Court-fee payable on the suit for cancellation of decree.

This Civil Revision Petition raises a question as to the amount of court-fee payable by the petitioner on a memorandum of appeal filed by her in the Court of the District Judge of Anantapur against the decree of dismissal of her suit, O.S.No. 199 of 1947, by the District Munsiff’s Court of Gooty. In paragraph 13 of the plaint she prayed for a decree:

“Cancelling the decree in O.S.No.29 of 1942 on the file of this Court and all the proceedings in the appeal therefrom and the decree passed in the appeal A.S.No. 91 of 1944; or declaring the same to be void, invalid, and not binding in the plaintiff; and directing the defendants or such of them as may be found liable, to pay the plaintiff the costs of this suit”.

O.S.No. 29 of 1942 was a suit filed by the present 1st defendant for possession of the lands described in schedules A and B of the plaint, claiming title under a will executed by the plaintiff’s deceased husband. The plaintiff was impleaded as the 3rd defendant and as a major in that suit, which ended in a decree in favour of the 1st defendant, then plaintiff. The decree was affirmed on appeal in A.S. No.91 of 1944. In her plaint the plaintiff alleged that though she was impleaded as a major, she was in fact a minor when O.S.No. 29 of 1942 was decided and that she was not represented by any guardian. She also alleged that she had all along been in possession of the lands described in schedules A and B to her plaint and that the 1st defendant recently attempted to interfere with her possession under colour of a delivery of the properties to him in execution of the decree in O.S.No. 29 of 1942. The plaint was valued under section 7 (iv-A) of the Court-fees Act, hereinafter referred to as the Act, and ad valorem court-fee was paid on the value of the lands in schedules A and B, calculated in the manner provided by section 7 (v) of the Act. The suit having been dismissed, an appeal was filed from the decree with a court-fee of Rs. 15 treating the suit as one falling within Article 17-A of schedule II of the Act. On 28th October, 1948, the Appellate Court passed an order fixing the market-value of the lands in schedules A and B at Rs. 2,712 and calling upon the appellant to pay ad valorem court-fee on that amount both on the plaint and the memorandum of appeal. The court-fee demanded not having been paid, the memorandum of appeal was rejected by an order dated 22nd November, 1948. It is against this order that the Civil Revision Petition has been preferred.

It is argued for the petitioner that the allegations in the plaint must be taken to be correct for the purpose of levying court-fee; that her case was that though she was impleaded as a major in O.S.No. 29 of 1942, which ended in a decree against her she was in fact a minor; and that the decree was, for that reason, wholly void. Though she engaged a pleader and gave evidence in that suit to the effect that her husband had died intestate and the will relied upon by the plaintiff was not genuine, it is her case now that she was a minor all along, that she was not aware of the nature of the dispute in that suit and that no guardian had been appointed to represent her. The decree in O.S.No. 29 of 1942, affirmed on appeal in A.S.No. 91 of 1944, was ex facie a decree against the plaintiff, then the 3rd defendant, as a major, and it is this decree that is sought to be declared invalid by the plaintiff. The question is, what is the provision of the Court-fees Act that is applicable to the case and on what basis Should court-fee be paid. It is contended for the petitioner that though she has prayed only for cancellation of the decree in O.S.No. 29 of 1942, yet the Court must have regard to the substance of the plaint and treat the suit as one merely for a declaratory relief. Reliance is placed on a decision of Krishnaswami Nayudu, J., in Azima Bibi v. Sohara Bibi1, where the facts were somewhat similar to those of the present case, except that the plaintiff in that case had a