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In Re: Vinaitheerthal Achi Alias Annapurani Achi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1941)2MLJ774
AppellantIn Re: Vinaitheerthal Achi Alias Annapurani Achi
Cases ReferredReddi v. Kotta Kota Reddi
Excerpt:
- - 5. in the course of the argument i suggested that it would be better to have a specification of the assets both from the point of view of valuation and from the point of view of the court being able to define the charge with reference to specific property at the time of the passing of the decree......of mr. rajah aiyar is that under section 23 of the trusts act his client is entitled to get a charge on the assets, both separate and joint family property of the father which had come into the hands of the defendant, that the decree that has been given by the lower court is admittedly executable against the said assets, that there is no dispute as to the amount payable to the plaintiff nor as to the liability of the said assets in the hands of the defendant but that the plaintiff is only seeking to establish her preferential right to be paid out of the said assets and that that right is incapable of valuation. after listening to his arguments i am of opinion that his contention is not sound. it cannot be said that the relief is incapable of valuation. the plaintiff is seeking to.....
Judgment:
ORDER

Venkataramana Rao, J.

1. This is a reference made to me on the correct court-fee payable on the memorandum of appeal presented against the decree of the Subordinate Judge of Devakottai in O.S. No. 69 of 1939 on his file. The plaintiff sued to recover a sum of Rs. 18,897-0-9 from the defendant as a first charge from and out of the properties possessed by him, namely, the separate properties inherited from his father and the joint family properties which he and his father possessed and which on the death of his father he got by survivorship. The defendant is the minor son of the plaintiff. Her case was that her stridhanam property was entrusted by her father to her husband, the defendant's father, on trust, that he agreed to hold such property in trust for her, to improve it and return it to her when she was in need of it, that he mixed it with his own assets both separate and joint family and that therefore the defendant was bound to return her money from and out of the said assets and that she has got a first charge on them. The learned Subordinate Judge gave a decree for the amount claimed but declined to give a first charge as prayed for. The plaintiff has preferred this memorandum of appeal against the decree disallowing her prayer in respect of the first charge and seeks in this appeal to get a charge on the said assets which she has valued in the memorandum of appeal at Rs. 9,500.

2. The appellant has paid a court-fee of Rs. 100 on the memorandum of appeal on the ground that the relief is incapable of valuation. The Office and the Taxing Master felt a doubt as to whether the relief can be said to be incapable of valuation and accordingly referred the matter to me., Before the Taxing Master reliance was placed on a decision of mine In re Subbiah Pandaram : AIR1937Mad840 , and Mr. Rajah Aiyar who appeared for the appellant relied on the same decision before me. The contention of Mr. Rajah Aiyar is that under Section 23 of the Trusts Act his client is entitled to get a charge on the assets, both separate and joint family property of the father which had come into the hands of the defendant, that the decree that has been given by the lower Court is admittedly executable against the said assets, that there is no dispute as to the amount payable to the plaintiff nor as to the liability of the said assets in the hands of the defendant but that the plaintiff is only seeking to establish her preferential right to be paid out of the said assets and that that right is incapable of valuation. After listening to his arguments I am of opinion that his contention is not sound. It cannot be said that the relief is incapable of valuation. The plaintiff is seeking to make all the said assets liable to the extent of Rs. 18,897 odd and therefore there is no question about the extent of the liability sought to be imposed on the said assets. Again, so far as the assets are concerned, it cannot be said that they are incapable of valuation. The assets have got a money value and are capable of valuation. In In re Duraiswami Aiyar I.L.R. (1937) Mad. 980, following Bunwari Lal v. Daya Sunker Misser 13 C.W.N. 815, it was pointed out that the word 'estimate' in Article 17 (b) of the Court-Fees Act involves the idea of approximation and all that is necessary is that the subject-matter should be capable of being approximately and by no means accurately valued. The plaintiff has valued the assets approximately in the sum of Rs. 9,500. This case in my opinion is governed by the principle of the Full Bench decision in Rama-krishna Reddi v. Kotta Kota Reddi : (1906)16MLJ458 . It was a case which arose out of a suit upon a mortgage and the decree which was granted by the trial Court exonerated certain properties from the decree on the ground that the mortgage was not binding on the said properties. The appellant by his memorandum of appeal sought to make the said properties also liable. The decree that was granted by the Court in favour of the plaintiff was for a sum of Rs. 9,420 but he valued the properties sought to be charged at Rs. 4,000. The question that arose was, what is the court-fee payable? The learned Judges held that primarily court-fee should be paid upon the amount of the decree but inasmuch as the properties were worth only Rs. 4,000 it would be enough if he paid court-fee on Rs. 4,000. The reasons for their conclusion were given thus:

The amount of the decree is not in dispute. The liability of the lands other than the lands claimed by defendants 6 to 9 is not in dispute. The question in dispute is the liability of the lands claimed by defendants, 6 to 9 to be proceeded against for the debt. If the plaintiff succeeds in the appeal he will no doubt be entitled to proceed against the lands claimed by defendants 6 to 9 for the satisfaction of the whole debt but he can only recover the sale proceeds of these lands. The lands have been valued at Rs. 4,000 and unless this valuation is successfully impeached by the respondents it must *** be taken as the value of the subject-matter in dispute in this appeal.

I would follow this decision and hold in this case that court-fee is payable on the sum of Rs. 9,500, the value which the plaintiff-appellant has placed on the assets.

3. My decision In re Subbiah Pandaram : AIR1937Mad840 , on which reliance was placed is not applicable to the facts of this case. As pointed out by me in that case there were two mortgages on the property and the question was one of priority. The amount of the decree in that case was not disputed and the liability of the property in respect of both the mortgages was not disputed and there was an order for sale. The decree directed that the amount payable in respect of one mortgage should be paid first and that the amount due under the other mortgage should be paid later. The question of priority was the only question in dispute and I held that the relief for declaration was enough and can be valued as such. I also pointed out that even if I was not correct in the view I took, having regard to the form of the decree in that case it could be said that the relief was one which was incapable of valuation. This decision is therefore distinguishable.

4. In the result I direct the appellant to pay the deficit court-fee as required by the office note, that is, the court-fee payable on Rs. 9,500 the value fixed by her less the sum of Rs. 100 already paid by her. Time for payment is four weeks.

5. In the course of the argument I suggested that it would be better to have a specification of the assets both from the point of view of valuation and from the point of view of the Court being able to define the charge with reference to specific property at the time of the passing of the decree. No statement has been filed but I give leave to the appellant to do so at the time of payment of the additional court-fee ordered here.

6. I fix the Government Pleader's costs at Rs. 35 which he is entitled to realise from Government.


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