SURAJUBALA DASSI Vs. JAGESWAR RAI

JUDGEMENT

(1.) This is an appeal by the plaintiff against an order of rejection of the plaint, in a suit instituted by her against the executors of the estate of her father-in-law for administration, for accounts and for other incidental reliefs. She stated that the value of the estate left by her father in-law was Rs. 30,000, but she valued the claim for accounts at Rs. 100. She paid Court-fees ad valorem on this sum of Rs. 100 and also paid an additional sum of Rs. 10 apparently on the ground that the claim for administration was incapable of accurate valuation, at least at that stage. The defendants contended that the Court-fee paid by the plaintiff was inadequate and that the suit could not consequently proceed. Their argument in substance was that, as for purposes of jurisdiction, the plaintiff had valued the suit at Rs. 30,000, she was bound to pay Court-fees upon that valuation. The Subordinate Judge thereupon framed an issue to the following effect: "Has the plaint been insufficiently stamped P" On the trial of this issue, he held that the plaint was insufficiently stamped and called upon the plaintiff to pay additional Court-fees of Rs. 965. This order was not carried out, with the consequence that the plaint was rejected. In our opinion the view taken by the Subordinate Judge cannot be supported.

(2.) The decision of the Bombay High Court, in the case of Khatija v. Adam Husenally Vasi 29 Ind. Cas. 949 : 59 B. 545 : 17 Bom. L. B. 574. shows that a suit for administrations and account is in essence a suit for accounts within the meaning of Section 7, Clause IV (f), of the Court Fees Act, 1870 and that in a suit of this description the plaintiff is competent to value the claim for accounts approximately and to pay Court-fees thereon. Sir Basil Scott, C. J., pointed out that if ultimately a decree should be passed in favour of the plaintiff for a larger amount than that covered by the Court-fees already paid, the plaintiff would be precluded by the provisions of Section 11 of the Court Fees Act from executing such decree until the fee payable on the whole amount of the decree had been paid. This view is confirmed by a reference to Form 43 of Schedule I of the Civil Procedure Code of 1908 and was adopted by this Court in Sasi Bhushan Bose v. Manindra Chandra (2) 38 Ind. Cas. 835 : 24 C. L. J. 448 : 21 C. W. N. 310. which arose out of a suit for administration and accounts brought by one of the creditors of a debtor against the trustee of his estate. A similar position had been accepted as sound in the earlier case of Satya Kumar Banerjee v. Satya Kirpal Banerjee (3) 3 Ind. Cas. 247 : 10 C. L. J. 503. We are clearly of opinion that adequate Court-fees had been paid upon the plaint, which could not consequently have been rejected.

(3.) The result is that this appeal is allowed, the order of the Court below set aside and the case remitted to the Subordinate Judge in order that it may be tried on the merits. An order will be made in favour of the plaintiff-appellant under Section 13 of the Court Fees Act entitling her to obtain a return of the Court fees paid on the memorandum of appeal presented to this Court. The appellant is entitled to her costs both here and in the Court below. We assess the hearing fee in each Court at two gold mohurs.