RAM KUMAR Vs. DAMODAR DAS

JUDGEMENT

(1.) This is an appeal by Ram Kumar and others against the order of the Civil Judge of Bareilly by which the lower Court has asked the plaintiffs- appellants to pay court-fee on the sum of Rs. 30,000. The appellants contention is twofold. It has first been urged that, in any case, they could only be asked to pay court-fee on one-fifth of Rs. 82,000, that is on Rs. 16,400. It has further been urged that this is a suit for partition and therefore, Section 7 (iv-A), Court-fees Act, does not apply to this case. The suit of the plaintiffs-appellants was against their father for partition of certain joint family properties. Among the properties were included two items which had already been sold by their father to certain persons. These persons were also made parties to the partition suit. It was said in the plaint that these two properties were worth, in all, Rs. 1,50,000, but the father of the plaintiffs, appellants had sold them for Rs. 82,000 only. The plaintiffs-appellants said that these sale deeds were not binding on them and were not executed for legal necessity and apparently prayed for their share in the proper. ties which had been sold away. The lower Court treated the plaint, therefore, as involving cancellation of these two sale deeds and demanded court-fee on one-fifth of the valuation of the subject-matter.

(2.) The second point urged on behalf of the appellants raises the question whether Section 7 (iv-A), Court-fees Act, applies to this case. We are of opinion that, as the transferees have been made a party to the partition suit and as the appellants are claiming a share out of those properties which had been sold away and further as they can only get a share if the sale deeds are adjudged void against the transferees also, this is a case which involves cancellation of the sale deeds in question and Section 7 (iv-A), Court-fees Act clearly applies to this case.

(3.) The next point that has to be decided is whether the appellants should pay court-fee on one-fifth of Rs. 1,50,000 which, they now say, is the market value of the properties sold or on one-fifth of Rs. 82,000 which was the price mentioned in the sale deeds. It has been urged, on behalf of the appellants, that Section 7 (iv- A) is capable of the construction that it is open to a plaintiff either to pay court-fee on the amount of the sale price or on the value of the property. Section 7 (iv-A), Court-fees Act, reads as follows : " In suits for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value, (1) where the plaintiff or his predecessor-in-title was a party to the decree or the instrument, according to the value of the subject-matter, and (2) where he or his predecessor-in-title was not a party to the decree or instrument, according to one-fifth of the value of the subject-matter, and such value shall be deemed to be - if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a part of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates.