Pattabhi Rama Iyer v. Subramaniam — 1952 DIGILAW 49 (KER)

Judgment :- 1. This revision petition relates to a question of valuation and court-fee. The learned Additional District Judge of Anjikaimal before whom the suit came up for trial heard the issue raised with reference to the question as a preliminary issue and recorded his decision in plaintiff's favour. Defendant 1, at whose instance the issue was dealt with as a preliminary one, feeling dissatisfied with the trial court's finding moved this court in revision. The learned Single Judge before whom the matter came up for disposal referred the petition for decision by a Full Bench. An important question affecting court-fee was considered to be involved in it. The two plaintiffs in the suit are made counter-petitioners here. Though the trial court's decision as to court-fee is in their favour and though the decision of the question in a different way will not affect the jurisdiction of the District Court to try the suit no point was raised before us on their behalf as to the propriety of this court interfering with the order in revision. It was however strenuously argued on their side that the order is right on the merits. 2. Originally there was only one plaintiff and hereafter he will be referred to as the plaintiff. He is a Hindu governed by the Mitakshara law. The plaint sought to have a partition arrangement carried out under the terms of a previous compromise decree reversed and to bring into hotchpot, for the purpose of making a fresh division, the properties which under the previous arrangement went to defendants 1 to 3 and also to have a one-fourth share of those properties delivered to the plaintiff for and on behalf of his branch of the family. The plaintiff was a minor at the time of the previous decree but he was eo nomine a party thereto. His father who is defendant 4 in this suit represented him as guardian ad litem. Under the terms of the compromise decree the plaintiff's branch received Rs. 15,000/- in lieu of its share in the joint family properties and all moveable and immoveable properties of the joint family went to defendants 1 to 3. His father who is defendant 4 in this suit represented him as guardian ad litem. Under the terms of the compromise decree the plaintiff's branch received Rs. 15,000/- in lieu of its share in the joint family properties and all moveable and immoveable properties of the joint family went to defendants 1 to 3. The plaintiff claims a declaration that the previous decree and all proceedings pursuant thereto are invalid, or in other words that they should all be set aside, the defendants 1 to 3 should be made to account for all profits received by them since the prior partition arrangement came into being, that a fresh partition should be affected and the one fourth share due to his branch should be delivered to him and that pending the decision of the suit defendants 1 to 3 should be restrained by an injunction from alienating the plaint properties, that is the properties they obtained under the previous partition arrangement. The relief for setting aside the decree is valued in the plaint at Rs. 100/- the relief for rendition of account at Rs. 200/- the relief for partition at Rs. 2000/- and the relief by way of injunction at Rs. 50/- and court-fee of Rs. 7-8-0, Rs. 15/-, Rs. 10/- and Rs. 3-12-0 are paid respectively thereon. That is ad valorem court-fee has been paid on all reliefs except that as to partition; in respect thereof the fixed fee of Rs. 10/- under Art. 7(v) of Schedule 2 of the Cochin Court Fees Act II of 1080 has been paid. 3. The plea that defendant 1 raised before the lower court as to valuation and court fee was that as the plaintiff was eo nomine a party to the prior decree to have the same set aside he should have valued the plaint and paid court-fee on the value of the decree. An alternative contention raised was that as possession of a one-fourth share was asked for the plaint should at least have been valued at and court fee paid, on the value of that share. By the time the question came to be argued before the lower court an additional plaintiff was also impleaded and between the two plaintiffs several answers to the contentions of defendant 1 were given. By the time the question came to be argued before the lower court an additional plaintiff was also impleaded and between the two plaintiffs several answers to the contentions of defendant 1 were given. It is unnecessary for our purpose to recount them here; suffice it to say that the learned judge in the court below treated the plaint as one in a suit to obtain a declaratory decree, where consequential relief is prayed for. According to him the suit therefore fell under S. 4(iv)(c) of the Cochin Court Fees Act and he held that in such suits it was for the plaintiff to state the amount at which he values the reliefs sought and that the court could not revise such valuation. The learned judge purports to follow the decisions in Lakshmikutty Amma v. Dharmaraja Bhagavathar 17 Cochin Law Reports 389 and Krishnan Elayath v. Vareed 29 Cochin Law Reports 453. The concluding words of the learned judge's order read thus: "In the instant suit, plaintiff has valued his consequential reliefs and paid ad valorem court-fee on the valuation he has chosen to put up them, except on the relief for partition which has to bear a court fee of Rs. 10 only under law. In these circumstances, I hold that the suit has been properly valued and that adequate court-fee has been paid on such valuation. The issue is answered in favour of the plaintiff." 4. In his revision application what defendant 1 has done is to reiterate the alternative contention he raised before the lower court that valuation and court-fee should follow the value of the plaintiff's share of the joint family properties but before the learned Single Judge the dispute would seem to have centred round the question whether in suits falling under S. 4(iv) of the Cochin Court Fees Act (corresponding to S. 3(iv) of the Travancore-Cochin Court Fees Act, 1125 and S. 7(iv) of the Indian Court Fees Act, VII of 1870) the court could revise the valuation given in the plaint. S. 4(iv) of the Cochin Court Fees Act enacted that the amount of fee payable in suits falling under that provision shall be computed according to the amount at which the relief sought is valued in the plaint and that in all such suits the plaintiff shall state the amount at which he values the relief sought. S. 4(iv) of the Cochin Court Fees Act enacted that the amount of fee payable in suits falling under that provision shall be computed according to the amount at which the relief sought is valued in the plaint and that in all such suits the plaintiff shall state the amount at which he values the relief sought. Identical provisions obtain in S.3(4) of the Travancore-Cochin Court Fees Act and in S. 7(iv) of the Indian Court Fees Act. The question of the court's power to revise the plaintiff's valuation in such suits has been a matter of sharp controversy in several of the Indian High Courts and it is on account of that conflict the learned Single Judge referred the petition to a Full Bench. Outstanding judicial pronouncements for the opposing views are mentioned in the order of reference. 5. When the matter first came up before this Bench it occurred to us that on a true construction of the plaint it was not possible to treat the suits as one falling under S. 4(iv)(c) of the Cochin Court Fees Act as the lower court construed it, and whether the applicatory provision was not S. 4(v). Counsel engaged in the case were not prepared to meet that situation and at their request the hearing was adjourned. When arguments were resumed on the next day the petitioner's counsel contended that the suit really fell under S. 4(v) while counsel for the counter-petitioners argued contra. The plaintiff and the additional plaintiff had retained different counsel and they strenuously contended that the lower court's decision was right. The learned Government Pleader to whom notice was given about the revision petition supported the petitioner's contention. 6. We have after mature deliberation come to the conclusion that the suit really falls under S. 4(v) of the Cochin Court Fees Act and that the plaintiffs should pay ad valorem court-fee on the value of the share sought to be recovered on partition. The petition itself has been referred for decision by a Full Bench and there cannot therefore be any objection to our proceedings to decide it. Before we proceed to state our reasons therefore we shall first refer to a certain averment in the plaint and then to certain matters arising out of the lower court's order. 7. The petition itself has been referred for decision by a Full Bench and there cannot therefore be any objection to our proceedings to decide it. Before we proceed to state our reasons therefore we shall first refer to a certain averment in the plaint and then to certain matters arising out of the lower court's order. 