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Kalliya Pillai Alias Sernthaya Pillai and anr. Vs. Ramaswamy Pillai (insane) by Wife and Next Friend and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in119Ind.Cas.35
AppellantKalliya Pillai Alias Sernthaya Pillai and anr.
RespondentRamaswamy Pillai (insane) by Wife and Next Friend and ors.
Cases ReferredVuppuluri Atchayya v. Kanchumarti Venkata Seetarama Chandra Rao
Excerpt:
civil procedure code (act v of 1908), section 115 - court-fee, order relating to--revision--interference--splits valuation act (vii of 1887), section 11, whether bars revisional jurisdiction--court fees act (vii of 1870), section 7(iv) a and (c), schedule ii, article 17-a (i)--suit to declare will set up by defendants void and for cancellation of. will and registration--court-fee payable--valuation of suit. - venkatasubba rao, j.1. the question to be decided is, has the suit been properly valued for the purposes of jurisdiction. the suit has been filed in the court of the district munsif and the defendants object that it is not the proper court and the court having jurisdiction is the sub-court. the facts of the case are that the plaintiff, the 1st, the 2nd and defendant 3rd are sons of one perumal pillai. the 1st and 2nd defendants it is said have put forward a will which is alleged to be that of their father. the plaintiff says that this will is a forgery and that there are previous wills which confer upon him a larger benefit. he prays in his plaint; first, that the will may be declared to be a forgery, secondly that the will may be cancelled and thirdly, that the order of the sub-registrar.....
Judgment:

Venkatasubba Rao, J.

1. The question to be decided is, has the suit been properly valued for the purposes of jurisdiction. The suit has been filed in the Court of the District Munsif and the defendants object that it is not the proper Court and the Court having jurisdiction is the Sub-Court. The facts of the case are that the plaintiff, the 1st, the 2nd and defendant 3rd are sons of one Perumal Pillai. The 1st and 2nd defendants it is said have put forward a Will which is alleged to be that of their father. The plaintiff says that this Will is a forgery and that there are previous Wills which confer upon him a larger benefit. He prays in his plaint; first, that the Will may be declared to be a forgery, secondly that the Will may be cancelled and thirdly, that the order of the Sub-Registrar registering the Will may also be cancelled, I may mention that it is alleged by the plaintiff that he and the 3rd defendant are in possession of the property. The District Munsif has held that he had no jurisdiction and directed the plaint to be presented to the proper Court. The learned Subordinate Judge set aside this order and holding that the Munsif's Court had jurisdiction remanded the suit to that Court for being disposed of according to law.

2. A preliminary objection has been taken that no revision petition lies. Where the order complained against relates only to a question of Court-fee it has been held that the High Court can interfere in revision if the lower Court's order is unfavourable to the, plaintiff. Venkata Ramani Iyer v. Narayanaswami 87 Ind. Cas. 660 : 21 L.W. 649 : (1925) M.W.N. 276 : 48 M.L.J. 688 : A.I.R. 1925 Mad. 713, Karuppina Thevar v. Angammal 96 Ind. Cas. 129 : 23 L.W. 581 : A.I.R. 1926 Mad. 678 : 51 M.L.J. 67 and Kulandai Pandichi v. Indram Ramaswami 108 Ind. Cas. 539 : 51 M. 664 : 27 L.W. 286 : A.I.R. 1928 Mad. 416 : 55 M.L.J. 345. It has also been held that if the order is favourable to the plaintiff, the High Court does not interfere with that order in the exercise of its powers of revision. Muhammad Elliyas v. Rahima Bibee 114 Ind. Cas. 840 : 29 L.W. 42 : A.I.R. 1929 Mad. 191. In this case, dealing first with the question of Court-fee, the defendants say that a larger Court-fee is payable than what the Subordinate Judge has held is the proper fee. If the question is, therefore, one relating to Court fee alone, I should refuse following Muhammad Elliyas v. Rahima Bibee 114 Ind. Cas. 840 : 29 L.W. 42 : A.I.R. 1929 Mad. 191 to set aside the order in the exercise of our revisional powers. In this case the question is not only one of Court fee but also of jurisdiction. The learned Advocate for the respondents, argues that our revisional jurisdiction is excluded by Section 11 of the Suits Valuation Act. I cannot agree with this contention. That section has the effect of curing the defect after a mistake in regard to jurisdiction is committed; it certainly does not say that a superior Court has no power to prevent before hand a mistake from being committed. The learned Advocate relies upon Raman v. Secretary of State for India 24 M. 427 : 11 M.L.J 315. which has no bearing on the powers of revision. Under Section 115 of the Code of Civil Procedure, there can be no doubt that we can interfere in a case of this kind. It is certainly our duty to prevent a wrong assumption of jurisdiction by Courts Subordinate to us. The question is now settled by authority. Vuppuluri Atchayya v. Kanchumarti Venkata Seetarama Chandra Rao 18 Ind. Cas. 555 : 39 M. 195 : 13 M.L.T. 60 : 24 M.L.J. 112 is a case on all fours and the preliminary objection is overruled.

3. In regard to the Court-fee payable, what is the proper provision applicable? It is first suggested that Section 7iv A of the Court Fees Act applies. It is obvious that it does not as the suit is not for a relief coming within that section The Will sought to be cancelled is clearly not a document securing money or property having money value.

4. Next, it is suggested that Section 7iv(c) is the section applicable. It applies if the relief asked for is declaratory decree plus consequential relief. In this case, can it be said that the plaint prays for any consequential relief? 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 present suit is a suit of this description. The plaintiff asks that the Will may be declared void.

