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Mrs. J. Kasthuri and ors. Vs. Seth Ghanshamdas Vonsimal Deva Bank - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1979)2MLJ11
AppellantMrs. J. Kasthuri and ors.
RespondentSeth Ghanshamdas Vonsimal Deva Bank
Cases ReferredR. Muthammal v. Narmada and Ors.
Excerpt:
- .....to the present case as the document of partition is void and need not therefore be set aside as a void document is non est in law. but section 40 would apply to a case of cancellation of a document which 'purports or operates to create, declare, assign' etc. it cannot be gainsaid that this document of partition purports to create certain rights. the question now is not whether it is void or voidable, but the question is, whether it would fall within the ambit of section 40. having read the provision of the act, i am unable to say that this document, whatever its real character may be, void or voidable, would not fall within the ambit of the said provision. the order of the court below is correct.9. the above decision was followed by this court in r. muthammal v. narmada and ors. :.....
Judgment:
ORDER

M. M. Ismail, J.

1. This is a petition to revise the order of the learned IV Assistant Judge, City Civil Court, Madras, dated 25th September, 1976 directing the petitioner herein who were the plaintiffs in O.S. No. 4390 of 1973 to pay court-fees under Section 40 or the Tamil Nadu Court-fees Act, 1955 hereinafter referred to as the Act. The petitioners herein who were the plaintiffs in the suit stated that one Ghanshamdas Chaturbuj introduced one B. E. Loungani of the first defendant firm to them, that the said Loungani became an intimate friend of the second plaintiff (second petitioner herein), that the said Loungani represented that he would require hundies for the purpose of accommodation to enable him. to discount with third parties and raise monies thereon for the purpose of his business, that the said Loungani also assured the plaintiffs that he would himself make the necessary arrangements for the honouring of the hundies on the due dates and that no liability would be fastened upon the plaintiffs and that he had facilities with the second defendant for accommodation to the extent of Rs. 50,000 The plaintiffs 'further stated in the plaint that to oblige the first defendant they gave three documents styled as hundies duly signed by them, that no dates or other particulars were mentioned in those documents stated to be hundies except the signatures and addresses of each of the plaintiffs in each, of the documents, that the said documents were not supported by consideration, at all and that they were intended to accommodate the first defendant. However, according to the plaintiffs, the defendants colluded and conspired together and with the mala fide intention of mulcting liability on the plaintiffs threatened to take action against them in respect of the aforesaid hundies, the conduct of the defendants was thoroughly mala fide and fraudulent and collusive; the plaintiffs were being cheated by the defendants compelling them to part with large sums of money as though full consideration was paid under each of the hundies; and hence it has become necessary to institute the suit for a declaration that the three hundies were invalid and inoperative. On the basis of these averments the plaintiffs prayed for a decree:

(1) declaring that the three documents styled as hundies for Rs. 5,000 each falling due on 30th May, 1973, 2nd July, 1973 and 2nd June, 1973 respectively in 'favour of the first defendant are invalid inoperative and void; and

(2) for costs.

2. Among other defences, one defence taken by the first defendant was that the court-fee should have been paid under Section 40 of the Act and that the plaintiffs could not have valued the suit and paid the court-fee under Section 25 (d) of the Act.

3. The learned IV Assistant Judge accepted the contention of the first defendant in this behalf and held that the plaintiffs had to pay court-fee under Section 40 of the Act and not tinder Section 25 (d) of the Act and gave time to the plaintiffs to pay the court-fee under Section 40 of the Act. It is this order that is challenged in the present civil revision petition.

4. Section 25 of the Act deals with suits for declaration. After dealing with suits for declaration and for possession of the property in Clause (a) and for declaration and consequential injunction with reference to immoveable property in Clause (b) and for declaration in relation to the exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing in Clause (c), it provides in Clause (d) follows:

In other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred whichever is higher.

Section 40 of the Act deals with suits for cancellation of decrees, etc., and Section 40 (1) reads as follows:

In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be.

If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;

If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.

I have already referred to the averment contained in the plaint and the prayer of the plaintiffs. It is true that the prayer is in the form of a declaration. But the real question for consideration is, whether it is the form of the prayer that determines the court-fee payable or it is the substance of the relief which the plaintiff prays for that determines the court-fee payable. There can be no doubt whatever that for the purpose of determining the court-fee payable, it is the substance of the relief that a plaintiff prays for that has to be taken into account and not the technical form of the prayer. If it is to be otherwise, mere astuteness and ingenuity of the person drafting the plaint will have the effect of not only camouflaging and disguising the real relief which a plaintiff claims in a suit but also nullifying and defeating the provisions of law dealing with the payment of court-fee based on the nature of the relief litigants seek in a Court of law.

