AZIMA BI Vs. ZOHARA BI

JUDGEMENT

(1.) THIS Civil Revision Petition raises the question of what is the proper court-fee payable on the suit plaint. The plaintiff is the petitioner and the suit is for partition in respect of her father's estate. Defendants 1 to 4 are the co-sharers and defendants 5 to 7 are the persons in possession of the suit property from whom the plaintiff seeks to recover possession on the ground that they are trespassers and are not entitled to the property. The plaintiff prays for a decree that the properties in the schedule to the plaint should be partitioned, and that, she should be put in possession of her half share and also for mesne profits and costs of the suit. In paragraph 7 of the plaint it is stated that the fifth defendant who claimed to be the owner of the property which is the subject-matter of the suit had a beneficial interest in it, the same having been purchased benami for him in the name of one Habibullah, the father of the petitioner.

(2.) THE 5 defendant instituted O.S. No. 328 of 1943 on the file of District Munsiff's Court of Tirupathur and obtained an ex parte decree against the plaintiff. In paragraph 8 of the plaint the petitioner states that the fifth defendant wilfully and fraudulently impleaded her as a party to that suit describing her as a major while, as a matter of fact, she was a minor at all relevant times. No guardian ad litem was appointed for the plaintiff herein in the aforesaid suit and the said decree was consequently null and void. In considering the question of court-fee the principle to be followed is to look at the substance of the claim and not the form and the language employed in the plaint. Bearing that principle in mind it has to be considered whether it is necessary for the plaintiff to ask for the cancellation of the ex parte decree in O.S. No. 328 of 1943 before she could show that she is entitled to partition and possession of her half share of the suit properties. It is well established that when a person is a party to the decree he should necessarily ask for relief to have the decree set aside before he could claim a share in the property and the question in this case is whether the plaintiff was a party to the decree in O.S. No. 328 of 1943. On the allegations in the plaint she was a minor and there was no guardian ad litem appointed for her. In the circumstances it could not be said that she was a party as she was not properly represented and the decree would not bind her. Reference is made to the decision reported in Abdulla V/s. Subramania Pattar , where it was held that the minors could not be deemed to be parties to a prior decree since they alleged that the decree was obtained fraudulently and collusively and that the guardian had acted mala fide and negligently. In this case there was no guardian at all that represented the minors and a decree passed against a miaor without representation by a proper guardian would be a nullity. This view is supported by the decision of Ramesam, J., in Gangaraju V/s. Satyanarayana . Since the decree is a nullity the petitioner is not bound to have the decree set aside and so the court-fee under Section 7, Clause (iv-A), is not payable. She has already paid a fixed court-fee and also separate court-fee for possession under Section 7(v). THE counsel appearing on behalf of the Government pleader supports the case of the petitioner. THE learned District Munsiff holds, relying on the decision in Ramaswami V/s. Rajagopalachar that since the plaintiff is eo nomine a party to the suit she is bound by the decree unless it is set aside. But the facts in Ramaswami V/s. Rajagopalachari are different from the facts of the present case. That was a case where a minor who was a party to a decree properly represented by a guardian sought to set aside certain decrees and alienations and therefore, the learned Judges held that the relief relating to the cancellation of the decrees should be separately valued and court-fee paid under Section 7(iv-A) of the Court-Fees Act. THE plaint allegations; are clear. THE plea of nullity of the decree is taken in the plaint and I do not, therefore, think that the order of the lower Court is correct. It is not open to call upon the plaintiff to pay court fee under Section 7 (iv-A) of the Court-Fees. Act. THE court-fee already paid is sufficient. THE petition is allowed.