?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 08/06/2011 *CORAM The Honourable Mr.Justice S.RAJESWARAN +CRP.PD.1329 of 2005 #Balasubramaniam $Masilamani !FOR PETITIONER : Mr.C.R.Prasanan ^FOR RESPONDENT : Mr.Palaniselvaraj :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 08.06.2011
Coram
The Honourable Mr.Justice S.RAJESWARAN
C.R.P.(PD)Nos.1329 and 1340 of 2005
and
C.M.P.Nos.16190 and 16296 of 2005
C.R.P.No.1329 of 2005
1.Balasubramaniam
2.Karthikeyan
3.Natarajan
4.M/s.Sree Karthikeya Ginning Factory,
Sitra Road, Kalapatti,
Coimbatore.
5.M/s.Maruthachala Textiles.
Sitra Road, Kalapatti,
Coimbatore.
6.M/s.Maruthachala Mudaliar & Co.
Sitra Road, Kalapatti,
Coimbatore.
7.Mohanasundari ... Petitioners
Vs.
1.Masilamani
2.Sarojini
3.Sulochana
4.Tamilselvi
5.Karupannasamy
6.Narayanan ... Respondents
Prayer: Civil Revision Petition has been filed against the Fair order and Decretal order dated 19.08.2005 in I.A.No.520 of 2005 in O.S.No.952 of 2004 on the file of the Additional District and Sessions Fast Track Court No.I, Coimbatore.
For Petitioner : Mr.C.R.Prasanan
For Respondents : Mr.Palaniselvaraj
C.R.P.No.1340 of 2005
Karupannasamy ... Petitioner
Vs.
1.Balasubramaniam
2.Karthikeyan
3.Natarajan
4.M/s.Sree Karthikeya Ginning Factory,
Sitra Road, Kalapatti,
Coimbatore.
5.M/s.Maruthachala Textiles.
Sitra Road, Kalapatti,
Coimbatore.
6.M/s.Maruthachala Mudaliar & Co.
Sitra Road, Kalapatti,
Coimbatore.
7.Mohanasundari
8.Masilamani
9.Sarojini
10.Sulochana
11.Tamilselvi
12.Narayanan ... Respondents
Prayer: Civil Revision Petition has been filed against the Fair order and Decretal order dated 19.08.2005 in I.A.No.520 of 2005 in O.S.No.952 of 2004 on the file of the Additional District and Sessions Fast Track Court No.I, Coimbatore.
For Petitioner : Mr.S.Parthasarathy
Senior Counsel
For Respondents : Mr.Palaniselvaraj
COMMON ORDER
Both the revision petitions have been filed against the order dated 19.08.2005 made in IA No.520 of 2005 in O.S.No.952 of 2004 on the file of the Fast Track Court 1, Coimbatore.
2. CRP No. 1329 of 2005 was filed by the defendants 1 to 3, 7 to 9 and 12 in the suit and CRP No. 1340 of 2005 has been filed by the 10th defendant in the suit.
3. For the sake of convenience, I am referring to the facts contained in CRP No. 1329 of 2005.
4. The first respondent in CRP No. 1329 of 2005 filed O.S.No.952 of 2004 for partition and separate possession. As per the plaint averments, the plaintiff and the defendants 1 to 6 are brothers and sisters and the legal heirs of their parents late Maruthachalam and his wife late Iyyammal. The defendants 7 to 9 are the business concerns run by the plaintiff and the defendants 1 to 6.
5. Briefly stated, the plaintiff claims that his father and his brother jointly sold 2.00 Acres of the joint family property along with other movables and immovables and out of the said funds and also along with the funds they possessed, the lands were at first purchased in the name of late Iyyammal in and around 1957 for the welfare of the family. Thereafter, factory building was put up over the said property and a Jinning Factory was started in the year 1961. All the members are in joint family and they have been continuing the joint family business for more than 70 years. The business prospered and a lot of properties were also purchased and all the properties are nothing but joint-family properties. It is asserted in the plaint that though all were purchased in the name of Iyyammal, the properties were purchased for the entire welfare and benefit of the joint-family. The plaintiff’s father got separated from his brother and thereafter, the plaitniff, his father and the defendants 1 to 6 enjoyed their share of property jointly and the plaintiff has been in joint and constructive possession of the suit properties. As the plaintiff is suffering from physical problems and as he has no issues, his brothers, the defendants 1 to 3 and his sisters, the defendants 5 & 6 attempted a plot against the plaintiff by bringing about several manipulated and fabricated documents with a view to deprive the plaintiff his share of the property. Despite the repeated demands made by the plaintiff, the defendants did not come forward to partition the property and therefore, he issued a notice on 09.12.2002 demanding his legitimate shares in the movables and immovable properties and also for rendition of all the accounts of the business concerns i.e. the defendants 7 to 9 . As the defendants did not come forward to partition the property as demanded by him, the plaintiff filed O.S.No. 952 of 2004 for partition and separate possession of his 8/42 share.
6. Written statements and additional written statements were filed by the defendants including the defendants 10 to 12 who were added as parties by way of an amendment. While opposing the partition suit, the defendants questioned the Court Fee paid by the plaintiff as according to them, the suit properties were not in joint possession of the plaintiff and therefore, the plaintiff ought not to have paid the fixed Court Fee under Sec. 37(2) of the Tamil Nadu Court Fee and Valuation Act.
