KRISHNAN PADANAYAR Vs. PARAMESWARAN NAIR

JUDGEMENT

(1.) This appeal has been placed before us now to decide whether proper court fee has been levied on it. The appeal is from a final decree in a suit for partition among the members of a Nair Tarawad in which there was also a claim for rendition of accounts by defendants 1 and 2 regarding the surplus profits of the tarawad properties. During the relevant period these defendants were in management. The appellant was also a defendant (defendant 5) in the suit, but he was not one of the parties liable to account. On the other hand his case throughout has been that on a proper accounting large amounts out of the surplus profits of the common properties will be found due by defendants 1 and 2 to the tarawad. The lower court after an elaborate enquiry found that defendants 1 and 2 were liable in the sum of Rs. 1272-10-0 to the appellant and his thavazhi. The appellants main complaint in the appeal is that the lower court fixed the liability of defendants 1 and 2 at a very low figure and that further amounts will be found due if accounts are taken properly. The appellants position in the suit is really that of a plaintiff and the court fee payable on the appeal preferred by him has to be determined on that basis.

(2.) Besides paying a court fee of Rs. 10/- as in a suit for partition the appellant has estimated the value of the relief as to accounting at Rs. 100/- and also paid ad valorem court fee thereon. The Office Report is: Whether the court fee of Rs. 10/- for the partition matter is sufficient, has to be decided. The learned Government Pleader who represented the State before us on this reference conceded that proper fee has been paid regarding the relief as to partition. We are unable to appreciate how the office could have entertained any doubt with regard to it. The learned Government Pleader however urged before us that proper court fee has not been paid with respect to the relief relating to accounting. We are afraid that in raising this point he omitted to notice that the position of the appellant here is not that of a defendant in an ordinary suit for accounts. As stated earlier the appellant is not one of the members of the tarawad liable to account for the profits, but is one entitled to call those in management to disgorge the surplus profits in their hands. He was truly a plaintiff in the suit and there is a consensus of judicial opinion that when a plaintiff in a suit for accounts complains that the Trial Court has not made the defendant liable for all the amounts she is truly liable for it is open to the plaintiff to have the whole case reopened in appeal on court fee paid on a notional valuation. That appears to us also to be the true construction of the relevant provision of the Court Fees Act.

(3.) Before proceeding to discuss the question we think it proper to mention here that the appellants Counsel raised a point before us that when a junior member of a joint family adds a relief asking for accounts, a suit for partition cannot become a suit for accounts and that court fee payable in partition suits, pure and simple alone need be paid in such suits as well. Reliance was placed for this position on the case reported in Jyotibati v. Lackhmeshwar Prasad AIR 1930 Pat. 1. This is however a controversial matter and for our present purpose it would suffice to state that the memorandum of appeal itself does not proceed on that basis. What we have to decide is what the court fee payable is on the reliefs as valued in the memorandum of appeal.