SURENDRA SINGH Vs. GAMBHIR SINGH

JUDGEMENT

(1.) There was a suit brought for a declaration as follows: That it may he declared that under the, family partition the plaintiffs alone are the owners in possession of the property entered in list A and that the defendant has no concern with it, and that the defendant is not competent to have the villages of Shamspur alias Manikpur and Pabsara entered in list A partitioned; and for some other similar declarations, five in all.

(2.) The Court of first instance decreed the suit of the plaintiffs for a declaration in regard to part of the property and dismissed it in regard to part of the property. A first appeal was brought by the defendant in this Court and the plaintiffs have filed cross-objections in regard to the declaration which was not granted by the lower Court. The cross-objection sets out that the value of the objection is Rs. 26,758-5- 0, and that the court-fee has been paid on Rs. 20. In the case of the plaint and in the case of the memorandum of appeal there was a court-fee paid for a declaratory suit, that is, Rs. 50 for the plaint and Rs. 30 for the appeal. It is not contested that under the Court-fees Act,, Schedule 2, Art. 14, the proper court- fees for the plaint and for the memorandum of appeal are the amounts which have been paid and that under that article advalorem court-fees are not required,, the rate being Rs. 10 as the proceedings took place before the U.P. Court-fees Amendment Act, 1932, was passed. The Chief Inspector of Stamps has reported that there is a deficiency of, Rs. 846-12-0, in the court-fee filed on the cross- objection as he alleges, that the court-fee should be an advalorem one. The question at issue is. whether in a declaratory suit the plaint and memo of appeal require only a court-fee of Rs. 10 per declaration, but the cross-objection requires an advalorem court-fee. The suggestion of the Chief Inspector is very illogical, as there is no reason whatever why the particular proceedings of cross-objection should be treated in any manner different from the plaint and memo of appeal. The taxing officer has sustained the objection of the Chief Inspector of Stamps and he refers to various rulings, Lakkan Singh V/s. Ram Kishan A.I.R. 1918 All. 185, Daroga Raut V/s. Mt. Parema Kuer A.I.R. 1918 Pat. 145 and Judicial Commissioner's Court, Oudh, Sri Rajeo Lochart Maharaj V/s. Ram Manohar Prasad A.I.R. 1923 Outh. 44. In all these rulings it was held that cross-objections in declaratory suits must bear the court-fee calculated on the amount of value of the subject matter in dispute. The line of argument in all these cases is simple. It is based on the fact that under Schedule 1 for advalorem fees Art. 1 states as follows: Plaint, written statement pleading a set-off or counter-claim, or memorandum of appeal (not otherwise provided for in this Act) or of cross-objection presented to any Civil or Revenue Court except those mentioned in Section 3.

(3.) It will be noted that in this article the words "not otherwise provided for in this Act" do not qualify the word "cross-objection" and only qualify the "plaint, written statement or memorandum of appeal." Schedule 2, Art. 17, states that there is a fixed fee of Rs. 10 for "plaint or memorandum of appeal In each of the following suits : (3) to obtain a declaratory decree where no consequential relief is prayed."