7. In one of the paragraphs in the plaint, namely paragraph 11, the plaintiff has chosen to state that the properties sought to be partitioned are in the joint possession of himself and the defendants. This however is thoroughly inconsistent with the averments contained in the earlier paragraphs and the entire burden of the plaint, nay even inconceivable on the facts disclosed by it and the general scheme of the suit. The compromise decree sought to be annulled is stated to be in derogation of the rights vouch-safed to each and every branch of the family as per a registered karar of 1107 and the arrangement to give the plaintiff's branch Rs. 15,000/- in lieu of its share and to defendants 1 to 3 all the movable and immoveable properties is attacked as fraudulent. After stating that under that partition arrangement defendants 1 to 3 took all the moveable and immoveable properties of the family it is unthinkable that the plaintiff or his branch could have any manner of possession, actual or constructive, over them. Though the amount of court-fee payable on a plaint has to be determined with reference to the allegations in the plaint as to the cause of action and reliefs the court has the right and duty to look into the substance of the plaint and the true scope of the suit. The decision of this court in Apparaham v. Rappal Kutty 1949 T.C.L.R. 225 (F.B.) is clear authority for this position and in view of the large number of cases relied upon there we do not desire to encumber this judgment with further authorities on the point. We have therefore to ignore paragraph 11 and decide the question of court-fee on the facts disclosed by the plaint read as a whole. We venture to observe that paragraph 11 was inserted without any bonafides and with a view to evade payment of proper court-fee. 8. We have therefore to ignore paragraph 11 and decide the question of court-fee on the facts disclosed by the plaint read as a whole. We venture to observe that paragraph 11 was inserted without any bonafides and with a view to evade payment of proper court-fee. 8. Now to turn to the lower court's order, the two Cochin cases which the learned judge purported to follow related to cases where parties to certain prior decrees sought to have those decrees declared invalid and not binding on them or to set aside those decrees. In either of the two cases no question of partition or recovery of property was involved. Obviously those cases cannot therefore govern the present case where the plaintiff seeks recovery of the share of the family properties due to his branch out of the possession of the other members of the family to whom under a prior partition arrangement the family properties were allotted. The sequel will explain that if the relief prayed for consequential upon the declaration be the recovery of any of the matters mentioned in paragraphs other than paragraph 4 of S. 4, the mode of valuation to be adopted is that prescribed in those paragraphs and that in such cases the plaintiff must value the relief sought accordingly. When possession of immoveable property is asked for the valuation and court-fee should be as in an ordinary suit for recovery of possession even though the recovery happens to be consequential upon a declaration claimed in the plaint. 9. Another point to be mentioned about the lower court's order is that its view that in suits falling under S. 4(iv) the different reliefs claimed could be separately valued is wrong. In a suit falling under the said provision the plaintiff has the right and duty to put down one single entire sum as representing the value of the total reliefs sought by him in the suit. See Krishna Mallar v. Secretary of State (1914) 25 I.C. 375 (Madras); Rajagopala v. Vijayaraghavalu 1915 I.L.R. 38 Madras 1184 and In re Kalipada Mukharjee A.I.R. 1930 Calcutta 686. The plaintiff valued the several reliefs he claims differently and the lower court has without demur accepted the mode of valuation as the proper mode to be adopted under S. 4(iv). See Krishna Mallar v. Secretary of State (1914) 25 I.C. 375 (Madras); Rajagopala v. Vijayaraghavalu 1915 I.L.R. 38 Madras 1184 and In re Kalipada Mukharjee A.I.R. 1930 Calcutta 686. The plaintiff valued the several reliefs he claims differently and the lower court has without demur accepted the mode of valuation as the proper mode to be adopted under S. 4(iv). Though we hold that the suit does not fall under that provision we think it proper here to point out the lower court's error. 10. We shall now proceed to state the reasons for our decision that the suit really falls under S. 4(v) of the Cochin Court Fees Act. The substantial relief claimed in the suit is the recovery of possession of a one-fourth share of the joint family properties alleged to be due to the plaintiff's branch. Possession is not asked for on any other ground than that the previous compromise decree, pursuant to which the plaintiff's branch lost its share, should be declared invalid; it is therefore asked for consequently on the grant of declaration. The suit is primarily one for partition and possession of the share and the declaration sought is only ancillary to the prayer for partition and recovery of possession. In Chinnammal v. Madarsa Rowther (1904) I.L.R. 27 Madras 480 the question arose for decision whether in suits falling under S.7(iv)(c) of the Indian Court Fees Act the plaintiff's valuation could be revised by the court. After answering the question in the negative the learned Judges Boddam and Bhashyam Ayyangar, JJ. went on to observe as follows: "If the relief prayed for consequential upon the declaration be the recovery of any of the matters mentioned in paragraphs I, II, III, V, VI, VII, VIII, IX, X and XI of S. 7, the mode of valuing the relief is regulated by the legislature itself in those paragraphs and in such cases the plaintiff must value the relief sought accordingly." 11. S.7(v) of the Indian Court Fees Act (corresponding of S. 4(v) of the Cochin Court Fees Act and S. 3(5) of the Travancore-Cochin Court Fees Act) contains the provision as to valuation and court-fee in suits to recover possession of land, house or garden. S.7(v) of the Indian Court Fees Act (corresponding of S. 4(v) of the Cochin Court Fees Act and S. 3(5) of the Travancore-Cochin Court Fees Act) contains the provision as to valuation and court-fee in suits to recover possession of land, house or garden. The rule is that the amount of fee payable is according to the value of the subject matter and under the Cochin Act the mode of valuation of the subject matter in case of land or garden is 15 times the annual rent of such land or garden. The Indian Court Fees Act and the Travancore-Cochin Court Fees Act have each a different mode of valuation of the subject matter than that obtaining in the Cochin Act. So long as 1907 in Narayana Row & others v. Suba Row and others 4 Select Decisions 400 a Full Bench of the Chief Court of Cochin took identically the same view as to the applicatory provision of the Court Fees Act with reference to a suit where possession was asked for consequential upon a declaration that an execution sale was invalid as that the Madras High Court indicated in Chinnammal v. Madarsa Rowther. There the plaintiffs, who were defendants to the decree in execution of which the sale took place, brought the suit to set aside the sale on the ground of fraud and for recovery of possession of the property which the purchasers (decree-holders) got possession on the strength of the sale certificate in their favour. The decision points out that as the plaintiffs were defendants to the former suit they could not get possession of the property until the sale was set aside and that a suit for setting aside a sale is itself in such cases a suit for a declaratory decree in which consequential relief is prayed for, falling under Cl. (c) of sub-s. (iv) S. 4 of the Court Fees Act (II of 1080). Kochunni Menon, J. who delivered the leading judgment in the case further observed: "The claim for possession is a further relief in the case. I am inclined to think that in such cases the recovery of possession must be regarded as the main relief in the case and the setting aside of the sale as merely auxilliary to that relief. If that is so the court-fee payable is on the value of the property as laid down by Cl. I am inclined to think that in such cases the recovery of possession must be regarded as the main relief in the case and the setting aside of the sale as merely auxilliary to that relief. If that is so the court-fee payable is on the value of the property as laid down by Cl. 5 of S. 4 of the Court Fees Act. It is not denied by the respondent's pleader that the suit may also fall under Cl. C of Sub-s. 4 of S. 4, but he contends that the consequential reliefs contemplated in that clause are those not otherwise provided for by the Court Fees Act. This contention does not appear to me unreasonable and is supported by one of the commentators of the Court Fees Act. [See page 47, Jaganatha Iyer's Commentaries on the Act.]" 12. In two decisions reported in 1915 I.L.R. 38 Madras the Madras High Court reiterated the view expressed in Chinnammal v. Madrasa Rowther. The first case Rajagopala v. Vijayaraghavalu is reported at page 1184 of the Volume and it has already been referred to in another connection. There it was held that a suit for (1) a declaration that a certain decree was of no legal effect against the plaintiffs or the various properties in their hands and (2) possession of a portion of those properties which had been sold, in execution of the decree, is a suit