Kerala High Court
Pankajaksha Kurup vs Fathima And Ors. on 13 March, 1998
Equivalent citations: AIR1998KER153, AIR 1998 KERALA 153, (1998) ILR(KER) 2 KER 693, (1998) 2 CIVILCOURTC 648, (1998) 1 KER LJ 639, (1998) 1 KER LT 668, (1998) 3 RECCIVR 53
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
JUDGMENT Sankarasubban, J.
1. This Civil Revision Petition has been referred before the Pull Bench since the correctness of the Division Hench decision in Vasudeva Rao v. Hari Menon, 1981 Ker LT 763 : (AIR 1982 Ker 35), was doubled before the Division Bench.
2. The plaintiff in O. S. 711/1993 on the file of the Sub-Court, Ernakulam is the revision petitioner. The plaintiff is alleged to be a lunatic and is represented by his guardian, his wife. The allegations in the plaint are that the decree in O. S. 183 of 1984 of the Sub-Court, Ernakulam was obtained against the plaintiff (who was the defendant therein) when he was a lunatic and the proceedings in that suit continued against the plaintiff without appointing a guardian. Hence, according to the plaintiff, the decree is a nullity. The reliefs prayed tor in the plaint are : (i) a declaration that the decree in O. S. 183 of 1984 is null and void; and (ii) consequential injunction restraining defendants 2 to 5 from executing that decree. The plaintiff valued the declaratory prayer at Rs. 30,000/- as per Section 25(d)(ii) of the Kerala Court fees and Suits Valuation Act, hereinafter referred to as "the Act" and a Court-fee of Rs. 1,050/- was payable on it. The defendants entered appearance and filed a written statement. They contended that the suit was not properly valued and, therefore, the Court-fee paid was not correct. Hence an issue was raised as follows :
"Whether the valuation of the suit and court-fee paid are correct?".
The contention raised by the defendants was that the prayer of the plaintiff actually amounts to setting aside a decree and hence the suit ought to have been valued and Court-fee paid under Section 40 of the Act. Under Section 40 of the Act, 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. The trial Court after considering the arguments of both parties held that the relief prayed for by the plaintiff-petitioner amounts to cancellation of decree, under Section 40 of the Act and hence directed to pay Court-fee on the value of the property at Rupees five lakhs. The plaintiff had only paid Court-fee on Rs. 30,000/-. Hence he was directed to pay the balance Court-fee payable on Rs. 4,70,000/-. It is against that order this revision petition was filed.
3. When the revision petition came up for hearing before the learned Single Judge, the counsel for the petitioner contended that the decision in Vasudeva Rao v. Hari Menon, 1981 Ker LT 763 : (AIR 1982 Ker 35), was not correctly decided. Hence the matter was referred to the Division Bench. The Division Bench was of the view that since the correctness of the decision of the Division Bench was raised, this matter is decided by a Full Bench. It is in these circumstances, the matter has come before the Full Bench.
4. Afterwe heard the counsel tor the petitioner, counsel for the respondents and the learned Government Pleader, we are of the view that the correctness or otherwise of the decision in Vasudeva Rao v. Hari Menon, 1981 Ker LT 763 : (AIR 1982 Ker 35) does not actually arise for consideration in this case. The said decision was with regard to the scope and meaning of Section 40 of the Act. Section 40 is with regard to valuation and Court-fee of Suits with regard to cancellation of decree. That decision held that in suits to set aside decrees with respect to immovable properties. Court-fee has to be paid on the money value of the property. But in this case, we are taking the view that the suit is to be valued and Court-fee paid under Section 25 of the Act. Hence it is not necessary to go into the question whether the decision in Vasudeva Rao v. Hari Menon, 1981 Ker LT763 : (AIR 1982 Ker 35), is correct or not.
5. The trial Court directed the petitioner to pay Court-fees under Section 40, since it interpreted the plaint as amounting to cancellation of the decree. The trial Court relied on the decision of the Supreme Court in Shamsher Singh v. Rajinder Prashad, AIR 1973 SC 2384. The Supreme Court in that decision held that the plaintiff therein was really asking lor setting aside the decree and for consequential relief of injunction and hence the relief amounted to selling aside the decree.
