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C. Ramaswami and ors. Vs. Kunjammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberCivil Revn. Petn. No. 1686 of 1948
Judge
Reported inAIR1950Mad832
ActsCourt-fees Act, 1887 - Sections 7
AppellantC. Ramaswami and ors.
RespondentKunjammal and ors.
Appellant AdvocateN.R. Govindachariar, Adv.
Respondent AdvocateGovernment Pleader and ;P.S. Srinivasa Desikan, Adv.
DispositionPetition allowed
Cases ReferredAnkanna v. Kameswaramma
Excerpt:
.....(a) for court-fee and jurisdiction. - - in these oases as was argued by the appellant's vakil it is not only not necessary but it is not possible to have the instrument of alienation cancelled and delivered up, because, as between the parties to it, it may be a perfectly valid instrument. he cannot be allowed to evade payment by omitting to ask for relief when the success of his suit depends on relief being granted to him. in respect of these transactions the plaintiff clearly has to stamp his relief in accordance with the provisions of section 7(v).'though the question whether section 7(iv)(a) or 7(v) was applicable to such transactions was not raised before the full bench and there was no discussion of the applicability of section 7(iv)(a) to the alienations in that case, this is..........contended in the lower court that the plaintiff should have asked for cancellation of the sale deeds executed by his mother as guardian and paid court-fee under section 7(iv)(a). the trial court took this matter up as a preliminary question and decided that the plaint should be construed as one asking for a prayer for cancellation of the sale deeds and that therefore the plaintiff should be called upon to pay court-fee under section 7(iv)(a), court-fees act. in reaching this conclusion be relied upon some decisions of this court, one reported in doraiswami reddiar v. thanga-velu mudaliar : air1929mad668 a decision of venkatasubba rao j. and another ruling reported in venkatakrishniah v. shaik alli sahib, a. i. r. 1938 mad. 921: 1881. clause 8 and also in devaki antarjanam v......
Judgment:

Chandra Reddi, J.

1. This civil revision petition raises a question relating to court-fee and jurisdiction. The plaintiff filed a suit for recovering possession of properties alienated by defendant 1 his mother and natural guardian. The suit is based on the allegations that defendant 1, who was an illiterate woman inexperienced in life was influenced by her brother to alienate the properties for very low consideration in his favour and in favour of some of his nominees and that the alienations were not therefore binding on him. The plaintiff valued the suit under Section 7(v), Court-fees Act, at Rs. 2689-6-0 and gave the same valuation for purposes of jurisdiction also and paid court-fee thereon. The defendants contended in the lower Court that the plaintiff should have asked for cancellation of the sale deeds executed by his mother as guardian and paid court-fee under Section 7(iv)(a). The trial Court took this matter up as a preliminary question and decided that the plaint should be construed as one asking for a prayer for cancellation of the sale deeds and that therefore the plaintiff should be called upon to pay court-fee under Section 7(iv)(a), Court-fees Act. In reaching this conclusion be relied upon some decisions of this Court, one reported in Doraiswami Reddiar v. Thanga-velu Mudaliar : AIR1929Mad668 a decision of Venkatasubba Rao J. and another ruling reported in Venkatakrishniah v. Shaik Alli Sahib, A. I. R. 1938 Mad. 921: 1881. Clause 8 and also in Devaki Antarjanam v. Mariakutti Umma, 59 M. L. W. 464: A. I. R. 1947 Mad 130.

2. The present revision petition is filed against that order of the District Munsif by the aggrieved plaintiff. The validity of this order is attacked by the counsel for the petitioner on the ground that the view taken by the trial Court is not sound and sustainable having regard to a number of decisions of this Court which lay down the principle that in cases similar to this the plaint need not contain a prayer for cancellation or for setting aside the sale deeds.

3. The short question that has to be considered by me therefore is whether the plaintiff's valuation of the suit under Section 7(v), Court-fees Act, is correct or whether he is bound to frame the suit as one under Section 7(iv)(a) for the purpose of court-fees and jurisdiction. In support of his contention the learned counsel for the petitioner cited to me a number of authorities and contended that the decisions relied on by the trial Court did not lay down the correct law and were in conflict with some of the Bench decisions of our High Court.

