U.K. APPU Vs. UMA DEVI RAJAN

JUDGEMENT

(1.) ONE Sri. V. K.Sankunni who was a prominent industrialist and busi­ness man of Calicut died on the 11th June,1961,leaving behind him two daughters who were then aged only 19 years and 11 years respectively and considerable properties and assets.O.S No.101 of 1967 on the file of the Sub Court,Calicut is a suit instituted by the younger child of the deceased Sankunni praying that the court should be pleased to administer the estate of the deceased after ascertaining the movable and immovable properties left by him and also the liabilities,if any,to be discharged and effect a division and distribution of the residual assets as between the plaintiff and her sister,the first defendant,and award to the plaintiff her share.The 2nd defendant in the suit is the younger brother of the deceased Sankunni and defendants 3 to 6 are his wife and children.Defend­ants 7 to 9 are close relations of the 2nd defendant.It is alleged in the plaint that taking advantage of the fact that at the time of the demise of Sri.Sankunni the plaintiff was only a minor and the 1st defendant,had only just then attained majority,was away in England with husband,the 2nd defendant entered upon the management of the estate the deceased and took possession of large amounts of liquid cash which had been kept in the residence of Sankunni and also all the other movable and immovable properties left by the deceased.According to the plaiuti thereafter the 2nd defendant was throughout in management and he was dealing with the properties purporting to act as a de facto guardian of the plaintiff and agent,of the 1st defendant.The plaintiff's case is that in the course of such intermeddling with the estate,the 2nd defendant has effected certain unauthorised alienations and wrongly appropriated to himself substantial amounts belonging to the estate for which he is accountable;in law to the legal heirs of the deceased,namely the plaintiff and the 1st defendant.The plaintiff has stated that because of the deliberate attitude adopted by the 2nd defendant of withholding from her even the details regarding the properties and assets left by her deceased father,the plaintiff is compelled to seek the aid of the court to ascertain the movable and immovable properties belonging to the estate of deceased Sankunni including the businesses and plantations situated in the three States of Kerala,Mysore and Tamil Nadu.The plaintiff has prayed that the 2nd defendant who was in de facto management posing himself as the guardian of the plaintiff and as the authorised representative of the 1st defendant,should be made liable to render to the court satisfactory account relating to in management of the estate which is sought to be administered in the suit and to bring in all amounts that may be found to be in his possesion as belonging to the estate consequent on accounts being taken.The plaintiff has also challenged certain transfers which had been made by the 2nd defendant in favour of defendants 7,9 and 10 etc.and prayed that those transactions should be ignored while ascertaining the estate available for administration.

(2.) ONE of the contentions raised by the defendants in the written statements filed by them in the suit related to the sufficiency of the court fee paid on the plaint and this formed the subject -matter of issue No.57.The said issue was decided as a preliminary issue by the court below and a finding has been recorded thereon by the learned Subordinate Judge on the 20th July,1971,holding that the plaintiff is entitled to maintain the action as an administration suit on payment of the fixed court fee of Rs.200 under Section 39(1)read with Section 50 of the Kerala Court -Fees and suits Valuation Act,1959(hereinafter referred to as the Act ).In so holding the learned Subordinate Judge rejected the contention advanced on behalf of the contesting defendants Nos.2 onwards that the suit is in truth and substance one for partition,ingeniously attempted to be disguised as one for administration of an estate,and that the plaintiff should be made liable to pay advalorem court fee on the market value of her share under Section 37(1)of the Act.However,although the court below found that the suit is one for administration and need be valued for the purposes of court fee and jurisdiction only on the said basis,it held that certain of the reliefs asked for by the plaintiff which are covered by the averments contained in pargraphs 13,17 and 18 of the plaint are not nutters ancillary to the main relief of administration and they are,therefore,outside the scope of administration suit.In this view,the learned Subordinate Judge held that in respect of the aforesaid matters and also a prayer for injunction contained in paragraph 52 and 53 of the plaint the plaintiff has to pay separate court fee treating them as distinct reliefs.Accordingly,the court below held that the court fee paid by the plaintiff is not sufficient and the plaintiff has been directed to file a statement showing the exact amounts which she seeks to realise from the 2nd defendant on account of the claims put forward by her in paragraphs 13,17 and 18 of the plaint and pay ad valorem court fee on those amounts.Besides the above,the plaintiff has also been directed by the lower court to value the suit seperately regarding the relief of injunction asked for in paras 52 and 53 of the plaint and pay the requisite court fee thereon as per the relevant provisions of the Act.Liberty has,however,been given to the plaintiff by the order of the lower court to relinquish any one or more of the claims in respect of which she has been,called upon to pay the additional court fee in case she wishes to give up those claims in the present suit by filing a statement to the said effect.It is against the said decision rendered by the court below on the preliminary issue relating to the court fee that these civil revision petitions have been filed.

(3.) C .R.P.No.1166 of 1971 has been filed by the 7th defendant and the contentions taken by him are identical with those raised by the 2nd defendant in C.R.P.No.925 of 1971.