1. This is an appeal against the order of the Additional Subordinate Judge of East Tanjore at Mayavaram dismissing O.S. No. 40 of 1921 on the ground that the proper court-fee has not been paid. The order rejecting the plaint could have been passed only under Order 7, Rule 11, Civil Procedure Code. The suit was brought by the plaintiff claiming to be the reversioner, under the Hindu Law, of one Ramaswami Aiyar and he claimed the property after the death of his widow and his daughters. The plaintiff is his daughter's son. The suit was filed on the last day allowed by the law of limitation. To some extent this fact seems to have prejudiced the Subordinate Judge against the plaintiff. While we have no particular sympathy with a stale suit, I do not see any reason why one should be prejudiced against the plaintiff on that ground. The plaint was presented on 28th August, 1920. It was returned by the office with four requisitions. The fourth is 'valuation has not been given in respect of all the properties described in the plaint schedules.' This was on the 30th August. The plaintiff's pleader re-presented the plaint on 7th September with the note 'Those mentioned in the lots have been amended. Re-presented after amendment.' It is now admitted that the first three requisitions have been satisfied, but it is urged for the respondents that the fourth was not. I will discuss this point later on. The office was, however, satisfied with the re-presentation and a note was made 'Stamp correct; plaint may be filed.' The plaint was then numbered and notices were issued to the defendants. In the written statement a plea was taken that 'the court-fee paid is not correct. The court-fee should have been paid in respect of the suit properties on their market value.' An issue was framed, 'Has proper court-fee been paid on the plaint?' and the suit was adjourned. Before it came on for trial on 30th March, 1922 there was a petition by the defendants under Order 7, Rule 11, raising various objections to the valuation and the payment of court-fee made by the plaintiff, and a counter-petition was filed; and the petition was posted to 26th April. On that day the plaintiff wanted a commission. So the case was adjourned to 20th July. On 20th July the plaintiff said that he did not want the commission and that he would adduce evidence. The matter was adjourned to 10th August. On that day some arguments were heard. The same day the plaintiff filed a petition for amendment. The amendment was refused and the plaint was rejected on 21st August.
2. Under Order 7, Rule 11, a plaint cannot be rejected unless the plaintiff is given an opportunity to correct the valuation within a time fixed by the Court where the relief is under-valued, or the plaintiff is given an opportunity to supply the requisite stamp paper within the time fixed by the Court where the plaint is filed on an insufficient stamp. It is contended by Mr. Bhashyam Aiyangar, vakil for the respondents, that Clause (b) applies and that an opportunity was given to the plaintiff to correct his valuation but he did not avail himself of the opportunity. In support of this contention he relies on the fourth requisition when the plaint was originally returned. The requisition itself does not show in respect of what property valuation was not given. No details were mentioned in it. The respondents' vakil 110 doubt filed a list of details in the petition of 1922. This is list D, but there is nothing to show that these were the matters intended by the Court when the plaint was returned on 30th August, 1920. It is likely that they were not, because the plaint was accepted on re-presentation. It may be that, when there is a clear omission in the original plaint, and the Court demanded the plaintiff to rectify the defect and returned the plaint, and the plaintiff represented the plaint without rectifying it, the mere fact that the Court accepted the plaint overlooking the plaintiff's failure to rectify (foes not estop the Court from rejecting the plaint some time afterwards, though even then, such action on the part of the Court is undesirable. In the present case it cannot be said that there was any clear requisition by the Court. It was too general. Taking the matters in detail, in list D, the first objection is that certain items were omitted. The plaintiff accepted this objection and paid court-fee in respect of these three items, and he applied by I. A. No. 285 for permission to amend the plaint by adding these three items. But this is not an omission to value the items. The items themselves were omitted by a slip, and seeing that the suit was of some magnitude, for the plaintiff had admittedly paid court-fee on Rs. 10,000, such an amendment ought to be allowed. At any rate the matter does not come under Order 7.
3. The next objection is that some trees ought also to be separately valued. In so far as the trees standing on specific items claimed in the plaint are concerned, it is not necessary to value them separately. [Vide Kullappa Goundan v. Abdul Rahim ILR (1916) M. 824.] They are included in the valuation of the items themselves. It was made according to the Court-Fees Act, namely, five times the assessment on the items. But it is said that there are some trees on poramboke lands. The plaintiff has made it clear that in respect of all porambokes, such as channel, burial grounds, etc., the only rights he seeks are rights accessory to ownership of plots in the village and not rights of actual ownership as in the case of specific cultivated plots. That being so, these trees need not be valued.