4. It is no doubt true that the rulings in Doraiswami Reddiar v. Thangavelu Mtidaliar : AIR1929Mad668 , Vm-katakrishniah v. Shaik Ali Sahib, A. I. R. 1938 Mad. 921: 182 I. Ord. 878 and also Devaki Antarjanam v. Mariakutti Umma, 59, M. L. W. 464: A. I. R. 1947 Mad. 130 support the view taken by the trial Court. In Doraiswami Reddiar v. Thangavelu Mudaliar : AIR1929Mad668 the mother as the guardian of her minor son executed a release deed in favour of the erstwhile partners of her husband. On attaining majority the sons brought a suit for a declaration that the release was invalid and for an injunction. It was held by Venkatasubba Rao J. that looking to the substance of the plaint it must be treated as one foe cancellation of the instrument and will so come under Section 7(iv)(a). This was followed by Wadsworth J. in Venkatakrishnayya v. Shaik Ali Sahib, A. I. R. 1938 Mad. 921: 182 I. Order. 878. In Devaki Antarjanam v. Mariakutti Umrna, 59 M. L. W. 464: A. I. R. 1947 Mad. 130 Sotnayya J. followed this decision of Wadsworth J.

5. I shall now proceed to see whether these rulings are in conflict with the cases cited by the counsel for the petitioner. In Unni v. Kunohi Amma, 14 Mad, 26, the principle was enunciated that in a suit on behalf of a Malabar tarwad by two of its members to recover property improperly alienated by the late karnavan, a prayer for cancellation of the kanom interest was not an essential part of the plaintiff's relief and that therefore the suit brought beyond three years of the execution of the document was not barred by limitation. Though the alienation in that case was not made by guardian of a minor, the following passage in that judgment would show that the learned Judges considered that an alienation by a guardian of a minor would stand on the same footing as an alienation by a manager of a family:

'In our opinion there is no distinction between this ease and other .cases where a similar charge is made in respect of an instrument of alienation executed by a parson who, not being the full owner of the property, has a conditional authority only to dispose of it. Such are the cases of a guardian of a minor, the manager of a Hindu family or the sonless widow in a divided Hindu family. In these oases as was argued by the appellant's vakil it is not only not necessary but it is not possible to have the instrument of alienation cancelled and delivered up, because, as between the parties to it, it may be a perfectly valid instrument. All that is needed is a declaration that the plaintiff's interest is not affected by the instrument, and that declaration is merely ancillary to the relief which may be granted by delivery of possession.'

This case was referred to with approval by a Full Bench of our Court in Ramaswami Ayyan-gar v. Rangachariar, I. L. R. (1940) Mad. 269: A. I. R. 1940 Mad. 113 which I will refer to presently. In Kamaraju v. Gunnayya, (1924) M. L. J. 240: A. I. R. 1924 Mad. 322 a Bench of this Court held that in a suit for recovery of possession of property which was alienated by the mother of a minor it was not necessary that the plaint should contain a prayer for setting aside the sale deed. In that case the property belonging to a minor was sold by his mother and natural guardian by a sale deed. After the minor attained majority, ignoring the sale deed by his mother, he conveyed the property to the plaintiff who sued for possession. The learned Judges who constituted the Bench observed while dealing with the question whether it was necessary for the plaintiff to ask for cancellation of the sale deed as follows:

''A judicial sale has to be set aside so far as persons who are parties to the sale are concerned and, if not set aside, it will be binding on them for ever. Here we have not got to do with a judicial sale but with a private sale. Defendant 1 has got the right of avoiding it. By selling the property to the plaintiff on the footing that the sale by the mother was not binding on him he has chosen to avoid it, and the result of it is that from his point of view he has got a complete title.'

In Veeraraghavalu v. Sriramulu : AIR1928Mad816 , it has been laid down that a minor has not got to set aside the transaction in suing to recover the property, and that he can ignore the transaction and merely ask for possession and that being so, he does not seek the cancellation of the instrument, the position of a minor being different from that of a major executing the document. The learned Judges also held that the decision in Alagar Aiyangar v. Srinivasa Aiyangar : AIR1925Mad1248 , which decided that in a suit in which the plaintiff asks for a declaration that a sale deed of the joint property by the father is not binding on him must be treated as a suit for cancellation of the deed as an alienation by a father both as a manager of the family and as the guardian of his minor son is prima facie binding on him could not be upheld. In Ramaswami Ayyangar v. Ranga-chari, I. L. R. (1940) Mad. 259: A. I. R. 1940 Mad. 113, it was laid down that in regard to an alienation where possession had passed to the alienee and the plaintiff is asking for possession of his share after setting aside the transactions under which the properties are alienated, the plaintiff should stamp his relief in accordance with the provisions of Section 7(v), Court-fees Act. The following passage which deals with this question in the judgment of the Full Bench at p. 277 is apposite:

'I am unable to aceept the plaintiff's contention that he should not be called upon to pay court-fees in respect of any of the transactions which he challenges because he has not asked for specific relief in respect of them. His plaint challenges the validity of transactions entered into by his father as manager of the family, and particulars of these transactions have been supplied. The plaintiff must pay court fee in accordance with the relief which he is actually seeking. He cannot be allowed to evade payment by omitting to ask for relief when the success of his suit depends on relief being granted to him. The Court must look at the real nature of the suit and decide what the plaintiff is asking for. In this case he is asking for possession of his share in the estate to be calculated after certain transactions have been set aside......The plaintiff is in effect asking in respect of alienations where possession has passed to the alienees that they be set aside and that he be placed in possession of his share of the properties alienated. In respect of these transactions the plaintiff clearly has to stamp his relief in accordance with the provisions of Section 7(v).' Though the question whether Section 7(iv)(a) or 7(v) was applicable to such transactions was not raised before the Full Bench and there was no discussion of the applicability of Section 7(iv)(a) to the alienations in that case, this is a direct decision on the point which I am bound to give effect to. This ruling of the Fall Bench has been followed subsequently in a number of cases. In Kuppusami Goundari v. Mari Goundan : AIR1943Mad427 , it was held that it was not necessary for the plaintiff, who filed a suit for partition of the family properties and for possession of his share ignoring a prior partition in which he was re-presented by his father, to ask for setting aside the prior partition. In Kalianna Gounder v. Balasubramaniam : AIR1947Mad237 , it was held by Bell J. following the observations of the Pull Bench in Ramaswami Ayyangar v. Rangachariar, I. L. R. (1940) Mad. 259: A. I .R. 1940 Mad. 113 that in a suit by the sons by their next friend for a declaration that a sale deed executed by their father himself and as guardian of his minor sons was not binding on them not having been executed for family necessity and for partition and recovery of the properties the plaint should be stamped in accordance with the provisions of Section 7(v) as it was a suit for possession by the sons which should be dealt with under Section 7(v), Court fees Act. To the same effect also is the decision of Subba Rao J. in Kandasami Udayan v. Annamalai Pillai : (1948)2MLJ130 . I express my respectful concurrence with principle laid down in these decisions.

6. On behalf of the respondent reliance was placed upon Ankanna v. Kameswaramma : AIR1986Mad346 . That was a suit for recovering the properties from the alienee on the ground that the alienation was beyond the powers of the guardian to make and it was held that the suit was barred by limitation by reason of Article 44, Limitation Act, as the suit was brought beyond three years of the plaintiff attaining majority, though within 12 years of the alienation. The question of court, fee and jurisdiction did not arise for decision in that case. It is therefore unnecessary for me to consider whether this case is in conflict with the decisions cited above.

7. For the aforementioned reasons I am of opinion that the plaint has been properly valued and the view of the learned District Munsif that the plaint should be valued under Section 7(iv)(a) for the purpose of court-fee and jurisdiction is erroneous and unsustainable. I therefore set aside the order of the trial Court and allow this civil revision petition with costs of respondents.


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