1. The question in this rule is one of court-fee payable on a plaint. The suit is one for administration, and has been instituted by the plaintiff in his capacity as executor. He not only asks for construction of the will and administration of the estate, but also prays for accounts and partition and for a number of other incidental reliefs, mainly in the nature of directions from the Court as to how the estate is to be distributed. The defendants say that the suit is a mala fide one, and is only a device to get round a distribution of the legacies already effected in pursuance of an award in a private arbitration among the various legatees and beneficiaries, and that it is also an attempt on the part of the plaintiff to escape payment of certain amounts for which he has made himself personally liable. We are not, however, concerned with the merits of the case at this stage, but must proceed on the allegations in the plaint. The plaintiff has paid a total court-fee of Rs. 86-4-0 on the plaint in respect of the various reliefs claimed, made up as follows: (i) Rs. 15 for construction of the will and administration, (ii) Rs. 56-4-0 for accounts on a provisional valuation for Rs. 485, and (iii) Rs. 15 for partition. So far as item (i) is concerned, it is stated that the fee is paid under Clause (vi) of Article 17 of Schedule 2, Court-fees Act, which provides for a fixed fee of Rs. 15 for a suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by the Act. A similar fee is also paid in respect of item (iii), presumably under the same provision, while the fee under (ii) is an ad valorem fee paid under Clause (f) of para, (iv) of Section 7, being subject to payment of an additional fee in case the amount due is found to exceed the amount claimed. As regards the claim for construction of the will and administration, it is further stated that for determining the court-fee and the jurisdiction of the Court the claim is laid at Rs. 4,34,611.
2. An issue was raised on the question of court-fees, and this was decided first on 31st July 1940. The learned Subordinate Judge, in whose Court the suit was instituted, found that court-fees paid were sufficient. It is this order which one of the defendants challenges in this rule. No question is raised as regards the fee paid on the claim for accounts, but the dispute is in respect of the other two items. The points urged by Mr. Das on behalf of the petitioner were as follows: (i) that the suit was not merely one for administration but also for partition, and as according to the plaintiff's own case he was out of possession, he should have paid ad valorem court-fees according to the value of the subject-matter in dispute; (ii) that treating the suit as one for administration, it is still in essence a suit for accounts, and hence comes under Section 7, para. (iv), Clause (f); the court-fee should accordingly be payable on the valuation put by the plaintiff himself on the relief claimed, such valuation being the same both for purposes of jurisdiction and for court-fees under Section 8, Suits Valuation Act. The valuation here having been given as Rs. 4,34,611 the court-fee should have been paid ad valorem on this basis. The learned Subordinate Judge does not appear to have considered the first point at all. As regards the second, the order (unless the certified copy is wrong) speaks with an uncertain sound. In one place he says quite explicitly that the relief claimed in respect of construction and administration was incapable of valuation, and that the case, therefore, fell under Clause (vi) of Article 17 of Schedule 2, so that a fixed fee of Rs. 15 would be the proper fee to pay. But in another part of the order he seems to suggest that the suit is one under Section 7, para. (iv), Clause (f), which means an ad valorem fee according to the amount at which the plaintiff values the relief sought, and he also goes on to deal with the contention under Section 8, Suits Valuation Act, which, as the section itself shows, would arise only if ad valorem court-fees were payable. The learned Subordinate Judge's interpretation of this section is as follows:
The meaning of Section 8, Suits Valuation Act, is that the value for purposes of jurisdiction shall follow the value to be given for purposes of court-fees, not vice versa: Court-fees Act, In the matter of ('30) 17 AIR 1930 Cal 686.
3. 'No doubt in this case,' he says,
the suit was valued at Rs. 4, 34,611 for purposes of jurisdiction, but it shall follow the value given for purposes of court-fees.
4. It is thus difficult to make out what the learned Judge really meant to hold, but if he is right in the view he takes regarding Section 8, Suits Valuation Act, it should follow, seeing that a court-fee of Rs. 15 only was actually paid for the relief in question, that the valuation for purposes of jurisdiction ought to be only such amount as this court-fee would correspond to according to the ad valorem scale in Schedule 1, Court-fees Act; in other words, that it should be only Rs. 140, that being the maximum valuation for which a fee nearest to Rs. 15 is payable under this schedule. The consequence of this would, of course, be to oust the jurisdiction of the Subordinate Judge, as the suit would then be one within the pecuniary valuation of suits triable by a Munsif. Mr. Das conceded that in so far as the suit was one under Section 7, para. (iv), Clause (f), it was open to the plaintiff to put his own valuation on the relief claimed, subject to the provisions of Section 8C, and that from that point of view, the plaintiff might still apply for amendment of the valuation, but he maintained that so long as it was not amended, the valuation of Rs. 4,34,611 already given must stand and the court-fee must be paid on this amount. As it was, said Mr. Das, the court-fee actually paid was wholly irreconcilable with the valuation. Mr. Sen on behalf of the opposite party was unable to resist the force of this argument, and admitted that in his own interest the plaintiff ought to get the valuation amended to obviate all difficulties in future, if not at the present stage, though perhaps he might have invoked the authority of decisions like Suraju Bala Dasi v. Jogemaya Dasi ('18) 5 AIR 1918 Cal 895 in support of the order as made in favour of his client.
