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Sundara Ganapathi Mudali Vs. Daivasikamani Mudali and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1931Mad94; 129Ind.Cas.824
AppellantSundara Ganapathi Mudali
RespondentDaivasikamani Mudali and anr.
Cases ReferredGill v. Varadaraghavayya
Excerpt:
.....provision in the central excise act as well as in customs act claim of secured creditor will prevail over crowns debts. - taking the whole plaint it is clear that the status of jointness was put an end to by the partition deed and though the specific allotment therein is complained of as unjust and improper the original status cannot be restored......of the suit for purposes of jurisdiction and for purposes of court-fees must be the same under the suits valuation act and if the suit falls under section 7 (4) he was of opinion that the court-fee should be paid as on rs. 51,903-12-0. in the result he passed an order directing the plaintiff to pay the excess fee.6. the learned advocate for the petitioner contends that the case is governed by the decision of odgers. j., in suryanarayana v. seshayya : air1926mad122 and ha also relies on gill v. varadaraghavayya [1920] 43 mad. 396. in the latter case the plaintiff alleges that he and the defendants were co-tenants but that he was in possession of the whole property on behalf of himself and the co-tenants. their lordships sir john wallis, c. j., and sadasiva ayyar, j., held that article 17.....
Judgment:

Ramesam, J.

1. This revision petition is filed against an order of the Subordinate Judge of Vellore on two issues in Original Suit No. 49 of 1929. This' suit was filed by the present petitioner against his father and stepbrother for a partition of the family properties. Prior to the filing of the suit there had bean a deed of partition but the plaintiff alleges in his plaint that he was threatened by his father and others with violence and otherwise to sign it without knowing its contents properly and without realizing its full effect and compelled to yield to the pressure brought to bear on him, that when the document was afterwards presented for registration he came to know of the nature and import of the document and realised the fraud committed on him and refused to agree to its registration. He also alleges that the share of the defendants was grossly undervalued, while the properties allotted to him were overvalued, many items of properties and considerable cash have been omitted and a large sum of money was wrongly got allotted for some maintenance and marriage expenses of the plaintiff's stepsisters, that unfair advantage was taken of the position in which defendant 1 stood towards the plaintiff and that the plaintiff had no independent advice in the matter. He then alleges in para. 11 that the deed was not acted upon or given effect to and the entire family properties continued joint between the parties and that plaintiff continues to remain in joint possession and enjoyment of the same. The written statement, para. 13, says,:

All the allegations in paras. 10 to 14 of the plaint are entirely false, malicious and vexatious.

2. Among the issues framed are issues 7 and 8:

7. is the suit without a prayer to set aside the partition deed maintainable?

8. Is the court-fee paid correct.

3. The Subordinate Judge has recorded findings on these two issues and hence this revision petition.

4. On issue 7 he found that the suit is not maintainable without a prayer to set aside the partition deed. As to this I am of opinion that a formal prayer is unnecessary. The plaintiff has made it clear in the plaint that he regards the partition deed as not binding on him. He alleges that it is voidable at his option, gives reasons why he has got the right to avoid it and seeks for relief on the basis that that partition deed is avoided. In substance the plaint is one which seeks to got over the effect of the partition deed and to obtain reliefs as if no such deed existed. Substantially the plaint is one suing for a declaration that the partition deed is not binding on him and for further reliefs following on such declaration What we have to sea is the substance of the plaint and not the mere form. The presence or absence of a prayer in a particular form is immaterial. The Subordinate Judge himself has not passed any further order asking the plaintiff to amend by the addition of any prayer.

5. On issue 8 he was of opinion that the plaintiff should pay court-fees under Section 7 (4) (b). He is of opinion that Article 17 (b), Schedule 2, does not apply on the ground that the plaintiff valued the suit at Rs. 51,903-12-0 for purposes of jurisdiction and that the valuation of the suit for purposes of jurisdiction and for purposes of court-fees must be the same under the Suits Valuation Act and if the suit falls under Section 7 (4) he was of opinion that the court-fee should be paid as on Rs. 51,903-12-0. In the result he passed an order directing the plaintiff to pay the excess fee.

