THULASIBAI AMMAL Vs. KANNA PANDITHAR

JUDGEMENT

(1.) THE question that arises for consideration in this civil revision petition is whether the court-fee paid by the petitioner in the appeal preferred by her before the District Court, North Arcot at Vellore, is correct. THE area of controversy, factual as well as legal, is very small. In the course of the final decree passed in O.S. No. 172 of 1961, D.M.C., Ranipet, the site of item No. 1 of the suit properties has been allotted to the share of the petitioner, while items 2 to 4 have been allotted to the share of the 1st respondent herein. While the value of the site allotted to the share of the petitioner had been fixed at Rs. 30,000 items 2 to 4 allotted to the share of the first respondent were valued at Rs. 5,000 and in view of the allotment of the entirety of the site of the value of Rs. 30,000 to the share of the petitioner, the petitioner was directed to pay the first respondent a sum of Rs. 12,500 in order to equalise the value of the shares allotted to the petitioner and the first respondent under the decree. THE decree, directed the payment of this sum of Rs. 12,500 by the petitioner to the first respondent, in addition to directing the allotment of items 2 to 4 of the suit properties to the first respondent. It appears that the petitioner earlier preferred an appeal in A.S. No. 279 of 1978, District Court, Vellore, and that the matter was remanded for disposal in accordance, with the directions given therein. It is thereafter that the matter has come to be dealt with by the learned District Munsif, Ranipet, on 4th September, 1980, and the petitioner was again held liable to pay a sum of Rs. 12,500 in respect of the exclusive allotment of the entirety of item 1 to the share of the petitioner. Against this final decree, the petitioner preferred an appeal again to the District Court, North Arcot at Vellore, paying a court-fee of Rs. 60.50 under section 52 of the Tamil Nadu Court-fees and Suits Valuation Act, on the value of the suit viz., Rs. 799.65. THE matter was heard by the learned District Judge on the question of the correct court-fee payable by the petitioner in respect of the appeal and it was held that the appeal had to be valued at Rs. 12,500 and the court-fee thereon has to be paid and in this view, the memorandum of appeal was returned for the payment of deficit court-fee granting three weeks, time to the petitioner to do so. It is the correctness of this order that is challenged in this civil revision petition. Notice of this civil revision petition was ordered to the Additional Government Pleader and Mr. N. R. Chandran represents the State of Tamil Nadu before me.

(2.) THE learned counsel for the petitioner contends that the suit, out of which the appeal has arisen, still continues to be one for partition and separate possession and therefore, the court-fee paid as on the former occasion on the value of the suit would be sufficient. It is also further urged that the provision for owelty, as in this case, is only an incidental relief to the main relief of partition and therefore, no court-fee need be paid on the amount of Rs. 12,500 as directed by the Court below. Reliance in this connection is placed by the learned counsel for the petitioner on the decision in Minor Veluchami Pillai by next friend Chellathayee alias Meenakshi Animal v. K. R. Sankaralingam Pilled and others 1 . On the other hand, Mr. N. R. Chandran, the learned Additional Government Pleader-II, contends that though the decree is one which has been passed as a final decree in the course of a partition suit, in filing an appeal against such a decree, the petitioner is attempting to get rid of a liability of Rs. 12,500 fastened upon the petitioner by the final decree and that therefore, when the amount has been ascertained and awarded, it is not open to the petitioner to value the appeal differently. In this connection, reliance is also placed upon Explanation (I) to section 52 of the Tamil Nadu Court-fees and Suits Valuation Act, 1955, to the effect that the court-fee payable in the appeal against the grant of the relief in favour of the first respondent to the tune of Rs. 12,500 should be the same as the fee that would be payable on the relief, in the Court of the first instance. In other words, the court-fee payable on the memorandum of appeal would be the court-fee payable on the relief in the Court of first instance via., the court-fee on a sum of Rs. 12,500. It is also further pointed out by the learned Additional Government Pleader that the decision relied on by the learned counsel for the petitioner related to Article 17-B of Schedule IT of the Court-fees Act VII of 1870.

(3.) THE court-fee directed to be paid by the petitioner in C.R.P. No. 3425 of 1980 may be paid on or before 19th June, 1981.