6. But, on a reading of the plaint in the present case, we find that it cannot be held that the prayer for declaration cannot legally stand. The averments in the plaint are that the plaintiff (who was the defendant in O. S. 183 of 1984) was a lunatic at the time when O. S. 183 of 1984 was pending and when decree was passed thereon. It is also alleged that no guardian was appointed to represent the plaintiff in that case. The Honourable Supreme Court in the decision reported in Ram Chandra v. Man Singh, AIR 1968 SC 954, has held as follows (at p. 955, para 3):--
"It is now a well-settled principle that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of R. 15 of O. 32 of the Code of Civil Procedure so that the decree obtained against Ram Lal was a decree which has to be treated as without jurisdiction and void. In these circumstances, the sale held in execution of that decree must also be held to be void".
Thus, if the averments of the plaint in the present case are to be accepted, the decree in O. Section 183 of 1984 against the present petitioner is null and void. If the decree is null and void, it is not necessary to set aside the same. Hence according to us, the prayer made in the present plaint cannot be said to be a prayer with a view to get the decree set aside.
7. As already stated, the trial Court relied on the decision of the Supreme Court in AIR 1973 : SC 2384. In that case, the facts were different. There, the father executed a mortgage deed in favour of a third person. The father claimed to be the sole owner of the said property. The mortgage was executed for Rs. 25,000/-. The mortgagee filed a suit on the foot of the mortgage and obtained a decree. When he tried to take out execution proceedings for the sale of the mortgaged property, the sons of the mortgagor filed a suit for declaration that the mortgage executed by theirfather in favour of the mortgagee is null and void and ineffectual as against them as the property was a joint Hindu family property and the mortgage has been effected without consideration, and family necessity. Court-fee was paid although it was a suit for declaration.
On the objection of the defendant with regard to Court-fees, the Supreme Court held as follows (para 4):--
"It appears to us that the Court-fee payable on a plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint.......... Mere astuteness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for. In this case the relief asked for is on the basis that the property in dispute is a joint Hindu family property and there was no legal necessity to execute the mortgage. It is now well settled that under Hindu Law if the manager of a joint family is the father and the other members are the sons the father may by incurring a debt so long as it is not for an immoral purpose lay the joint family estate open, to be taken in execution proceedings upon a decree for the payment of the debt not only where it is an unsecured debt and a simple money decree for the debt but also to a mortgage debt which the father is personally liable to pay and to a decree for the recovery of the mortgage debt by the sale of the property even where the mortgage is not for legal necessity or for payment of antecedent debt. Consequently when the plaintiffs sited for a declaration that the decree obtained by the appellant against their father was not binding on them, they were really asking either for setting aside the decree or for the consequential relief of injunction.....".
It was in this context the Honourable Supreme Court held that the relief amounted to setting aside the decree.
8. But as already held in the present case, the averments in the plaint are that the plaintiff was a lunatic when the suit was instituted and the decree passed. The Hon'ble Supreme.Couri has held that a decree against a lunatic without a guardian being appointed is a nullity. Hence, we are of the view that in the present case it cannot be held that the prayer for declaration was made as a camouflage for setting aside the decree.
9. The learned counsel for the respondents then submitted that the petitioner paid Court-fee under Sec. 25 (d)(ii), which states as follows : -
"(ii) where the subject-matter of the suit is not capable of valuation, fee shall be combined on amount at which the relief sought is valued in the plaint or on rupees one thousand, whichever is higher".
According in the respondents, the relief for declaration that a decree is not binding is actually a relief sought with reference to an immovable property and hence accenting to them, valuation and court-fee had to be paid on the basis of Section 25(b), which states as follows :--
"where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees one thousand, whichever is higher".
We feel that this matter should be enquired into by the trial Court, since we are of the view that Section 10 of the Act is not applicable.
In the result, we set aside the impugned order dated 14.7.1995 in O.S.No.711/1993 passed by the Court below directing the petitioner-plaintiff in value and pay the Court-fees under Section 40 of the Act. We hold that valuation and Court-fee arc to be fixed under Section 25 of the Act; but we direct the Cum below to consider whether Court-fee is to be paid under Section 25(b) or Section 25(d)(ii) of the Act. The parties will appear in the Court below on April 2, 1998. The Court below will consider the question of sufficiency of the valuation made and the Court fee paid on the basis of the above directions. The Court below with also expedite the trial of the suit and will try to dispose of the suit within a period of six, months from 2-4-1998.
The C.R.P. is allowed as above. Order on C.M.P. 2631/1995 in C.R.P. No. 1518 of 1995-B, Dismissed.