1. This revision petition arises out of an order of the District Munsif, Thirupatur, upholding an objection with regard to the amount of court fee payable on the plaint by the present petitioners-plaintiffs. The petitioners are sons of one Shanmugham. The third plaintiff is a minor and for purposes of the suit he is represented by his elder brother, plaintiff No. 1, as his next friend. The relief sought in the suit is for a declaration that the preliminary decree dated 25.4.1977 in O.S 12 of 1977 on the file of the Additional District Munsif, Thirupattur was null and void and was not binding on the plaintiffs.

2. The suit, O.S 12 of 1977 was filed by one Radha Ammal, who was the daughter of Kannian had several issues and Shanmugham, the father of the plaintiffs, was the only male heir. He had other daughters. One of the daughters Radha Ammal filed a suit for partition of her one eighth share in the suit properties left behind by her father. Shanmugham died during the pendency of the suit. The present plaintiffs and other children of Shanmugham were brought on record as defendants. The minor issues of Shanmugham were represented by Andal defendant-4 in the present suit and as also defendant-4 in O.S 12 of 1977. That suit ended in a decree in favour of the plaintiff. The substantial part of the decree was that the suit properties should be divided into 8 equal shares by metes and bounds and one such share shall be allotted to the plaintiff. The defendants were directed to deliver the share to the plaintiff. There is nothing to show that his preliminary decree was fo lowed by a tinal decree. But we are not concerned with that question in these proceedings at all. This decree was passed on 20th April, 19/7. The plaintiffs brought the present suit sometime in February 1983 for a declaration that the decree is null and yoid. The substantial ground on which this relief was sought is found in paragraph 5 of the plaint in which it is alleged that the alleged appointment of guardian for the minors in the earlier suit was irregular and illegal, as the interest of the guardian was adverse to that of her minor sons and she was therefore not qualified to be a guardian. This is followed by an averment that the minor defendants 8 to 10 in the said suit were not at all represented and are not deemed to be parties to the said suit in the eye of law, as the alleged appointment is illegal and void and the alleged guardian acted mala fide with gross negligence and remained ex parte in all the proceedings in O.S 12 of 1977. It does appear from the earlier decree that the minors and the guardians were proceeded against ex parte.

3. The plaintiffs treated the suit for purposes of court-fee as one governed by S. 25 (d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, hereinafter referred to as the Act. Admittedly, the suit does not fall within clause (a), (b) or (c) and, therefore, it is not necessary to reproduce those clauses. S. 25 (d) reads as follows—

“25. In a suit for declaratory decree or order, whether with or without consequential relief, not falling under S. 26:………

(a) and (b) ……

(c)…

(d) in other cases, whether the subject matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher.”

S. 26 is also not relevant, because the suit does not fall within S. 26 which deals with adoption suits.

4. The objection raised by the Appeal Examiner was that the plaintiffs were parties to the earlier suit and therefore the proper court fee payable was under S. 40 of the Act. This objection has been upheld by the District Munsif overruling the objections raised by the plaintiffs. It is true that the District Munsif has not passed any reasoned order but that by itself now cannot be treated as an infirmity because I have now heard the learned counsel for the plaintiffs at considerable length.

5. The argument of the learned counsel for the petitioners is that in view of the averments in the plaint that the guardian of the plaintiffs was irregularly and illegally appointed and she had allowed the suit to proceed ex parte, the minors cannot be treated as parties to the suit in which the decree was passed and consequently the only provision of law relevant would be clause (d) of S. 25 of the Act. That is how, according to the learned counsel, the Court fee has been paid. The learned counsel appearing on behalf of the contesting defendants-respondents and the learned Additional Government Pleader contended that the question as to whether the guardian-mother was acting adversely to the interest of the minors when she allowed the suit to proceed ex parte is not relevant for the purpose of deciding the question of court fee. The argument is that the suit squarely falls within the provisions of S. 40 of the Act, and unless the decree is declared to be void, the decree will be binding on the parties thereto aotwithstanting the fact that the present plaintiffs were ex parte.

