NOKSING Vs. BHOLUSING

JUDGEMENT

(1.) PLAINTIFF Noksing instituted the suit out of which the present application for revision arises on a stamp of Rs. 20 in the Court of Second Class Subordinate Judge, Akola, valuing the subject-matter at Rs. 400 and praying for the following relief:

(2.) THAT a decree be passed that the adoption of defendant 1 by defendant 2 to her husband is invalid as being against law and that defendant 1 cannot thereby be the adopted son of Kisan Singh, and that therefore he is not entitled to become the owner of the property described in para. 1 (but the words "and that para, 1" had been scored out from the plaint before it was presented in Court). The invalidity is said to be due to want of husband's authority and to defendant 1 being the son of Kisan Sing's daughter defendant 3. A preliminary objection was raised that the value of property, title to which was affected by the declaratory suit was Rs. 15,000 and that the plaint should bear a fee ad valorem that property.

(3.) THE Court of first instance holding that the suit "affects a title to property" worth Rs. 15,000 returned the plaint for presentation to proper Court. The 1st Additional District Judge, Akola, in his turn maintained that order in appeal relying on Ganpatrao v. Laxmibai F.A. No. 66 of 1916, decided by Batten, A.J.C. The plaintiff has come up in revision challenging the correctness of the above orders on the ground that they are erroneous and opposed to the express provisions of Schedule 2, Article 17, Clause 5, Court-fees Act; it is also contended that even if the suit as laid were not specifically covered by Clause 5, the other Clauses 3 and 6 at any rate are sufficiently wide to cover it, and, further that as a fixed fee of Rs. 10 only is prescribed by the Court-fees Act, the notification issued under Section 9, Suits Valuation Act, could not be applied to it; the question then is whether the present suit as laid fell within the strict terms of the proviso to Clause 3 of the notification with regard to the use of the words "affects a title to property," it is next complained that the proviso has not been properly interpreted in the several decisions of this Court and that a wider construction has improperly been put upon it as if it used the words "affects or will affect a title to property," the absence of the words "or will affect" is said to exempt a presumptive reversioner from payment of an ad valorem fee.