THANGASWAMI PILLAI Vs. DHANABAGYAMMAL

JUDGEMENT

(1.) THE point for decision in this revision petition is whether the court -fee paid by the plaintiff is correct. The plaintiff is the petitioner. The suit is for recovery of possession and the prayer in the plaint is that the plaintiff be put in possession of the 'undermentioned' properties through process of Court and free from the obstruction of the respondents. The suit is in respect of the properties of one Srinivasa Pillai. The plaintiff is the brother's son and defendant 1 is the widow. On 26th August 1911, Srinivasa Pillai executed a will, whereby he created a trust of his properties and, during the minority of the plaintiff, appointed defendant 1 and the mother of the plaintiff as joint testamentary guardians to manage the estate and to perform the trust. In execution of two money decrees obtained by defendant 11 against defendant 1 one in respect of a personal debt due by her and the other in respect of a debt due under a promissory note executed by the deceased Srinivasa Pillai, the properties, being Item 5 of Schedule B of the plaint, were brought to sale, and defendant 11 purchased them on 4th Juno 1930. It is stated in the plaint that the properties attached were trust properties, in which defendant 1 had no interest capable of transfer voluntarily or involuntarily, that the sale is void and the same cannot confer any title much less legal title on defendant 11 to be validly conveyedby him to others. Item 5 of schedule B is a property of the extent of 3 acres and 16 cents. Defendant 12 is now in possession of the middle portion of one acre and 6 cents. Defendants 15 to 17 are in possession of the northern portion of the extent of 36 cents; and defendants 18 to 20 are in possession of the southern portion of the extent of one acre and 74 cents. These defendants acquired their respective portions from defendant 11 who is the court auction purchaser of the entire property. The plaintiff values the suit under Section 7(v), Court -fees Act and has paid court -fee on the consolidated market value of the property. On the question of court -fee, the learned Subordinate Judge held that the court -fee paid was not the proper court -fee payable on the plaint and that Section 17, Court -fees Act, would be applicable to the suit and that separate court -fee should be paid on the market value of the separate portions in the possession of the different defendants since they were, according to the learned Subordinate Judge, distinct subjects under Section 17, Court -fees Act. Section 17, Court -fees Act is as follows : 'Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaint or the memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act.'