6. The learned advocate for the petitioner contends that the case is governed by the decision of Odgers. J., in Suryanarayana v. Seshayya : AIR1926Mad122 and ha also relies on Gill v. Varadaraghavayya [1920] 43 Mad. 396. In the latter case the plaintiff alleges that he and the defendants were co-tenants but that he was in possession of the whole property on behalf of himself and the co-tenants. Their Lordships Sir John Wallis, C. J., and Sadasiva Ayyar, J., held that Article 17 (b), Schedule 2, applied. In the formar case the facts are that the family became divided in status and the plaintiff sued for division by metes and bounds. We have not got in that case the complication which exists in case of a partition deed allotting certain specific properties to one of the members and that member seeking to get over that partition deed. In my opinion that fact distinguishes the present case from the decision in : AIR1926Mad122 . In the present case though in one part of the plaint it says that:

the plaintiff and defendants form members of a joint undivided family and own considerable moveable and immovable properties.

taking the whole plaint it is clear that the status of jointness was put an end to by the partition deed and though the specific allotment therein is complained of as unjust and improper the original status cannot be restored. Even para. 11 does not amount to an allegation of reunion and the restoration of the original joint family property. It only says that the entire joint family properties continued joint between the parties and the plaintiff continues to be in joint possession and enjoyment of the same. This amounts to no more than saying that the plaintiff is a tenant-in-common with the other parties. If it wag meant by the allegation in para. 11 that the defendants willingly dropped the partition deed, I think we must take it as a mere idle allegation. The partition deed was compulsorily registered by the Registrar on 17th May against the plaintiff's opposition. The suit was filed on 6th July. To say that in this interval the defendants were agreeable that the partition deed should be ignored and not be given effect to is so ridiculous an allegation that it might be ingored. No doubt if that allegation is insisted upon and is to be taken seriously, the judgment of Odgers, J., might apply, but as I have already observed it is so futile an allegation on its face that a Court would be entitled to ignore it. I think that Section 7 j(4) (c) if not (b) applies to this case and [not Article 17 (b), Sch 2.

7. The only question then is, what is the court-fee plaintiff should pay? The plaintiff framed his plaint on a basis so totally different from the conclusion now arrived at that it is unfair to him to make him stand by the statement, that the valuation of the suit for purposes of jurisdiction is Rs. 51,903-12-0. On the footing that the plaint is one to which Section 7 (4) applies he had the right of valuing the relief sought in his own way. This right is now only subject to the proviso to Section 4 introduced by the Court-fees Amendment Act of 1922. Under Section 7, para. 4 of that Act it is said that in suits coming under Sub-clause (c) in cases where the relief sought is with reference to any 'immovable property such valuation shall not be less than half the value of the immovable property calculated in the manner provided for by para. 5 of this section. In the present case the plaintiff has got some immovable properties allotted to him but he complains that this is an unfair allotment. And he apparently thinks that he is entitled to some more properties. I think an opportunity ought to be given to him so that he may state the valuation of his share1 of the immovable properties in the manner stated by the proviso, that is, according to para. 5, Section 7 and the valuation of; the properties allotted to him and half the difference between the two would be; the minimum value on which he is to pay the court-fees.

8. So far as the other moveable properties iucluding outstandings, allotment for maintenance and other similar items are concerned the plaintiff would be entitled to value his share in the way he likes. I think the proper order would be to return the plaint to him for amendment on these lines and to state his own valuation both for purposes of jurisdiction and court-fees and to require him to pay such court-fees. After the papers are received by the lower Court it shall pass a formal order returning the plaint for amendment and fixing a time for amendment and payment of the additional court-fees.

9. I make no order as to costs.


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