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Shanmugha Udayar and anr. Vs. Govinda Udayar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 1831 and 1832 of 1971
Judge
Reported inAIR1974Mad127
ActsMadras Court-fees and Suits Valuation Act, 1955 - Sections 17A, 25, 26 and 40(1); Uttar Pradesh Court-fees Act - Sections 7; ;Suits Valuation Act, 1887 - Sections 87; Court-fees Rules - Rule 2
AppellantShanmugha Udayar and anr.
RespondentGovinda Udayar and ors.
Cases ReferredNarasamma v. Satyanarayana
Excerpt:
.....allotted to the first..........and suits valuation act, 1955, or under section 40(1) of the act. the plaintiffs purchased the suit property from the second defendant. defendants 1 and 2 as well as one ramachandran were the sons of one peshkar udayar. after the demise of peshkar udayar, defendants 1 and 2 and ramachandran effected a division in the properties into three shares in the year 1948. it is further alleged in the plain that there was a koorchit evidencing the partition among the brothers. one of the legal representatives of one of the brothers of defendants 1 and 2 filed a suit for partition and a preliminary decree was passed declaring the shares of the brothers and providing that as far as possible the properties should be divided as amongst them so that they would be in possession of properties that.....
Judgment:
ORDER

1. The plaintiffs are the petitioners in these revision petitions. They filed the suits for declaration and injunction. The question that arises for consideration in these cases is whether the suits should be valued under Section 25(b) of the Madras Court-fees and Suits Valuation Act, 1955, or under Section 40(1) of the Act. The plaintiffs purchased the suit property from the second defendant. Defendants 1 and 2 as well as one Ramachandran were the sons of one Peshkar Udayar. After the demise of Peshkar Udayar, Defendants 1 and 2 and Ramachandran effected a division in the properties into three shares in the year 1948. It is further alleged in the plain that there was a koorchit evidencing the partition among the brothers. One of the legal representatives of one of the brothers of defendants 1 and 2 filed a suit for partition and a preliminary decree was passed declaring the shares of the brothers and providing that as far as possible the properties should be divided as amongst them so that they would be in possession of properties that were allotted to them according to the koorchit.

2. The case of the plaintiffs is that they purchased two items of properties from the second defendant, that due to collusion between the defendants 1 and 2 in that suit the properties which were allotted to the second defendant under the koorchit and which the plaintiffs purchased were allotted to the first defendant. The plaintiffs therefore seek the relief by avoiding the final decree which allotted the properties to the parties. The reliefs which the plaintiffs seek are:

1. Declaring the title of the plaintiff to the suit properties;

to restrain the first defendant, his men, agents or servants from interfering with the possession and enjoyment of the scheduled mentioned properties of the plaintiff by means of a permanent injunction'.

The plaintiffs valued the suits under Section 25 (b) of the Court fees Act and a check-slip was issued in each of the suits by the court-fee examiner that the court fee should be paid under Section 40(1) of the Act. The trial court, after considering the contention of the parties, held that the plaintiff ought to value the suit under Section 40(1) of the Act, and if the suits were so valued, the trial court would have no pecuniary jurisdiction to try the suit. The plaints were ordered to be returned for presentation to the proper court having jurisdiction. On appeal by the plaintiffs, the lower appellate court confirmed the decision of the trial Court holding that the plaintiffs should value the suits under Section 40(1) of the Court-fees Act.

2. It is contended on behalf of the plaintiffs that they were not parties to the decree in the partition suit and that all that they pray for is for declaration of title to the suit property, on the strength of the sale in their favour by the second defendant. Section 25(b) of the Court-fees and Suits Valuation Act, 1955 runs as follows:

'In a suit for a declaratory decree or order, whether with or without consequent relief, not falling under Section 26--where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one half of the market value of the property or on Rs. 300/- whichever is higher.'

3. The market value of the land in suits falling under Section 25(b) is 30 times the survey assessment if the land is a ryotwari land. A court-fee thus payable under Section 25(b) will only be Rs. 300/-. Under Section 40(1) of the Court-fees Act, it is provided--

'In a suit for cancellation of a decree for money or other property having 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, moveable or immovable property, fee shall be computed on 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 was executed.'

Thus, if the valuation is to be according to Section 40(1) of the Act, the District Munsif will have no jurisdiction to try these suits.

