AKHAURI JAGARNATH PRASAD Vs. MTKAUSALYA KUER

JUDGEMENT

(1.) The petitioner is the plaintiff in a suit in which he asked that a receiver be appointed of certain property now in the possession of Mt. Kausalya Kuer, who is the widow of his brother, Akhauri Bishwanath Prasad. The court-fee paid on the plaint was that prescribed in Art. 17(vi), Schedule II, Court-fees Act. The learned Subordinate Judge has made an order requiring ad valorem court-fees to be paid under Section 7(iv)(c) of the Act on the value of the property, which was stated in the plaint to be Rs. 40,000. The learned Subordinate Judge observed that: Suits for a declaration that alienations are not binding on a reversioner and for appointment of a receiver have been always treated in our High Court as coming under Section 7(iv)(c), Court-fees Act, and in my opinion this suit comes within the same category.

(2.) The learned Judge did not cite any authority, and the only decision of this Court which has been cited at the bar and which is directly in point is Harlans Sahu V/s. Lal Moni Koer A.I.R.1922 Pat. 61, a decision of Jwala Prasad J. sitting singly. With the greatest respect I am unable to appreciate the argument of that learned Judge. It is, no doubt, incumbent on a reversionary heir who asks that a receiver be appointed to show that the widow in possession of the property has been committing waste. But there is no obligation on him to ask, in terms, for a declaration that she is doing so. Nor do I understand how a declaration of that kind can be granted under Section 42, Specific Relief Act. Mr, A.C. Sinha for the respondents referred us to a decision of Srinivas Aiyangar J. of the Madras High Court in Dodda Sannekappa V/s. Sakravva A.I.R. 1917 Mad. 134. In that case the reversionary heir had asked for a declaration that certain alienations by the widow were not binding on him and also for the appointment of a receiver Although it was held that the relief by way of appointment of a receiver was a consequential relief, it was also held that the plaintiff was entitled to value the relief as regards the receiver, or, in other words, that ad valorem court-fees on the value of the property were not necessarily the court-fees which were payable. I entertain some doubt myself as to whether it can properly be said that, when a declaration is asked for, by a reversionary heir that an alienation by a widow is not binding on him and when the reversionary heir also asks for the appointment of a receiver, the latter relief flows as a necessary consequence from the former relief.

(3.) It is, however, unnecessary for me to decide the point in this case as the learned Subordinate Judge was in error in thinking that the plaintiff had asked for any declaration that alienations made by the widow were not binding on him after her death. It is true that in the plaint it was alleged that the defendant had given away certain moveables and that she had reduced certain money rents and had commuted certain produce rents into very inadequate money rents. The plaintiff did not, however, ask for any declaration that these acts of the defendant were not binding on him. They were apparently set out in the plaint merely in order to show that the defendant had been committing waste and that the plaintiff might, therefore, reasonably ask for the appointment of receiver. It is, I think, obvious that the appointment of a receiver is not a relief which can be estimated in terms of money. If, however, any authority is needed for this, it is to be found in two decisions of the High Court of Allahabad, namely, Manmatha Nath Biswas V/s. Rohilli Moni Dasi 27 ALL. 406 and Kailash Nath V/s. Tulsi Ram . In my opinion, the court- fees paid on the plaint were sufficient. I would, therefore, allow the application with costs and set aside the order of the Court below. The hearing fee is assessed at two gold mohurs. Agarwala, Ag. C.J I agree.