Ramachandra Iyer, J.
1. This Civil Revision Petition raises a question as to the amount of Court-fee payable by the petitioners on the Memorandum of Appeal filed by them in A.S. No. 86 of 1958 on the file of the District Court, Tirunelveli, against the decree dismising their suit in O.S. No. 33 of 1956, on the file of the Sub-Court, Tuticorin.
2. The substantial reliefs sought by the plaint as amended are:
(a) that the first plaintiff is entitled to the properties described in Schedule A hereto and that the second plaintiff is entitled to the properties mentioned in Schedule B hereto by declaring that the documents, dated 2nd December, 1954, 27th January, 1955 and 16th February, 1955, are not binding as against the interests of the plaintiffs and setting aside the documents of 27th January, 1955, 2nd December, 1954 and 16th February, 1955; (b) for possession of the A Schedule property to the first plaintiff and the B Schedule property to the second plaintiff; and (c) for mesne profits of th e said properties from the date of plaint to the date of delivery of possession.
The plaintiffs are the daughters, and the defendant, the son of one Kothai Ammal who died on 8th March, 1955. Their case is this. Kothai Ammal had substantial properties of her own, and under the documents, dated 9th January, 1945 and 22nd February, 1954, gave the plaintiffs certain properties which are specified in ScheduleiTA and B to the plaint. Those documents though in the form of a will, in substance were deeds of settlement, or, at any rate, they resulted in a family arrangement which was accepted and acted upon by all the parties. While so, the defendant by the exercise of undue influence, coercion, etc., procured from Kothai Ammal a deed of settlement, dated 27th January, 1955, and the two documents of a testamentary nature bearing the dates 2nd December, 1954 and 15th February, 1955. The two plaintiffs being thus respectively entitled to A and B Schedule properties, the subsequent documents executed by Kothai Ammal would have no legal eftect. Apart from the anterior title pleaded by the plaintiffs, there is no alternative case, viz., that they are, the Stridhanam heirs of Kothai Ammal and that on settingaside the documents, dated 27th January, 1955, 2nd December, 1954 and 16th February, 1955, they would be entitled to recover possession of the properties from the defendant. Thus the plea that the defendant exercised undue influence and coercion over his mother while procuring the aforesaid documents, has no significance whatsoever in respect of the claim in the suit except that it provides a historical background of the circumstances under which they were executed. On the plaint as it stands the documents would have no legal effect, whether they were executed as a result of coercion or undue influence, exercised by him, or otherwise, as, on the dates they were executed, the deceased had no right to. dispose of the properties set out in Schedules A and B. The plaintiffs not being assenting parties to the subsequent documents could sustain the suit for possession without a prayer for any declaration and or cancellation of the impugned documents. They could have ignored them. But they have asked for a declaration that the documents are not binding on them and for setting aside the same with a consequential relief of possession. The suit was valued at 30 times the kist payable on the A and B Schedule properties, and a Court-fee of Rs. 413-4-0 was paid. In Paragraph 25 of the plaint, it is stated that the Court-fee is paid under Section 40 of the Court-fees Act. That is an obvious mistake : the suit is not valued under Section 40 : the valuation and Court-fee paid could only have been under Section 25 (a) of the Act. This valuation was adopted in the appeal. The Court-fee paid on the appeal was, however, reported to be insufficient by the Court-fee Examiner; the objection was that as each of the plaintiffs had a separate cause of action, each in respect of her claim, Court-fee would be payable under Section 25 (a) read with Section 6(3) as for two suits. Reliance was placed for this contention on the decision in Venkatanarqyana v. State of Madras : (1953)1MLJ331 , and the judgment of this Court in C.R.P. No. 1812 of 1957. He, accordingly, assessed the Court-fee payable by the first plaintiff as Rs. 22-8-0 and that by the second plaintiff as Rs. 403-8-0 in all a sum of Rs. 426-0-0. There was, therefore, a deficit of Rs. 25-8-0 payable in respect of the suit and the appeal.