for declaration with possession as a consequential relief, in as much as possession is not asked for on any other ground than that the decree in execution of which it was lost should be declared invalid. Therefore, court fee was held to be payable only for the relief regarding possession. The decision was given by a Division Bench Oldfield and Tyabji, JJ. The other case Arunachalam Chetty v. Rangaswamy Pillai though decided later is reported at an earlier page, p. 922 and it is a Full Bench decision. What was actually decided there was that a suit for declaration that a mortgage decree is not binding on the plaintiff and for an injunction restraining the defendant from executing the same is a suit for a declaratory decree with consequential relief within the meaning of S. 7, Cl. (iv)(c) of the Court Fees Act and that an ad valorem fee is payable on the valuation fixed in the plaint. (iv)(c) of the Court Fees Act and that an ad valorem fee is payable on the valuation fixed in the plaint. The opinion of the Full Bench consisting of Sir John Wallis, Officiating Chief Justice, Mr. Justice Seshagiri Ayyar and Mr. Justice Kumaraswami Sastriyar however opens with the following words: "A suit in which the plaintiff in terms prays for a declaratory decree and consequential relief prima facie comes within Cl. 4, sub-cl. C of S. 7 of the Court Fees Act, but if at the same time it comes within any of the other classes of suits specified in the Section, it must be treated as a suit of that description and dealt with accordingly." 13. The reason for the view adumberated in the foregoing decisions is seen, if we may say so with respect succinctly stated by Reilly and Ananthakrishna Iyer, JJ. in Venketasiva v. Venkatanarasimha A.I.R. 1932 Madras 605. The plaint prayed for a declaration that the decree defendant 1 obtained in a former suit is void, for setting aside that decree if necessary, and for recovery of the property covered by the decree. The plaintiff valued the suit for court-fee as if it came under Cl. (c) S. 7(iv) Court Fees Act. The defendants objected and said that in its nature it was a suit for the cancellation of a previous decree and that therefore the plaintiff should pay court-fee under S. 7 (IV-A) of the Act, i.e., under the sub-section introduced into the Act in 1922 by a Madras amendment. The subordinate judge came to the conclusion that the suit was really one for possession of the property and therefore that it came under S. 7(v) of the Act and ordered court fee to be paid accordingly. Court fee due whether the suit came under S. 7(v) as one for possession or under S. 7 (4-A) as one for cancellation of the previous decree was the same. In holding that the suit fell under S. 7 (v) Reilly, J. said: "But it has been pointed out to us that in this case the plaintiff has prayed for recovery of possession and, that being so, quite apart from all other discussion, his suit comes under S. 7(v) as the Subordinate Judge has found. In Chinnammal v. Madarsa Rowther, it was said by Boddam and Bhashyam Ayyangar, JJ. In Chinnammal v. Madarsa Rowther, it was said by Boddam and Bhashyam Ayyangar, JJ. that if in a suit for a declaration and consequential relief the relief prayed for came within other provisions of the Court Fees Act than S. 7(iv)(c), for instance within S. 7(v), then the mode of valuing the relief was regulated by the legislature itself in those provisions. that remark was made obiter. But in Rajagopala v. Vijayaraghavalu we have a case very similar to the present one. There the plaintiffs sued for a declaration that a certain decree had no legal effect against them and for possession of some property which had been sold in execution of that decree. Oldfield and Tyabji, JJ. pointed out that the District Judge in that case was clearly mistaken in his statement that S. 7(iv)(c) regulated the valuation of the whole suit, since part of the relief claimed related to possession, which had to be dealt with in accordance with S. 7(v) notwithstanding that a declaration also was asked for, and they referred to Chinnammal v. Madarsa Rowther, as an authority for that view. Then in Arunachalam Chetty v. Rangaswami the question of the court-fee to be paid on a declaratory suit came before a Full Bench, and the very first sentence of the opinion of the Full Bench is: "A suit in which the plaintiff in terms prays for a declaratory decree and consequential relief prima facie comes within Cl. 4, Sub-cl. (c) S. 7 Court Fees Act, but if at the same time it comes within any of the other classes of suits specified in the section it must be treated as a suit of that description and dealt with accordingly". That