BETHASAMI NAICKEN Vs. NAGAMMAL

JUDGEMENT

(1.) The question which arises in this Civil Revision Petition is whether a sufficient Court-fee on a plaint has been paid. The plaint sets out a claim by the plaintiffs in the alternative characters of members of a joint family or of tenants-in-common for a declaration that the defendant had no right in certain immoveable property, and for a permanent injunction. The plaint contained a further prayer for a partition of a 23 share in items of immoveable property, in the event of the Court holding the plaintiffs were tenants-in-common with a co-tenant since deceased. The plaintiffs contended that Section 7, Clause (iv)(b) of the Court Fees Act governed the valuation of the property for the purposes of Court-fee. The District Munsif rejected that contention, and I think he was right. By Section 7, Clause (iv)(c) of the Court Fees Act as amended by the Madras Court Fees Act, 1922, it is provided that in suits coming under Sub-clause (c) (which refers, to suits to obtain a declaratory decree or order where consequential relief is prayed), where the relief sought is with reference to any immoveable property, the valuation shall not be less than half the value of the immoveable property calculated in the manner provided for by paragraph (v) of Section 7. This means that the value is to be calculated on the market value of the property. The plaint undoubtedly contained a prayer for a declaratory decree and consequential relief in respect of a claim to immoveable property, and the proviso to Section 7, Clause (iv)(c) of the Court Fees Act, therefore, applied.

(2.) A second point arises out of the order of the District Munsif refusing to return the plaint until the plaintiffs had paid the proper Court-fee upon the valuation of the property made by the Commissioner appointed for that purpose. The District Munsif justified his order by the ruling of Krishnan, J., in Kandasamli Goundan v. Subbai Goundan (1923) 46 M.L.J. 345, where the learned Judge said that the Munsif was not justified in returning a plaint which was not properly stamped. It is to be observed, however, that the learned Judge's attention does not appear to have been drawn to Kandu V/s. Konda (1884) I.L.R. 8 M. 62, where it was held that the Munsif having discovered after enquiry that the valuation of the lands in suit was beyond his jurisdiction adopted the correct procedure in returning the plaint. Neither was Krishnan, J.'s attention apparently drawn to the remarks of Sadasiva Aiyar, J., in Kannuswami Pillai V/s. Jagathambal (1918) I.L.R. 41 M. 701 at 708 : 35 M.L.T. 27 which says of Order 7, Rule 10, Civil Procedure Code: I think it is clear that the legislature intended that as soon as the Court arrived at the conclusion at any stage of the case that the suit should have been instituted in some other Court, the plaint should at once be returned to be presented to the proper Court.

(3.) This principle has been accepted by Jackson, J., in a case reported in 57 M.L.J. 33 (sh. n.) and in a case Civil Revision Petition No. 901 of 1929-recently heard before Anantakrishna Aiyar, J., and myself. It is also supported by the observations of Fawcett, J., in Ganesh Tavanappa V/s. Tatya Bharmappa (1926) I.L.R. 51 B 236 at 241. On the balance of authority, therefore, I think the procedure which was followed by the District Munsif in this case was wrong, and that he should have returned the plaint at once when he discovered that the valuation was beyond his jurisdiction.