This Revision Petition raises the question whether Court-fee on a plaint is governed by Art. 17-A, of Sch. II or by S. 7(iv-A) of the Court-Fees Act. The plaintiffs paid Court-fee in accordance with Art. 17-A. The lower Court has held that the fee must be paid in accordance with S. 7(iv-A) which means an additional sum of Rs. 300 and odd. Now the principle to be followed in determining the question of proper Court-fee is that the substance of the relief claimed, and not the form and language of the plaint, must be looked at: Secretary of State for India in Council v. Lakhanna. In the case before me the relief asked for is that a razinamah decree passed against members of a tarwad of which the present plaintiffs and defendants were members—the plaintiffs then being minors represented by defendants—may be declared null and void. The word ‘declaration’ in Art. 17-A, has a different meaning from ‘cancellation’ in S. 7(iv-A), as has been pointed out by Anantakrishna Ayyar, J., in Venkatasiva Rao v. Satyanarayanamurty(2). That learned Judge there said
“A decree will have full force and binding effect between parties to it until it is set aside by the persons who were parties to it; but persons who were not parties to it can only sue for a declaration in respect of their rights in relation to the decree.”
Therefore if a party to a decree sues to set aside or cancel a decree, S. 7(iv-A) governs the Court-fee but if the party suing was not a party to a decree which he seeks to have declared not binding on him, the appropriate provision of the Court-Fees Act is Art. 17-A. The whole question in the present case is whether the plaintiffs were properly represented by the defendants-guardians in a suit which terminated in the razinamah decree; that is to say, whether the interests of the guardians were adverse to the interest of the minors whom they represented, so that the minors could not be deemed to be parties to that decree. For, it has been held that a minor represented in a suit by a guardian whose interest is adverse to that of the minor is not legally represented at all: Sellappa Goundan v. Masa Naiken(3). Now I think that prima facie the prayer in the plaint for a declaration is based on allegations which directly put this question of adverseness of interest in issue. But that is a question of fact which must be determined on the evidence given in the suit. It cannot be decided at this stage. And this leads me to the conclusion that the declaration is asked for on the footing that the plaintiffs were not parties to the razinamah decree which they pray to be declared a nullity so far as they are concerned. In my opinion therefore they were entitled to pay Court-fee under Art. 17-A. The Revision Petition is allowed, but the costs will abide the result of the suit.
Petition allowed.
N.R.R