G ATHIMOOLA MUDALIAR Vs. FATHIMATHUL KUBRA BEGUM SAHEBA

JUDGEMENT

(1.) The question for determination in this petition is the proper Court-fee payable on a suit brought by an unsuccessful applicant to the Collector for registration as a land-holder under Section 3(5) Madras Estates Land Act. In the lower Court it was contended that the suit was one to set aside a summary order of a revenue Court and was taxable under Art. 17(i), Schedule 2, Court-fees Act. That view was rejected by the lower Court and it is not contended before me that it is tenable, for the decision in the case of Vanniswami Thevar V/s. Chellaswami Thevar 1921 MWN 193, upon which the petitioner relies for the main argument put forward, negatives the contention that the order of a revenue divisional officer in such a case is an order of a revenue Court which it is necessary for the party adversely affected to set aside. It is established that in deciding the questions of Court-fee the Court must have regard to the substance and not the form of the relief prayed for. It is also settled that if the relief falls under some special provision of the Court-fees Act, it cannot be brought under any residuary or general provision The contention for the respondents is that this is a suit to obtain a declaratory decree where no consequential relief is prayed coming under Art. 17-A, Court- fees Act. For the petitioner it is now contended that the suit falls under the residuary Article 17-B as being a suit not otherwise provided for, the value of which cannot be estimated. The plaint in question recites that the estates of which the plaintiff claims to be the land holder was subject to an agreement whereby the then owners contracted to sell the estate to the present plaintiff (petitioner).

(2.) It recites that this agreement was approved by the High Court with reference to the interests of the minors concerned, that certain sums were paid under the agreement and that the plaintiff who had originally been in possession as lessee continued to be in possession under the agreement by way of part performance. It goes on to recite that the vendors had refused to complete the contract and had set up defendant 6 to claim a right to collect the rents, that the plaintiff had applied to the revenue divisional officer for registration, as a land- holder under Section 3(5), Madras Estates Land Act and that the latter had refused to recognise him and the Collector had refused to interfere with his order. Then the prayer is that the order of the revenue divisional officer and the revisional order of the District Collector should be set aside and that the plaintiff should be recognised as a lard-holder of the suit estate under Section 3(5), Madras Act 1 of 1908. It being established that the setting aside of the orders of the Revenue Officers is not a legal necessity in a suit of this kind, it seems to me to follow that the essential relief, which the plaintiff is claiming, is the recognition of himself as the person entitled to hold possession and to collect the rents of the suit estate. What the plaintiff asks for is a formal statement of his right to collect the rents of this estate and to be recognised by the Government as the person so entitled to collect the rents. Such recognition must necessarily take the form of a declaration and whatever words may be used to describe the decree sought, it is in fact a declaratory decree. The petitioner contends on the strength of the case already referred to, namely Vanniswami Thevar V/s. Chellaswami Thevar 1921 MWN 193, that the declaration, if it be a declaration sought by means of this suit, is not the type of declaratory decree to which Art. 17-A, Court-fees Act, applied, but some special form of declaration which is a creature of statute and for which no express provision in the Court-fees Act has been made.

(3.) In the case just referred to the learned Judges do differentiate between what they call the common law right to a declaratory decree and a right conferred by some special statute. It is, of course, arguable that there is no such thing as a common law right to a declaratory decree, but it is not necessary for me to go into that question now. I would, however, restrict the decision in Vanniswami Thevar V/s. Chellaswami Thevar 1921 MWN 193 to what it really decided, namely that in a case of this kind there is no necessity to ask for the cancellation of the revenue officer's orders, that Section 42, Specific Relief Act, does not apply and that there is no necessity therefore to pray for any consequential relief. When so much is conceded, the petitioner would argue that this case does not fall under Section 42, Specific Relief Act, and therefore does not come under Art. 17-A, Court-fees Act. I doubt whether that contention is sound. It is true that there are decisions which have held that certain suits of a quasi- declaratory nature provided for by special statutory provisions are not to be treated as declaratory suits for the purposes of the Court-fees Act. Thus it has been held that a suit under Section 112, Madras, Estates Land Act, which is a suit to contest the aright of summary distraint for rent, is not a suit for declaration coming under Art. 17-A, Court Fees Act: vide Vaithilinga Ayyasami Iyer V/s. District Board of Tanjore 1930 52 Mad 972, It has been held that a suit to direct the registration of a document under Section 77, Registration Act, is not a suit for a declaration and consequential relief, but comes under the residuary provision: vide Ramu Ayyar V/s. Sankara Ayyar (1908) 31 Mad 89. The Privy Council have held that the ordinary classes of claim suits, though they do involve the declaration of a right, are essentially suits to set aside summary orders and that Art. 17(i) applies.