VARUGHESE VARUGHESE Vs. MATHEW JOSEPH

JUDGEMENT

(1.) The plaintiff is the revision petitioner and the question relates to the sufficiency of the court fee paid for the suit. The revision petitioner and the first respondent entered into a partnership evidenced by a partnership deed of 12-11-1960. The second respondent joined as a partner in the partnership in the year 1965 when a fresh partnership deed was executed between the parties on 15-10-1965. The plaintiff's case is that subsequent to 15-4-1967 the partnership ceased to function. It is pleaded by the plaintiff that by coercion and undue influence practised by respondents 1 and 2 he was made to execute two udampadies dated 24-8-1967 and 26-12-1967 in their favour. The suit is instituted by the plaintiff for dissolution of partnership and for rendition of accounts and also to set aside the udampadies dated 24-8-1967 and 26-12-1967. The plaintiff valued the suit under S.36 of the Kerala Court Fees and Suits Valuation Act, 1959 and paid court fee on Rs. 5600/- the estimated value of the plaintiff's share in the partnership. The relief for setting aside the two udampadies was not separately valued and no court fee was paid therefor. The Court Fee Superintendent pointed out that the plaintiff has to value the relief for setting aside the udampadies and pay court fee on Rs. 42,8375.0 for which the plaintiff has made himself thereunder. The learned Subordinate Judge of Kottayam upheld the view of the Court Fee Superintendent and called upon the plaintiff to pay the deficit court fee. The revision petition is directed against that order.

(2.) The plea on behalf of the plaintiff is that since the two udampadies are attacked on the ground of fraud and undue influence they are not binding on him and it is not necessary for him to have these documents set aside and the said relief need not be separately valued and no court fee need therefore be paid. In view of the submission we asked the plaintiff's counsel to delete the relief in the plaint which relates to the setting aside of the udampadies for which he was not prepared. We are therefore not concerned in the revision petition whether in the circumstances pointed out a prayer to set aside the udampadies is necessary or not. The plaint contains such a prayer and the only question is whether the plaintiff has to value the said relief and pay court fee thereon.

(3.) Counsel for the plaintiff contended relying on the decision in Mohammad Ibrahim v. Vedachala Mudaliar 1958 (II) MLJ 442 that no separate court fee need be paid for the prayer to set aside the udampadies. In our view, the decision cannot help the petitioner. Mohamad Ibrahim v. Vedachala Mudaliar 1958 (II) MLJ 442 arose out of a suit by the heirs of a deceased partner for dissolution and settlement of accounts after setting aside the receipts executed by them in settlement of accounts. The heirs have by the receipts executed by them released their rights for the amounts due from the surviving partners. There was a prayer ia the plaint to set aside the receipts on the ground that they were never intended to relinquish their interests in the partnership. The learned single Judge in considering the question as to the proper court fee for setting aside the receipts held that the relief has to be valued under S.7, clause (ivA) of the Court fees Act, VII of 1870 as amended in Madras. Ramachandra Iyer, J. then observed: