PALANIAPPAN CHETTIAR Vs. SETTICHI

JUDGEMENT

(1.) In O.S. No. 436 of 1927 on the file of the District Munsif's Court of Melur the plaintiff sued for a declaration that a release deed executed by the widow, the 5 defendant, in favour of the reversioners-defendants 1 to 4, was not valid, for the appointment of a Receiver of the estate of the last male-holder inherited by his widow, the 5 defendant, and subsequently said to be in the possession of defendants 1 to 4, and also for directions to defendants 1 to 4 to rebuild a house, belonging to the estate, alleged to have been damaged or pulled down by defendants 1 to 4. The plaintiff is the daughter of the 5 defendant and is the sister of the 6th defendant. Defendants 1 to 4 are said to be the gnatis of the husband of the 5 defendant. The learned District Munsif passed a decree declaring that the ultimate reversioners would not be bound by the release deed executed by the 5 defendant in favour of defendants 1 to 4 but that they would be bound to pay the defendants 1 to 4 the sum of Rs. 1,188-4-0 which the defendants 1 to 4 were found to have spent to the benefit of the last male-holder's estate. The decree also stated that the plaintiff would be entitled to apply for the appointment of a Receiver in the event of the dismissal by the Court of Suit No. 627 of 1929 instituted by the 5 defendant against defendants 1 to 4 for certain reliefs concerning the release deed executed by her. Defendants 1 to 4 appealed to the District Court against the decree passed by the District Munsif. The question arose in the Appellate Court as to the proper court-fee payable on the Memorandum of Appeal. The learned District Judge, as I understand his order, found that in respect of the relief granted by the District Munsif concerning the appointment of a Receiver, a court-fee of Rs. 15 has to be paid under Art. 17-A of the second schedule of the Court Fees Act. As regards another prayer in the Appeal Memorandum, which the learned District Judge calls "the counter-claim of the appellants," he directed as follows : "Appellants will pay court-fee on the amount awarded in the Lower Court (Rs. 1,188-4-0) and on the amount in excess claimed (Rs. 909-12-0)". Defendants 1 to 3 - appellants in the Lower Appellate Court - have filed the present Revision Petition against the order passed by the District Judge.

(2.) It was argued by the learned advocate for the petitioners that the learned District Judge was in error in directing the appellants to pay court-fee on the amount awarded to them by the Trial Court (Rs. 1,188-4-0), and on the amount in excess claimed by them in appeal - Rs. 909-12-0. As the learned District Judge has not fully discussed that aspect of the question, I am inclined to think that what he probably intended to order was that the appellants should pay court-fee only on the difference between the amount claimed by them in the first Court and the amount awarded to them by the decree of the District Munsif; but I must admit that on the face of the order of the learned District Judge, it would seem as if he directed the petitioners to pay the court-fee both on Rs. 1,188-4-0 and Rs. 909-12-0. In my opinion the learned District Judge was clearly in error in directing court-fee to be paid on both the amounts. I fail to see how defendants 1 to 4 could be directed to pay court-fee in respect of Rs. 1,188-4-0 for which they had already got a decree in the first Court. However, having regard to the view I take about that main declaration claimed by the plaintiff, I think that the defendants 1 to 4 need not pay court-fee on either of the two amounts mentioned in the order of the District Judge.

(3.) As already mentioned, the suit was one for a declaration that a release deed executed by the 5 defendant in favour of defendants 1 to 4 would not be binding on the ultimate reversioners. On such a plaint the court-fee payable is Rs. 15 under Art. 17 of the Court Fees Act, seeing that the suit was filed in the District Munsif's Court. No doubt the decree granted by the District Munsif gave a declaration (though a qualified one) in favour of the plaintiff. As I understand the Appeal Memorandum filed by defendants 1 to 4, they impugn the whole of the declaratory decree granted by the Trial Court. That being so, the court-fee payable in respect of this portion of the claim could be only that payable in respect of a declaratory relief, under Art. 17-A of the second schedule of the Court Fees Act. It is no doubt true that the defendants raised an alternative ground of appeal, namely, that even in case the Court should hold that the plainitiff would be entitled to a declaration, the declaration should not be entirely unconditional but should be one subject to a condition that the ultimate reversioners should pay the defendants a certain sum of money. In such a case I. think the principle applicable is one, similar to the rule laid down in Sekharan V/s. Eacharan Nair (1909) 20 M.L.J. 121 and Pathumma Umma V/s. Aliyammakkanakath Mohideen . Cases from Malabar have come before this Court where the plaintiff seeks relief in ejectment, and the defendant in possession not only raises pleas against the right of the plaintiff to eject but also claims compensation for improvements in case the Court should direct the ejectment. In such cases it has been held that when the defendant prefers an appeal against the decree in ejectment passed by the Trial Court which also directs the plaintiff to pay a certain amount of money as compensation for improvements or otherwise due to the defendant, the court-fee payable on the appeal should be calculated on the basis of the plaint in an ejectment suit "as the defendant in appeal has raised objection to the decree in ejectment altogether". "The circumstance that he also raised a ground claiming a larger amount for compensation due to him " has been held not to alter the real nature of the suit or the appeal. In fact in Sekharan V/s. Eacharan Nair (1909) 20 M.L.J. 121 the defendant preferred an appeal and contended that the whole suit should be dismissed, though he also claimed a very large amount as due to him for value of improveents in case the decree in ejectment was ultimately confirmed. This Court has held that notwithstanding the subsidiary prayer, which will arise only in the alternative when his contention as regards the ejectment is overruled, the proper amount of court-fee is that leviable in a suit in ejectment and that the defendant-appellant need not pay any court- fee calculated on the value of the improvements relating to which he has taken a ground of appeal. When, however, the plaintiff who has obtained a decree in ejectment prefers an appeal questioning only the amount that has been directed to be paid by him to the defendant, then there are some cases which were cited to me which hold that in such cases the plaintiff, appellant, should value the appeal according to the amount to which he has raised a dispute. But the present case is one where defendants 1 to 4 oppose the grant of any declaratory decree at all; and that being so, I think the principle of the cases I have mentioned applies to the present case; and I am of opinion that the appellants 1 to 4 were bound td pay court-fee of Rs. 15 only under Art. 17-A of the second schedule of the Court Fees Act, and that, they need not pay any additional court-fee in respect of any portion of what the learned Judge calls "the counter-claim of the defendants". This disposes of the main question that was argued before me.