UMMER Vs. SAINUDDIN

JUDGEMENT

(1.) This revision is by the defendant, against an interlocutory order of the court below, holding that the court fees paid on the plaint is sufficient.

(2.) The plaintiffs 1 and 2 are the children of the 1st defendant and her husband Moidu, not party. The plaint schedule property belonged to the plaintiffs' parents in equal halves. In or about 1952, they executed a mortgage of the whole property in favour of the 3rd defendant for a sum of Rs. 1,000 and took a lease back. Subsequently on 24-5-1952, Moidu gave his one-half right by way of gift in favour of the plaintiffs, then minors. This gift was however attacked in suit O. S. 645 of 1952 filed soon after, against the plaintiffs-minors represented by their mother and also their parents by Lonan who was a creditor of Moidu, as fraudulent and intended to defeat the creditors of the donor. The suit was decreed with costs against the plaintiffs, though still minors, on 29-10-1954 and this decree was later taken assignment of by the 2nd defendant on 13-6-1955. Pending this suit, the 1st defendant on 6-1-1953 sold the entire property to the 2nd defendant, acting for the purpose as guardian of the plaintiffs in respect of the half share in the property. The 2nd defendant subsequently, on 1-10-1953 passed on his title to the 3rd defendant, with the recitals in his own sale deed repeated, viz. for discharge of the 3rd defendant's mortgage and for payment of certain sum to the plaintiffs, from out of the sale consideration. The plaint avers that the sale by the 1st defendant in favour of the 2nd defendant and the sale following, by the 2nd defendant to the 3rd defendant, are void and ineffective so far as the plaintiffs' one-half right in the property is concerned and the plaintiffs are accordingly entitled to claim to be in constructive possession through their coowner, the 3rd defendant. The plaintiffs further claim to be entitled to partition and separate possession of their half share in the property "since the mortgage in favour of the 3rd defendant has been satisfied and no amount is payable to him", and of the profits due thereon from 6-1-1953, the date of the 2nd defendant's sale deed. The plaintiffs attack the decree in O. S. 645 of 1952 only to the extent of the costs decreed against them and express their willingness to be bound to pay the creditor Lonan as regards whom, the right in their favour by their father, had been declared void. This suit is therefore laid by the plaintiffs on 21-12-1956, for partition of their one-half share of the schedule properties, with mesne profits from 6-1-1953 and for declaration and injunction as regards the costs portion of the decree O. S. 645 of 1952. The plaintiffs valued the suit for the purpose of jurisdiction at Rs. 5,189 as. 6 made up of Rs. 4,800 being the market value of one-half share and mesne profits, and Rs. 389-6-0 costs under the decree. They paid court 'fees of Rs. 10/- under Sch. II, Cl. VIII(8) of the Travancore Cochin Court Fees Act, corresponding to Sch. II, Art. 17(vi), Indian Act, for partition relief and ad valorem for the declaration and injunction relief.

(3.) The 3rd defendant contested the suit on the basis that he was sole and exclusive owner of the properties and in possession and enjoyment as such. He denied that the plaintiffs were entitled to partition or separate possession or accounting in respect of the profits. He raised also the question as to the correctness of the levy of court fees for the plaint. It is the decision of this question as a preliminary matter, that has given rise to this Revision as abovesaid.