CHANDANA SATYANARAYANA AND ANR. Vs. SRI VENKATACHALASWAMI TEMPLE OF GUDUR, REPRESENTED BY THE TRUSTEE, SRI UNNAVA RAMAYYA CHOWDRY, ADVOCATE

JUDGEMENT

(1.) THIS revision petition raises an interesting question of court -fee. The plaintiffs sued for a declaration that the decree in O.S. No. 456 of 1938, in which they and their deceased elder brother were parties, was a nullity, and not binding on them, and for an injunction, restraining the plaintiff in that suit, which was a temple, from executing that decree against them. That suit was one to recover possession of about 24 acres of land, of which, it is averred in the plaint and it is also common ground before me, the plaintiffs are still in possession. On the plaint, the plaintiffs paid ad valorem court -fee on half the value of the Immovable property under the proviso to Section 7(iv)(c). Their suit was dismissed; and they filed an appeal, paying the same court -fee under this provision. The learned District Judge held that the correct court -fee payable by them on the plaint and the appeal memorandum was under Section 7(iv)(a) on the full value of the subject -matter of the suit as one for cancellation of a decree.

(2.) HIS decision was based on the Full Bench decision in Ramaswami v. : AIR1940Mad118 . That was a case of a Hindu minor plaintiff who sued with his mother as next friend really to set aside alienations made by his father including decrees passed against him but seeking to ignore them as not binding on him. It was held inter alia that in respect of decrees passed against the plaintiff in suits in which he had been eo nomine impleaded as a party, he must pay the court -fee prescribed by Section 7(iv)(a). In the present plaint, the plaintiffs' main contention is that they were, in fact, minors both at the time of the institution of O.S. No. 456 of 1938 and also at the time of the decree passed against them. The learned Government Pleader concedes that if the matter ended there, then their present suit would be one for a declaration that the previous decree was a nullity and not binding on them and would not come within the mischief of Section 7 (iy)(a). He urges, however, that, as found by the learned District Judge, the plaintiffs, even after attaining majority on their own showing on the date they had given in their plaint, were impleaded as majors in an appeal to the District Court, and also In a second appeal to the High Court. It is urged on their behalf that the appeals were filed by their deceased elder brother who was negligent in the conduct of that litigation and failed to file documents which would show that the plaintiffs had permanent occupancy rights in this land as against the temple landholder. Court -fee is usually determined on the plaint averments. If at the time of the decree in O.S. No. 456 of 1938, the present plaintiffs were, in fact, minors, though impleaded in that litigation as majors, the decree would be a nullity so far as they were concerned, and they would be entitled to ask for a declaration without an obligation to cancel the decree and to pay court -fee under Section 7(iv)(a). This is a case rather on the border line and midway between that on which a court -fee of only Rs. 100 is payable under Article 17 -A of Schedule II, namely, one for a pure declaration without consequential relief such as that considered in Abdulla v. : (1936)71MLJ383 and a suit for cancellation of a decree which should be governed by Section 7(iv)(a). A via media has been adopted for court -fee valuation, namely, Section 7(iv)(c) which cannot be said in the circumstances to be incorrect or inappropriate. I hold that the plaint and the appeal have been correctly valued for purposes of court -fee and allow the revision petition without any order as to costs.