Viswanatha Sastri, J. - (1.)This civil revn. petn. raises a question as to the amount of court-fee payable by the petnr. on a memorandum of appeal filed by her in the Ct. of the Dist. J., Ananta-pur against the decree of dismissal of her suit, O. S. No. 199 of 1947, by the Dist. Munsif's Ct. of Gooty. In para. 13 of the plaint she prayed for a decree "cancelling the decree in O. S. No. 29 of 1942 on the file of this Ct. & all the proceedings in the appeal therefrom & the decree passed in the appeal A S. No. 91 of 1944; or declaring the same to be void, invalid, & not binding on the pltf.; & directing the defts, or such of them as may be found liable to pay the pltf. the costs of this suit." O. S. No. 29 of 1942 was a suit filed by the present deft. 1 for possession of the lands described in Sens, A & B of the plaint, claiming title under a will executed by the pltf.'s deceased husband. The pltf. was impleaded as deft 3 & as a major in that suit, which ended in a decree in favour of deft. 1, then pltf. The decree was affirmed on appeal in A. S. No. 91 of 1944. In her plaint the pltf. alleged that though she was impleaded as a major, she was In fact ft minor when O. S. No. 29 of 1942 was decided & 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 & B to her plaint & that deft. 1 recently a 'empted 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, & 'ad valorem' court-fee was paid on the value of the lands in Schedules A & 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 28-10-1948 the appellate Ct. passed an order fixing the market value of the lands in Schedules A & B at Rs. 2712 & calling upon the applt. to pay 'ad valorem' Court-fee on that amount both on the plaint & the memorandum of appeal. The Court-fee demanded not having been paid, the memorandum of appeal was rejected by an order dated 22-11-1948. It is against this order that the civil revn. petn. has been preferred.
(2.)It is argued for the petnr. 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; & that the decree was, for that reason, wholly void. Though she engaged a pleader & gave evidence in that suit to the effect that her husband had died intestate & the will relied upon by the pltf. 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 & 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 pltf., then deft. 3, as a major, & it is this decree that is sought to be declared invalid by the pltf. The question is, what is the provision of the Court-fees Act that is applicable to the case & on what basis should Court-fee be paid.
(3.)It is contended for the petnr. that though she has prayed only for cancellation of the decree in O. S. No. 29 of 1942, yet the Ct. must have regard to the substance of the plaint & treat the suit as one merely for a declaratory relief. Reliance is placed on a decision of Krishnaswami Nayudu J. in 'Azima Bi v. Zohara B1', , where the facts were somewhat similar to those of the present case, except that the pltf. in that case had also prayed for recovery of possession paying Court-fee under Section 7(V) besides a fixed Court-fee of Rs. 15 for a declaratory relief under Schedule II, Article 17-A of the Act. The learned Judge observed :
"It is well established that when a person is a party to the decree he should necessarily ask for relief to have the decree set aside before he could claim a share in the property & the question in this case is whether the pltf. was a party to the decree in O. S. No. 328 of 1943. On the allegations in the plaint she was a minor & there was no guardian 'ad litem' appointed for her. Reference is made to the decision reported in 'Abdulla v. Sabramania Pattar', 71 MLJ 383 : (AIR (23) 1936 Mad 470), where it was held that the minors could not be deemed to be parties to a prior decree since they alleged that the decree was obtained fraudulently & collusively & that the guardian had acted 'mala fide' & negligently. In this case there was no guardian at all that represented the minors & a decree passed against a minor without representation by a proper guardian would be a nullity. This view is supported by the decision of Ramesam J. in 'Gangaraju v. Satyanarayana', AIR (18) 1931 Mad 674 : (134 IC 188). Since the decree is a nullity the petnr. is not bound to have the decree set aside & so the Court-fee under Section 7, Clause (IV-A) is not payable."