5. Mr. Sen's main point against the rule was that no revision lay under Section 115, Civil P.C., against an order relating to court-fees where the decision was in favour of the plaintiff. In support of his argument, he relied on a Full Bench ruling of the Patna High Court, Ramkhelavan Sahu v. Surendra Sahi ('38) 25 AIR 1938 Pat 22. It was held in this case that in deciding the question of court-fees, the Court decides an issue not as between the plaintiff and the defendant, but as between the plaintiff and the Crown. If the decision be adverse to the plaintiff, it amounts to a decision to refuse to exercise its jurisdiction to try the suit, and such decision is subject to the revisional jurisdiction of the High Court. Where, however, the decision is in favour of the plaintiff, it is not open to the defendant to apply to the Court for revision. Reliance was specially placed on the observations of the Full Bench at pp. 781-782 of the report, where their Lordships state the following reasons in support of their view. In the first place, it is said, the defendant is not a party to the dispute between the Crown and the plaintiff; secondly, he has a remedy, should the decision on merits be against him, in bringing the matter of the court-fee to the notice of the appellate Court under Section 12, Court-fees Act, and thirdly, and most important as between the plaintiff and the defendant the trial Court has not refused to exercise its jurisdiction to decide the case on the merits. The learned Judges quoted the following dictum of the Judicial Committee in Rachappa Subrao v. Shidappa Venkatrao ('18) 5 AIR 1918 PC 188 at page 32:
The Court-fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State.
6. Taking the Full Bench decision as it stands, we are not satisfied that it can be of much assistance to the opposite party in this case. Without considering how far it is consistent to hold that a decision will be open to revision if it is adverse to the plaintiff, not if it is in his favour, in other words, that the revisional jurisdiction may be invoked only by one party and not by the other, it is sufficient to say that the ruling does not seem to apply where the question is not one as to the proper valuation on which the court-fee is to be computed, but as to the proper classification of a suit, that is to say, whether the suit falls within a particular category under Section 7 or whether it comes under one or the other schedule of the Court-fees Act. Such a question cannot be regarded as merely one between the plaintiff and the Crown, for it may affect the jurisdiction of the Court to entertain the suit and that is a matter in which the defendant is certainly interested. That we are not taking an unduly restricted view of the scope and effect of the Full Bench decision will appear to be clear from the statement of the reasons given for the decision, and particularly from the reference to Section 12 of the Act. Such a view would in fact be quite in accord with Section 12 itself which, it will be seen, gives finality and finality 'as between the parties to the suit' (subject to the provisions of Clause (ii) of the section), to the decision of the primary Court only on a question 'relating to valuation for the purpose of determining the amount of any fee chargeable' under chap. 3. As is well known these words 'relating to valuation' have been held in numerous cases to exclude the question of classification and so far as Bengal is concerned, the matter has now been put beyond all doubt by the Explanation recently added by the Court-fees (Bengal Amendment) Act, 1935 (Bengal Act 7 of 1935). The Explanation states that
for the purposes of this section a question relating to the classification of any suit for the purpose of S.7 shall not be deemed to be a question relating to valuation.
7. Neither the Full Bench ruling nor Section 12, Court-fees Act, can, therefore, apply to the present case in which the question really was whether an ad valorem fee or a fixed fee was payable on the plaint. The particular ground on which Mr. Sen opposes the rule thus fails, but as the decision here is not final and would, therefore, be open to appeal, this itself would be a bar to this Court interfering with the order in revision. Mr. Das would meet this contention by urging that the court-fee actually paid in this Court is the correct court-fee ad valorem on a claim of Rs. 140 and that on this valuation the Subordinate Judge would have no jurisdiction to try the suit. This, however, is not his real contention which is that the valuation is more than Rupees 4,00,000 as given by the plaintiff himself, and that the court-fee should be payable on that amount. In this view of the matter,, no question of jurisdiction is really involved in the case. We see, therefore, no reason-to interfere. It will still be open to Mr. Das's client to raise the objection to the sufficiency of the court-fee in appeal if the question of category is then decided in his favour, unless in the meantime the plaintiff amends his valuation of the relief sought and pays court-fee accordingly. The result is that the rule is discharged, but in the circumstances of the case we make no order as to costs.
8. I agree.