7. The defendants 1 to 3, 7 to 9 and 12 filed I.A.No. 520 of 2005 under Sec.12 of the Tamilnadu Court Fee and suits Valuation Act read with Order 14 Rule 2 CPC to try the issue regarding the correctness of the valuation of the suit and payment of court fee under Sec.37(2) of the Court Fees Act, as a preliminary issue. In support of I.A.No. 520/05, an affidavit has been filed wherein it is stated that the suit has been filed for partition, paying a fixed court fee of Rs.200/- under Sec.37(2) of the Court Fees Act, as if the plaintiff was in joint possession of all the suit properties. Three sides in the lands of items No.4 and 5 have been sold by them to the 10th defendant as per two Sale Deeds dated 05.03.2003. The defendants 1 to 3 have sold 2.0 acres of land which is a portion of items No. 4 & 5 to the defendant as per the two sale deeds dated 05.03.2003. Items 1 to 3 were already gifted by Iyyammal in favour of the defendants 4 to 6 on 31.10.1996. Thus, items 1 to 3, a portion of items 4 and 5, a portion of items 6 and 7 and a portion of item No. 11 have been figted/sold prior to filing of the suit and therefore, in respect of all these alienated properties, the plaintiff cannot be considered to be in joint possession and more particularly when the plaintiff attested the Registered Will dated 3.10.1996 executed by Iyyammal, by which, they acquired the properties and sold portions thereof. Hence, the issue regarding correctness of the valuation of the suit has been specifically raised in the additional written statements, which is to be decided as a preliminary issue, prior to commencement of the trial as mentioned in Sec. 12 of the Court Fees Act. Hence, I.A.No. 520/2005 has been filed by the defendants 1 to 3, 7 to 9 and 12.
8. The first respondent / plaintiff filed a counter statement opposing I.A.No. 520 / 2005. It is stated in the counter by the first respondent / plaintiff that the trial had already commenced and the suit was posted for cross-examination of PW1. Therefore, Sec.12 of the Court Fees Act will not get attracted at all. Even on merits, it was stated that as per the plaint averments, the court fee has been rightly identified and paid and the same could not be questioned by the defendant, that too after the trial has commenced.
9. The Trial Court by order dated 19.08.2005 dismissed I.A.No.520/2005 and aggrieved by the same, both the above revision petitions were filed under article 227 of the Constitution of India.
10. Heard the learned counsel for the petitioner in CRP No. 1329/2005, Thiru S. Parthasarathy, the learned senior counsel for the petitioner in CRP No. 1340/2005 and the learned counsel for the respondent No. 1 in both the revision petitions. I have also gone through the entire documents available on record.
11. The learned counsel for the petitioner in CRP No.1329/2005 submitted that I.A.No. 520/2005 has been filed under the Court Fees Act and therefore, a duty is cast upon the Trial Court to take up the application and decide the same one way or the other. He contends that no discretion is vested with the Trial Court in so far as an application is filed under the Court Fees Act to determine the correct court fee paid by the plaintiff. According to the learned counsel, the trial court has miserably failed to exercise its jurisdiction under the provisions of the Court Fees Act, and it is a fit case wherein this court under this supervisory jurisdiction should interfere, set aside the order and remand the matter to the trial court to decide the court fees issue as a preliminary issue. In support of his submissions the learned counsel relied on the following decisions:
1. 2003 (4) LW 698 (1. Solaiammal (died), 2. C.Subramanian (2nd petitioner is LR of 1st petitioner brought on record as per order in C.M.P.No.16312/2001 dated 03.12.2001) vs. Rajarathinam and others)
2. 2007 (2) CTC 803 (M.Aswath vs. Jeeja Baby and 4 others)
3. 1996 (1) CTC 420 (S.Balambal vs. Sundaresan and nine others)
12. The learned senior counsel appearing for the petitioner in CRP No. 1340/2005 submits that eventhough the plaint averments alone are to be looked into for the purpose of paying the court fees by the plaintiff, which is the substance of the entire plaint averments, that should be taken as a whole and no amount of clever drafting can be considered for the purpose of deciding the court fee. The learned senior counsel points out that by making the necessary ingredients and pleadings the words as contemplated in the Enactment, the plaintiff has made an attempt to create an impression as if he was in joint possession and enjoyment of the suit properties which is not true. The learned senior counsel submits that if the plaint averments are properly considered, then it will show that the plaintiff is not in joint possession and therefore, the trial court has committed an error which goes to the root of the matter. He relies on the following decisions in support of his submissions:
1. AIR 1940 MDS 113 (C.R.Ramaswami Ayyangar (Minor) vs. C.S.Rangachariar and others)
2. 1994 (1) MLJ 428 (Sridharan and others vs. Arumugam and others)
3. 1999 (3) MLJ 381 (Raman vs. Rahmathunnisa and others)
4. AIR 1973 SC 2384 (Shamsher Singh vs. Rajinder Prashad and others)
13. Per contra, the learned counsel for the first respondent / plaintiff submits that the plaintiff has specifically pleaded that he is in joint possession and enjoyment of the property and that alone has to be looked into for the purpose of deciding the court fee issue. He further submits that as the trial has already commenced, it is not open to the defendants to agitate this matter belatedly. While supporting the order passed by the trial court, the learned counsel for the first respondent / plaintiff relies on the decision of the Hon’ble Supreme Court reported in AIR 1980 SC 691 (Neelavathi and others vs. N.Natarajan and others) and a decision of this court reported in 2007 (3) CTC 432 (A.Chinnaraj and another vs. Saroja Ammal).
