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Judgment
S.S. Subramani, J.—Petitioner in C.P. No. 72 of 1988, on the file of Sub Court, Madurai, is the appellant in the C.M.A and the petitioner in
the connected C.R.P. Parties herein-after will be referred to according to their rank in the O.P.
Petitioner filed a suit before the Subordinate Judge of Madurai under Order 33, Rule 1, C.P.C, asking permission to institute the suit as an
indigent person. Following reliefs were sought for in the proposed plaint:-
a) granting a declaration that the alienation of suit item I of Schedule ""A'' hereunder by the respondents 11 to 15/ defendants 11 to 15 in favour of
respondents 1 to 9/defendants 1 to 9 by registered sale deeds, is not binding on the Petitioner/Plaintiff and is not valid beyond the life time of 11th
respondents/11th defendant;
b) granting a declaration that the alienation of suit item II of Schedule ''A'' hereunder by the 11th respondent/ 11th defendant in favour of
respondents 10 and 14/defendants 10 and 14 by registered sale deeds is not binding on the petitioner/plaintiff and is not valid beyond the life time
of the 11th defendant/11th respondent;
c) directing the defendants/respondents to pay to the plaintiff/petitioner the costs of suit;
d) and granting such other further reliefs as this Honourable Court may deem fit and proper in the circumstances of the case and thus render
justice.
In paragraph 11 of the said O.P., he said thus:-
The petitioner values the suit for purposes of Court fees and jurisdiction at Rs. 32,000/- and a Court fee of Rs. 2,401/- is payable thereon u/s 25
(d) of the Tamil Nadu Court Fees and Suits Valuation Act. 1955.
It is averred in the petition that the plaint properties originally belonged to one Janaki N. Rajaramier. Respondents 11 and 12 are his
granddaughters through his daughter Lakshmi Ammal. After narrating the relationship, it is further said in paragraph 14 of the petition that the 11th
respondent had no children, and her husband Janaki N. Rajaramier passed away on 21.11.1987. While her husband was alive, the 11th
respondent along with her husband took the petitioner in adoption on 26.4.1982 after performing necessary religious rites and the adoption was
also recorded in a deed of adoption executed three days after. The adoption deed was executed between the 11th respondent and her husband
late Janaki N. Rajaramier on the one hand and the natural parents of the petitioner on the other. In the adoption deed, it was recorded that in the
plaint A Schedule properties along with other properties, the 11th respondent will be entitled to a right of enjoyment and the vested remainder by
the plaintiff. It is said that the 11th respondent and her husband had only a limited right of enjoyment till their lifetime without powers of alienation. It
is said that Janaki N. Rajaramier filed a petition before the District Court, Madurai as O.P. No. 112 of 1984 requesting for permission to sell the
properties described in ''A'' Schedule belonging to the adopted son. In that petition before the District Court, he averred that the properties
belonged to the 11th respondent under the settlement deed, and the petitioner is entitled only to a half share. The 11th defendant also did not
oppose the petition, and no notice was given to any other person. Petitioner''s natural parents came to know about the permission granted by
Court and, therefore, they filed a petition before that Court for cancelling the permission. Though it was contested, the District Court cancelled the
permission already granted. In view of the cancellation of the order, the 11th respondent became inimical towards the petitioner and his natural
parents, with the result, the adoption deed itself was cancelled by the 11th respondent on 3.12.1987. It is said that since it is void ab initio, there is
no necessity for getting it cancelled. Thereafter, the 11th respondent executed various documents in favour of various persons. It is said that those
documents cannot be valid beyond the lifetime of the 11th respondent. It is also said that the action of the 11th respondent, has created a cloud in
the title of the petitioner and, therefore, he has filed the suit for the reliefs stated above.
The petitioner is still a minor and he is represented in the suit and before this Court by his natural mother and next-friend. In the O.P., he also
prayed that since he is not possessed of sufficient means, he may be permitted to sue as indigent person. He also scheduled the items of properties
over which he has power of disposal. Except for wearing apparels, a tiffin-box and certain books, he said that he has no other item over which he
has got full disposing power.