5. In Mt. Zeb-ul-Nisa and Ors. v. Chaudhin Din Mohammad and Ors. A.I.R. 1941 Lah. 97, the plaintiff had sued for a two-fold declaration (i) that the property described in the plaint Was a wakf, and (ii) that certain alienations thereof by the mutawalli and his brother were null and void and were ineffectual against the waqf property. It was held that the second part of the declaration was tantamount to the setting aside or cancellation of the alienations and therefore, the relief claimed could not be treated as a purely declaratory one and inasmuch as it could not be said to follow directly from the declaration sought for in the first part of the relief, the relief claimed in the case could be treated as a, declaration with a consequential relief. It was pointed out in that case that in deciding whether a suit is purely declaratory, the substance and not merely the language or the form of the relief claimed should be considered. The Court observed:

It seems to me that neither the answer to the question whether the plaintiff is or is not a party to the decree or the deed sought to be declared as null and void, nor to the question whether the declaration sought does or does not fall within the purview of Section 42, Specific Relief Act, furnishes a satisfactory or conclusive test for determining the court-fee payable in a suit of this description. When the plaintiff is a party to the decree or deed, the declaratory relief, if granted, necessarily relieves the plaintiff of his obligations under the decree or the deed, and, hence it seems to have been held in such cases, that the declaration involves a consequential relief. In cases where the plaintiff is not a party to the decree or the deed, the declaratory relief does not ordinarily include any such consequential relief. But there are exceptional cases in which the plaintiff though not a party to the deed or the decree is never-the-less bound thereby. For instance, when a sale or mortgage of joint family property is effected by a manager of a joint Hindu family, the alienation is binding on the other members of the family (even if they are not parties to it) until and unless it is set aside. Similarly, a decree passed against the manager will be binding on the other members of the family. If therefore a coparcener sues for a declaration that such an alienation or decree is null and void, the declaration must, I think, be held to include consequential relief in the same way as in those cases in which the plaintiff is himself a party to the alienation or the decree, which is sought to be declared null and void. The case dealt with in Sohindar Singh v. Shankar Das A.I.R. 1936 Lah. 166, seems to have been of this description. The case of an alienation by a mutawalli of waqf property would also appear to stand on a similar footing. In the case of waqf property, it is only the trustee or the mutawalli who can alienate the property. If he makes art alienation it is binding on. all concerned, until and unless it is set aside. If therefore a person sues to get such an alienation declared null and void, he can only do so by getting the deed invalidated. The relief claimed in such cases also may therefore be found to include a consequential relief.

6. In Prithvi Raj and another, minors under guardianship of Mt. Tehl Kaur v. D. C. Ralli and Ors. A.I.R. 1945 Lah. 13, it was held that in a suit by the son for a declaration that the mortgage decree obtained against his father was not binding upon him, it is essential for the son to ask for setting aside of the decree as a consequence of the declaration claimed and to pay ad valorem court-fee under Section 7(iv)(c). It was also pointed out that a decree against the father is a good decree against the son and unless the decree is set aside it would remain executable against the son, and it was essential for the son to ask for setting aside the decree. In Vinayakrao v. Mankunwar bai , it was held that in a suit by the son for a declaration that decree against the father does not affect his interests in the family property, consequential relief is involved and ad valorem court-fee would be necessary.

7. All these decisions were referred to and approved by the Supreme Court in Shdmsher Singh v. Rajindar Prashad and Ors. : [1974]1SCR322 . In that case, on 13th July, 1962, the father executed a mortgage deed in favour of the appellant of a property of which he claimed to be the sole owner for a sum of Rs. 16,000. The mortgagee, the appellant, filed a suit on the foot of this mortgage and obtained a decree. When he tried to take out execution proceedings for the sale of the mortgaged property, respondents 1 and 2 before the Supreme Court filed a suit for a declaration that the mortgage executed by their father in favour of the appellant was null and void and ineffectual as against them as the property was a joint Hindu family property, and the mortgage had been effected without consideration and family necessity. On this plaint the plaintiffs paid a fixed court-fee of Rs. 19-50 and the value of the suit for purposes of jurisdiction was given as Rs. 16,000. A preliminary objection having been raised by the appellant that the suit was not properly valued for purposes of court-fees and jurisdiction, the Subordinate Judge tried it as a preliminary issue. He held that although the case is covered by Section 7(iv)(c) of the Court-fees Act, the proviso to that section applied and directed the plaintiffs to pay court-fee on the value of Rs. 16,000 which was the amount at which the plaintiffs valued the suit for the purpose of jurisdiction. The court-fee not having been paid the plaint was rejected. But when the matter was taken up to the High Court, the High Court held that the plaintiffs were not at all bound by the mortgage in dispute or the decree and that therefore there was no consequential relief involved since neither the decree nor the alienation bound the plaintiff in any manner. It was against that decision the matter was taken up to the Supreme Court by the first defendant. The Supreme Court held:

As regards the main question that arises for decision it appears to us that while the court-fee payable on a plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint and the question whether the plaintiff's suit will have to fail for failure to ask for consequential relief is of no concern to the Court at that stage, the Court in deciding the question of court-fee should look into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for. In this case the relief asked for is on the basis that the property in. dispute is a joint Hindu family property and there was no legal necessity to execute the mortgage. It is now well-settled that. under Hindu Law if the manager of a joint family is the father and the other members are the sons the father may by incurring a debt so long as it is not for an immoral purpose lay the joint family-estate open to be taken in execution, proceedings upon a decree for the payment of the debt not only where it is an unsecured debt and a simple money-decree for the debt but also to a mortgage debt which the father is personally liable to pay and to a decree for the recovery of the mortgage debt by the sale of the property even where the mortgage is not for legal necessity or for payment of antecedent debt (Faqir Chand v. Harnam Kaur : [1967]1SCR68 ). Consequently when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was. not binding on them they were really asking either for setting aside the decree or for the consequential relief of injunction; restraining the decree-holder from executing the decree against the mortgaged property as he was entitled to do.

In this view, the Supreme Court set aside the decision of the High Court and restored the order of the learned Subordinate Judge and directed the plaintiffs to pay the court-fee on the value of Rs. 16,000.

8. A. Gopalakrishna Iyengar v. P. Srirengammal and Anr. : (1964)1MLJ278 , is a decision of this Court concerning Section 40 of the Act. In that case, a suit was laid for recovery of possession of properties and for accounting. The properties originally belonged to one Krishna Iyengar. He had a son by name Ananthakrishna Iyengar, who, however, predeceased his father. The first defendant in the suit was the widow of Ananthakrishna Iyengar and the plaintiff in the suit was their only son. It was alleged that there was a partition between the mother and the son in and by which the mother got a life estate in respect of the first schedule properties and the second schedule house was purchased by the first defendant from and out of the income of the properties and the cash assets in her hands. On a check-slip placed before the Court below by the Court-fee Examiner, the learned Subordinate Judge took the view that the matter was governed by Section 40 of the Act and called upon the plaintiff to pay additional court-fee in conformity with the said provision. It was the correctness of that direction that was the subject-matter of consideration by this Court in that decision. This Court pointed out:

It is contended by Mr. Sitarama Ayyar, learned Counsel for the petitioner that Section 40 would, be inapplicable to the present case as the document of partition is void and need not therefore be set aside as a void document is non est in law. But Section 40 would apply to a case of cancellation of a document which 'purports or operates to create, declare, assign' etc. It cannot be gainsaid that this document of partition purports to create certain rights. The question now is not whether it is void or voidable, but the question is, whether it would fall within the ambit of Section 40. Having read the provision of the Act, I am unable to say that this document, whatever its real character may be, void or voidable, would not fall within the ambit of the said provision. The order of the Court below is correct.

9. The above decision was followed by this Court in R. Muthammal v. Narmada and Ors. : (1975)2MLJ304 . In that case, with regard to the properties of one Rangaswami Naidu there was a partition suit in O.S. No. 134 of 1969 to which the member of the family of Rangaswami Naidu were parties. Rangaswami Naidu had two sons of whom one Venkataswami Naidu, was the second. In the partition suit, not only Venkataswami Naidu, but his son, the ninth defendant in the subsequent suit were made parties. Ultimately the suit was compromised on 9th July, 1969 and a compromise decree was passed in the said suit under the terms of which the A schedule properties in the subsequent suit were given to Venkataswami Naidu and his minor son, and in addition, the B schedule property in the subsequent suit was given to the minor to be enjoyed by him absolutely. In the subsequent suit the plaintiff was the widow of Rangaswami Naidu and she claimed that subsequent to the compromise decree she came to know through her son Venkataswami1 that he had already been married to one Janaki and as such, Venkataswami's marriage with the tenth defendant Krishnaveni, who was the mother of the minor ninth defendant, was a void marriage. The further case of the plaintiff in the subsequent suit was that the compromise in the earlier suit proceeded on the assumption that the tenth defendant was the legally wedded wife of Venkataswami and the ninth defendants, an offspring of lawful wedlock, and was therefore entitled to a share in the joint family properties which were sought to be partitioned in O.S. No. 134 of 1969. Venkataswami died subsequent to the compromise decree and had left behind him his wife Krisfonaveni the tenth defendant in the subsequent suit, whose valid marriage with Venkataswami was impugned and a minor son and a daughter who were respectively the ninth and eleventh defendants in the subsequent suit. According to the plaintiff the ninth and eleventh defendants were only the illegitimate children of Venkataswami and would therefore have no rights whatever in the A and B schedule properties and were bound to re-deliver those properties in their possession to the plaintiff and the other heirs of Rangaswami Naidu. The prayer in the suit was as follows:

The plaintiff, therefore, prays that the Court may be pleased to pass a decree:

(a) declaring that the plaintiff is entitled to items 1 and 2 in the B schedule to the plaint and issuing a permanent injunction restraining defendants 9 to 11 from disturbing or interfering with the plaintiff's possession of the same or from collecting the rents for the said items;

(b) directing that the A schedule properties be divided into 18 shares by metes and bounds ordering delivery of 10 such shares to the plaintiff;

(c) directing items 3 to 6 in B schedule be divided into 9 shares and ordering delivery of one such share to the plaintiff; * * * * *

The suit was valued under Section 25 (b) and Section 37 (1) of the Act. The Court-fee Examiner issued a check slip raising an objection that, since the plaintiff herself was a party to the compromise decree in the earlier suit, she should get the decree cancelled under Section 40 of the Act before further reliefs of declaration and partition in respect of the properties covered by that decree were sought for. The view of the Court-fee Examiner was upheld by the trial Court and it was confirmed by this Court in the decision in question. This Court, after referring to the earlier decision and after extracting Section 40 (1) of the Act pointed out:

From the wording of the section it may be seen that a drastic change has been made in the matter of payment of court-fee in respect of suits where a cancellation of a decree for money or other property having a money value or other document which purports or operates to create, declare, assign, limit or extinguish any right, title or interest in money, movable or immovable property, is asked for. Undoubtedly, the compromise decree O.S. No. 134 of 1969 is a document, which purports or operates to create, declare and assign the right, title and interests of parties in the properties involved in the said suit. It therefore goes without saying that unless that compromise decree is set aside, the plaintiff will not be entitled to ask for the reliefs of declaration, partition and possession.

10. From the above decisions, it is clear that the plaintiffs in the present case having executed the hundies, they will have to have those hundies cancelled or set aside and for that purpose they will have to pay court-fee under Section 40 of the Act. By merely couching the prayer in the form of a declaratory relief, the plaintiffs cannot avoid the reality of the situation, namely, that they are challenging the hundies executed by them on the ground that they were not. supported by consideration and they were obtained by misrepresentation or fraud. Under these circumstances, it will be clear that the learned IV Assistant Judge was right in directing the petitioners herein to pay court-fee under Section 40 of the Act.

11. However, the learned Counsel for the petitioners drew my attention to a judgment of this Court in R. D. Somasundaram Pillai, a person of unsound mind, by his second son and next friend S. Bhuaneswar v. S. Janaki Ammal and Ors. (1955) 1 M.L.J. 310. In that case, a suit was filed by the plaintiff, a person or unsound mind, by next friend for declaring that a deed of gift executed by him was void and not binding on him. It was held that the court-fee could be paid under Article 17-A (1) of Schedule II of the Court-fees Act, 1870, and that the mere circumstance that the plaintiff asked for a declaration that the deed of gift was void, having been executed by a person who was not of sound mind, did not amount to asking for a relief in the nature of a cancellation of the document, but only asking the Court to give a declaration of the void nature of the document by reason of the contractual incapacity of the party. From one point of view, the above decision rendered with reference to the Court-fees Act, 1870 may not apply to the present case in view of what was pointed out by this Court in R. Muthammal v. Narmada and Ors. : (1975)2MLJ304 , to which I have just made reference wherein it was stated that a drastic change had been made in the matter of payment of court-fee under Section 40 of the Act. Apart from that, this decision is clearly distinguishable. In fact, the learned Judge has pointed out in this decision:

In so far as a suit on behalf of a person of unsound mind to set aside a transaction to which he was a party is concerned, it is not in any way substantially different from the one seeking to set aside a contract by a minor during his minority and the contract by a person of unsound mind is equally void as that of a minor's contract. Both are in the position of persons not competent to contract and transactions entered into by them are void ab initio and there is no need therefore in any suit or proceeding where such persons seek relief to have the cancellation of such a document. They might ignore the existence of such a document as being void and of no effect and proceed to establish their right to other reliefs consequent on the transaction being void.

That is not the case here and therefore that decision will have no application to the present controversy.

12. The result is, the civil revision petition fails and is dismissed. There will be no order as to costs.

13. Time for payment of cour-fees--Two(weeks from this date.


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