T S RAMASWAMI AIYAR Vs. MARANGASWAMI AIYAR

JUDGEMENT

(1.) These petitions relate to a suit in which the District Munsif of Calicut made a preliminary decree for the administration of the estate of one Rama Pattar on a creditor's plaint. After that preliminary decree was made, two other creditors put in claims against Rama Pattar's estate. The District Munsif has ordered that on those claims they must pay ad valorem Court-fee as if they were plaints. These revision petitions are against those orders.

(2.) It will he noticed that we are not concerned here with the question what Court-fee should be paid by a creditor who institutes an administration suit. The question is what Court-fee, if any, should be paid by another creditor who comes in with a claim after a preliminary decree for administration has been made in such a suit. The learned Government Pleader has admitted that there is no explicit provision in the Court Fees Act requiring any Court-fee to be paid on such a claim. But he has suggested that we should treat such claims as plaints for the purpose of the Court Fees Act. Except throwing out that suggestion he has not shown us, in my opinion, any good reason why we should extend the definition of the word "plaint" in that way. But his more serious argument is that such a1 creditor's suit for administration is really a suit for an account, the plaintiff-creditor representing in it all the other creditors, who, being so represented, are in effect parties to the suit from the outset. His view of the suit is that the plaintiff-creditor may fix his own valuation and Court-fee in the first instance, but that, before any further amount than that on which he has paid the Court-fee can be recovered by any creditor, additional Court-fee must be paid--in some such way as it is required to be paid in other suits for accounts by Section 11 of the Court Fees Act. In a sense a creditor's suit for administration is a suit for an account; but the analogy between it and an ordinary suit for an account will not in my opinion carry us far enough. First, it must be noticed that in an ordinary suit for an account, if a larger amount is found due to the plaintiff when the account is taken than that on which he has paid Court-fee, Section 11 of the Court Fees Act provides that he cannot execute his decree for the larger amount without paying additional Court-fee on it. That is not exactly what the learned Government Pleader is contending for in this instance. Here it is contended that the creditors other than the plaintiff-creditor must pay additional Court-fees at an earlier stage, not when they are executing any decree or order which they may eventually obtain in the suit, but when they put in their claims. And does a plaintiff-creditor in such an administration suit really represent all the other creditors? In one sense his suit is a suit for the benefit of all the creditors of the estate. But I think it is clear that the other creditors cannot be held to be represented by him in the sense that they are in effect parties to the suit from the outset. It is clear I think that, if during the pendency of the suit, before a preliminary decree for administration is made, a claim of one of the other creditors becomes barred by time, it is gone it cannot be enforced in the administration suit. That could not be if the other creditor had been represented by the plaintiff-creditor and was in effect a party to the suit from the start. On that subject it is useful to compare In re Greaves, Deceased. Bray v. Tofield (1881) 18 Ch.D. 551, which explains the English law on the subject; and I see no reason to suppose that the position in this country is different in that respect. Then it must be noticed that, before the preliminary decree for administration is made, if the person who represents the estate of the deceased pays off the plaintiff-creditor's claim the suit will be dismissed, although none of the other creditors has been satisfied at all. That too shows that the plaintiff- creditor does not effectively represent all the other creditors so as to make his suit a suit for an account on behalf of all, which is really what the learned Government Pleader contends for. We must also remember that in an administration suit the Court takes control of the estate and distributes it among the creditors, and it is no part of the duty of the Court to do that in an ordinary suit for an account. When we examine the matter in that way, it will be seen what a short distance the analogy of a suit for an account takes us in this matter. But, even if it went much further, could analogy help us? The learned District Munsif has relied on some remarks in Shashi Bhushan Bose V/s. Manindra Chandra Nandy (1916) I.L.R. 44 C. 890 on the subject. In that case the learned Judges said: When, after the preliminary decree has been made and creditors have been invited to establish their claims, if any, against the debtor, each creditor, who puts forward a claim not already transformed into a judgment debt, may well be required to pay Court-fees ad valorem on his application, as if it were a plaint in a suit for the recovery of the sum he claims. Such a procedure can be sustained on the analogy of Section 11 of the Court Fees Act.

(3.) In regard to that it must first be noticed that what the learned judges said was only obiter dictum and in no way necessary for the decision of the case before them. And apart from that with very great respect I may say that I do not understand how any fiscal statute can be applied by analogy. When the State requires the subject to pay a tax of any kind, that must be done by definite enactment strictly interpreted; and that is a principle which we are bound always to defend. In my opinion, there being no enactment requiring Court-fee to be paid on such claims as these, the learned District Munsif was wrong in his order: these petitions should be allowed and the claims inquired into without Court-fee: if the petitioners have now paid Court-fees, they should be refunded.