1. This revision petition raises a question of Court-fee. The point having been decided by the lower Court in plaintiff's favour, I should ordinarily have declined to interfere in revision but for the fact that it has been held by a Bench of this Court in Kattiya Pillai v. Ramaswami Pillai : AIR1929Mad396 that where the decision on the court-fee question also bears upon the valuation of the suit for purposes of jurisdiction and the suit may have to be filed in a higher Court if the court-fee question should be decided in a different way, this Court is justified in interfering in revision.
2. The suit has been filed by two sons of a Hindu father against their step-brother and step-mother. The plaint alleges that certain properties which really belonged to the joint family were made to appear to have been sold away by the father on 27th September, 1923, in favour of his junior wife the fourth defendant, that in fact there was no sale, no payment of consideration and that the properties were put in her name for the purpose of concealing them from the plaintiffs at the time of the partition which took place by a registered partition deed dated 23rd December, 1923. On these allegations the plaint prays to have it declared that the plaint properties are undivided ancestral properties and that the sale deed in favour of the fourth defendant, cannot bind the plaintiffs and it also asks for separate possession of the plaintiffs' two thirds share after a partition by metes and bounds.
3. Though the sale deed purports to value the property at about Rs. 13,000 it was stated in the plaint that the property was at the date of suit worth only Rs. 4000 and Court-fee under Section 7 Clause (v) was paid on two thirds of this amount. On objection taken by the defendant a commissioner was appointed and on a consideration of his report the lower court has now held that the total market value of the properties must be taken to be Rs. 7971. The question then arises whether court-fee should be paid and the suit valued at two thirds of this amount or only one third of this amount. If the case is governed by Clause (v) of Section 7 two-thirds of this amount will undoubtedly be the proper basis but the learned District Munsif was of opinion that the case fell under Sub-clause (c) of Clause (iv) of Section 7 of the Court-fees Act and thought it sufficient that the suit was valued at one half of the value under Clause (v). If this is the correct basis the suit will lie within the munsiff's Jurisdiction but if the two-thirds should be the correct basis, the plaint will have to be returned for presentation to the Subordinate Judge's Court. Hence the justification for my dealing with this matter in revision.
4. I am unable to agree with the lower Court that the case falls under Sub-clause (c) of Clause (iv) of Section 7. The reference to consequential relief in that sub-clause must be read along with other clauses providing for particular reliefs which in a sense are also consequential reliefs. Where the relief asked for is by way of possession, the suit will prima facie fall under Clause (v) and not under Clause (iv)(c) and it can make no difference for this purpose that a prayer for a declaration is also included in the suit. It is in the circumstances of this case not possible to bring the suit under Sub-clause (b) of Clause (iv) because even according to the plaintiffs the fourth defendant is claiming the property adversely to the plaintiffs insisting on her own title under the sale deed. It cannot therefore in any sense be said that the plaintiffs are even constructively in possession of the property. I am not prepared to hold that the case falls under Section 7 (iv-a) introduced by the Madras Amendment of 1922.
5. The case must therefore go back to the District Munsif to deal with it on the footing that the suit is governed by Section 7 Clause (v) of the Court-fees Act. It will be for him to return th6 plaint for presentation to the proper Court. I am not satisfied that this is a case in which I should direct the respondents to pay the petitioner's costs. There will therefore be no order as to the costs of the Civil Revision Petition.