BALAVENKATRAMA CHETTIAR Vs. MARUTHAMUTHU CHETTY

JUDGEMENT

(1.) The question for decision in this reference is, what is the correct, court-fee payable on the three memoranda of second appeals preferred against the decrees of the learned District Judge of Coimbatore in A.S. Nos. 290 and 291 of 1937 and 174 of 1938? The suits out of which these second appeals arise were brought on three promissory notes. The main defence was that the appellants were not liable on the notes as the amounts were borrowed for the benefit of Kannika Parameswari Amman Temple of Peria Nagamam by them as trustees thereof and that a decree ought to be passed against the properties of the said temple in their hands. The decision of the learned District Judge was that two of the promissory notes purported to be executed by them in their individual capacity and not as trustees on behalf of the said temple and though there was a reference to the trust in the body of the third promissory note, the executants did not sign the said note as trustees and therefore they were personally liable on all the three notes. The legal effect of this decision of the learned Judge is that the executants are not only liable to be arrested in execution of the decrees against them, but also the properties they own and possess are liable to be proceeded against for the satisfaction of the said decrees. Thus, they seek to get rid of their liability against their person and property to the extent of the amount that has been decreed against them. On these facts the learned Master took the view that an ad valorem court-fee has to be paid on the value mentioned in the memorandum of appeals, that is, the amount of the decrees which have been passed against them.

(2.) It is contended by Mr. Viswanatha Iyer, the learned Counsel for the appellants, that the subject-matter of the appeals is incapable of valuation and that the correct court-fee has been paid under Art. 17B of Schedule 2, Court-fees Act. He submits that he was not bound to pay the ad valorem court-fee because the appellants were not disputing the amount of liability but were only contending that they were not personally liable. He relied on Jagannath V/s. Laxmibai ( 35) 22 A.I.R. 1935 Bom. 111 and Bulaqi Das V/s. Lalchand ( 34) 21 A.I.R. 1934 Lah. 865 in support of his contention. Art. 17B of Schedule 2, Court-fees Act, runs thus: Plaint or memorandum of appeal in every suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by this Act.

(3.) The question therefore is, is it not possible to estimate at a money value the subject- matter in dispute in these appeals? [Before a subject-matter in dispute can be said to be incapable of valuation, it must be established that it is not even possible to state approximately what would be the money value of the liability which a person seeks to get rid of by the judicial decision, that is by no possibility could it be stated [approximately what would be the money value of the detriment that a person may suffer by reason of the adverse decision against him. What is really contended for in these appeals is that the appellants ought to have been made liable in the capacity of trustees in which case only the trust property in their hands could be held liable but they are sought to be made liable in their individual capacity which has the result of affecting their individual person and their individual property. As aforesaid by the appeals they seek to get rid of their liability to the extent of both their person and property in respect of the amount that has been decreed against them. The contention therefore that the subject-matter is incapable of valuation is unsustainable. Mr. Viswanatha Iyer relied very strongly on Section 28, Negotiable Instruments Act, which is to the following effect: An agent who signs his name to a promissory note without indicating thereon, that he signs as agent, or that he does not intend thereby to incur personal responsibility, is liable personally on the instrument, except to those who induced him to sign upon the belief that the principal only would be held liable.