The application seeking permission to sue as indigent person was seriously opposed by the respondents and they filed a counter-statement.
Evidence was let in on behalf of the petitioner by examining his mother, i.e.. next-friend as P.W. 1. In her examination, she said that she has got
several properties, that her husband has got several properties, and that she had also obtained financial assistance from the 11th respondent to the
extent of Rs. 86,000/- and the petitioner (minor) is studying in S.S.L.C. and it is her husband who is giving necessary coaching and is assisting him
in his education. She also denied the suggestion that on the basis of the adoption deed and the property described therein, the minor petitioner will
be in a position to pay necessary Court-fee.
When evidence was recorded, certain mistakes crept in and, therefore, an affidavit was filed by the next-friend either to rectify the mistakes or
to permit her to be examined so as to enable her to explain the same. After serving copy on the opposite side, Court below was also satisfied
about the mistakes, and the mistake that was made mention of in the petition was allowed to be corrected. Thereafter, Court below, on
28.4.1989, passed an order holding that the minor petitioner is having sufficient means to pay Court-fees, and directed him to pay the Court-fee. It
was further found that the Court-fee will have to be paid on the market value of the property and not u/s 25(d) of the Tamil Nadu Court-Fees and
Suits Valuation Act. For payment of Court-fee, the case was adjourned.
Under protest, the petitioner paid the admitted Court-fee of Rs. 2,401/-, as stated in paragraph 11 of the petition. Court below, after accepting
the payment, adjourned the case for payment of the balance of Court-fee. At that time, the petitioner filed both the C.M.A. and Revision,
challenging the order.
Learned Government Pleader was also heard in this matter.
Learned counsel for the appellant/petitioner submitted that the very order of the Court below is patently illegal. Court below did not consider
the status of the petitioner as an indigent person, his incapacity to enter into agreement for disposal of the properties. Even the subject matter of the
suit is being taken into consideration for the purpose of reckoning sufficient means. The assets belonging to the next-friend and his natural father are
also taken into consideration, and the direction to pay Court-fee on the market value of the properties is against the provisions of Court-fees Act.
Learned Counsel for the respondents seriously disputed the contention of the appellant and said that the finding of the Court below does not
call for any interference. According to him, the adoption deed makes mention of various items of properties and that itself will be sufficient to pay
necessary Court-fees. He also contended that the suit itself was instituted at the instance of his natural parents and since they are in the
background, their means also can be taken into consideration for the purpose.
Learned Government Pleader also supported the claim of the respondents.
After hearing learned counsel on both sides, and also the learned Government Advocate, I am of the view that the Order of the Court below is
liable to be set aside. I state the reasons here under:
Order 33, Rule 1, C.P.C, defines an indigent person. It reads thus:-
A person is an indigent person.--
(a) if he is not possessed of sufficient means (other than property except from attachment in execution of decree and the Subject-matter of the suit)
to enable him to pay the fee prescribed by law for the plaint in such suit,
or
(b) Where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property except from attachment in
execution of a decree, and the subject-matter of the suit.
(Explanations II and III are omitted as they are not relevant for our purpose)
I have already said that the petitioner is a minor. He is taken in adoption by the 11th defendant and her deceased husband. A deed of adoption
is also executed. That he was adopted, is not disputed. At the same time, they are not on good terms with the petitioner, and the adoption deed
itself has been cancelled. The allegation is that ignoring the claim of the petitioner, 11th defendant is executing, documents in favour of her kith and
kin, and she is not protecting the interest of the minor.
The plaint properties are claimed by petitioner on the basis of the adoption deed and the suit is filed on his behalf by his natural mother. One of
the reasons mentioned by the Court below is that the minor has got vast properties, in the sense that there is sufficient means for him to pay Court-
fees. Being a minor, there will be difficulty in disposing of the property and even if the petitioner can be said as having properties, whether that
could be converted into cash, is one of the tests for considering whether he has got sufficient means.