14. I have considered the rival submissions carefully with regard to facts and citations:
15. Before proceeding further, now let me go through the judments cited by the learned counsel for the parties to cull out the legal principles enunciated thereon.
1. In 2003 (4) LW 698, (citetd supra) this court observed as follows:
“16. Per contra, issue relating to pecuniary jurisdiction based upon the valuation of the suit which is apparent on the face of the plaint averments and the basis of the plaint. The valuation of the plaint goes to the root of the matter. Whether the valuation of the suit property and the suit claim is apparent in the plaint averments, that question has to be decided first. In the instant case, A schedule refers to three items of immovable properties the market value of which is stated to be rupees Two lakhs likewise face value of B Schedule bank Deposits are more than Rs.Two Lakhs. Apparently even on the bare averments in the plaint District Munsif Court has no pecuniary jurisdiction. The question relating to pecuniary jurisdiction could be disposed of as preliminary issue on the basis of the averments and valuation in the plaint. In this case for ascertaining the value of the suit property no further recording of evidence is necessary. There is no mixed question of law and fact. In fact had the question relating to pecuniary jurisdiction was not taken up and determined as preliminary issue by the trial court, it would have been improper refusal to exercise the discretion under Order 14, Rule 2 C.P.C.
17. We may at once point out that even in cases relating to valuation, there might be instances of cases which require factual enquiry about the market value and that issue cannot be tried as preliminary issue. Where the valuation involves enquiry, recording of evidence, involving consideration of law and facts, in those cases issue of valuation cannot be determined in isolation as preliminary issue. Necessarily in those cases valuation and question of pecuniary jurisdiction would have to be determined with the rest of the issues.
18. As discussed earlier, in the instant case, the valuation is apparent on the plaint averments in the plaint. On the application by the defendants, the learned District Munsif has rightly exercised the discretion in determining the issue of valuation and the question of pecuniary jurisdiction as the preliminary issue. The trial court would have fallen into error, if it had declined to take up the issue of valuation of the suit and pecuniary jurisdiction as the preliminary issue.
21. As noted earlier the suit is one for declaration, declaring the plaintiff as the legal heir of deceased Chinnapoovan and for permanent injunction. Each of the three reliefs are notionally valued at Rs.400/- each and a total court fee of Rs.91.50 is paid as noted below.
(i) For declaratory Relief declaring plaintiff as the Legal Heir of Chinnapoovan Notionally valued u/s 25(d) at Rs.400/- and C.F. paid . . . Rs.30.50 (ii) Permanent Injunction relating to A Schedule Property . . . Rs.30.50 (iii) Permanent Injunction relating to B Schedule FDR which according to the plaintiff nearly Rs.1,50,000/- . . . Rs.30.50 - - - - - - - - - - Rs.91.50 - - - - - - - - - -
Thus plaintiff ‘s prayer for declaring her as the Legal Heir of Chinnapoovan and the relief of permanent injunction values under Section 27(c) of the Act relating to immovable property and FDRs as noted above. Though the suit is one for bare permanent injunction the relief in substance asked for is only to declare the plaintiff being entitled to the Fixed Deposits and to withdraw the same and also relating to the immovable properties.
22. The contention of Revision Petitioner / Plaintiff is that the question of Court Fee must be considered only in the light of allegations made in the plaint are the question of Court Fee cannot be influenced either by plea in the written statement or the objection raised by the defendants. One line of thinking is that
Whether proper court fee is paid one plaint is primarily a question between the plaintiff and the State and that the defendants who may believe and even honesty that proper court-fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint. This view is followed by some decisions that the question of Court Fee is between the plaintiff and the court.
23. But consistent views of most of the courts are that the courts are not to be governed by the paint averments. But the substance of the relief asked for is to be looked into. If the relief asked for is poidance of the sale deed, relief of declaration is necessary and the court fee is to be paid for the same AIR 1939 Madras 65. In a suit for declaration the Bank guarantee is not enforceable. In 1990 I LW 89 Abdul Hadi, J held that the court fee is payable under Section 40 of the Court Fee Act and the same cannot valued under Section 25(d) since the sum and substance of the prayer was to cancel the said Bank Guarantee.
24. Indeed the allegations in the plaint would normally govern the frame of suit. Neverthless courts have to be not only negilant and read between the lines with a view to arrest the tendency of the litigant undervalue the relief, pay minimum court fee and obtain substantial relief, but also ensure that the State does not lose revenue. This principle has been emphasized by the Supreme Court as well as the various High Courts. In Shamsher Singh v. Rajinder Prasad and others (AIR 1973 SC 2384) the Supreme Court has held as follows:-
” The courts in deciding the question of court fee should look into the allegations in the plaint to see what is the substantive relief that asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for.”
