RAM KATORI Vs. CHAMANLAL

JUDGEMENT

(1.) This is a court-fee matter. The Chief Inspector of Stamps when examining the records of this Court discovered that in First Appeal No. 93 of 1954 which had arisen out of suit No. 140 of 1951 filed in the Court of the Civil Judge, Saharanpur, proper court-fee had not been paid on the plaint. The court-fee paid on the memorandum of appeal was also found to be insufficient. He therefore, recommended that additional court-fee be realised not only from the appellant who had filed the appeal but also from the respondents who had filed the plaint in the Court of the Civil Judge. We are not concerned at present with the question whether any additional court-fee is payable in respect of the memorandum of appeal. The dispute be-fore us relates to the question of court-fee payable on the plaint. The Chief Inspector of Stamps has prayed that the deficiency in court-fee on the plaint should be directed to be made good. When the respondents were informed of this report an objection was filed on their behalf. The report as well as the objection are now before us for disposal.

(2.) The facts of the case as were set out in the plaint were that there were two brothers Cha-man Lal and Ajodhya prasad. Ajodhya Pd. died leaving his widow Smt. Soniya, a minor son Manak Chand and a daughter Makhmali. Manak Chand also died later. After the death of Ajodhya Pd. and Manak Chand, Chaman Lal divided the entire property which originally belonged to himself and Ajodhya Pd. between himself and his son ignoring the widow and the daughter of Ajodhya Pd. The widow and the daughter claimed a share in the property and the dispute Was referred to arbitration. An award followed and was made a decree of the Court in 1931. By that decree certain pro-perties were given to Smt. Soniya as the widow of Ajodhya Pd. Smt. Soniya executed a will in respect of the properties she thus received in favour of the defendants. She then died. The plaintiffs who were the collaterals oi Ajodhya Pd. disputed the validity of the will on several grounds and claimed the properties left by Smt Soniya on the ground that the properties were her stridhan and as they were her stridhan heirs they were entitled to the same. On that basis they claimed possession over the properties mentioned in Schedule A of the plaint and also claimed for a declaration that they were entitled to recover the amount of the decree in suit no. 544 of 1930 which had been passed in favour of Smt. Suniya. The properties in lists A were valued at Rs. 9,000/- and the decree was valued at Rs. 4,900/- the amount for which it had been passed. The suit was thus valued at Rs. 13,900/- and a court-fee of Rs 821/14/- was paid. We are told that at a Ma stage the relief about the decree was given up and was deleted from the plaint. The suit therefore remained a simple suit for possession over the properties in Schedule A of the plaint. A question of insufficiency of court-fee was raised by the defendants but was decided against them. The suit was ultimately decreed and the defendants have filed First Appeal no. 93 of 1954 against that decree.

(3.) The point raised by the Chief Inspector of Stamps is that as the relief claimed by ths plain-tiffs involved adjudging void of the will executed by Smt. Soniya on the 6th of June, 1947 and as without the will being adjudged void, the suit could not have been decreed, the plaintiffs were liable to pay court-fee under Section 7 (iv-A) of the Court Fees Act in addition to the court-fee which they had paid. According to him, the will covered the two properties which were claimed in the suit and as the plaintiffs claimed through Smt. Soniya as her stridhan heirs, they were bound under Section 7 (iv-A) of the Court Fees Act to pay court-fee on the full value of the property. The total value of the suit for purposes of court-fee should therefore have been Rs. 13,900/- plus Rs. 33,900/- i. e., Rs. 27,800/- and the court-fee that should have been Paid was Rs. 1,740/10/- and not Rs. 821/14/-. There was thus, according to him, a deficiency of Rs. 918/12/which the plaintiff should be directed to pay.