VEDALA VALLABHACHARYULU Vs. VEDALA RANGACHARYULU

JUDGEMENT

(1.) The question involved in this Revision Petition is one of court-fee and for the disposal of the same it is necessary to look into the allegations in the plaint and the substance of the relief claimed. Plaintiff 1 is a divided brother of one Vedala Raghavacharyulu, the husband of defendant 2. Plaintiffs 2 and 3 are the sons of plaintiff 1. Raghavacharyulu died in or about January 1929, leaving him surviving his widow, and by his last will and testament conferred certain rights in his estate on the widow and after her lifetime on the plaintiff. The case of the plaintiffs is that she has only a life-interest and that they have a vested remainder therein, The plaintiffs allege that the testator directed that the debts left by him should be discharged by his widow in a certain manner but she failed to do so, that she in collusion with defendant 1 executed certain promissory notes in his name, some of them purporting to be renewals of debts of her husband, that on the footing of the said promissory notes defendant 1 instituted O.S. No. 230 of 1934 on the file of the District Munsif's Court, Masulipatam, against defendant 2, that the latter allowed an ex parte decree to be passed against her personally and against the assets of the husband in her hands, that the said decree was a collusive one and could not bind their vested remainder in the properties left by Raghavacharyulu and that the suit properties are being brought to sale and hence they have filed the present action for getting the following relief: It may be declared that the decree obtained by defendant 1 against defendant 2 in O.S. No. 203 of 1934, of the District Munsif's Court, Masulipatam is a collusive decree and that the said decree does not affect the plaintiffs or the vested remainder interest of the plaintiffs in the properties of the late Raghavacharyulu and that defendant 1 should be restrained by a permanent injunction from bringing to sale in pursuance of the said decree the vested remainder interest of the plaintiffs in the properties of the late Raghavacharyulu.

(2.) The learned District Munsif took the view that Section 7 (iv-A), Court-fees Act, would apply to the case and directed court-fees to be paid accordingly. The question is, is this view correct? Section 7 (iv A) so far as it is material to this case, is as follows: In a suit for cancellation of a decree for money ... according to the value of the subject matter of the suit and such value shall be deemed to be... if the whole decree is sought to be cancelled... the amount for which the decree was passed.

(3.) According to the plain language of the section, the essential nature of the relief sought must be for cancellation of the decree for money, i.e., getting rid of an obligation for payment of money imposed by the decree against the party who seeks to get rid of it. The plaintiffs were not parties to the said decree and there is no obligation imposed against them personally or against any property in their hands. Prima facie Section 7 (iv-A) will not apply, but it is contended that the language of the clause is general, that the decree is against the estate and that the prayer for declaration necessarily involves the cancellation of the decree, and the clause in terms will apply. In regard to the argument based on the general language of the section, I would respectfully adopt the observations of Venkatasubba Rao, J who met a similar contention thus in Naghabushanam V/s. Venkatappayya . His contention is... that this section (in regard to the decree and instruments of the kind dealt with by it) forbids declaratory suits and enacts that cancellation should always be prayed for. This argument is in my opinion utterly untenable. To declare what the substantive rights of the parties are or to prescribe the modes of enforcing those rights is outside the province of a fiscal enactment like the Court- fees Act.