RABINDRANATH SUBUDHI Vs. SIMHADRI SUBUDHI AND ORS.

JUDGEMENT

(1.) THIS is an application by the Plaintiff and it arises out of a court -fee matter disposed of by the trial Court by its order dated 9 -10 -1963. The suit instituted by the Plaintiff is one for partition of the joint family properties. Defendant No. 1 is the father of the Plaintiff and Defendant No. 4 is his mother. It appears that sometime in 1953 the Plaintiff 's mother Defendant No. 4 on her own behalf and as the guardian of the Plaintiff, who was then a minor, instituted a suit for partition of the entire family properties impleading the Plaintiff 's father therein as Defendant No. 1. A preliminary decree in that suit was passed by the trial court against which Defendant No. 1 came up to this Court, in First Appeal No. 23 of 1956. That First Appeal was in due course disposed of by the order dated 24 -8 -1960. Now the Plaintiff has become major and be has instituted the present suit bearing Title Suit No. 66 of 1963 for a declaration that the decree passed in the aforesaid Title Suit No. 55 of 1953 is not binding on him as it was obtained fraudulently. Further be has also prayed that the properties detailed in Schedules E and F of the present plaint were not included in the previous partition suit. Therefore they should be now partitioned between the members of the family. There is however an alternative prayer made in the plaint that in case the Court finds that there was no partition in the eye of law effected in the course of the previous Title Suit No. 55 of 1953, then all the properties of the family should be got partitioned afresh. In substance, therefore, according to the Plaintiff the suit was one for pure and simple partition. Accordingly he paid a fixed court fee of Rs. 150/ - on the plaint. This was originally objected to by the office whereupon the matter came up for consideration before the court. The court on an elaborate discussion of the entire matter has found that the suit as constituted by the Plaintiff is in substance for a declaration that the decree in the aforesaid Title Suit No. 55 of 1963 was obtained by fraud and therefore it was not binding on the Plaintiff. Accordingly in the opinion of the trial court the suit as constituted is not a pure and simple suit for partition but is one wherein a declaration has also sought for avoiding the decree which was passed against the Plaintiff when he was a minor in Title Suit No. 55 of 1953. As such the trial court has held that this is a case which is clearly attracted by the provisions of Section 7(iv)(A) of the Court Fees Act, as amended by the Orissa Act V of 1939.

(2.) IN my opinion, the trial court has rightly held that this is a case which is clearly attracted by the provisions of Section 7(iv)(A) of the Court Fees Act. On the very reading of the plaint it is clear that the first two reliefs as sought in the plaint are essential for any relief that may be granted to the Plaintiff in the present suit. Unless the decree passed in Title Suit No. 55 of 1953 is declared not binding on the Plaintiff, he cannot get relief in the present suit either for partition of the properties given in Schedules E and F or even for partition of the entire assets of the family as prayed for by him alternatively. The decree passed in Title Suit No. 55 of 1953 is prima facie a valid decree passed by a court of competent jurisdiction and therefore binding on the Plaintiff, and so long it is not avoided the present suit for partition in regard to the same family assets cannot proceed in law and is hit by the provisions of Section 11 of the Code of Civil Procedure. Therefore for that reason the Plaintiff has necessarily sought a declaration to the effect that he has a right to get the decree in Title Suit No. 55 of 1953 modified. This point is on all fours fully covered by a decision of the Madras High Court in Ramaswami v. Rangachariar, A.I.R. 1940 Mad. 113. In Madras also a provision similar to the present Section 7(iv -A) of the Court Fees Act is in force and in view of that a similar question arose in the aforesaid case dealing with that point and the learned Judge therein observed -