This appeal raises a question of Court-fees. The suit was brought to set aside certain alienations made by the guardian of the plaintiff, who is the appellant here, during the plaintiff's minority and for possession of the properties alienated. The Courts below have held that the suit falls under S. 7(iv-A) of the Court-fees Act as amended in Madras and that it has to be valued on the basis of the value of the document which is sought to be set aside. The plaintiff himself valued it as a suit for possession under S. 7(v) and paid the statutory valuation of ten times the assessment. It is argued in appeal firstly that there is a technical error in the order of the learned District Munsif in that instead of rejecting the plaint under O. 7, R. 11 Civil Procedure Code the suit was dismissed. I think that this clearly is an error due to inadvertence and that the rejection of the plaintiff's suit should not have been treated as a dismissal such as would bar the institution of a further suit within the period of limitation.
On the Court-fee question it is argued that when the guardian of a minor improperly alienates the minor's properties and the minor after attaining majority seeks to regain possession of those properties from the alienee, it is unnecessary for him to pray for the cancellation of the document of alienation executed by his guardian, but he can pray simply for possession ignoring the wrongful alienation. In support of this argument two cases have been cited. One is that of Abdullah v. Subramanyan(1) in which Cornish, J. held that a rajinamah decree passed against the members of a tarwad when the plaintiffs were minors and were improperly represented was not a decree which had to be avoided by the plaintiffs before they could claim possession and that therefore the suit brought for possession would not fall under S. 7(iv-A). A similar decision is that of Veeraraghavalu v. Sreeramulu(2) where it is held that if a minor ignores a transaction by his guardian and sues for possession without trying to set aside that transaction, then S. 7(iv-A) of the Court-fees Act has no application. Neither of these cases seems to me to have very much bearing on the facts of the present case where the alienation was clearly made by the lawful guardian of the plaintiff as such and the plaintiff has necessarily to attack that alienation as an essential preliminary to any proceeding for the recovery of possession. This difference has been pointed out by Venkatasubba Rao, J. in the case of Doraiswami v. Thangavelu(3) where the case last quoted is explained. It seems to me that where, as in the present case, the alienation document is an insuperable obstacle to a prayer for possession so long as it has not been declared void or cancelled, the cancellation or avoidance of that document is an essential part of the relief sought and the case must come under S. 7(iv-A). It seems also that it is not of any avail to say that the prayer for possession is the main prayer. Possession is of course the ultimate object of the suit but the main difficulty in the way of attaining that object is the document of alienation which has to be removed. When once this document has been got rid of, possession follows as a matter of course and the essential object of the suit, though not perhaps its ultimate object, is to get rid of the barrier which lies in the way of obtaining possession.
A further point relates to the question, what is the proper way of valuing the property under S. 7(iv-A). The section itself does not prescribe any particular mode of valuation and there is a Bench decision of this Court in Venkatasiva Rao v. Satyanarayanamurthi(4) which incidentally is quoted by both the lower Courts though under the M.L.J “reference” (63 M.L.J 764) in which it has been held with reference to a suit for the cancellation of a decree and possession that the method of valuation prescribed in S. 7(v) should be imported into the special S. 7(iv-A) and that the value should be ten times the assessment. If that ruling governs the present case, the Court-fee paid by the plaintiff would be sufficient. There is however very grave reason to doubt whether the ruling of the Bench in the case just referred to has any application to cases in which the document to be cancelled is a sale deed or other document of transfer which itself specifies the value of the property. Venkatasubba Rao, J., has held in Bali Reddi v. Abdul Sattar which was a case of a mortgage deed and sale deed, that the value upon which the Court-fee was to be based was the actual market value and not the artificial value prescribed under S. 7(v) of the Court-fees Act, and the learned Judge distinguishes the case in Venkatasiva Rao v. Satyanarayanamurthi and a similar ruling in an earlier case on the ground that they deal only with decrees. Since there is a clear decision of this Court on the specific matter which is now before me and since with great respect I see no reason to differ from the reasoning of the learned Judge in arriving at that decision, it seems to me that I should follow the decision of Venkatasubba Rao, J., in Bali Reddi v. Abdul Sattar and hold that the lower Courts were right in requiring the plaintiff to pay the Court-fee under S. 7(iv-A) based on the actual value of the property as shown in the sale deed which the plaintiff seeks to avoid. The Second Appeal is therefore dismissed with costs of the respondents and of the Government Pleader (two sets).
I am asked to give time for the payment of Court-fee. An objection is raised on the ground that time was granted in the first Court by an order passed nearly five years ago, that no time was sought for payment in the first appellate Court and that it is not right to grant time here. It seems to me that since the appellant has been contesting with some show of justification the correctness of the order requiring him to pay an enhanced Court-fee, he should be allowed reasonable time in which to pay the deficiency on an adverse order being finally passed against him. He will therefore be given two weeks from to day within which to pay the deficiency. Failing payment, the order will be that the plaint is rejected.
Appeal dismissed.
N.R.R