In Katam Virupakshiah and Others Vs. Matam Sivalingaiah and Others, in paragraph 8, similar question came for consideration. There, a
person had share in a joint family property of considerable value. Learned Munsif who tried the case was of the view that since the properties are
of considerable value, there will be no difficulty in raising small amount out of it. The said approach of the District Munsif was questioned before
the High Court wherein it was held thus:-
However, the learned District Munsif, assumed that a person who is entitled to a share in joint family property of considerable value would always
be able to raise comparatively smaller amounts on its security. But as observed by Walsh, J., in Sundarathammal and Another Vs. Paramaswami
Asari and Others, when the property does not consist of cash, the test is not whether a person has a power in the abstract of raising money, but
whether, in the concrete circumstances of the case, he would succeed in raising anything substantial by exercising that power. In Thanu Pillai v.
Nallathayammal, AIR 1934 Mad. 562 (I) Ramesam, J. agreed with the above observation and said that evidence would be necessary to enable
one to judge whether money could be raised on the properties....
The said decision was followed by the Kerala High Court, in the decision reported in 1969 K.L.T.953 (Janaky Kutty v. Varghese). V.R.
Krishna Iyer, J., as he then was, held thus:-
The real question is not whether the assets of the minor are considerable but whether the minor can raise resources therewith. What is
contemplated is not possession of property but sufficient means, that is capacity to raise money to pay Court-fees and it is incumbent on the Court
to come to a finding on that point. The capacity to raise money is the crux of the matter and this turns firstly on convertibility of the property into
cash readily and secondly on the legally competent agency to dispose of property for this purpose. If the guardian who alone can alienate the
property and raise money thereon or who is in control of the cash and can give it to the minor declines to co-operate with the minor and refuses
either to transfer the property as guardian or part with the cash for conducting the litigation, the minor is for all practical purposes, a pauper. The
minor who does not have a guardian to act on his behalf cannot be said to be possessed of means to pay Court-fee even if he owns properties.
(Emphasis supplied)
In 1978-1.I.L.R. Karnataka 401 (V. Krishna Bhat v. Ravishankar and others), in paragraph 19 of the judgment, it was held thus:-
The next ground urged by the learned Counsel for the contesting defendant is that the plaintiffs do possess sufficient means to pay the Court fee,
and therefore, they should not be allowed to sue as paupers. He submits that it was possible for them to raise sufficient loans for this purpose,
atleast on the security of their shares of the family properties. In support of this contention he places reliance on a decision reported in Samyuktha
v. Prem Kumar Madan and others wherein it is stated that ""what is to be seen is not whether a person possesses sufficient property which can
enable him to pay the prescribed fee, but whether he has sufficient means for this purpose"". To this effect also is a ruling of the Patna High Court
reported in Dulhin Suraj Kukhi Devi and others v. Jokhu Raj and others. On the other hand, the learned counsel for the plaintiffs submits that in
view of the fact his clients are minors it is not possible for them to raise loans on the security of their shares in the family property unless they can
secure Court''s ""permission as provided under the Hindu Minority and Guardianship Act. It is in this connection e.g., places reliance on a decision
of the Andhra Pradesh High Court reported in Katam Virupakshiah and others v. Katam Sivalingaiah and others. At para 8, His Lordship is
pleased to observe as follows:-
It cannot be assumed that a person who is entitled to a share in joint family property of considerable value would always be able to raise
comparatively smaller amounts on its security. When the property does not consist of cash, the test is not whether a person has a power in the
abstract of raising money, but whether, in the concrete circumstances of the case, he could succeed in raising anything substantial by exercising that
power. In each case evidence would be necessary to enable one to judge whether money could be raised on the properties.
Held on facts that as the de facto guardian of the minor petitioners was not legally competent u/s 11 of the ""Hindu Minority and Guardianship Act,
1956, to offer their undivided share of the joint family property as security, the applicants could not be said to be capable of raising funds"".
