VERONICA Vs. STATE

JUDGEMENT

(1.) This appeal is now before us in connection with the office report that proper court fee has not been paid with respect thereof. The appeal arises from a suit instituted by certain junior members of an Ezhava family for recovery of possession of certain properties alienated by the senior members of the family. The alienation was in 1102 and all the then adult members had taken part in it. The suit was filed in 1120. In the suit the alienation was sought to be impugned as unsupported by consideration and without bona fides or family necessity. The learned temporary Additional District Judge, Anjikaimal, who heard and disposed of the suit granted the plaintiffs a decree almost in terms of the plaint and defendant 10, who is the present owner of one of the two items (item 2) alienated, has brought this appeal against that decree. The appeal has been valued for purposes of court fees as one arising from a suit for recovery of possession of immovable property. The suit was valued likewise. The appellant has paid court fee on the above basis on the market value of item 2. Mesne profits have also been decreed against her and in the appeal court fee is paid on the total valuation and not separately on the two reliefs the Trial Court granted to the plaintiffs, namely, recovery of possession and mesne profits. That forms one of the points raised by the reference. The main question is what the applicatory provision of the Court Fees Act is when a plaintiff seeks to recover possession of immovable property after confessing and avoiding an alienation effected by a limited owner. A further question was raised at the hearing as to the proper mode of assessing the market value of the subject matter when the alienation and the suit relate only to a limited interest and not to the entire interest in the property.

(2.) For purposes of court fees, this appeal is governed by the provisions of the Travancore Cochin State Court Fees Act, 1125. Defendants 5 to 9, who are the present owners of item 1, have preferred a similar appeal in A.S. 57 of 1125 where also the office has raised the question of the inadequacy of the court fee paid. That appeal was preferred before the Travancore Cochin State Court Fees Act came into force and though the relevant provisions of the Cochin Court Fees Act, II of 1080 and the new Act are not materially different the reference with respect to that appeal will be answered separately.

(3.) When this matter came up before us for argument the appellant was represented by Mr. T.M. Mahalingom Iyer, Advocate and the State by Mr. M.N. Parameswaran Pillai, Government Pleader. The first question is whether the appeal can be taken to have been properly valued for purpose of court fees when the valuation is made solely on the basis of the market value of the property and no valuation is made or court fee paid with respect to the relief by way of declaration repeatedly claimed in several paragraphs of the memorandum of appeal as to the valid character of the instrument of alienation found to be void by the Court below. We have said that the suit was valued and court fee paid as in a suit for recovery of possession of immovable property. That mode of valuation and levy of court fee are in accord with a Full Bench decision of the Chief Court of Cochin reported in Narayana Rao v. Subha Rao - 4 Selection Decisions 400. There it was held that a suit to set aside a court sale on the ground of fraud and for recovery of possession of the property which the defendant got possession on the strength of the sale certificate must be valued as a suit for possession of land and the court fee should be paid according to that valuation. The view taken was that the suit was primarily one for possession and the declaration sought was only ancillary to the prayer for possession. S.3(4)(f) of the Travancore Cochin Court Fees Act enacts that in suits to obtain a declaratory decree or order where consequential relief is prayed for, the court fee leviable is according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. The corresponding provision in the Cochin Court Fees Act is to be found in S.4(iv)(c) and it is identically in the same terms. What the case referred to decided was that even though a suit may fall under Sub cl. (c) of Cl. (iv) of S.4 when the consequential relief claimed is recovery of possession of immovable property the suit should be valued and court fee paid as in a suit for possession. Under the Cochin Court Fees Act, a suit for recovery of possession of immovable property was governed by S.4(v). It states that in suits for possession of lands, gardens or houses, the amount of fee payable under the Act is according to the value of the subject matter. Sub cl. (a) provides how that should be ascertained where the subject matter is land or garden and sub cl. (b) when it is a house. Sub cl. (a) states that where the subject matter is land or garden the value of the subject matter shall be deemed to be fifteen times the annual rent of such land or garden and sub cl. (b) states that where the subject matter is a house according to the market value of the house. The Travancore Cochin Court Fees Act provides in S.3(5) that in suits for possession of land, building or garden, which are not based on a contract, the fee payable under the Act shall be according to the market value of the subject matter and that such value, in cases of dispute, shall be taken to be ten times the annual gross-profits of such land, building or garden where it is capable of yielding annual profits minus the assessment paid, if any, to the Government. It will thus be seen that except with regard to the mode of ascertaining market value there is no difference between the Cochin Court Fees Act II of 1080 and the Travancore Cochin Court Fees Act II of 1125. According to the case in 4 Select Decisions 400 even though the plaint contained a prayer for a declaration as to the invalidity of the sale as the consequential relief claimed was one specifically falling under S.4(5) the provisions of S.4(iv)(c) had no application to the suit. S.4(5) governed it. If this view be correct it cannot be doubted that the court fee paid on the memorandum in the present appeal on the basis of the market value of the property is proper and no valuation or court fee is necessary with respect to the declaration as to the validity of the document.