JANAKI AMMA Vs. KRISHNAN

JUDGEMENT

(1.) THIS revision arises out of a suit for partition. The suit properties belonged to one Velayudhan Pillai. The 1st defendant who died pending trial of the suit is his wife. Plaintiffs who are respondents here and the 2nd defendant, the 1st revision petitioner, are their children. They had another son, Parameswaran Pillai. 3rd defendant, the 2nd revision petitioner, is his widow and the 4th defendant, the 3rd revision petitioner, their son. As per Ext. Al Velayudhan Pillai in 1122 assigned the suit properties in favour of the 1st defendant and Parameswaran Pillai alone. As per Ext A4 in 1972 the 1st defendant gifted her rights in these properties to the 2nd defendant. Plaintiff's claim that Ext Al assignment would enure to the benefit of all the children of Velayudhan Pillai and that therefore they are entitled to a share in the suit properties was repelled by the lower court by the preliminary judgment and decree dated 22-10-1975 by holding that the 1st defendant is entitled to 2/3 share and Parameswaran Pillai's heirs, defendants 3 and 4, as a group are entitled to the remaining 1/3 share. However the plaintiff's case that Ext. A4 is vitiated by undue influence exercised by the 2nd defendant and her husband and therefore, it was liable to be set aside, was upheld, and on that basis, plaintiffs were held entitled to 4/9 share of the suit properties as heirs of the 1st defendant The plaintiffs had not paid court fee for the relief of letting aside Ext. A4. Defendants 2 to 4 had in their additional written statements contended that the plaintiffs had not paid proper court fee. No issue was raised thereon nor was it decided before evidence was taken. By the preliminary judgment the lower court holding that the plaintiffs are therefore liable to pay court fee on the market value of the 2/3 share that was gifted out to the 2nd defendant by the 1st defendant under Ext. A4 and that 'the balance court fee due from the plaintiffs will be recovered from them' passed the following preliminary decree: "in the result, a preliminary decree is passed in favour of the plaintiffs declaring their rights to 4/9 shares in the plaint schedule property and for partition and separate possession of the same. They are also entitled to get their share of mesne profits from 20 - 3-1972 the quantum of which will be decided in the final decree proceedings. Ext. A 4 gift deed will stand set aside. Parties will suffer their costs. The plaintiffs will take out a commission to get their shares partitioned by metes and bounds. Balance Court fee will be paid one month from the date of decree which the suit will stand dismissed. "

(2.) THE preliminary judgment was pronounced on 22-10-1975. On 7-14-1975, the plaintiffs paid Rs. 24/- as balance court fee payable by them pursuant to the direction contained in the preliminary judgment. THEy, as per a memo filed on 7-11-1975, valued the 2/3rd rights in the gifted properties at rs. 700/-end on that basis paid a court-fee of Rs. 24/- being the balance payable by them on Rs. 700/ which they reckoned as Rs. 56/-minus Rs. 32-/already paid on the plaint. Note that the preliminary judgment did not specify the amount but said that the plaintiffs are to pay the balance court fee on the market value of the 2/3rd shares that was gifted out to the 2nd defendant, without specifying what that market value is and what the balance court fee is. THE plaintiffs were, therefore, perfectly justified in putting their valuation on the aforesaid 2/3rd rights, the correctness of which, no doubt the court is entitled to investigate under the provisions of S. 7 of the Kerala Court-Fees and Suits Valuation Act, 1959. On 22-11-1975, that is to say exactly on the 30th day after the preliminary judgment, defendants 2 to 4 raised the question as per I. A. No. 18802, of 1975 filed in court on that date that the calculation of market value as per the memo filed by the plaintiffs on 7-11-1975 is not correct. According to the defendants as seen from that petition the market value of the properties had to be fixed at Rs. 1,000/- and the plaintiffs bad also to pay the court fee on the market value of the 2/3rd share of the gifted properties, namely, on Rs. 660. 67 besides the court fee already paid on the plaint. According to the defendants, therefore, the court fee paid on both occasions together, namely, on the plaint (Rs. 34/-) and along with the memo dated 7-1-1975 (Rs. 24/-) would not be the court fee payable as directed in the preliminary judgment. THEreupon the plaintiffs filed I. A. No. 19016 of 1975 on 26-11-1975 praying that the period of one month fixed for payment of balance court fee as per the preliminary judgment be extended by one week and to delete the consequence clause on the basis that the consequence ordered on default was so ordered erroneously and the said clause is an error apparent on the face of the record. This petition was allowed by the trial court and hence this revision by defendants 2 to 4.

(3.) I am of the view that the plaintiffs have complied with the direction contained in the preliminary judgment in that they have paid the court fee which according to them is payable as balance court fee along with the memo dated 7-11-1975, though, perhaps, the quantum thereof was not correct-but then, that matter was left by the court to be determined by the plaintiffs themselves, inviting and anticipating another adjudication on the question of sufficiency of court fee paid within the time allowed and affording a further opportunity to the plaintiffs to pay deficit court fee, if any, as so determined.