To this effect is also the decision of our High Court in Radhaskrishna Nayak v. Kunjappa Nayak wherein His Lordship Narayana Pai, J., (as he
then was), has been pleased to observe as follows at para 6 of the judgment:
It appears to me that what is really necessary is that the plaintiff in question should either possess property of have such control over property as is
sufficient to enable him to common credit and raise sufficient money to pay the Court-fee. In Munipapia v. Munimarappa (8 Mys. L.J.) 2. it has
been pointed out that for purposes of Rule 1 of Order 33, a person cannot be said to be possessed of sufficient means unless he has actual control
over a thing and unless he is in possession of it or can reduce it into his possession without having recourse to law.
If the facts of this case are viewed in the light of the decisions referred to above it cannot be said that the minor plaintiffs either possess property or
have such control over any property as is sufficient to enable them to command credit and raise sufficient means to pay the Court-fee.
The parties to the case are Hindus, and the adoption is governed by Hindu Adoptions and Maintenance Act, 1956. Sec. 12 of the Act
declares that from the date of adoption, the adopted child will be deemed to be the child of the adoptive father or mother for all purposes and he is
severed from his natural family. Therefore, from the date of adoption, so far as the minor petitioner herein is concerned, his natural guardian will be
late Janaki N. Rajaramier, and on his death, the 11th respondent. Now that the petitioner and 11th respondent are not on good terms, and the
11th respondent has also cancelled the adoption deed and is also acting against the interest of the minor, she will not be interested in selling the
property on this behalf. Again, the suit is instituted against the guardian for the illegal acts alleged to have been committed by her. Being a property
belonging to minor sanction also will have to be obtained under S. 8 of the Hindu Minority and Guardianship Act. Even though the petitioner''s
natural mother has filed the suit as next-friend, she cannot alienate the property on behalf of the minor. As it stands, there is no legally constituted
agency on behalf of the minor who can convert the immovable property into cash. Mere possession of immovable property by the minor, and that
too, which is the subject matter of a suit will not amount to his possession sufficient means.
In 1987 (2) K.L.T. 376 (Prabhakaran Nair v. Neelakantan Pillai), it was held thus:-
The benefit is conferred on persons without ''sufficient means'' and not without any means at all. Pauperism is not a pre-requisite for the leave.
What is contemplated is not possession of property but sufficient means, Capacity to raise money and not actual possession of property alone is
what the Court has to look into-Possession of ''sufficient means'' refers to sufficient realisable property which will enable the plaintiff to pay the
Court fee. Possession of hard cash sufficient enough to pay the Court-fee is not a pre-requisite to make one a person of sufficient means within the
meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of sufficient means to pay Court fee. Even one who
is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. Even though sufficient means is capacity
to raise sufficient funds there must be a liberal approach in construing what that capacity is. It is not an essentiality that one should deprive himself
of the sole means of livelihood or alienate all his assets and seek justice in penury. Assessment of ''sufficient means'' should not be at the expense of
rights to live with dignity guaranteed under the Constitution. Capacity to raise funds could only cover all forms of realisable assets which a person
could in the normal circumstances convert into cash and utilise for the litigation without detriment to his normal existence. A debt that has yet to be
realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of Court fee cannot be taken into
account in calculating sufficient means. The words used are ""possessed of sufficient means"" which means that what was not possessed at the time
of suit cannot be taken into account.
In a still earlier decision of the Kerala High Court reported in AIR 1973 Kerala 19 (Sumathykutty v. Narayani), the question considered was
whether co-ownership right is sufficient to say that a person is a man of means. While considering the same, a learned judge of the Kerala High
Court held thus:
...The petitioners have only a joint interest in the property as co-owners. No doubt, there is no legal impediment in selling or charging the
undivided interest in the immovable property held in co-ownership; provided the petitioners can find persons who are prepared to but or advance
money for such purpose. Normally there is less attraction for a person to take assignment of undivided interest or advance money creating charge
over such undivided interest....
