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Rangaswami Chetti Vs. Gopala Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported inAIR1936Mad562; 165Ind.Cas.412
AppellantRangaswami Chetti
RespondentGopala Chettiar and ors.
Cases ReferredBalapatbi Chetty v. Subbaraya Chetty
Excerpt:
.....family and for consequent partition of the plaintiffs' share in such property must be valued as a suit for possession under clause (5), section 7. but so far as the taking of accounts of the assets of the family for the purpose of partition is concerned, i am not aware of any case which justifies the assimilation of such a claim to a claim for money governed by clause (1), section 7. mr. if, on the other hand, the taking of accounts shows that the defendants themselves are in possession of funds belonging to the family, it will be just like any other suit for accounts because the moment the release deed is set aside the defendants' obligation to account to the plaintiff to the extent to which an account can be asked for in a joint family will follow as a matter of course. 9. in view of..........family and for consequent partition of the plaintiffs' share in such property must be valued as a suit for possession under clause (5), section 7. but so far as the taking of accounts of the assets of the family for the purpose of partition is concerned, i am not aware of any case which justifies the assimilation of such a claim to a claim for money governed by clause (1), section 7. mr. krishnaswami iyer contends that as even according to the plaintiffs' case there is at present no joint family, the contesting defendants must be regarded as in the position of strangers claiming adversely to the family. i cannot agree that that is the correct position. the release deed executed by the father no doubt stands in the way of the plaintiff claiming partition in the ordinary course. but if.....
Judgment:
ORDER

Varadachariar, J.

1. This revision petition has-been filed against an order of the learned. Subordinate Judge of Coimbatore in respect of the court-fee payable on the plaint in O.S. No. 265 of 1934 on the file of that Court. The plaintiff is the son of defendant 1 in the case. It appears from the plaint that a release deed has been obtained from defendant 1 by his father and the other coparceners and some years later another release from defendant 2 who is the elder son of the plaintiff. The contesting defendants are defendants 3 to 7 who are defendant 1's cousins. The plaintiff challenges these release deeds as not binding upon him and not depriving him of his right to a full share in the properties of the family. He prayed by his plaint for a declaration that he is entitled to a sixth share in the family properties and for possession thereof and also asked for the appointment of a commissioner to take accounts of the family dealings, moveables, outstandings, assets and the income from the family properties and for a direction to the defendants to give the plaintiff his share of the outstandings on the taking of accounts.

2. Several objections were raised with respect to the court-fee payable on the plaint. The learned Subordinate Judge has decided most of them in the plaintiffs' favour but on one point his decision was against the plaintiff and it is to this last point that this revision petition relates. The prayer for accounts has been valued by the plaintiff at Rs. 1,000. It however appears that in O. P. No. 128 of 1933 and 54 of 1934 filed by or on behalf of the plaintiff for leave to sue in forma pauperis for reliefs practically identical with those claimed in the present suit, the outstandings due to the family were valued at Rs. 79,000. The learned Judge has accordingly held that the present valuation of the relief for accounts at Rs. 1,000 is unjustifiably arbitrary and cannot be accepted. He expressed a doubt whether the suit is one for accounts at all and he finally called upon the plaintiff either to give a valuation as per the figures given in O. P. No. 54 of 1934 or to confine his relief to the figure which he would now give. In the former alternative, the plaintiff was directed to pay court-fee on that basis.

3. I have had the benefit of an argument from Mr. T. M. Krishnaswami Iyer in support of the lower Court's order. I do not think I can uphold that order. There has been some difference of opinion between the various High Courts in India and sometimes even in the same High Court as to the provisions of the Court-fees Act applicable to the partition suits. We may now take it as well established, so far as this Court is concerned, that in certain types of partition suits the plaint may be governed by Article 17, Schedule 2 to the Court-fees Act, and that in other cases the plaint will have to be valued according to Section 7, Clause (4) (b). Cases have also held that where immoveable properties belonging to the joint family have gone into the possession of persons claiming adversely to the family, a suit for recovery of possession thereof on the footing that their alienation was not binding on the family and for consequent partition of the plaintiffs' share in such property must be valued as a suit for possession under Clause (5), Section 7. But so far as the taking of accounts of the assets of the family for the purpose of partition is concerned, I am not aware of any case which justifies the assimilation of such a claim to a claim for money governed by Clause (1), Section 7. Mr. Krishnaswami Iyer contends that as even according to the plaintiffs' case there is at present no joint family, the contesting defendants must be regarded as in the position of strangers claiming adversely to the family. I cannot agree that that is the correct position. The release deed executed by the father no doubt stands in the way of the plaintiff claiming partition in the ordinary course. But if and when that release deed is set aside, it must follow as a matter of law that the plaintiff must be regarded as a member of a joint Hindu family entitled to all the legal rights of such a member. The prayer for the setting aside of that release deed has been separately valued and court-fee paid thereon.

4. Even apart from this answer, I am unable to agree with the contention that the suit can or must be valued as one for money. The prayer in the plaint is that accounts should be taken to ascertain what the divisible assets are. It may, for, instance, turn out that Rs. 50,000 are due from the outsiders to the family. The only result of that finding will be that the plaintiff will be entitled to a declaration of his right to recover a certain share thereof from those debtors. He cannot in this suit straightway get a decree for money in respect of those assets. If, on the other hand, the taking of accounts shows that the defendants themselves are in possession of funds belonging to the family, it will be just like any other suit for accounts because the moment the release deed is set aside the defendants' obligation to account to the plaintiff to the extent to which an account can be asked for in a joint family will follow as a matter of course. I am therefore of opinion that there is no justification for the contention that the suit should be valued as a suit for money, so far as the assets of the family or even such funds may be found to be in the possession of the defendants on the taking of accounts are concerned.

9. In view of the well-established course of the decisions in this Court, I cannot agree with the learned Subordinate Judge's view that the Court can refuse to accept the plaintiff's valuation in a case like this even on the ground that it is arbitrary. The point was decided by a Full Bench of this Court in Chelasami Ramiah v. Chelasami Ramaswami : (1913)24MLJ233 . I am free to own to some doubts as to the applicability of Section 11, Court-fees Act, to a case like the present, but it is not necessary to express any final opinion on that point at this stage. Balapatbi Chetty v. Subbaraya Chetty (1921) MWN 611 proceeded on the footing that even in a partition suit, so much of the plaint as relates to the claim for accounts may be dealt with as a suit for accounts within the meaning of Section 11. The proper stage for discussing this question will be after the decree has been passed. I do not therefore pursue the question any further. The order of the Court below must be set aside and the learned Judge will be asked to deal with the case on the footing that the plaint has been properly valued and proper court-fees paid thereon. The costs of this civil revision petition will be paid by the respondents.


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