6. It is an established principle of construction that, where there is a specific provision governing a particular case, that provision alone will apply to the facts of the case and the general provision will be excluded. Tne averments in the plaint show that fault is sought to be found with regard to the appointment of the mother as the guardian of the minors. The plaint itself does not disclose as to how the appointment of the guardian was irregular or illegal. Now under the provisions of the Hindu Minority and Guardianship Act, the mother will be the natural guardian of her minor children in the absence of the father. Shanmugham died during the pendency of the suit and the mother was therefore, the natural guardian and she has been shown on the records as such. Merely by dubbing the appointment of the mother as the guardian illegal or irregular, will not take away the fact that the mother was entitled to act as guardian, of her minor children. The fact that a party to a suit is placed ex parte does not create any infirmity in the decree itself. If a party has chosen to remain ex parte, that party may either have to ask for setting aside the decree on the ground that there was sufficient justification for its absence and that the non-appearance was caused by an unavoidable circumstance or it could file an appeal against the ex parte decree. It is for the party against whom the ex parte decree is passed to show that the party had represented as guardian, of the minor and the ex parte decree will therefore be binding on the minors. The effect of such an ex parte decree cannot be taken away by pleading or contending that minors cannot be treated as parties to the suit. In my view, this is a case which is squarely governed by S. 40 of the Aet. S. 40 reads as follows—

“In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject matter of the suit, and such value shall be deemed to be—

If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;

If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.

(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less”—

The above section will therefore, show that as long as the decree operates to effect the right of the plaintiffs unless that decree is cancelled, the decree will be effective and if the whole of the decree is sought to be cancelled, then the amount of the decree will be the value for purposes of court fees. It is, therefore, not possible for the plaintiffs to argue that they cannot be treated as parties to the suit at all.

7. Reference has been made by the plaintiffs to a decision of the Orissa High Court in Manoranjan v. Brundalit A.I.R 1969 Orissa, 52. The facts of that case will show that a minor was impleaded as a party with his mother as guardian. But when notice was sent to the mother, the mother did not appear at all and an ex parte decree came to be passed. The Court held that the decree was a nullity as it was passed without appointing a guardian. It is difficult to see how the plaintiffs can avail of this decision. That was a case in which the guardian had chosen to remain absent when the notice for appointment of the mother as the guardian was served on her. The absence of the mother in response to a notice would show that she was not willing to be appointed as guardian and the Court had to find some other person. The facts of that case have no relevance to the question which has arisen in this case.

8. The learned counsel for the contesting defendants has referred to a decision of the Full Bench of this Court in Ramaswami Iyengar v. Rangachariar 51 L.W 11=A.I.R 1940 Mad. 113 F.B. In that case with reference to the minors it was held by the Full Bench as follows—

“In respect of decrees passed against him in suits in which he had been eo nomine impleaded as a party, it is plain that he must pay the fee prescribed by S. 7 (IV-A) (which is equivalent to S. 40,). Such decrees bind him until set aside, and therefore, he cannot seek to obtain a decision on the footing that his interest in the joint family property is not affected by them. It makes no difference that the plaintiff is a minor or merely a junior member of the family, as the considerations which apply to the decree of a competent court, once it is passed, are essentially different from those applicable to the transactions of a party. The plaintiff must beheld to have impliedly asked for a cancellation of the decree passed against him and must accordingly stamp his plaint ad valorem on the amount of the decrees and not merely on bis share fraction, as his liability is for the full amount, though necessarily limited to the extent of his share in the joint family assets.”

Apart from the plain construction of S. 40, which is against the plaintiffs, even this decision holds that a decree of a competent court is a binding decree until it is set aside. The plaintiffs cannot, therefore, seek for cancellation of the decree on the ground that their interest was not represented as the guardian remained absent in the suit.

9. It was then sought to be argued that, if this construction is placed on S. 40 of the Act, a minor may be put to serious handicap in the sense that, where decrees for enormous amounts have to be set aside, he will have to pay heavy Court fee. Now It is difficult to appreciate what relevance the financial position of the minor has anything to do with the construction of S. 40. The simple fact is that, if a person is a party to a decree that decree will be binding on him until it is set aside and if that is to be set aside, on the ground that it is irregular or illegal he will have to pay court fee as required by S. 40 of the Act. If a minor does not have enough funds to pay court fees, there are adequate provisions in the Civil Procedure Code which would enable him to file a suit without payment of court fees. Therefore, the argument that the construction which is placed on S. 40 of the Act, will adversely affect the minors is of no consequence.

10. There is no substance in this revision petition and it is dismissed with costs Rs. 250. The learned counsel for the petitioners requests time for payment of court fees. Time is granted till 20th January, 1988 for payment of court fee.

VCS/RR