The learned Judge further went on to say thus:-
...The mere fact that the petitioner (Plaintiff) in a petition for leave to sue in forma pauperis, is stated to have some interest in immovable property
by itself, should not be taken to mean that he has the means to pay the prescribed Court-fee. The real test is whether the petitioner is in a position
in the ordinary course to convert his possessions, if any, into liquid cash without undue hardship and delay for the purpose of paying the requisite
court-fee. If the court is satisfied that the petitioner is not in such a position, the petition for leave to sue in forma pauperis has to be allowed....
(Emphasis supplied)
Applying this test also, even if the petitioner has got some properties, without Court''s permission and an agency who is competent to alienate the
property with permission of Court, the property cannot be alienated or converted into cash. There will be one more difficulty so far as the
petitioner herein is concerned. The petitioner is getting right over the properties only after the life time of the 11th respondent. If at all there is any
purchaser, when he will get right over the property is uncertain. There will be no purchaser to purchase such a right and wait for getting possession.
Under the above circumstances, it cannot be said that the petitioner is possessed of sufficient means to pay Court-fee.
If the minor cannot be taken as a person as having sufficient means, is the Court entitled to take note of the properties belonging to the natural
parents or other relations of the petitioner? The answer according to all decided cases is, Law prohibits the same.
In one of the earlier decisions of the Calcutta High Court reported in AIR 1923 Calcutta 656 (Nanibala Desaya v. Jaimini Sundari), their
Lordships held thus:
A minor who is not in possession of sufficient means within the definition of pauperism for the purpose of Order 33 (CPC) is entitled to be
allowed to sue in forma pauperis by a next friend although the next friend is not a pauper. In like manner, the wealth or other circumstances of the
minor''s relation in general are not material.... The law of India in this respect is very different from the law that prevailed in the Court of Chancery
in England.
Their lordships followed an earlier decision of this Court reported in (1881) ILR 3 Madras 3 (Venkatanarasaya v. Achamma).
A Division Bench of the Bombay High Court in the decision reported in AIR 1924 Bombay 440 (Nemichand v. Kevalchand), has held thus:-
The rule of English practice which prevents a minor from instituting a suit in forma pauperis, through his next friend, unless he gives proof not only
that he himself is a pauper but that the next friend is also a pauper, should not be deduced from the provisions of the CPC under which it is only
necessary to show that the minor has no means.
In Kewel Krishnan Vs. Khazan Singh, in paragraph 3 of the judgment (at page 82), the Court followed two earlier decisions of the Lahore
High Court and held thus:-
...One outstanding error which underlies the report of the Naib Tehsildar is that he has taken into account the financial capacity the petitioner''s
brother and father. This normally speaking, is not to be taken into account. In Sharan Singh v. Mt. Man Kaur (AIR 1929 Lah. 746 (2)), it was
observed by Tek Chand, J. that in dealing with pauper applications, the capacity of the plaintiff himself to pay the Court-fee and not that of his next
friend or relations is to be considered. In the reported case, the means of the adoptive father, the natural father and uncle of the minor-plaintiff,
were taken into account. This was held to be a material irregularity and the High Court allowed the revision. In AIR 1946 81 (Lahore) J. also
observed that in case of a minor plaintiff, his resources are to be considered and the fact that his next friend is fairly rich, is immaterial. There too,
the revision was allowed, as the Court below was held to have acted with material irregularity. This view seems to me to be correct.
In AIR 1978 Orissa 218 (Hara Batnami v. Dhaneswar) it was held thus:-
In dealing with an application by the minor plaintiff for permission to prosecute his suit in forma pauperis the financial capacity of the minor himself
and not of his next friend or near relations is to be considered.
In AIR 1988 Gujarat 68 (Minor Maheshwatiben and others v. State of Gujarat), in paragraph 2 at page 69), it was held thus:-
The rejection of the minor''s application for permission to file the suit as indigent persons on the ground that the grandfather has means to pay the
court-fees is equally untenable and must be rejected straightaway. In an application for permission to file a suit as an indigent person, the financial
condition of the applicant alone is to be seen. The financial condition of the guardian or any other relative is totally irrelevant and should not be
taken into consideration at all for the purpose of arriving at a decision regarding the financial condition of the applicant.