4. As to the scope of Section 40(1) of the Court-fees Act, a recent decision of the Supreme Court reported in State of U. P. v. Ramkrishan, : [1970]2SCR588 was cited. In that case, one Radhey Lal instituted suit No. 4 of 1950 for declaration that he was the owner in possession of the estate left by Dhan Devi. One Ram Krishan was impleaded as a party defendant and the suit was decreed ex parte. Ram Krishan subsequently filed suit No. 14 of 1956 against the heirs of Radheylal. The contention urged by Ramkrishan was that Radhey Lal represented to him that a compromise decree will be obtained in that suit, but thereafter taking advantage of his ignorance Radhey Lal obtained an ex parte decree. The reliefs claimed by him were (a) that a declaratory decree in favour of the plaintiff against the defendants declaring the plaintiff as the owner of the properties and (b) in case in the opinion of the court, prayer (a) cannot be granted, then alternatively, declaration declaring the plaintiff as the owner of the properties and the decree in Suit No. 4 of 1950 has no adverse effect on the rights of the plaintiff.

The Supreme Court considered the relevant provisions of the Uttar Pradesh Court-fees Act and held that a decree for declaration of title to money or other property is not a decree for money or other property and that the expression is Section 7 (iv-A) of the Uttar Pradesh Act which provided that in suits for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value or an instrument securing money or other property having value namely 'decree for money or other property' means only a decree for recovery of money or other property and does not include a decree concerning title to money or other property. On the basis of the above decision it was submitted that the relief claimed for declaration of the plaintiff's title would not amount to cancellation of a decree for property.

This contention may be sound so far as the preliminary decree in a partition suit where the decree declared only the shares of the parties and reserved the right of the parties to apply for a final decree and for possession. But in this case the decree that is sought to be challenged is a final decree which provides that each of the sharers is entitled to a particular item of property and therefore these suits will be for cancellation of the decree for property and therefore the plaintiffs cannot rely on the Supreme Court decision.

5. However, in a Bench decision of this court reported in Narasamma v. Satyanarayana, : AIR1951Mad793 , the court held that Section 7(iv-A) of the Court-fees Act (Act VII of 1870) is applicable only to a case where a person who was eo nomine a party to the decree sought to set it aside. In other cases, it was held that Section 17-A which corresponds to Section 25(b) of the Act was applicable and a fixed court-fee was payable. But Rule 2 of the Court-fees Rules had effected a change in the law as previously understood and when the person not a party to a decree is not binding on him or his interest, he must pay ad valorem court-fee on the amount of the decree or the value of the property decreed. After the passing of the new Court-fees and Suits Valuation Act, 1955, Section 87 has repealed the Suits Valuation Act, 1887, in its application to the State of Madras. Rule 2 of the Court-fees Rules which was relied on in the Bench decision of this Court above referred to is therefore no longer applicable and resort will have to be made to Article 17-A which corresponds to present Section 25(b).

6. It was sought t be argued that though the plaintiffs are not eo nomine parties, they are claiming title through the second defendant, in other words, as purchaser from the second defendant he is entitled to the share of the second defendant only and standing in the shoes of the second defendant he cannot seek to have the decree for partition set aside. Strictly construing the observations of the Bench that the rule is not applicable, the provisions under Section 7(iv-A) are applicable only to eo nomine parties and Article 17-A is applicable to persons who were not eo nomine parties, the plaintiffs in the action submit that they being no eo nomine parties, the provisions under Section 25(b) are not applicable. (sic) Further it has to be noted in this case the plaintiffs are not claiming through the second defendant though as purchaser from the second defendant, they would be entitled to the rights of the second defendant.

The contention of the plaintiffs was that due to collusion between the second defendant and his brother, the properties which were separately enjoyed by the second defendant were allotted to the first defendant. On the allegation of collusion, the plaintiffs question the validity of the final decree and accuse the second defendant guilty of the collusion. In these circumstances, it cannot be said that the character of the plaintiffs in the suits is that of representatives of the second defendant. Therefore the decision in : AIR1951Mad793 , should be held to be applicable and court-fee paid valuing the suits for the purpose of jurisdiction under Section 25(b) of the Court-fees Act.

7. The petitions are allowed and the plaintiffs-petitioners will represent the plaints before the District Munsif, who will take the suits on file and dispose them of according to law. No costs. I place on record my thanks for the assistance rendered by Mr. Bakthavatsalam, in this case as amicus curiae.

8. Petitions allowed.


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