5. That section further enacts, that in such a suit, the Court may in its discretion, adjudge the instrument void or voidable and order it to be delivered up and cancelled. In a suit rightly framed under that section, it is the Court's function to order the instrument to be cancelled; it is not a part of the prayer in the plaint. Then again the section goes on to say that if the instrument is one that has been registered under the Registration Act, the Court shall send a copy of its decree to the Registration Officer who shall note in his book, that the instrument has been so cancelled. This again is not a relief which it is the duty of the plaintiff to sue for, but is the duty of the Court to grant. Now looking at the present plaint, it is thus clear that the prayer relating to (I) the cancellation of the Will and (2) the cancellation of the registration is unnecessary and superfluous.

6. In deciding what the proper Court-fee payable is, the Court must have regard to the substance of the thing and not to the mere form in which the relief has been prayed for Palaniappa Chetti v. Sithravelu Servai 31 M. 14 : 17 M.L.J. 478 : 3 M.L.T. 8 and Venkata Ramani Iyer v. Narayanaswami 87 Ind. Cas. 660 : 21 L.W. 649 : (1925) M.W.N. 276 : 48 M.L.J. 688 : A.I.R. 1925 Mad. 713. Then again is it obligatory upon the plaintiff to have the Will set aside? For instance, if a person, who feels aggrieved by a Will sues for recovery of immoveable property covered by it which happens to be in the possession of a third party, claiming the property on the strength of that Will, can it be successfully contended that such a suit is governed not by the ordinary 12 years period but that the plaintiff is first bound to get the Will set aside within the shourter period provided by Article 91 of the Limitation Act? Such a contention cannot prevail. I am clearly therefore of the opinion that Section 7IV(c) does not apply.

7. The provision that is, therefore, applicable is Schedule II, 17-A(1) which applies to a suit 'to obtain a declaratory decree where no consequential relief is prayed.'

8. If this is the correct view on the question of Court-fee how is the suit to be valued for the purpose of jurisdiction? It has been held that in such a case, it is not open to the plaintiff to place an arbitrary value upon the relief he claims but that he is bound to assess it, according to the market value of his interest in the properties in question. Venkatache Ram Pillai v. Srinivasa Aiyar Chelasami 75 Ind. Cas. 115 : 18 L.W. 399 : (1923) M.W.N. 747 : A.I.R. 1924 Mad. 84 Ratlayya v. Anne Brahmayya 91 Ind. Cas. 572 : 49 M.L.J. 309 : A.I.R. 1925 Mad. 1223 and Vadreddi Veeramma v. Marupudi Butchiah 101 Ind. Cas. 379 : 50 M. 646 : 25 L.W. 440 : 52 M.L.J. 381 : A.I.R. 1927 Mad. 563. In this case what is the value of the interest that would be lost to the plaintiff if the Will is left outstanding?. That would be the difference between the benefit he takes under the previous Wills relied on by him and the Will he attacks in this suit. If this be so, it is not disputed that the value of the suit would be far in excess of the pecuniary jurisdiction of the District Munsifs Court. I, therefore, set aside the order of the lower Court and direct the plaint to be sent to the District Munsifs Court for being returned by that Court to the plaintiff for presentation to the proper Court.

9. Each shall bear his costs of this revision petition.

Reilly, J.

10. I agree that the preliminary objection that this petition is barred by Section 11 of the Suits Valuation Act cannot be upheld. In this petition we are asked to revise the order of the Subordinate Judge. It cannot be said that the Subordinate Judge in this case, did not when he was hearing the appeal before him, exercise on account of any over-valuation or under valuation a jurisdiction which he had not got. He was bound to hear the appeal before him. Defendants Nos. 1 and 2 who are the petitioners here, want to escape by this petition the disposal of suit by a Court which has no jurisdiction. So far as the further objection goes, that we cannot interfere in revision under Section 115 of the Code of the Civil Procedure with an order such as that made by the learned Subordinate Judge, that is concluded by the opinion of the Full Bench in Vuppuluri Atchayya v. Kanchumarti Venkata Seetarama Chandra Rao 18 Ind. Cas. 555 : 39 M. 195 : 13 M.L.T. 60 : 24 M.L.J. 112

11. On the main question it cannot be disputed, and I did not understand Mr. Rama Aiyer for the plaintiffs seriously to dispute that the plaintiffs could have brought their suit solely for a declaration that the Will was not genuine. What I understand Mr. Rama Ayyar to contend was that his clients were at liberty to add prayers for further relief, for cancellation of the document and for an order to the Registration Department, and those reliefs he represented as consequential reliefs which would bring the suit within Section 7(iv)(c), Court Fees Act. If the suit could have been brought legally for the declaration alone, then I think it is clear that those further reliefs, even if they could be prayed for would not be consequential reliefs within the meaning of Section(iv)(c). If they were consequential reliefs within that meaning then it is obvious that Section 42 of the Specific Relief Act would be a bar to the suit being brought for a declaration alone, as it clearly could be. Therefore whether the plaintiffs hats put in these prayers for additional reliefs or not makes no difference. The suit is essentially as my learned, brother has explained a suit for a declaration alone. That being so, it must come under Article 17-A(1) of Schedule II of the Court Fees Act with the result that the valuation for purposes of jurisdiction must be the market value of the property to the extent that the declaration for which the plaintiffs pray, if they obtain it would affect their interests. The result, therefore, is that, as it has been explained to us that the plaintiffs by getting the declaration that this Will is not genuine Will improve their position to the extent of about a quarter of a lakh or at any rate of a sum far in excess of Rs. 3,000, there is no question that the proper Court is the Subordinate Judge's Court and not the District Munsif's Court. I agree, therefore, with the order proposed by my learned brother.


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