JOSEPH CARLOS XAVIER LOUIS ANTHONY BENEDICT ALDO COSTA, BY MOTHER AND NEXT FRIEND, MARY JOHN BERCHMANS Vs. STANIS LAWS COSTA AND ORS.

JUDGEMENT

(1.) THIS Civil Revision Petition raises a question of court -fee in respect of a suit filed by the Petitioner in the Court of the Subordinate Judge of Tirunelveli for administration of the properties left by one Joseph Costa Sr. and specified in his Will, dated 30th May 1912. In paragraph 20 of the plaint, the Plaintiff prayed that as ancillary to such administration certain sales by the executor in favour of some of the Defendants of properties of the testator be set aside as invalid and not binding on the Plaintiff and other persons beneficially entitled or interested under the said Will and that the administrator be directed to take charge of the same. In the alternative he prayed that the alienees, or such of them as may be liable, may be directed to pay over to the administrator the value of the mitta properties in such proportion as they may be found liable and to restore to the estate the benefits they had unlawfully obtained as a result of the fraudulent breach of trust on the part of the first Defendant (executor). The Plaintiff valued the suit for purpose of jurisdiction at Rs. 1,51,000 and he paid a court -fee of Rs. 100 under Article 17 -B of Schedule II of the Court Fees Act. Objection was taken to the adequacy of the court -fee on the ground that as one of the prayers was to set aside certain sales in favour of Defendants 11 to 14 and in the alternative, for the passing of a money decree against them, these reliefs should be separately valued and court -fee paid thereon. The learned Subordinate Judge held that the Plaintiff should value the relief of setting aside the sales and alternative relief of a money decree separately and pay separate court -fee in respect of the higher of these reliefs. The Petitioner seeks a revision of this order.

(2.) IN my opinion the learned Judge did not correctly comprehend the scope of the reliefs claimed by the Plaintiff. Undoubtedly the suit was for administration. As their Lordships of the Judicial Committee pointed out in Benode Behary Bose v. Nistarini Dassi, (1905) I.L.R. 33 Cal. 180 (P.C.), setting aside any alienation by an executor would be ancillary to the administration and, therefore, would be within the scope of such a suit. The question, however, is whether the Plaintiff should be called upon to pay any court -fee in addition to the court -fee paid by him for administration under Article 17 -B. Though the relief as framed in paragraph 20(b)(ii), is setting aside as invalid the sales in favour of Defendants 11 to 14, it is clear that the Plaintiff cannot obtain in law that relief as he was not eo nomine or impliedly a party to the said sales. Nor is the Plaintiff entitled to obtain possession of the properties so alienated to them. There can, therefore, be no application of any of the clauses of Section 7 of the Court Fees Act. It is, however, evident that the Plaintiff really wants a declaration that the alienations made by the executor are not binding on the estate. The Plaintiff could well have affirmed these alienations and prayed for administration. But as he has challenged them, he must be deemed to have asked for a declaration that the alienations are not binding on him and other persons beneficially interested under the Will. Though the prayer is worded as one for setting aside the alienation, in law, the prayer must be deemed to be for a declaration that the alienations are not binding on the estate. For this relief the Plaintiff must pay court -fee under Article 17 -A(i) of the second schedule of the Court Fees Act. The exact amount would depend upon the value of the properties involved. Mr. Ramamurthy Ayyar, learned Counsel for the Petitioner, admits that the value of these properties will be over Rs. 10,000. The court -fee payable, therefore, will be Rs. 500 and the Plaintiff is directed to pay the additional court -fee of Rs. 500 within two months from today.