Nambikkai Mary Ammal vs Prakasa Mary and Others

Panchapakesa Ayyar, J.—This is a petition filed by Nambikkai Mary Animal, plaintiff in O.S. No. 1448 of 1956 on the file of the City Civil

Court, Madras, for revising and setting aside the order of the learned Fourth Assistant Judge, City Civil Court, agreeing with the Court-fee

Examiner''s Check-slip and calling for an additional Court-fee of Rs. 45 from the petitioner. The facts were briefly these.

The petitioner was given by her deceased mother under a deed of settlement, dated 4th October, 1949, the life interest in a house worth Rs.

3,000. After the lifetime of the mother the property was directed to be taken absolutely by the petitioner subject to her paying her brother, David,

and sister Prakasa Mary, 1/3rd of the market value of the house at the time of the death of the mother. The price of the house at the time of the

death of the mother was Rs. 3,000. So the petitioner had to pay her brother David and sister Mary Rs. 1,000 each under the mother''s directions.

She filed the suit and prayed that the house in question might be valued, for purposes of working out the partition between herself and her brother

and sister, at 1/3rd each, and that the share payable to the first defendant, Prakasa Mary, her sister and David (Defendants 2 to 6 are the legal

representatives of David) might be ascertained and fixed and for some other relief''s with which we are not concerned. She paid a Court-fee of Rs.

30 as per the provisions of Section 37(2) of the new Court Fees Act of 1955. The Court-fee Examiner objected that this suit was not a suit for

partition but one for administration of the deceased mother''s estate and that therefore the section applicable was not Section 37(2) but Section 39,

and so the plaintiff should have paid a Court-fee of Rs. 75 and that defendant 1 and defendants 2 to 6 representing David, the deceased brother,

should also pay Rs. 75 each as Court-fee. The lower Court agreed with this view of the Court-Fee Examiner and directed the payment of the

additional Court-fee. The petitioner has felt highly aggrieved at this order and has filed this petition.

I have perused the records and heard the learned Counsel, Mr. N.K. Pattabhiramari, for the petitioner, and the learned Additional Government

Pleader contra. Mr. N.K. Pattabhiraman was unable to show how the suit can be construed to be a suit for partition when the prayer was not to

partition the suit house into three equal shares and deliver to the plaintiff one share and the first defendant another share, defendants 2 to 6 jointly

the third share. The prayer was to carry out the directions of her deceased mother, for administering the estate of her mother consisting of this

house. So the lower Court was right in accepting the Court-fee Examiner''s Check-slip and directing the additional Court-fee to be paid.

This petition deserves to be and is hereby dismissed, but in the circumstances, without costs. Two months time from this date given to the

plaintiff and defendants to pay the deficit Court-fee as prayed for.