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Kandaswami Udayan and anr. Vs. Annamalai Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1948)2MLJ130
AppellantKandaswami Udayan and anr.
RespondentAnnamalai Pillai and ors.
Cases ReferredKalianna Goundan v. Balasubramaniam
Excerpt:
- - 2,320. the first defendant being addicted to bad habits, was prevailed upon to execute a sale deed on 22nd january, 1937, for discharging the mortgage debt and other fictitious considerations recited in the sale. in the present case it is stated clearly that the plaintiffs have elected to treat the sale as not binding on them and the suit was filed on the basis of such election......for rs. 2,320. the first defendant being addicted to bad habits, was prevailed upon to execute a sale deed on 22nd january, 1937, for discharging the mortgage debt and other fictitious considerations recited in the sale. it is also stated that there was no necessity to alienate the entire property as the mortgage debt could have been discharged by selling a one-fourth part of the properties. it is also alleged in the plaint that the plaintiffs were willing to pay their share of the mortgage amount due to the second defendant if the court found that the shares of the plaintiffs also should pay up the mortgage proportionately. the plaint also discloses that immediately the plaintiffs came to know of the alienation a year back, they called upon defendants 2 and 3 to give back the lands to.....
Judgment:

Subba Rao, J.

1. The question that arises in this revision petition is one of pecuniary jurisdiction. It is conceded that if Section 7(iv-A) of the Court-Fees Act applies to the relief claimed in the plaint, the District Munsiff's Court of Salem., will have no jurisdiction to entertain the suit.

2. The suit was for partition of the properties by metes and bounds into four equal shares and for the allotment of three such shares to the plaintiffs. It is alleged in the plaint that the properties described therein were the ancestral properties of the plaintiffs and their father, the first defendant. The first defendant had executed a mortgage in respect of the said properties in favour of the second defendant for Rs. 2,320. The first defendant being addicted to bad habits, was prevailed upon to execute a sale deed on 22nd January, 1937, for discharging the mortgage debt and other fictitious considerations recited in the sale. It is also stated that there was no necessity to alienate the entire property as the mortgage debt could have been discharged by selling a one-fourth part of the properties. It is also alleged in the plaint that the plaintiffs were willing to pay their share of the mortgage amount due to the second defendant if the Court found that the shares of the plaintiffs also should pay up the mortgage proportionately. The plaint also discloses that immediately the plaintiffs came to know of the alienation a year back, they called upon defendants 2 and 3 to give back the lands to them. It will therefore be seen that the suit is a simple suit for partition by members of a joint Hindu family and for possession of their shares after electing to treat the said sale as not binding on them.

3. The plaintiffs valued the suit under Section 7(v) of the Court-Fees Act at Rs. 62-5-6 and have given the same valuation for purpose of jurisdiction also. The defendants contended in the lower Court that the plaintiffs should have asked for the cancellation of the sale deed and paid court-fees under Section 7(iv-A) of the Court-Fees Act. If that section applied, as the market value of the suit property was beyond the pecuniary jurisdiction of the District Munsiff's Court the plaint should be returned for presentation in the proper Court. The learned District Munsiff rejected this contention relying upon the decision in Ramaswami v. Rangachariar : AIR1940Mad118

4. Learned Counsel for the petitioners contended that Section 7(iv-A) of the Court-Fees Act applies to the reliefs claimed in the plaint. He made a distinction between a case where the plaintiff alleges that a sale deed is not supported by consideration at all and a case where he admits the binding nature of at least a part of the consideration. Basing on that distinction he argued that as in the present case the binding nature of the mortgage is not questioned by the plaintiffs and as they have also indicated their intention to redeem a proportionate share of the mortgage amount, they are bound to ask for a cancellation of the sale deed. In support of his contentions he relied upon the decisions in Malkarjun v. Narhari and Ganpat Lal v. Bindabasini Prasad Narayan Singh . In Malkarjun v. Narhari the Court refused redemption of a mortgage to the plaintiff on the ground that the properties were sold in execution of a decree. The sale took place after notice had been wrongly served upon a person who was not the legal representative of the judgment-debtor's estate. Their Lordships held that the decree was not a nullity and it was necessary for the plaintiffs to set aside the sale in order to clear the ground for redemption of the mortgage. That decision does not in any way support the distinction sought to be made by the learned Counsel for the petitioners. The question of court-fee or of pecuniary jurisdiction did not arise for decision in that case. The decision in Ganpat Lal v. Bindabasini Prasad Narayan Singh is also that of the Judicial Committee. In that case a decree was made on the 20th January, 1902, in execution of which the mortgaged property was sold and purchased by the mortgagee. In a suit in 1909 by the sons of the mortgagor they impeached neither the debt nor the mortgage but admitted they were binding on them and they did not in their plaint seek to set aside the decree or the sale under it but only claimed to be entitled to redeem the mortgaged property on the ground that they had been minors at the time of the suit. Their Lordships held that the right of redemption had been extinguished by the decree and that until the sale had been set aside it could not be exercised. The point decided in the case was that the plaintiff could not claim a right of redemption after the decree and sale without getting them set aside. It has no bearing on the question that is raised in this revision petition.

5. The principle applicable to this class of cases has been laid down by the Privy Council in Bijoy Gopal Mukerji v. Krishna Mahishi Debi . The relevant passage from the decision has been extracted in the Full Bench decision in Ramaswami v. Rangdthariar : AIR1940Mad118 and I need not therefore quote it in extenso. An alienation by a limited owner, or a manager, is not absolutely void but is prima facie voidable at the election of the reversionary heir or the other members of the family. He can elect to treat it as a nullity without the intervention of the Court and the commencement of an action to require possession of the property may amount to such election. In the present case it is stated clearly that the plaintiffs have elected to treat the sale as not binding on them and the suit was filed on the basis of such election. They are not therefore bound to ask for cancellation of the sale deed but can claim the relief of possession of the property covered by the sale deed, ignoring the sale. They are not bound under substantive law to sue for a declaration or cancellation in respect of the said alienation. In the same decision, Ramaswami v. Rangachariar : AIR1947Mad237 Leach, C.J., held that in regard to an alienation where possession had passed to the alienee and where the plaintiff asked for setting aside the same and be put in possession of the share of the properties so alienated, the plaintiff had to stamp his relief in accordance with the provisions of Section 7(v) of the Court-Fees Act. Though no argument was addressed in that case seeking to apply Section 7(iv-A) to such alienations and though there was no discussion in regard to the application of the said section, this is a direct decision on the point and I am bound by the same. Bell, J., followed the observations of the Full Bench decision and held in similar circumstances in Kalianna Goundan v. Balasubramaniam : AIR1947Mad237 , that Section 7(iv-A) has no application. In that case a suit was filed by three sons by their next friend, their mother, for a declaration that a sale deed executed by their father for himself and as guardian of the first and second plaintiffs was not binding on them, not having been executed for family necessities, and for partition and recovery of the properties. The learned Judge held that the suit was in essence one for possession and should be dealt with under Section 7(v). He rejected the plea that the plaint was governed by Section 7(iv-A) of the Court-Fees Act. With respect I agree with the reasoning of the learned Judge in the judgment.

6. For the aforesaid reasons I hold that the plaint has been properly valued and the District Munsiff has jurisdiction to entertain the suit. No other point was argued in the revision. In the result the revision petition is dismissed with costs.


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