25. Thus while verifying / considering the question of Court Fee, the court shall not be carried by the form in which the plaint is drafted. The court has the onerous duty of going into the substance to ascertain the base for the reliefs claimed and to reliefs that are really emerging from averments and the relief asked for in the plaint. The cardinal principle that should be borne in mind while disposing a question relating to Court Fee or verifying the plaint is that the court should not be carried away by the form in which the plaint is drafted; but the court should keep in mind the substance to ascertain the actual relief asked for.
26. The argument advanced on behalf of the revision petitioner that two-fold permanent injunction asked for by the plaintiff is only the relief of permanent injunction simpliciter and no more and that the suit is correctly valued under Section 27(c) does not merit acceptance. Though the relief asked for is only permanent injunction, that relief of injunction is consequential to the declaratory relief that the plaintiff is the legal heir. In the context of the defendants 1 to 3 being appointed as Nominees to the FDRs, the substance of the relief asked for is only to declare the legal heirship right of the plaintiff and consequentially restraining the defendants 1 to 3 from withdrawing the same and thereby the plaintiff to withdraw the same. Though the relief of permanent injunction is not explicitly connectted or omitted to be stated as consequential, is essence the relief is only for declaration and for consequential permanent injunction. The plaint ought to have been valued at the market value and the face value of the Fiexed Deposits which certainly exceed Rupees Two Lakhs.
2. In 1996 (1) CTC 420 (cited supra) this court held as follows:
“4. Mr. N. Sankaravadivel, learned counsel for the petitioner strongly relied upon the decision in Neelavathi v. N.Natarajan, AIR 1980 SC 691, wherein the apex Court held as follows:
“Section 37 of the Tamil Nadu Court Fees and Suits Valuation Act relates to partition suits. Section 37 provides as follows:
“37(1) in a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff’s share. 37(2). In a suit for partition and separate possession of joint family property or property owned, jointly or in common by a plaintiff* who is in joint possession of such property, fee shall be paid at the rates prescribed.”
“It will be seen that the court fee is payable under Section 37(1) if the plaintiff is “excluded” from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the mitakshara coparcenary property, acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided ‘joint family property’ though not in the strict sense of the term. The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved,” To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share of some income from the property. So long as his right to a share and the nature of the property as joint is not disputed, the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court-fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been “excluded” from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaintiff a clear and specific admission that the plaintiff had been excluded from possession.”
It may be seen from the narration of facts set out in the earlier part of the said judgment that there were sufficient plaint averments in that case that the plaintiffs were in joint possession of the properties along with the defendants. But, inspite of the said position, the Courts below have taken into account the averments in the written statement and finally come to the conclusion that the plaint therein requires to be valued under section 37(1). It is in that context, having regard to the peculiar facts of the case, the observations and conclusions referred to supra came to be made, particularly in view of the plaint averments.
5. In so far as the present case is concerned, it could be seen that the plaintiff is residing at Madras, that the property is situate at Kumbakonam Taluk, Thanjavur District, that the defendants above are admittedly in possession of the suit property even as per the plaint averments and also enjoying exclusively the income from the property. Instead of any positive averment of joint possession, the claim by the plaintiff in paragraph 7 is only a constructive possession as a co-owner. To a case of the nature, in my view, the decision of a Division Bench of this Court in Sridharan v. Arumugam, 1993 II MLJ 428 would squarely apply. The allegations in the plaint to which specific reference has been adverted to both by the Court below and by me in this order would go to show that the plaintiff has failed to make specific and categorical plea of joint possession along with the defendants and the materials available on the plaint itself that she has been living in Madras all along and was not in the family, would go to show that to a case of the nature the principles laid down in Sridharan’s case 1993 II MLJ 428 Supra, would be attracted and the Court below was right in holding that the plaint ought to have been valued under section 37(1) of the Act. Consequently, I do not sec any infirmity or error of law in the exercise of jurisdiction by the Court below. The revision petition, therefore, faile and shall stand dismissed.”
3. In 2007 (2) CTC 803 (cited supra) it is held as follows:
” 11. Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act reads as under:
“(2) Any defendant may, by his written statement filed before the first hearing of the Suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section, not later, plead that the subject-matter of the Suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Court decides that the subject-matter of the Suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court’s decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the Suit.”
12. From the above, it is very clear that under Section 12(2) of the Act, a defendant may plead that the subject-matter of the Suit has not been properly valued or that the fee paid is not sufficient. But such an objection should be raised before evidence is recorded on the merits of the claim, but not later. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim.
13. Therefore, it is very clear that Section 12(2) of the Act deals with decision as to proper Court fees payable in a Suit and its proper valuation. Section 12(2) cannot be pressed into service by the defendants to decide the issue of the jurisdiction of the Trial Court as a preliminary issue.
15. In Gopalakrishnan, V.R. V. Andiammal, 2002 (2) CTC 513, this Court after going through the provision of Order 14 Rule 2, CPC and Section 12(2) of the Court Fees Act, summed up the legal position as under:
“19. To sum up, the legal position is:
(a) As per the amended Order 14, Rule 2, though a case may be capable of being disposed of on a preliminary issue, the Court is given a mandate to try all the issues together.
(b) However, an exception is made to this mandate by giving discretion to try an issue as to jurisdiction or a statutory bar to the Suit as a preliminary issue.