3. The matter was referred to the Court under Section 18(2) of the Court-fees Act. The learned District Judge accepted the objection of the Court-fee Examiner, and directed the plaintiff-appellants) to pay the deficit Court-fee of Rs. 25-8-0. The petitioners accepted the decision and paid the Court-fee as directed. Later, when the appeal came up for hearing, the learned District Judge appears to have thought that the valuation was incorrect and re-opened the question whether proper Court-fee had been paid on the appeal and in the suit. After hearing the appellant, the learned Judge held that, as the prayers in the plaint sought to set aside the two wills and a settlement executed by Kothai Ammal, the suit should have been valued under Section 40 in regard to the setting aside the settlement deed, but that no additional Court-fee need be paid for the prayers relating to the two wills. The plaintiffs-appellants were thereupon directed to amend the valuation of the plaint and the memorandum of appeal and to pay the deficit Court-fee in both the Courts. The correctness of that order is challenged in this Civil Revision Petition.
4. I am of opinion that the lower Court was wrong both in regard to the procedure adopted a's well as in the decision as to the Court-fee payable. The question whether the plaint and the Memorandum of Appeal have been properly stamped was raised by the Court-fee Examiner, and the learned Judge had decided on 22nd July, 1959, that the proper Court-fee was Rs. 426-0-0. Section 18(2) states:
Question raised in reports submitted by such Court-fee Examiners and relating to any suit, appeal or other proceeding pending in a Court shall be heard and decided by such Court; and for the avoidance of doubt it is hereby declared that in hearing and deciding a question raised in any such report, it shall be lawful for the Court to review an earlier decision given by the Court on the same question.
What Section 18(2) contemplates is a decision and not a mere tentative opinion. In the absence of any statutory provison expressly enabling the Court to review that decision so as to call upon the appellant to revise the valuation and pay additional Court-fee, finality would attach to the decision so far as that Court is concerned. Mr. Ramaswamy, who appeared for the Government Pleader, attempted to show that under the Court-fees Act, 1955, there is unlimited power in the Court to review as often as necessary its decision on the question of, Court-fee. The learned Counsel relied on the provisions of Section 4 which declares that 'no document which is chargeable with fee under this Act shall be filed, etc., or acted on by any Court', and contended that so long as any document filed in Court is insufficiently stamped, the Court would have no jurisdiction to entertain it and that, therefore, there should be a power in Court to review its previous decisions till it arrived at the correct Court-fee payable. Such an argument would, if accepted, be subversive, of the principle of finality of judicial decisions and would lead to unjust and inconvenient results. It is of utmost importance that questions relating to Court-fee should be decided finally and at the earliest stage of a suit or appeal. Section 4 directs the payment of Court-fee chargeable under the Act and the Act itself prescribes the procedure for settling disputed questions relating to the payment of proper Court-fee. Unless, therefore, a power is given under the statute a decision once given would be binding on the Court which gave the decision at all subsequent stages. It has to be seen, whether the statute empowers the Court to decide and review from time to time decisions in regard to the Court-fee payable. Reliance was placed on Section 12 which runs:
12. (1) In every suit instituted in any Court other thanjthe High Court, the Court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in the statement, if any, filed under Section 10 the proper fee payable thereon, the decision being however subject to review, further review and correction in the manner specified in the succeeding Sub-sections .
(2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim, but subject to the next succeeding Sub-section, not later, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not amended, or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.
(3) A defendant added after issues have been framed on the merits of the claim may, in the written statement filed by him plead that the subject-matter of the suit has not been properly valued or that the fee paid is not Sufficient. AU questions arising on such pleas shall be heard and decided, before evidence is recorded affecting such defendant, on the merits of the claim, and if the Court finds that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall follow the procedure laid down in Sub-section (2).
5. Explanation.--Nothing in this Sub-section shall apply to a defendant added as a successor or a representative in interest of a defendant who was on record before issues were framed on the merits of the claim and who had an opportunity to file a written statement pleading that the subject-matter of the suit was not properly valued or that the fee paid was not sufficient.
6. (4)(a) Whenever a case comes up before a Court of Appeal, it shall be lawful for the Court, either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon.
7. Explanation.--A case shall be deemed to come before a Court of Apeal even if the appeal relates only to a part of the subject-matter of the suit.
(b) Ifthe Court of Appeal decides that the fee paid in the lower Court is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it.
(c) Ifthe deficit fee is not paid within the time fixed and the default is in respect of a relief which' has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but ifthe default is in respect of a relief which has been decreed hy the lower Court, the deficit fee shall be recoverable as if it were an arrear of land revenue.
(d). Ifthe fee paid in the lower Court is in excess, the Court shall direct the refund of the excess, to the party who is entitled to it.