4. Then, the defendant also mentioned one item in his list, namely, 'proportionate share in patta No. 30 in respect of chethi and common samudayam shares of Seruvalur'. To this also the plaintiff says that he does not claim any specific proprietary rights in the chethi and samudayam but merely claims accessory rights.... The defendant says that there is a specific plot which is enjoyed in common by all the sharers in the village. The matter in dispute depends on evidence and further enquiry, if on enquiry the defendant's version turns out to be true the plaintiff's suit as to this item may have to be dismissed. But without ascertaining what exactly are the facts existing in the village, one cannot attribute default to the plaintiff and reject the suit. The matter can only be noted at present and can be disposed of when the whole suit is tried. It is obvious that matters of this kind, namely, the right to patta No. 30, could not have been known to the Court when it made the requisitions in August, 1920 and could not have been meant by it in the fourth requisition. I am, therefore, of opinion that what happened in August, 1920 could not be regarded as any opportunity to the plaintiff, when the real specific objections to the plaint were disclosed in 1922 by the petition of the defendant. The Court after expressing its opinion on such a petition and the counter-petition ought to have given an opportunity to the plaintiff to correct the valuation or pay the additional stamp duty, as the case may be. This it has not done. On the simple ground that the dismissal of the suit is erroneous, assuming on the merits that there is some default on the part of the plaintiff in the matter of paying court-fees, the order of the Court below cannot be sustained. I now go to the merits to see whether there is any default on the part of the plaintiff and if so, what, and whether an opportunity should be given to the plaintiff, and we have to point out the proper amount of court-fee and fix a time for paying it.
5. List A filed by the defendant shows some mistakes in the plaint in giving the revenue assessment of various items. It is now admitted that these mistakes have been corrected by the plaintiff and the additional court-fee has been paid by the plaintiff. So we have nothing to do with this list.
6. List B gives a number of items which are not separately assessed to revenue. These are all portions of survey numbers which have been separately assessed. In respect of this the defendant's contention is that the plaintiff should pay court-fee on the market value and not on the proportionate part of five times the assessment of the whole survey number. The plaintiff relies on Notification No. 4650, dated 10th September, 1889, issued by the Government of India. It has now been superseded and re-enacted by Notification No. 358, dated 10th September, 1921. Under this Notification, 'when a part of an estate paying annual revenue to the Government under a settlement which is not permanent is recorded in the Collector's register as separately assessed with such revenue, the value of the subject-matter of a suit for the possession of ... a fractional share of that part shall, for the purposes of the computation of the amount of the fee chargeable in the suit be deemed not to exceed five times such portion of the revenue ....' This notification was the subject of consideration in Reference under the Court Fees Act, 1870, Section 5 ILR (1894) A 493 which was a decision of a single Judge. It was there held that a fractional share under this notification covers only a case where the plaintiff claims a certain fraction of a survey number but not where he claims a certain definite area within the survey number; for instance, if the plaintiff claims 1/2 or 1/3 or 1/4 share of a survey number assessed with revenue the notification applies, but where he claims 3 acres 70 cents out of a survey number whose extent is 7 acres 30 cents the notification does not apply, though 3 acres 70 cents is 3773 of 7 acres 30 cents. The point came up for discussion in Godavarty Sundaramma v. Godavarty Mangamma (1916) 34 MLJ 558 which was considered by a single Judge, namely, Coutts Trotter, J., as he then was. No reference was made to this notification, but the decision in Reference under the Court-Fees Act, 1870, Section 5 ILR (1894) A 493 was referred to, and one perhaps may infer that by reference to the decision in Reference under the Court-Fees Act, 1870, Section 5 ILR (1894) A 493 the learned Judge was also aware of the notification. He agreed with Burkitt, J., but he regretted his conclusion and said that the result was very anomalous. He pointed out that a suit for a share would have to go before a higher Court, whereas a suit for the whole survey number may go before a lower court. He was of opinion that a 'fractional share' cannot cover ,a case where the plaintiff claims a definite extent out of a larger survey number separately assessed. There was a Letters Patent Appeal against his judgment. But before the Division Bench all that seems to have been done was that a report was called for from the District Munsif on the the question whether the portion was separately assessed, and, when it was found not separately assessed, the appeal was dismissed. The question of the interpretation of the notification was apparently not argued, at any rate there is nothing in the judgment about it. The judgment of the Division Bench cannot be regarded as an authority for the interpretation of the notification. The point next came before Krishnan, J., in Kandaswami Goundan v. Snbbai Goundan (1923) 46 MLJ 345. He followed the earlier views. He also referred to two unreported decisions in Madras. The first is S. A. No. 886 of 1917. Sadasiva Aiyar and Napier, JJ., passed this order, 'Following Letters Patent Appeal No. 97 of 1916 we hold that the plaintiff was bound to pay court-fees on the market value of the plaint land.' Here again, it does not appear that the notification was cited before the learned Judges or that they considered it. The other unreported decision referred to by Krishnan, j., is S. A. No. 711 of 1915. There, Old field, J., made a passing reference to Reference under the Court-Fees Act 1870., Section 5 ILR (1894) A 493 and Godavarty. Sunarawma v. Godavarty Mangamma (1916) MLJ 558. The argument was that the lower appellate court's jurisdiction would have been ousted if the items were valued in a particular way. But the other side contended that even if they were valued according to Reference under the Court-Fees Act, 1870,S. 5 ILR (1894) A 493, there would have been no change in the Court's jurisdiction. The contention was disallowed. There is no decision on the point. I do not think that S. A. No. 711 is of any value as a decision on the question now under consideration. The view in Reference under the, Court-Fees Act, 1870, Section 5 ILR (1894) A 493 was followed in Chandhan v. Bishan Singh ILR (1911) A 630 by Tudball, J. Even the judgment of Krishnan, J., does not show that he considered the notification. He said that the construction of Section 7, Clause 5 (a) to (d) has been the subject of consideration both in this Court and the Allahabad High Court. If so, and if Krishnan, J., has only considered the Court-Fees Act, and not the notification, his decision is of no value either. The notification is one purporting to remit the court-fees and it was. intended to give some relief to the subjects against the anomalous fees leviable under the Act itself. In so far as all these decisions lay down that under the Act itself a plaintiff suing for the possession of a part of a survey number should pay court-fees on the market value, 1 agree with them. But the object of the notification is to give relief from the anomalous position, and, where the notification has not been considered, the decisions are of no value. It is noticeable that the Act uses the words 'definite share' and while making provision for a definite share or a part of an estate it did not make any provision for a part of separately assessed survey number. The notification did not use the words 'definite share' but used the words 'fractional shares'. I do not understand any of the Judges who have considered the matter to say that a fraction means a simple fraction like 1/2, 1/3 or 1/4 and not a complicated fraction like 19)48 or 3772, etc., as one may get in Muhammadan Law cases. If the words 'fractional share' can cover any kind of fraction, the only question is, does it make any difference when a plaintiff mentions an area which can be worked out as a fraction of the whole but does not mention it by describing it as a fraction? In my opinion it does not. The opposite conclusion can be easily evaded by a clever plaintiff describing the plot he claims not as so many acres and cents but as the north-western 3773 of such and such a survey number or something like that. I do not think that liability to pay court-fee should depend upon the ability to evade or not. The Court-Fees Act is a fiscal enactment and ought to be liberally construed. The anomaly is recognised by Coutts Trotter, j. if by a fairly reasonable construction one can avoid the anomaly, 1 think one ought to do so. Of course, if it is impossible to escape the anomaly and the language of the notification can by no manner of construction be made to support the plaintiff's contention, then one cannot help it. But it seems to me that the words 'fractional share' are not inapplicable to a case where the plaintiff claims 3 acres 30 cents out of 7 acres 30 cents, as the share he claims is a fraction of a larger area. All that can be said against the plaintiff is that what he claims is a fraction with defined boundaries but the words 'fractional share' cover both a definite fraction and also an indefinite fraction. Whereas the learned Judges who considered the matter seem to limit the words to the case of indefinite fraction. They think that the notification applies to unspecified 1|2 or 1|4 but not to a definite 1/2 or 1/4. I do not see any reason why the words 'fractional share' should be so limited. At any rate, I am not doing any violence to the English language when I say that the words cover both definite and indefinite fractional shares. Tudball, J., seems to think that a specific share is not covered by 'fractional share' and there is some difference between a specific share and a definite share. The result is I am unable to agree with Burkitt, J., and Tudball, J., in the Allahabad cases.
7. As to the Madras cases I am of opinion that no Division Bench ever considered this matter, and it is clear that even Coutts Trotter, J., did not consider the notification. If he really considered it, then, with great deference, I am not able to agree with him. It seems to me that the conclusion I am arriving at is a reasonable construction avoiding all anomalies and does not do any violence to the language of the notification. It is noticeable that the notification deliberately omits the words 'definite share' and uses the words 'fractional share,' and I am therefore of opinion that the plaintiff need not pay court-fees on the market value of the property in List B.
8. The next point to be considered is List C filed by the defendants. It is said that some of the items are undervalued--plots in A-l and A-2 schedules. The defendant has filed an affidavit and given his valuation which the plaintiff says is too-much. The plaintiff is prepared to adduce evidence. The B Diary is not very clear as to whether the learned vakil for the plaintiff was ready with the evidence. It does not show that the case was ever posted for such evidence. We think that the plaintiff is entitled to an opportunity for adducing evidence as to the value of the items. If, after taking the evidence on both sides, the Lower Court comes to a conclusion against the plaintiff, then liberty must be given to the plaintiff to file additional court-fees. Of course it is open to the plaintiff to expunge these items from the plaint if he likes. It is also open to the defendant to waive his objections for the purpose of accelerating the trial of the case, but we do not see any reason for dismissing the suit as the Subordinate Judge has done. The result is the judgment of the Subordinate Judge is reversed and the suit is remanded to the Court below for disposal according to law.
9. In the case of A schedule properties the plaintiff's claim is for the Ekabhogam miras village. I have already pointed out that the plaintiff has paid court-fee on the assessed lands and in respect of porambokes he claims only accessory rights and therefore need not pay any court-fee in respect of them.
10. The respondents will pay the costs of the plaintiff in this Court, namely, all costs except the court-fee for appeal charges.
11. The court-fee paid by the appellant will be refunded.
12. The case will be sent back to the Sub-Court of Tiruvalur, the Sub-Court of East Tanjore at Mayavaram having ceased to exist.