(c) In a given case, the Court may decline to try even an issue relating to its jurisdiction or to a statutory bar to the Suit as a preliminary issue if it considers expedient to do so.
(d) The discretion vested with the Court has to be exercised judiciously.
(e) The parties will be at liberty to adduce such evidence as they may desire only in relation to that issue.
(f) Ordinarily, no revision under Section 151, C.P.C. will be entertained against the order of the Trial Court once such a discretion is used. But however, it is not an absolute one and in exceptional cases, the Court can entertain Revision and interfere.
(g) When the defendant comes forward with an application disputing the valuation of the property or contends that the Suit has not been properly valued, the Court has to consider the same. Such consideration shall be as per Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act and the Court cannot choose to decide that issue along with other issues. This provision viz., Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act 1955, which is a substantial law shall prevail over Order 14, Rule 2, C.P.C. which is a procedural law.
(h) In the course of considering a preliminary issue, the Court is empowered to record such evidence as parties desire to let in only in relation to that issue / aspect.
(i) The allegations in the plaint have to be taken as a basis and the claim must be read as a whole. The accepted Rule is that substance alone matters and not the form.
(j) When a Suit is filed seeking a decree to set aside the sale, Court Fee has to be paid on the market value of the property on the date of filing of the Suit.
(k) But however, if a plea is raised that the signature was obtained in a blank paper or that some misrepresentation was made and thereby fraud was played on the executor, then Court fee need not be paid for setting aside the same”.
16. In Gnana Desiga Swamigal v. Krishnanandaswami, 1966 (2) MLJ 551, this Court held that under the Court Fees and Suits Valuation Act, a statutory right has been given to the defendant to raise objection to the adequacy of the Court fee paid on the plaint and the defendant is entitled to plead that the subject-matter of the Suit has not been properly valued or the fee paid is not sufficient either in his written statement or before evidence is recorded on merits.
4. In AIR 1973 SC 2384 (cited supra) the Hon’ble Supreme Court held as follows:
“4. As regards the main question that arises for decision it appears to us that while the court-fee payable on a plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint and the question whether the plaintiff’s suit will have to fail for failure to ask for consequential relief is of no concern to the court at that stage the court in deciding the question of court-fee should look into the allegations in the plaint to see what is the substantive relief that is asked for Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for. In this case the relief asked for is on the basis that the property in dispute is a joint Hindu family property and there was no legal necessity to execute the mortgage. It is now well settled that under Hindu Law if the manager of a joint family is the father and the other members are the sons the father may by incurring a debt so long as it is not for an immoral purpose, lay the joint family estate open to be taken in execution proceedings upon a decree for the payment of the debt not only where it is an unsecured debt and a simple money decree for the debt but also to a mortgage debt which the father is personally liable to pay and to a decree for the recovery of the mortgage debt by the sale of the property even where the mortgage is not for legal necessity or for payment of antecedent debt (Faqior Cjamd v. Harnam Kaur, (1967) 1 sCR 68 = (AIR 1966 SC 727). Consequently when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them they were really asking either for setting aside the decree or for the consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property as he was entitled to do. This aspect is brought out in a decision of the Full Bench of the Lahore High Court in Zeb-ul-Nisa v. Din Mohammad(2)where it was held that :
“The mere fact that the relief as stated in the prayer clause is expressed in a declaratory form does not necessarily show that the suit is for a mere declaration and no more. If the relief so disclosed is a declaration pure and simple and involves no other relief, the suit would fall under Art. 17(iii).”
In that case the plaintiff had sued for a twofold declaration : (i) that the property described in the plaint was a waqf, and (ii) that certain alienations thereof by the mutwalli and his brother were null and void and were ineffectual against the waqf property. It was held that the second part of the declaration was tantamount to the setting aside or cancellation of the alienations and therefore the relief claimed could not be treated as a purely declaratory one and inasmuch as it could not be said to follow directly from the declaration sought for in the first part of the relief, the relief claimed in the case could be treated as a declaration with a “consequential relief.” It was substantive one in the shape of setting aside of alienations requiring ad valorem court-fee on the value of the subject matter of the sale, and even if the relief sought for fell within the purview of s. 7 (iv) (c) of the plaintiffs in view of ss. 8 and 9, Suits Valuation Act, having already fixed the value of the relief in the plaint for purposes of jurisdiction were bound to fix the same value for purposes of court-fee. It was also pointed out that in deciding whether a suit is a purely declaratory, the substance and not merely the language or the form of the relief claimed should be considered. The court also observed : “It seems to me that neither the answer to the question whether the plaintiff is or is not a party to the decree “or the deed sought to be declared as null and void, nor to–the ques- tion whether the declaration sought does or does not fall within the purview of s. 42, Specific Relief Act, furnishes a satisfactory or conclusive test for determining the court fee payable in the suit of this description. When the plaintiff is a party to the decree or deed, the declaratory relief, if granted, necessarily relieves the plaintiff of his obligations under the decree or the deed and, hence it seems to have been held in such cases, that the declaration involves a consequential relief. In cases where the plaintiff is not a party to the decree or the deed. tile declaratory relief does not ordinarily include any such consequential relief. But there are exceptional cases in which the plaintiff though not a party to the deed or the decree is nevertheless bound thereby. For instance, when a sale or mortgage of joint family property is effected by a manager of a joint Hindu family, the alienation is binding on the other members of the family (even if they are not parties to it) until and unless it is set aside. Similarly, a decree passed against the manager will be binding on the other members of the If therefore a copartner sues for a declaration that such an alienation or decree is null and void, the declaration must I think be held to include consequential relief in the same may as in those cases in which the plaintiff is himself a party to the alienator, or the decree, which is sought to be, declared null and void. The case dealt with in AIR 1936 Lah 166 seems to have been of this description. The case of an alienation by a mutwalli of waif property would also ap- pear to stand on a similar footing. In the case of waif property, it is only the trustee or the mutwalli who can alienate the property. If he makes an alienation it is binding on all concerned, until and unless it is set aside. If therefore a person sues to get such an alienation declared null and void, lie can only do so by getting the deed invalidated. The relief claimed in such cases also may therefore be found to include a consequential relief.”
