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Narayanaswami and ors. Vs. Swaminatha Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1937Mad876
AppellantNarayanaswami and ors.
RespondentSwaminatha Iyer and ors.
Cases ReferredPerraju v. Subbarao
Excerpt:
- .....which the plaint should be filed. in the case of a declaratory suit, under article 17-a (i) of schedule 2 of the act, the amount of court-fee payable is dependent on the court in which the plaint is presented. if the plaintiff chooses to present his plaint in a sub-court or a district court and the claim is cognizable by that court, the plaintiff will have to pay the stamp duty prescribed for presentation of such a claim in that court. the claim for a declaratory relief in respect of each of the debts sought to be impeached in this ease is cognizable by the sub-court in view of the fact that the said relief is claimed in respect of the plaintiff's share in the joint family properties sought to be recovered in the suit freed from the claims in respect of the said debts. i therefore.....
Judgment:
ORDER

Venkataramana Rao, J.

1. The question raised in this revision petition relates to the amount of court-fee leviable on the plaint in the suit. The suit is for a partition of joint family properties of the plaintiffs and their father defendant 1. The plaintiffs who are entitled to a two-third share therein, seek partition and delivery of their separate share and also an account of the income of the properties. So far as the prayers relating thereto are concerned, the plaint has been properly valued, but the controversy has arisen in regard to the relief they seek in respect of the debts contracted by defendant 1. Defendants 2 to 14 are his creditors and the plaintiffs are questioning the binding nature of the said debts. The material allegations relating thereto are as follows:

The next friend of the plaintiffs learnt that defendant 1 had even afterwards been persisting in his former habits and he was giving out that he was indebted to the other defendants to the extent of Rs. 60,000 having borrowed from time to time on promissory notes. He seems further to have stood surety to his son-in-law Vanji Aiyar to the extent of Rs. 30,000 to defendant 9. The next friend submits that these debts are not binding on the minor plaintiffs as there was no necessity to borrow on behalf of the family, nor defendant 1 had any right to give the surety bond so as to bind the minors . . . . The plaintiffs are entitled to a division of the immoveable properties of the family by metes and bounds corresponding to their two-third share and to be put in separate possession of the same without any liability for the debts in favour of the other defendants. They are entitled to an injunction against the defendants restraining them from seeking any relief against the plaintiff's share of the family properties.

2. The prayer in para. 12(f) of the plaint is as follows:

That defendants 2 to 14 may be restrained by permanent injunctions from proceeding against the properties of the plaintiffs for the debts contracted by defendant 1.

3. The relief is valued thus:

Rupee 1-1-0 for each of the 13 injunctions sought for against defendants 2 to 14 Under Schedule 7 (iv) (d) and (f), Court-fees Act.

4. The learned Subordinate Judge was of the opinion that the relief should be valued as one for a declaration under Article 17-A of Schedule 2, Court-fees Act, and directed that a sum of Rs. 2,100 for the 13 declarations in respect of the debts of the 13 defendants should be paid. The question is, is this view correct? The principle to be kept in view in determining the proper court-fee is what in substance is the relief which the plaintiffs seek and not the form in which it is couched. From the allegations in the plaint it appears that the debts were contracted by the father and the plaintiffs were not parties to the said deeds or documents evidencing the same. If a suit were to be brought on the said documents, the creditor will have to make out that the debts were such as under Hindu law would be enforceable against the plaintiff's share in the joint family properties. No suits in respect of any of the debts save in respect of a debt due to defendant 12 were on the date of the suit instituted by any of the creditors nor any decrees obtained. In the circumstances, the relief which the plaintiffs have to seek is for a declaration that the said debts are not binding on them and on their share of the properties. On the allegations in the plaint, no cause of action is disclosed which could support the relief of injunction. The fact that the plaintiffs choose to frame the relief in the form of an injunction would not make an action any the less an action for a declaration. It will be seen that the injunction is claimed as a substantive relief and not as a mere consequential relief. This case therefore would be governed by the decision of Venkatasubba Rao, J. in Perraju v. Subbarao AIR 1935 Mad 419, which has been followed by the learned Subordinate Judge and which in the present state of the law I see no reason to differ from. No arguments have been advanced by Mr. Venkatarama Sastri showing that the view of the learned Judge expressed in the said decision is unsound.

5. I shall now deal with the arguments of Mr, Venkatarama Sastri based on Section 17, Court-fees Act. It is this. Six of the debts are much less than Rs. 2,500 and the suits in respect of them are cognizable by a District Munsif's Court and therefore the proper court-fee for each of the claims should be Rs. 15. This contention is against the plain language of the sections of the Act relied on. Section 17 says:

Where a suit embraces two or more distinct subjects, the fee chargeable would be the aggregate amount of fee to which the plaint in suits embracing separately each of such subjects would bo liable under the Act.

6. This section does not deal with the forum in which the plaint should be filed. In the case of a declaratory suit, under Article 17-A (i) of Schedule 2 of the Act, the amount of court-fee payable is dependent on the Court in which the plaint is presented. If the plaintiff chooses to present his plaint in a Sub-Court or a District Court and the claim is cognizable by that Court, the plaintiff will have to pay the stamp duty prescribed for presentation of such a claim in that Court. The claim for a declaratory relief in respect of each of the debts sought to be impeached in this ease is cognizable by the Sub-Court in view of the fact that the said relief is claimed in respect of the plaintiff's share in the joint family properties sought to be recovered in the suit freed from the claims in respect of the said debts. I therefore overrule the contention and hold that the court-fee is Rs. 100 on each of the six debts.

7. In the result, the civil revision petition fails and is dismissed with costs of the Government Pleader. Time for payment of the court-fee extended for a month till after the re-opening of the Court after the summer recess.


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