JAGARLAPUDI VENKATESWARLU Vs. KUKKADAPU SIMHADRI APPARAO

JUDGEMENT

(1.) This is a petition to revise the Order of the Subordinate Judge, dated 6th February, 1958, in unnumbered Appeal Suit of 1958, directing the plaintiff the petitioner herein, to pay ad valorem Court-fee. The material facts are briefly these :- The plaintiff originally filed a suit against six defendants. The and defendant is the father of the 3rd defendant. The case of the plaintiff was that the 3rd defendant was living jointly and undivided with the 2nd defendant and that, therefore, a decree should be passed against him, making liable the joint family property in the hands of the and defendant as well. The 3rd defendant contested the suit alleging that he was living divided and separate from the and defendant. The trial Court granted a decree against defendants 1, 2, 4 and 5 and dismissed the suit as against defendants 3 and 6. The plaintiff preferred an appeal before the Subordinate Judge of Vijayawada against defendants 3 and 6 paid Court-fee under Article 17-B of Schedule II of the Madras Court-fees Act. On an objection raised by the office, the learned Subordinate Judge passed an order directing the petitioner to pay ad valorem Court-fee. Hence this revision.

(2.) The short argument of the learned counsel for the petitioner is that the decree which he already held against the father is binding on the son to the extent of the joint family property in his hands and that he only wants an extension of the decree specifically against the son so as to be executable against him. He contends that what relief he seeks for in the appeal is to declare the liability of joint family property in the hands of the son of which the and defendant is the father and manager, and that it is inc ipable of valuation and comes under Article 17-B of Schedule II. It is represented by both sides that there is no direct ruling covering this point. A number of decisions have been relied upon in support of their respective case.

(3.) In Bala Venkatarama Chettiar v. Maruthamu Chetty, (1940) 2 M.L.J. 947, the defendants were sued in their personal capacity and decrees were accordingly passed against them rendering them personally liable and the appellants filed appeals contending that they should not have been made personally liable and that the decree should have been passed against them as trustees of the temple rendering only the temple properties in their hands liable for the decree debt. It was held that the appellants were seeking to get rid of their liability to the extent of both their person and property in respect of the amount decreed against them and that, therefore, it could not be said that the subject-matter of the appeals was incapable of valuation so as to permit Court-fee being paid under Article 17-B of Schedule II, Court-Fees Act. But all the same, it was therein observed : "If the appellants had been sued as trustees and a decree had been passed against them personally and also against the trust property in their hands and an appeal was preferred against the said decree on the ground that they could not be rendered liable personally......it may be urged that it is not possible to estimate the liability they are seeking to get rid of."