The decision of the Lahore High Court in Prithvi Raj v. D. C. Ralli, AIR 1945 Lah 13 is exactly in point. It was held that in a suit by the son for a declaration that the mortgage decree obtained against his father was not binding upon him it is essential for the son to ask for setting aside of the decree as a consequence of the declaration claimed and to pay ad valorem court fee under s. 7(iv)(c). It was pointed out that a decree against the father is a good decree against the, son and unless the decree is set aside it would remain executable against the son, and it was essential for the, son to ask for setting aside the decree. In Finayakrao v. Mankunwarbai(2) it was held that in a suit by the son for a declaration that decree against the father does not affect his interests in the family property, consequential relief is involved and ad valorem court fee would be necessary.”
5. In 1999 (3) MLJ 381 (cited supra) this court held as follows:-
8. Section 12(3) of the Tamil Nadu Court-Fees and Suit Valuation Act reads thus.
“12(3) – A defendant added after issues have been framed on the merits of the claim may in the written statement filed by him plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, in the merits of the claim, and if the court finds that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient, the court shall follow the procedure laid down in Sub-section (2).”
While narrating facts I said that first defendant has not taken any objection as to the valuation of the suit nor took contention that the Court fee paid is not sufficient.
9. An explanation has been added to sub-section (3) of section 12, which provides, that nothing in this sub-section shall apply to a defendant has been added as successor or a representative in interest of a defendant who was on record before issues were framed on the merits of the claim and who had an opportunity to file a written statement pleading that the subject matter of the suit was not properly valued or that the fee paid was not sufficient.
10. By virtue of the explanation it is clear that only the successor of defendant or representation in interest of a defendant cannot object to the valuation if defendant already on record has not raised any objection. A person who has taken sale deed from defendant is an assignee and therefore cannot be considered as successor or representative in interest of defendant. Purchaser is not representing original defendant since he is representing his own interest. He is also not successor and interested in defendant since his right is based on the document executed by defendant. In that view of the matter, contention of learned counsel for petitioner that the explanation to Section 12(3) is a bar for filing the interlocutory application cannot be accepted.
6. In 1994 (1) MLJ 428 (cited supra) the Devision Bench of this court held as under:
“6. Before taking upon the question of the binding nature of the alienations, we would discuss the maintainability of the suit without a. prayer for setting aside the alienations as well as the valuation of the suit. The sale deeds under Exs.B-22, B-1, B-6, B-10 and B-23 in the chronological order were executed by the first defendant for himself and as guardian of the minor children. In fact, in one of the documents, he has showed the minor daughter also as a party and he executed the sale deed as a guardian for her. There are five other documents under Exs.B-20, B-25, B-30, B-31 and B-27 which are executed by the 1st defendant alone. In so far as the documents in which the minor children are made parties, they are bound in law to pray for setting aside the same. Without such prayer, the suit is not sustainable in relation to those documents. The plaintiffs have also not paid the correct Court-fee on the plaint. They have chosen to affix the Court-fee under Section 37(2) of the Court-fees Act. The trial court has erroneously thought that the plaintiffs are in joint possession and the Court-fee paid is adequate. Nowhere in the plaint, the plaintiffs allege that they are in joint possession with the defendants. There is no allegation in the plaint that the alienees under the Various documents did not take possession. In fact, there is an allegation in the plaint that the plaintiffs were driven out of the family house. Some of the letters produced on the said of the plaintiffs show that the 5th plaintiff was living away from the 1st defendant with their children. Thus, there is ample evidence to show that the plaintiffs are not in joint possession. Even if the allegations on the plaint are taken without considering the evidence on record, it is clear that the plaintiffs cannot take shelter under Section 37(2) of the Court-fees Act. They ought to have paid Court-fee under Section 37(1) of the Act. They should have also prayed for setting aside the alienations. The law is well settled by a Full Bench of this Court in C.R.Ramaswami Ayyangar v. C.S.Rangachariar, I.L.R. 1940 Mad. 259:32 M.L.J. 477.”