is a very important statement set out at the very opening of the opinion of the Full Bench. Mr. Somasundaram very properly admits, that if a suit is really and in essence a suit for possession, the plaintiff cannot avoid paying court-fee as for possession merely by praying for some unnecessary or entirely incidental declaration in his plaint. But he contends that the principle set out by the Full Bench, which I have quoted, is not now applicable. Mr. Somasundaram very properly admits, that if a suit is really and in essence a suit for possession, the plaintiff cannot avoid paying court-fee as for possession merely by praying for some unnecessary or entirely incidental declaration in his plaint. But he contends that the principle set out by the Full Bench, which I have quoted, is not now applicable. Apart from the authority of the Full Bench in that case which I have quoted, it seems to me clear that in such an Act as the Court Fees Act, if there is a special provision which applies to a particular case, then that special provision must be applied by us rather than some general classification, in which the suit may also be included, which maybe more favourable to the plaintiff." Ananthakrishna Ayyar, J. expressed himself on this question thus: "Even where the suit was one for a declaratory decree and also for possession, it has been held by this Court that suits for possession having been specifically provided for by S. 7(v) the suit has to be valued accordingly and court-fee paid under the provisions of that sub-section. This question has been discussed in Chinnammal v. Madarsa Rowther and Rajagopala v. Vijayaraghavalu and is practically concluded by para 1 of the opinion given by the Full Bench in Arunachalam Chetty v. Rangaswami Pillai." In Maroof Sahib v. Ayyakannu A.I.R. 1935 Madras 569 Venkitasubha Rao, J. enumerated the same rule with reference to a suit where relief by way of declaration was followed by one for possession. The reason is pithily put by the same learned judge in other decision reported in the Volume, Ramakrishnayya v. Seshamma A.I.R. 1935 Madras 346 as follows: "General words do not derogate from special conversely, a special law derogates from a general law. There being a special provision relating to suits for possession, the general provision contained in S. 4(c) is excluded." The learned judge then proceeded to refer to the earlier Madras cases mentioned above. Varadacharriar, J. as he then was took the same view on this question in the case reported as Sellammal v. Jothimani Nadar A.I.R. 1936 Madras 411. There the plaintiffs sought recovery of their share of certain joint family properties after a declaration that the alienations effected by their father in respect thereof in favour of their step-mother were all sham. Varadacharriar, J. as he then was took the same view on this question in the case reported as Sellammal v. Jothimani Nadar A.I.R. 1936 Madras 411. There the plaintiffs sought recovery of their share of certain joint family properties after a declaration that the alienations effected by their father in respect thereof in favour of their step-mother were all sham. The learned judge said: "I am unable to agree with the lower court that the case falls under Sub-cl. [c] of Cl. 4, S. 7. The reference to consequential relief in that Sub-clause must be read along with other clauses providing for particular reliefs which in a sense are also consequential reliefs. Where the relief asked for is by way of possession, the suit will prima facie fall under Cl. 5 and not under Cl. 4[c] and it can make no difference for this purpose that a prayer for a declaration is also included in the suit." In Amina Bibi v. Kadir Batcha Rowther A.I.R. 1937 Mad. 529 a Division Bench (Mockett and Horwill, JJ.) expressed the same view on the question on hand. Some of the cases referred to above as also some cases which take a different view are all reviewed there. We consider it unnecessary to refer to further decisions of the Madras High Court concerning this point. 