consonance with what would happen in the case of tenants-in-common if persons in the position of the plaintiffs wanted to get themselves divided from the others. I do not propose to discuss the other decisions that were quoted before me. I think for the above reasons the decision ?of the District Munsif on the question of the valuation and the proper Court-fee payable in the present case, after the plaint was amended, is correct. That being so, the subsequent question raised by the learned Advocate, namely, that the District Munsif would have no jurisdiction to try the suit, does not arise in the circumstances.

7. In the result, the Civil Revision Petition is dismissed with costs.


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