7. In AIR 1940 MDS 113 (cited supra) a Full Bench of this court held as follows:
“Section 7 (iv)(b) says that suits to enforce the right to share in any property on the ground that it is joint family property shall be stamped according to the amount at which the relief sought is valued in the plaint. The reasons for the majority view in 21 M.L.J. 21 are to be found in the judgment of Krishnaswami Aiyar, J., in which White, C.J., concurred. The reasons given by Krishnaswami Aiyar, J., can be shortly stated in this way. It would not be likely that the Legislature in enacting a measure with regard to court-fees would have omitted to make specific provision for such a common form of suit as a suit for partition by a member of a joint Hindu family and the Privy Council had applied a clause similarly worded in the Limitation Act of 1859 to such suits-The clause referred to in that Act is Clause 13 of Section 1, which fixed a period of twelve years for suits to enforce the right to share in any property movable or immovable on the ground that it is joint family property. Ayling, J., agreed with the opinion expressed in 33 Bom. 658. that a suit to recover by partition a definite and ascertained share of a specified property could not fall under Section 7(iv)(b), but he did not accept the Bombay view that Section 7(v) was the appropriate section. He accepted the decision in 8 Cal. 757, as embodying the correct view. In that case Garth, C.J., observed that it was impossible to say what would be the value to the plaintiff of the change in the nature of his property. A partition suit changes the form of enjoyment of the property. Instead of an undivided share the plaintiff claims a divided share. Ayling, J., agreed that it was impossible to estimate in money the value of such a suit. In this connection it may be mentioned that in 43 Mad. 396, Wallis, C.J. and Sadasiva Aiyar, J., held that a suit for partition of immovable property by a person who alleged that he was in possession of it as co-tenant on behalf of himself and others was governed by Article 17(vi) of Schedule II (now Article 17B) because the value of the subject-matter was not capable of valuation.
The Bombay High Court stands alone in its application of Section 7(v). That section says that in suits for the possession of land, houses and gardens the stamp fee shall be paid according to the value of the subject-matter, and states how that value shall be arrived at. In my opinion this Sub-section cannot be deemed to apply to a partition suit where the plaintiff is in joint possession. A joint owner who is in possession does not need to sue for possession. He has possession and the fact that his possession is shared by others does not affect the position, I consider that Section 7(v) can only apply where the plaintiff is seeking relief in respect of immovable property when he is out of possession. If Section 7(v) is ruled out the only other provisions of the Court-Fees Act which call for consideration are Section 7 (iv)(b) and Article 17B of Schedule II. The language of Section 7(iv)(b) is, however, incompatible with a claim for partition when the plaintiff is in joint possession, with the other members of his family. A suit to enforce a right to share in any property on the ground that it is joint family property is. a suit of a different nature from a suit to enforce the right to a share. Where the claim is to share, it implies that the plaintiff is not in possession; whereas a suit to obtain possession of a share is compatible with the plaintiff being in joint possession of the whole.”
8. In AIR 1980 SC 691 (cited supra) the Hon’ble Supreme Court held as under:
“6. On reading of the plaint as a whole, we arc unable to agree with the view taken by the High Court. It is settled law that the question of court fee must be considered hl the light of the allegation made in the plaint and its decision cannot be the either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should should be construed and taken as a whole vide S. Rm.Ar.Sp. Sathappa Chettiar v. S. Rm Ar. Rm. Ramanathan Chettiar 1958 SCR 1021 at pp. 1031-32. The plaint in paragraph 5 states that Muthukumaraswamy Gounder died intestate and undivided and Muthukumaraswamy’s father Vanavaraya Gounder was managing all the ancestral joint family property as the head of the Hindu undivided joint family till his death. In paragraph 8 the plaintiffs stated that on the death of Muthukumaraswamy Gounder his 1/3rd share in the joint family properties devolved upon his sons and daughters. It further alleged that the plaintiffs were in joint possession of the properties alongwith Vanavaraya Gounder and his other sons. In paragraph 9, it is stated that each of the plaintiffs is entitled to a share in the suit properties as heirs of the late Muthukumaraswamy Gounder and also as heir of the late Vanavaraya Gounder. In paragraph 11, it is stated that since the death of Vanavaraya Gounder defendants 1 to 6 are receiving the income from the properties and are liable to account to the plaintiffs. In paragraph 12, it is stated that since the death of Vanavaraya Gounder defendants 1 to 6 failed to give the plaintiff their share of income and the plaintiffs could not remain in joint possession. Therefore the plaintiffs demanded partition and the defendants 1 to 6 were evading. Again in paragraph 13, it is claimed that each of the plaintiff as co-owners is in joint possession of the suit properties? and this action is laid to convert the joint possession into separate possession so far as the shares of the plaintiffs are concerned. Throughout the plaint, the plaintiffs have asserted that they are in joint possession. We are unable to agree with the High Court that recitals in all the paragraphs is merely a formal statement repeating. the statutory language. The plea in paragraph 12 which was relied on by the High Court states that the defendants 1 to 6 failed to give the plaintiffs their share of the income and the plaintiffs could not remain in joint possession. The plea that they were not given their due share would not amount to dispossession. Reading the plaint at its worst against the plaintiffs, all that could be discerned is that as the plaintiffs were not given their share of the income, they could not remain in joint possession. The statement that they arc not being paid their income, would not amount to having been excluded from possession. The averment in the plaint cannot be understood as stating that the plaintiffs were not in possession. In fact, the defendants understood the plaint as stating that the plaintiffs are in joint possession of the suit properties. In paragraph 18 of the written statement the defendants plaintiff that the plaintiffs have framed the suit as though they are in joint possession and enjoyment of the suit properties. Asserting that the plaintiffs were out of possession, the defendants stated: “While it is so the allegation that they are in joint possession of the suit properties, is not correct.”