(5) All questions as to value for the purpose of determining the jurisdiction of Courts arising on the written statement of a defendant shall be heard and decided before evidence is recorded affecting such defendant, on die merits of the claim.
Explanation.--In this section, the expression ' merits of the claim ' refer to matters which arise for determination in the suit, not being matters relating to the frame of the suit, mis-joinder of parties and causes of action, the jurisdiction of the Court to entertain or try the suit or the fee payable but inclusive of the matters arising on pleas, of res judicata, limitation and the like.
8. Sections 13 to 15 provide for payment of additional Court-fee as a result of an issue framed, the option of the party to withdraw or give up that portion ofthe claim which requires the payment of additional Court-fee and the procedure in regard to cases where under the Act a written statement has to bear a Court fee. Sections 16 and 17 apply rules contained in Sections 10 to 14 for the determination of Court-fee payable on appeals, petitions and applications. Section 18 provides for the appointment of Court-fee Examiners and for. decision on their report.
9. The learned Counsel, appearing for the Government, relying on Section 12(1), contended that the Court would have unlimited powers of reviewing, and further reviewing any order passed by it in regard to thejjroper Court-fee payable: Icannot agree The power of review, further review and correction could only exist in the cases and to the extent specified in the succeeding paragraphs of the section. Sub-sections (2) and (3) of Section 12 enable the original defendant and a subsequently impleaded defendant to raise the plea that the subject-matter ofthe suit has not been properly valued, or that the Court-fee paid is not sufficient. The Sub-sections provide for a decision on the question of Court-fee as a preliminary issue. The terms of Sub-section (3) and the Explanation thereto make it clear that even the defendant should take the plea only at the earliest opportunity. The review of the order determining Court-fee could, therefore, only arise by way of a decision of an issue on the question raised in accordance with Section 12(2) and Section 12(3). When the matter comes up before a Court of Appeal, such Court is given powers under Section 12(4) to consider the correctness ofthe decision by the subordinate Court. There is nothing in Section 12 to confer jurisdiction on the Court to go behind any decision given by it on any issue relating to Court-fee. Independent ofthe power which a Court has under Section 12 a decision could be given ifthe question is raised on the report of the Court-fee Examiner under Section 18. That section expressly empowers the Court to decide the matter raised notwithstanding the fact the Court itself had decided the question before. Section 18(2) is an exception to rule of finality that attaches to a judicial decision.
10. Ordinarily there are three stages at which Court can enquire into the question whether the plaint or appeal has been properly valued : (1) Before the registration of the plaint or appeal. In. that case, it will, be open to the Court to decide, on the materials available in the plaint or memorandum of appeal, the fee payable, the decision being however subject to review, further review and correction in the manner specified in the succeeding Sub-section [12(1)]. (2) After the suit or appeal has been registered, an issue can be raised on that question, either by the defendant or respondent by taking objection to the sufficiency of the Gourt-fee paid. The Court should decide the matter. That decision will be binding on the Court that rendered it. (3) But even in such a case it would be open to the Court-fee Examiner to ask for a fresh decision under Section 18. When the decision has been given on the report of the Court-fee Examiner, no further review or reconsideration is possible except by an appellate Court under Section 12(4). A.decision given under Section 18(2) of the Court-fees Act, 1955, would be final so far as that Court is concerned.
11. It has been held that an interlocutory order in a suit which amounts to an adjudication and not merely an opinion, would be binding upon the Court which passes the order in the subsequent stages of the suit or proceeding. Vide Parthasarathl v. Venkatadri : AIR1929Mad121 .
