SRIMATHI MOKHAMATLA KONDAMMA Vs. SRIMATHI MOKHAMATLA VENKATALAKSHMIDEVI

JUDGEMENT

(1.) An important question of law falls for determination in this reference. The respondent herein, i.e., the junior widow, filed O.S. No. 31 of 1953 on the file of the Sub-Court, Eluru, for partition and recovery of possession of a half share in her deceased husband's property against the senior widow and the son, alleged to have been adopted by her. Her case in the plaint was that the adoption was not true and that the adopted son had no rights in the plaint scheduled properties. She, however, prayed for a declaration that the adoption of the and defendant by the 1st defendant was not true in fact and not valid and binding on her under law. She paid a court-fee of Rs. 100 under Article 17-B of Schedule II of the Court-Fees Act in respect of the relief of partition and separate possession of her half share in the suit properties. She also paid a sum of Rs. 500 by way of court-fee in respect of the relief of declaration regarding the alleged adoption of the 2nd defendant by the 1st defendant. The Court below held that the adoption was not true and decreed a half share to the plaintiff. The two reliefs prayed for by her were granted by the Court below. The senior widow and the alleged adopted son have preferred a regular appeal to this Court. They contend that it is not necessary for them to pay any court-fee in respect of the second relief, namely, the declaration sought in regard to the alleged adoption of the 2nd defendant by the 1st defendant, as it was an unnecessary relief, and that the court-fee paid in respect of relief No. 1, viz., for partition and separate possession, is quite sufficient and adequate. The question for consideration in the reference is, whether the prayer for a declaration that the alleged adoption was not true, valid and binding is an unnecessary prayer and a suit for partition, ignoring the alleged adoption is maintainable.

(2.) It is clear law that the defendant-appellant is to pay only the court-fee that is required to be paid according to law, in respect of the subject-matter of the appeal. The mere fact that the plaintiff has over-valued the property claimed or paid a higher court-fee than required by law does not bind the defendant and the defendant is bound to pay only the Court-fee lawfully payable under the provisions of the Court-fees Act. Vide Bhagwan Pun v. Secretary of State for India in Council, 1926) I.L.R. 49 All. 398.

(3.) It is well settled that in determining the question as to what court-fee should be paid, it is only the allegations in the plaint that have to be looked into. It is also clear that if no adoption has taken place or if the adoption is invalid, the adopted son acquii es no rights in the adoptive family and is only in the position of a trespasser in the case of a reversioner, it is open to him to ignore the adoption as a nullity and file a suit for possession after the death of the widow-vide the observations at pages 235 and 242 in Jamkamma v. Mattareddi, (1956) An.W.R. 220. Similarly, the junior widow is entitled to ignore the adoption and file a suit for recovery of her half share against the senior widow.