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Hara Gowri Saha and ors. Vs. Dukhi Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.582
AppellantHara Gowri Saha and ors.
RespondentDukhi Saha and ors.
Cases ReferredBidhata Roy v. Ram Charitra Roy
Excerpt:
declaratory decree - suit for partition--prayer that previous solenamah and decree may be declared invalid--consequential relief--court fees act (vii of 1870), schedule ii, article 17 clause (iii) and clause (vi), section 7, clause (iv)(c). - .....by the plaintiffs. the lower court has stated, and we think quite correctly that, if a declaratory decree only was sought, the court-fee payable on the plaint would have been ten rupees only as laid down in the case of zinnatunessa khatun v. girindra nath mukherjee 30 c. 788, because the suit would then fall within schedule ii, article 17, clause (iii) of the court fees act, also, if partition only had been sought, then also a court-fee of ten rupees only would have been sufficient on the authority of the case of bidhata roy v. ram charitra roy 12 c.w.n. 37 : 3 m.l.t. 33 : 6 c.l.j. 651, as the suit would be governed by schedule ii, article 17, clause (vi), of the court fees act. in the present case, the relief which is sought for in the plaint does not appear to us to be merely a.....
Judgment:

1. The only question raised in this appeal is whether the lower Court was right in the view which it took that consequential relief was sought in the plaint as filed by the plaintiffs. The lower Court has stated, and we think quite correctly that, if a declaratory decree only was sought, the Court-fee payable on the plaint would have been ten rupees only as laid down in the case of Zinnatunessa Khatun v. Girindra Nath Mukherjee 30 C. 788, because the suit would then fall within Schedule II, Article 17, Clause (iii) of the Court Fees Act, also, if partition only had been sought, then also a Court-fee of ten rupees only would have been sufficient on the authority of the case of Bidhata Roy v. Ram Charitra Roy 12 C.W.N. 37 : 3 M.L.T. 33 : 6 C.L.J. 651, as the suit would be governed by Schedule II, Article 17, Clause (vi), of the Court Fees Act. In the present case, the relief which is sought for in the plaint does not appear to us to be merely a declaration and a partition, but as stated in prayer (b) attached to the plaint, to have the arrangement which was carried out under the terms of the decree of the 15th November 1904, reversed and to bring into hotchpot for the purpose of making a partition, the properties which, since that arrangement had been in the exclusive possession of one or other of the defendants. It was also sought to have certain additional properties brought into partition. It seems to us impossible to hold that this portion of the prayer in the suit does not constitute consequential relief. The plaintiffs asked that the solenamah and the decree might be declared invalid, and that as a consequence of that declaration the properties, which under that arrangement had' been taken out of their possession, might be restored to their original state as joint property, and then brought under partition. In these circumstances, we think that the view which the lower Court has taken is correct, and that the ad valorem Court-fee payable under Section 7, Clause (iv)(c), of the Court Fees Act should have been paid as ordered by that Court. We, therefore, confirm the judgment and decree of the lower Court and dismiss the appeal with costs.


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