12. The learned District Judge, has held that the finality could only affect the valuation and not the category under which a certain suit falls. Reference was made to the decision is Nemlchand v. Edward Mills Co. : 4SCR197 , where it was held that the finality declared by Section 12 of the Court-fees Act was limited to valuation pure and simple and not to the category under which a suit fell. The earlier order of the District Judge under Section 18 should be deemed to have decided, the category of the suit, its valuation and the proper Court-fee payable. The finality of that order is not by virtue of Section 12 but on general principle analogous to res.judicata. I am, therefore, of opinion that the learned Judge had no jurisdiction to go behind his order dated 22d July, 1959, and call upon the plaintiffs to pay the additional Courtrfee.. Nor can the order of the lower Court be justified on the grounds qn which it was rested. For one thing the learned Judge was under a misapprehension that in seeking the reliefs contained in the plaint, the plaintiffs were representing their mother and as such bound to have the documents set aside as vitiated by undue influence, coercion, etc. No claim was based on inheritance to the'estate of Kothai Ammal after setting aside or removing the obtacle created by the existence of the impugned settlement. It was unnecessary for the plaintiffs to set aside the impugned documents. It is a familiar principle that it is the substance and not the form of the plaint that should decide the Court-fee payable, and that it would not be open to a plaintiff to camouflage the reliefs in an attempt to evade payment of proper Court-fee. If, therefore, under the substantive law, it is necessary for a party to Set aside a transaction before obtaining the relief prayed, the Court would imply that there was a prayer to set aside the transaction or direct an amendment of the plaint to that effect so as to levy the proper fee. It is equally settled that where it is unnecessary to set aside a transaction, no such prayer can be implied or required to be taken; Even where there is such a prayer, it is considered as unnecessary or a mere surplusage. (Vide T.G. Gurukulw. Y. Subrahmanyam.3 A reading of the plaint would show that the plaintiffs based their title to the suit properties not as heirs of their mother, but as settlees under a previous settlement or arrangement.
13. Mr. Ramaswami, however, contends that even if a plaintiff prays for a wholly unnecessary relief, it is obligatory on him to pay Court-fee on the reliefs prayed. Reliance was placed in this connection on the observations of Viswanatha Sastriar, J. in Narasamma v. Satyanarayana (1951) 1 M.L.J. 436 : I.L.R. (1951) Mad. 751, to the effect that even where a party was not bound to have a decree set aside, yet if he chose to ask for that relief, he should pay Court-fee thereon. The decision in that case was based on Rule 2 of the rules framed under the Suits Valuation Act. In Rajamannar, In re 5, the rule was held not to affect the classification of suits provided for in the Court-fees Act. A mere suit for declaration to have a compromise decree set aside where no consequential relief was prayed for was held not to come under Section 7 (iv-A) of the Old Court-fees Act.
14. Section 40 of the Court-fees Act, 1955, corresponds to Section 7 (iv-A) of the Court-fees Act, 1870. That provides for a special class of suits where cancellation is sought by a person who was a party to the document or derived title under a party to the document. Strangers who are not bound by the document need not ask for cancellation. If, however, they pray for setting aside of a document on the ground that they were not bound by it, such prayer wOuld not be one coming within Section 40 but merely declaratory in nature.
15. In the present case, the plaint prays for a declaration that the documents dated 2nd December, 1954, 27th January, 1955 and 15th February, 1955 are not binding on the interest of the plaintiff, for setting aside the same, and for possession of the properties. Two of the document are wills and the learned Judge has held that they need not be set aside. As regards the third, the plaintiffs do npt claim as the successor-in-interest to Kothai Ammal by virtue of a title acquired subsequent to the document; it was not obligatory on them to set aside the same. But at the same time, the reliefs prayed for could not be held to be meaningless. For example, a person who may not be bound by a document executed, by another may have an apprehension that if left outstanding it may injure his interests. The nature of such suits have been considered in Muppudathi Pillai v. Krishnaswami Pillai (1950) 2 M.L.J. 225. Section 39 of the Specific Relief Act enacts that any person against whom a written instrument is void or voidable, may sue to have it adjudged accordingly. The prayer in the present suit relating to the declaration and setting aside are f that description. The substantive relief in such a case is declaration and the relief as to setting aside is a superfluous one. Venkata-subba Rao, J., dealing with a similar relief in Kattiya Pillai v. Ramdswamia Pillai : AIR1929Mad396 , observed,
is not a relief which it is the duty of the plaintiff to sue for but it is the duty of the Court to grant.
The declaration sought is coupled with a prayer for possession. On the terms of the plaint, the prayer for possession is consequential on the declaration and it would follow that the suit and the appeal will have to be valued as one under section
16. If substantially the plaint is one for cancellation under Section 39 of the Specific Relief Act, a question might arise whether in addition to the payment of a Court-fee under Section 25 (a), the plaintiff should paytCourt-fee for declaration in respect of the two wills dated 2nd December, 1954 and 15th February, 1955. In the view I have taken of the finality of the decision under Section 18(2) so far as the appeal in the lower Court is concerned, it is unnecessary to decide that point. The Court-fee paid on the appeals before the lower Court should be taken as correct. The Civil Revision Petition is allowed : no costs.