(Emphasis supplied)
Recently, the Orissa High Court, in the decision reported in AIR 1993 Orissa 23 (Chevamani Tripathy and another v. Dharmananda Panda),
in paragraph 2 of the judgment, has held thus:-
Indigency is personal economic condition. Therefore, in case more than one person intend to sue as indigent person, indigency of all persons
together is to be considered. Even though one of them would be indigent or both individually would be indigent but the means possessed by them
together would be sufficient to pay the Court-fee payable, permission ought not to be granted. Since indigency is personal, legal representatives
cannot take advantage of the indigency of their predecessor-in-interest who died applying for permission or continued the suit after being
permitted. See 1973(2) C.W.R. 1792. Smt. Annapurna Das. v. Manoranjan Rath, 1987 (1) O.L.R. 313 Bauli Salui v. Bidyadar Satpathy.
Similarly, sufficiency of means, who are to conduct the suit on behalf of plaintiff like guardian, husband, mother or father or are interested in the
result of the suit would not be ground to refuse or withdraw permission where plaintiff is indigent. AIR 1978 Orissa 37 Bhubaneswar Misra v.
Sakuntala Devi (1978) 45 C.L.T. 431: (AIR 1978 Orissa 218) (Hara Sainami v. Dhaneswar Patel and (1987) II O.L.R. 545 Santhosh Samal v.
Raja Achilu.
In view of the above settled position of law, the means of the next-friend or the natural father of the petitioner should not have been taken into
consideration. It is in evidence that the 11th defendant paid Rs. 86,000/- to the natural parents of the petitioner for purchasing a property. The
minor is not entitled to any right over the same. It is that amount that is taken into consideration by the Court below in holding that the minor has
got sufficient means to pay Court-fee. Further down, it is said that the petitioner''s father has purchased a house for Rs. 14,000/-. That is also
taken into consideration by the lower Court. If these properties are omitted, what remains is only properties given to the minor on the basis of
Ex.A.1. I have already said that without an agency, mere possession of property by minor will not be sufficient to hold that he is a person of
means. In that view of the matter, the finding of the Court below that the plaintiff is liable to pay Court-fees and he is not entitled to sue as an
indigent person is only to be set aside.
While considering the question whether the petitioner is entitled to sue as an indigent person, the only competent person to oppose the same is
the State. I do not find that the State has filed any objection in this case.
Being a matter affecting the Revenue, the statement, if any, of the State must be of primary importance, and if they have no serious objection in
permitting the litigant to sue as an indigent person, the same would be ordinarily accepted.
In AIR 1961 Allahabad 308 (Chhail Behari Lal and others v. Phool Chand and others), that High Court accepted the statement of the
Government Pleader that they have no objection in the plaintiff filing a suit in forma pauperis, even though the defendant opposed the same, it was
held thus:-
In an application for leave to sue as pauper, if the Government pleader makes a statement to the Court in favour of the applicant, the Court must
attach the utmost importance to it as emanating from the State in whose interest the Court-fees Act has been enacted, and which makes an inquiry
before conceding the pauper''s case as it stands to lose revenue if the application is allowed. If the Government''s statement is in favour of the
pauper it should ordinarily be accepted by the Court unless the respondent can show fraud or collusion or any other convincing reason why it
should be discarded.
In 1971 K.L.R. 452 (Ouseph v. State and another), it was held thus:
...The party vitally concerned in the result of application by the plaintiffs for permission to sue in forma pauperis is the State which stands to lose
revenue in the event of permission being granted. It is true that the defendant is also entitled under. O. 33, R. 6 to oppose the application and lead
evidence to disprove plaintiff''s allegation of pauperism. But, in the assessment of the evidence, and consideration of the other relevant
circumstances, the starting point for the Court should he the statement of the State.
