Applicability of provisions of the Act in a decree for money or property.

This Revision Petition relates to the proper court-fee leviable on an Original Suit No. 36 of 1951 filed in the Court of the learned Subordinate Judge of Devakottai.

The controversy is regarding one of the reliefs prayed for in the suit, which was mainly for a partition of alleged joint family properties, viz., that a prior partition decree may be declared null and void and not binding on the plaintiff. The plaintiff, in addition to paying a Court-fee of Rs. 100 under Article 17-B, Schedule II of the Court-Fees Act for the relief of partition and a Court-fee of Rs. 11-3-0 on the relief of accounting valued at Rs. 100, paid a court-fee of Rs. 100, for the relief of declaration prayed for in respect of the prior partition decree under Article 17-B of the Court-fees Act. On an objection by the Court-fee examiner the learned Subordinate Judge has held that this relief would fall under section 7, clause (iv-A) of the Act as amended in Madras and directed the plaintiff to pay ad valorem Court-fee on a sum of Rs. 28,500 at which the plaintiff had valued his suit for purposes of jurisdiction. It is to revise this order that the above revision petition has been filed.

I accept the contention raised on behalf of the plaintiff petitioner that the case would not fall within section 7, clause (iv-A) because there is no decree for money or decree for property which is sought to be set aside. On the date of the suit, a preliminary decree had been passed in the prior suit for partition which only declared the shares of the members of the family and directed an account to be taken of the assets and liabilities of the joint family. Such a decree can in no sense be called a decree for money. It is difficult to predicate at the stage of a preliminary decree for partition what property would be allotted to the plaintiff. As each member of the family would only be entitled to a share in such property as would remain after providing for the legitimate family expenses and the payment of debts binding on the family, what exactly would be the property for which a decree would be passed in favour of each member cannot be determined till the final decree is passed. Admittedly such a final decree was not passed by the time the present suit was filed. I do not agree with the learned Government Pleader that because the preliminary decree has declared the plaintiff’s right to a share in the joint family properties, the decree must be deemed to be a decree for property.

The question next arises how the relief should be valued. Mr. Rama Ayyar for the petitioner urged that the prayer for declaration itself was a mere surplusage and it is not necessary for the plaintiff to seek such a relief. The ground on which this contention was based was that according to the allegation in the plaint the plaintiff’s guardian was negligent in the conduct of the prior suit. Where it is not a case of total lack of representation of the minor, or representation by a guardian whose interests were adverse to the minor, and where merely negligence is alleged, the decree passed against the minor would not be a nullity. It may be that on proof of gross negligence the minor may be able to have the decree set aside. But till it is so set aside the decree would be proper and valid. So it is necessary for the plaintiff in this case to seek a declaration that the decree is not valid and binding on him. To such a relief, Article 17-A(1) Schedule II, of the Court-fees Act would apply. The fixed Court-fee would vary according to the forum and the value for purposes of jurisdiction. The plaint was presented to the Subordinate Judge’s Court and the value for purposes of jurisdiction was given in the plaint as Rs. 28, 500. Mr. Rama Ayyar contended that the value for purpose of jurisdiction mentioned in column 2 of Article 17-A(1), Schedule II of the Court-fees Act is the value of the prior suit. This contention is opposed to the language of the provision. What we have to do is to treat the su