KANDUNNI NAIR Vs. ITTUNNI RAMAN NAIR

JUDGEMENT

(1.) The 1 defendant is the appellant. He is a junior member of a tarwad of which the plaintiff is the manager appointed under a karar. jointly with a younger brother, the 1 defendant acquired a certain property, and the younger brother subsequently died. The plaintiff brought the suit as manager of the tarwad for partition and recovery of the younger brother's half share of the property on the ground that it had passed to the tarwad by inheritance. There was also a prayer for mesne profits from the date of the younger brother's death. In his written statement the 1 defendant alleged that the younger brother's name was only nominally added in the assignment deed and that in fact the whole property was acquired by himself alone. The learned Subordinate Judge has disbelieved this allegation and has given a preliminary decree for partition, which directs that the amount of mesne profits due to the tarwad shall be determined at the time of passing the final decree. The judgment decides that only three years mesne profits are awardable, but this decision is not carried into the decree.

(2.) The plaintiff as respondent raises the preliminary question of the sufficiency of the Court-fee paid on the memorandum of appeal. The appellant disputes his right to raise an objection of this character, and refers to the procedure laid down in Chapter II of the Court Fees Act, so far as it applies to a High Court. Section 4 provides that Court-fees must be paid before any of the documents specified in the first or second schedules of the Act are filed. Section 5 states that when a difference arises between the officer whose duty it is to scrutinise the sufficiency of the Court-fee and a suitor or attorney, the question shall be referred to the taxing officer, whose decision shall be final unless he considers the question of sufficient importance to refer it to the Chief justice. In the Madras High Court the officer who has to ensure that the Court-fee has been duly paid, is the Deputy Registrar, Appellate Side, and the taxing officer is the Master. It is conceded that in the present case the procedure permitted by these sections was not availed of. Not only so, but it is very difficult to see what opportunity a respondent would have of setting it in operation. The case for which Section 5 ordinarily provides is when the officer who has to admit the appeal finds the Court-fee paid insufficient and calls upon the appellant to pay the; deficit. If then the appellant contests the correctness of the requisition, the officer makes a reference to the taxing officer. In such a case, no doubt, the taxing officer's decision is final, and even though the respondent was unrepresented when the correct Court-fee was finally fixed, it may well be, as appears to have been decided in Ranga Pai V/s. Baba (1897) I.L.R. 20 M. 398, that he cannot raise the "question at the hearing of the appeal. We have been referred to no authority however for the position that where no recourse has been had to Section 5 he is still debarred from so doing. In Bhubaneswar Trigunait, In re (1925) I.L.R. 52 C. 871 all that was decided was that where in a probate case a taxing officer's certificate as to the sufficiency of the duty is produced, although it may have been given after no such "difference" as is contemplated by Section 5, it is still final. This part of that decision was followed by one of us in Swaminatha Aiyar V/s. Guruswami Mudaliar . There is, however, a direct decision in Kasturi Chetti V/s. Deputy Collector, Bellary (1898) I.L.R. 21 M. 269 that where there has been no decision by the taxing officer under Section 5 the Court is not precluded from taking notice at the hearing of the deficiency in the stamp duty. "Otherwise," the learned Judges say: there would be no remedy for the most obvious error, or even for a deliberate trick to defraud the stamp revenue, unless detected by the routine establishment in the first instance, and before the admission of the appeal or the reception of the paper, as the case might be.

(3.) We think that this is the correct view and following it we have allowed the respondent to address us on the question of Court-fee.