1. The main point in this appeal is what is the court-fee payable on the plaint As a result of two decrees obtained in two suits, O.S. No. 15 of 1912 on the file of the Court of the Subordinate Judge of Chingleput, and O.S. No. 47 of 1910, on the file, of the District Court of Chingleput, one Krishna Reddy was entitled to recover possession of certain immovable properties from defendants Nos. 1 and 2 on payment of a certain sum of money to them. Some time after these rights were finally ascertained by the said decrees, he surrendered the rights so obtained by those decrees in favour of defendants Nos. 1 and 2 for a sum of Rs. 22,000 by a deed of settlement dated June 27, 1927. It is this deed of settlement that the plaintiff as the reversioner of the said Krishna Reddy after his death, seeks to set aside. The plaintiffs case is that the said, deed of settlement was brought about by fraud, coercion and undue influence practised upon Krishna Reddy and, therefore, it should be declared not binding on the plaintiff. He also claims an alternative relief that, if the deed is found to be valid, the plaintiff should be given a decree for Rs. 22,000 being the consideration for the deed as the said amount was not paid to the said Krishna Reddy. There is also a further relief claimed by the plaintiff, viz., a claim for specific performance based upon an agreement alleged to have been executed by Krishna Reddy in favour of the plaintiff. The plaintiff valued the claim at the sum of Rs. 22,000 and paid court-fee thereon, viz., Rs. 1,222-7-0. Dispute as to the question of the proper court-fee having been raised, the learned Subordinate Judge went into the matter and came to the conclusion that all the three reliefs claimed in the plaint must be valued separately. He, therefore, directed the plaintiff to pay additional court-fees on the alternative relief for Rs. 22,000 and also on the claim for specific performance. The result of this decision was that the plaintiff had to pay an additional court-fee of Rs. 3,104-14-9. The plaintiff was given a fortnight for the payment of the said court-fee. He was unable to pay that sum within the time allowed and the learned Subordinate Judge by his order dated March 29, 1932, rejected the plaint. And this appeal is filed against that order.
2. So far as the learned Judge's direction directing the plaintiff to pay court-fee on the claim for specific performance is concerned, it is absolutely correct and its correctness has not been challenged before us. But the main point argued by Mr. Champakesa Aiyangar is in regard to the direction to pay additional court-fee on the sum of Rs. 22,000, the alternative relief claimed in the plaint. The view taken by the learned Subordinate Judge is that it must be considered to be a distinct subject within the meaning of Section 17, Court Fees Act. We are not inclined to accept this view as correct. The cause of action is the execution of the deed of settlement and two reliefs have been claimed in respect thereof, one on the footing of the validity of the deed and the other on the footing of its invalidity. The test which is sometimes laid down in order to ascertain whether two or more claims constitute different subjects within the meaning of Section 17, Court Fees Act, viz., whether different suits might have been instituted in respect thereof, has not been held to be a decisive one by the Jull Bench of this Court: see In re Parameswara Pattar 54 M. 1 : 136 Ind. Cas. 742 : A.I.R. 1930 Mad. 833 : 59 M.L.J. 469 : (1930) M.W.N. 880 : 32 L.W. 433 : Ind. Rul.(1931) Mad. 438, by which we are bound. In view of this decision, as the cause of action is based on the settlement deed we are not inclined to consider that the reliefs claimed are distinct subjects within the meaning of the said section. We therefore, think that the court-fee paid for the claim under Clause 22-A of the plaint is quite sufficient and the plaintiff need not pay additional court-fee for the alternative relief.
3. Then the question is what is the relief which the plaintiff is entitled to in this appeal he having failed to pay the additional court-fee in time?. The amount that was directed to be paid by the order of the lower Court is Rs. 3,104-14-9 If the plaintiff had net been directed to pay additional court-fee on the alternative relief, the plaintiff perhaps might have been able to comply with the order in so far as it directed additional court-fee on the claim for specific performance. In the view we have taken in regard to the court fee on the alternative prayer we feel that we ought to allow the plaintiff some time for the payment of the additional court fee on the claim for specific performance as directed by the lower Court and that it is not proper to reject the plaint on the ground of noncompliance with the order. We therefore set aside the order of the lower Court and direct it to receive the plaint on the plaint-iii paying the additional court-fee on the claim for specific performance within one month from the date of the receipt of this order m the lower Court. In default of this payment, this appeal will stand dismissed. We also direct that the appellant should pay the costs of this appeal to the respondents. The appellant will be entitled to a refund of the court-fee paid in this appeal but only on his complying with the order of this Court by paying the additional court-fee in the lower Court within the time allowed.