7. The Trial Court has not placed any reliance on the recitals in para 12 of the plaint on which the judgment of the High Court is based. The Trial Court found on evidence that the plaintiffs never enjoyed the suit properties at any time. This finding is not enough for, the mere fact that the plaintiffs were not paid their share of the income or were not in actual physical possession, would not amount to the plaintiff.; having been excluded from joint possession to which they arc in law entitled. On a consideration of the plaint as a whole and giving it its natural meaning, we are unable to agree with the conclusion arrived at by the High Court.”
9. In 2007 (5) CTC 432 (cited supra ) this Court observed as follows:
” 4. Order 14, Rule 2, C.P.C is extracted hereunder.
“2. Court to pronounce judgment on all issues. -(1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same Suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may be that issue first if that issue relates to –
(a) the jurisdiction of the Court, or
(b) a bar to the Suit created by any law for the time being in force, and for that purpose may, if it thinks fit postpone the settlement of the other issues until after that issue has been determined, and may deal with the Suit in accordance with the decision on that issue.”
5. On a perusal of the aforesaid provision, it is clear that ordinarily the Court should try all the issues together and an issue may be taken up as a preliminary issue only if it relates to the question of jurisdiction and it is based purely on a question of law. In other words, where for deciding a particular issue relating to jurisdiction evidence would be necessary, such issue should not be considered as a preliminary issue.
6. In the present case, the question raised by the defendants is dependant upon evidence to be taken and is not a pure question of law relating to jurisdiction of the Court and therefore the Trial Court was right in observing that the issue need not be taken as a preliminary issue. However, once such a conclusion was reached, the Trial Court should not have made any observation which may prima facie indicate as if the Trial Court has also decided the questions raised on merit.
16. In the light of the above legal principles, now, let me consider the facts of the present case to find out whether the trial court has rightly decided the issue of court fee raised by the defendants before it.
17. In its order dated 19.08.2005, the trial court referred to certain important dates, according to which, the suit has been originally filed in the Sub-Court, Coimbatore on 17.04.2003. In the suit, the defendants 1 and 3 and 8 and 9 filed their written statements on 5.3.2004 and issues have been framed on 19.3.2004.
18. On 26.4.2004, the suit was transferred to the District Court, Coimbaore and from the District Court, Coimbatore, the suit was agians transferred to the Fast Track Court I, Coimbatore and taken on file on 11.1.2005. On 15.2.2005 itself, proof affidavit was filed by the plaintiff and thereafter, it was posted for cross-examination on 22.2.2005. Stopping here for a moment these dates are not disputed by the revision petitioner and therefore, the fact remains that on 15.2.2005 itself, the trial has commenced and the proof affidavit of PW1 has been filed and the suit was thereafter posted to 22.2.2005 for cross-examination of PW1. If that being so, Sec. 12(2) of the Court Fees Act will not get attracted and therefore, it is not open to the revision petitioners to resort to Sec. 12(2) to question the court fee paid by the plaintiff in the suit.
19. Admittedly, the petition has been filed both under the Court Fees Act and Order 14 Rule 2 CPC. In so far as the Court Fees Act is concerned, no discretion is vested with the courts and the courts have to decide the issue if an application is filed to determine the court fee paid or payable. However, the court has no other alternative excepting to decide the Court Fee issue if the application is filed before the commencement of the trial and not thereafter. I have already referred to the dates and I have already mentioned that the trial has already commenced in this case and only thereafter, the application has been filed under Sec. 12(2) of the Court Fees Act. In such circumstances, I have no hesitation in holding that the issue of the court fee cannot be gone into at this juncture.
20. In so far as Order 14 Rule 2 CPC is concerned, an issue can be taken up as a preliminary issue, if it is purely a question of law. Admittedly, in the present case, the facts as stated by the plaintiff and the facts as putforth by the defendants are disputed facts and only on the basis of these disputed facts, the question of payment of correct court fee is to be determined. In such circumstances, i do not find any illegality or infirmity in the order passed by the trial court holding that to decide the valuation of the court fees as a preliminary issue does not arise at this stage. Therefore, on this score also, i do not find any infirmity in the order passed by the trial court.
21. In the result, I do not find any merits in the above two revision petitions and accordingly, they are dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed. The Trial Court is directed to decide the issue of court fee also along with the other issues while disposing of the suit.
22. Considering the fact that the suit was originally filed in the year 2003, the trial court is directed to give utmost importance for a speedy disposal of the suit on merits and in accordance with law and if necessary, the trial may be taken up on a day to day basis.
08.06.2011
Index : Yes
Internet: Yes
cse
To
The Additional District and Sessions
Fast Track Court No.I,
Coimbatore.
S.RAJESWARAN, J.
cse
Pre-delivery order made in
C.R.P.(PD)Nos.1329 and
1340 of 2005
and
C.M.P.Nos.16190 and
16296 of 2005
08.06.2011