(Emphasis supplied)
In view of the above reasons, I do not find any justification in upholding the order of the Court below. The petitioner is permitted to sue as an
indigent person. On receipt of a copy of the Order, the Court shall register the petition as a plaint under Or. 33, R.8 , C.P.C. and proceed with the
same in accordance with law.
It was represented by learned counsel for petitioner that after dismissal of his petition, under protest, he has paid the amount of Rs. 2,401/-as
admitted Court-fee. In view of the fact that he has been permitted to sue as an indigent person, the payment already made shall be refunded to the
petitioner. The appeal is allowed however, without any order as to costs.
C.R.P. No. 2264 of 1989
This Revision is directed against the direction of the Court below in the same order, whereby it directed the petitioner to pay Court-fee on the
market value of the property. In the petition, the petitioner has stated the market value of the properties as Rs. 11 lakhs. But in paragraph 11 of the
Petition, he has said that he is valuing the suit at Rs. 32,000/- and a Court fee of Rs. 2401/- is payable.
By the impugned order, the Court below has found that the Court-fee is payable on Rs. 11 lakhs and calculated the amount at Rs.
82,500.50p. The said amount has been directed to be paid.
While extracting the facts, I said that under protest, petitioner has paid a sum of Rs. 2,401/-. Petitioner has been directed to pay the balance
Court-fee and it is in that order dated 19.6.1989, the amount payable is calculated by the Court below. The subsequent order dated 19.6.1989 is
only quantifying the amount and the liability to pay Court-fee has been made in the order dated 28.4.1989, which is challenged in this Revision.
Court-fee has already been paid under Sec.25(d) of the Tamil Nadu Court Fees and Suits Valuation Act, under protest. Learned counsel for
the petitioner submitted that the direction of the Court below to pay the Court-fee on the market value is not correct. Sec.25 of the Court Fees
Act deals with four kinds of declaratory suits. 25(a) deals with a suit for declaration of title and for possession of immovable property, 25(b) deals
with a suit for declaration of title and for consequential injunction .25(c) relates to declaratory suits in respect of actionable claims. The above three
clauses will not apply when we consider the relief sought for in the plaint. In the suit, the only relief sought for is, to declare that the alienation is not
binding on the petitioner and is not valid beyond the lifetime of the 11th defendant. He is neither asking for injunction nor recovery. But since the
suit relates to declaration in respect of immovable property, only the residuary clause of the Sec. namely, 25(d) will apply. The same reads thus:-
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 for hundred, whichever is higher.
In 1991-2-M.L.J.178=1992-2-L.W.88 (Kancheepuram Murugan Silk Weavers Co-op. Production & Sales Society by its Special Officer v.
Kancheepuram Murugan Silk Weavers Co-op. Production & Sales Society Members and another) Srinivasan, J. as he then was, considered a
similar question. In that case, an argument was put forward that if the relief does not come under Sec.25(a), (b) or (c), the suit must be valued
under Sec.50 of the Court-fees Act, which relates to suits not otherwise provided for. Repelling the contention, learned Judge held thus:
Sec. 50 of the Tamil Nadu Court-fees and Suits Valuation Act, 1955 is a residuary provision and it will come into play only if there is no other
provision under the Act. Sec.25 of the Act is a specific provision for suits for declaration and for consequential relief. Sec.25(d) is wide enough to
cover all cases which are not governed by clauses (a), (b) and (c). Consequently the present suit, for a declaration that the Special Officer was not
competent to admit new member and for consequential relief, is one falling squarely under Sec.25(d). The plaintiff/first respondent having valued
the suit at Rs. 30,500/- ought to have paid Court-fee under Sec.25(d) and there is absolutely no scope to invoke Sec.50 and pay fixed Court fee.
In view of the binding decision, the direction to pay Court-fee on the market value is also to be set aside. I hold that the valuation made in the plaint
is correct. Court fee payable is only under Sec.25(d) of the Act. The Revision Petition also stands allowed, however, without any order as to
costs.