GEESHAPATI GURUKUL Vs. SUBRAHMANYAM

JUDGEMENT

(1.) The plaintiff is the petitioner. He filed a suit for a declaration that the decree obtained by the 2nd defendant in O. S. No. 27 of 1944, Sub Court, Rajahmundry, for partition, is hot binding on him, not being a party to the suit; and for partition of the plaint scheduled properties into two equal shares, He valued the two reliefs under Articles 17-A and 17-B respectively and paid court fee on that basis. The 1st defendant is the father of the plaintiff, the 2nd defendant being the widow of the 1st defendant's brother. The latter filed a suit O. S. No. 27 of 1944 against the 1st defendant and others claiming a half share in the family properties on the ground that there was a division in status between her husband and the 1st defendant in the year 1935 and obtained a preliminary decree for partition. The decree was confirmed by the High Court in A. S. No. 263 of 1947. The present suit giving rise to this petition has been brought on the allegations that the above decree does not bind him for the several reasons mentioned in paragraph 7 of the plaint, and with the prayers mentioned above.

(2.) The trial court, on an objection taken by the Court fee Examiner, directed the plaintiff to pay court fee under Section 7 (iv) (A) of the Court Fees Act a in his opinion the whole suit was, in effect, for cancellation of the decred obtained by the 2nd defendant, It is this order that is now under revision. It is urged by Mr. Kuppuswamy, the learned Counsel for the petitioner, that the case does not fall under Section 7 Cl. (iv) (A) of the Court Fees Act or the reason that the plaintiff was not eo nomine a party to the suit and therefore was not required to have the decree set aside and that the prayer for the declaration mentioned supra is a surplusage. There is substance in this contention. When a person is not eo nomine a party to a suit or a document, it is unnecessary for him to have the deed or the decree annulled, and he can pro ceed on the assumption that there was no such document or decree. In this case, the plaintiff could very well ignore the decree and ask for partition of the decree. If he had asked for a declaration that the decree would not bind him, it was an unnecessary relief. This principle has been distinctly laid down by the Full Bench of the Madras High Court in Ramaswami v. Rangachariar that a plaintiff who is not eo nomine a party to a suit or a document is not bound to sue for a declaration or cancellation of it. The learned Judges extracted a passage from the judgment of the Privy Council in Bijoy Gopal Mukerji v. Krishna Mahishi Debi. and observed:

(3.) In other words, even if there is a prayer for a declaration or cancellation, it could be ignored and court fee need not be paid thereon. Though the Full Bench decision related to the decree for money, it would apply with equal force to a decree for partition also as there is no difference in principle between the two. The doctrine of Ramaswami v. Rangachariar was applied by a Bench of the same Court to a case of compromise in Sathappa Chettiar In Re. That was a suit for partition ignoring a compromise between the father of the J plaintiff and the defendant and the suit was valued under Article 17-B of Schedule II of the Court Fees Act. It was held that it was properly valued and the plaintiff was under no obligation to ask for cancellation of the compromise decree and that therefore section 7 Cl. (iv) (A) was inapplicable to the case. The doctrine of that case governs the present one. It follows that the suit was properly valued and the court fee paid is correct. The Civil Revision Petition is therefore allowed. No costs. Petition allowed.