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Annamalai Mudaliar Vs. Kristappa Mudaliar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in153Ind.Cas.666
AppellantAnnamalai Mudaliar
RespondentKristappa Mudaliar and ors.
Cases ReferredIndia v. Lakhanna
Excerpt:
court fees act (vii of 1870), sections 7(iv)(b), schedule ii, article 17a(i) - suit for partition by co-parcener in possession with prayer for declaring sale by receiver not binding on his share--proper court-fee. - .....present case, however, the sale was made for paying off the father's antecedent debts and such a sale is binding upon the son, unless he affirmatively proves that the debts are either illegal or immoral. it is contended that on that ground the sale in the case in hand is prima, facie good and, therefore, it is the son's duty to have it set aside. i do not think it would be right to import such a distinction in deciding a question of court-fee, a distinction based upon the onus of proof. i, therefore, hold that in regard to this relief, the plaintiff should be called upon to pay a court-fee on the basis that it is governed, by article 17-a(-i) of schedule ii as already stated.5. the case will go back to the lower appellate court, for being dealt with according to law. i make no order as.....
Judgment:

Venkatasubba Rao, J.

1. The suit as framed is one for partition of the joint family property by a co-parcener in possession and that being so, the provision of the Court Fees Act that applies, is Section 7(iv)(6), which reads thus:

to enforce the right to share in any property on the ground that it is joint family property. Boganadam Rangiah Chetty v. Boganadam Suiramania Chetty 8 Ind. Cas. 512 : 21 M.L.J. : (1910) M.W.N. 755 : 9 M.L.T. 3 (F.B.).

2. The valuation of the relief under that section rests with the plaintiff, who has valued it at Rs. 10, and I must hold that the proper court-fee has been paid in respect of this relief. There is no allegation in the plaint that the plaintiff became divided in status, and there is nothing to show in what circumstances he was allowed to put forward such a case at the trial. It is suggested, that probably at the framing of the issues on the statements made by the party or his Counsel, an issue was raised as to whether there was a division in status. With this I am not concerned and I do not propose to consider whether the plaintiff should have been allowed to put forward a different case without amending his plaint. If the claim is to be treated as by a divided member, Mr. Rajamannar contends that not only would the court-fee payable be different (he argues that Article 17-B of Schedule II would then apply but that even a question of jurisdiction would arise. As I have said, all that I am now concerned with is, what is the proper court-fee payable on the plaint as it stands? I wish to make it quite clear that that is the only question with which I can now deal.

3. There is a further relief prayed for in the plaint, namely, that certain alienations made by the Official Receiver should be set aside. The plaintiff alleges that his father, the 1st defendant, became insolvent, that the latter's debts are not binding upon his share and that, therefore, he is not bound by the sales made by the Official Receiver, the 7th defendant. On that ground, he prays for a declaration that the sales are not binding, and further that they may be set aside. Mr. Rajamannar contends that it is obligatory upon the plaintiff to get the sales set aside and that being so. Section 7(iv-A) applies. Breads thus:

In a suit for cancellation of a decree for money or other property having a money value or other document securing money or other property having such value, according to the value of the subject-matter of the suit.

4. The case on which he relies, Doraiswamy Mudaliar v. Thangavelu Mudaliar : AIR1929Mad668 decided by me, relates to a transaction by a guardian of a minor, whereas the present suit is altogether of a different kind, the sale attacked being virtually that by an undivided Hindu father. It has been held by a Bench of this Court, of which I was a member, in Secretary of State for India v. Lakhanna : AIR1933Mad430 that in the case of an alienation by the father, it is sufficient to obtain a mere declaration that it is not binding and the article that was held applicable in respect of such a relief, is Article 17-A(i) of Schedule II, the one relating to the obtaining of a declaratory decree where no consequential relief is prayed. By that decision of the Bench I am bound, but a distinction, it is urge), exists between that case and the present one. There, all that appears from the report is, that the mortgage was effected by the father; in such a case it is for the creditor to make out that the alienation is binding upon the son. In the present case, however, the sale was made for paying off the father's antecedent debts and such a sale is binding upon the son, unless he affirmatively proves that the debts are either illegal or immoral. It is contended that on that ground the sale in the case in hand is prima, facie good and, therefore, it is the son's duty to have it set aside. I do not think it would be right to import such a distinction in deciding a question of court-fee, a distinction based upon the onus of proof. I, therefore, hold that in regard to this relief, the plaintiff should be called upon to pay a court-fee on the basis that it is governed, by Article 17-A(-i) of Schedule II as already stated.

5. The case will go back to the lower Appellate Court, for being dealt with according to law. I make no order as to costs.


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