14. The Madras and the Cochin High Courts are not the only courts which have taken the view set forth above. In In re Nanda Lal A.I.R. 1932 Cal. 227, Rankin, C.J. had occasion to consider as to what court-fee has to be paid on a suit for partition when the plaintiff was out of possession. It was pointed out that he had to bring a suit to recover possession and for partition of his share, but that the court does not require him to bring two suits. As to court fee it was said that as his suit was one to recover possession he has to pay court fee on the market value of his share. The following quotation from that decision would seem to be apposite here: "Now, if this were a case in which the plaintiff was according to his own showing out of possession, I do not suppose that it would be right to allow him to appeal merely upon the question of partition. The following quotation from that decision would seem to be apposite here: "Now, if this were a case in which the plaintiff was according to his own showing out of possession, I do not suppose that it would be right to allow him to appeal merely upon the question of partition. A person is not entitled to partition unless and until he is in possession of his share. But, if he is out of possession of his share, the court does not require him to bring two suits. He can bring a suit in which he may claim to recover possession of his share and he may also claim to have that share partitioned by the same decree. If it appears that he is out of possession according to his own showing, then he has to bring a suit to get possession of his share; and it is perfectly true that in that case he would have to pay court-fee on the market value of that share. It is not a question of declaration or declaration with consequential relief. He would have to pay court-fee as in a suit for possession. That I take to be the meaning of what was said by Garth, C.J. in the case of Kirty Churn Mitter v. Annanth Nath Deb [1882] 8 Cal. 757 and also by Chakravarti, J. in Rajani Kanta Bag v. Rajabala Dasi - A.I.R. 1925 Cal. 320." 15. The decision in In re Nanda Lal and the two cases referred to in the above extract were among others followed by the Full Bench decision of this court reported in Apparahan v. Rappal Kutty referred to elsewhere in this judgment in another connection. The above quotation from In re Nanda Lal is also made there. That was also a suit for partition and among the items sought to be partitioned one item had already been sold away in execution of a mortgage decree to which the plaintiff, then a minor, was eo nomine a party. The usual fee for partition viz. Rs. 10/- alone was paid on the plaint and the question of the inadequacy of the court fee raised before the trial court was repelled by that court. This court however reversed that decision with respect to the item sold in execution of the prior decree and of which the purchaser had taken possession. The usual fee for partition viz. Rs. 10/- alone was paid on the plaint and the question of the inadequacy of the court fee raised before the trial court was repelled by that court. This court however reversed that decision with respect to the item sold in execution of the prior decree and of which the purchaser had taken possession. Like the present plaint the plaint in that suit also contained a prayer that the previous decree and the execution proceedings and court sale etc. should be held to be invalid and not binding on the plaintiff or his share. The only question raised there was whether with respect to that one item the plaintiff should not pay ad valorem court fee on the market value of his share or whether the fixed fee of Rs. 10/- paid under Art. 7(v) of Schedule II Court Fees Act will suffice with reference to that item also. The Full Bench took the view that regard being had to the prior decree to which the plaintiff was eo nomine a party he had to displace the title of the defendant before he could seek partition and that as the suit involved the establishment of title to that item and recovery of possession of a share therein, the plaintiff must pay ad valorem court fee upon the value of that share. The question whether S. 4(iv)(c) or S. 4(v) applied was not drawn into controversy there, but so far as the property affected by the prior decree the relief claimed was substantially the same as that claimed in this suit against the present plaint schedule properties. Consistently with the view the Full Bench took in that case it has to be held that the present plaint also should bear a court fee calculated on the market value of the share the plaintiff seeks to recover possession of in the suit. In view of the nature of the controversy raised there the line of reasoning adopted in the earlier part of this judgment or the authorities which set out that reasoning had not to be referred to in the Full Bench decision now referred to, but a fairly exhaustive review of the case law bearing on the controversy raised there is contained in the judgment in that case. We consider it unnecessary to traverse the same ground again here though the cases referred to there are really helpful to understand the exact scope of the present suit as well. Here also the plaintiff seeks the displacement of the title of the defendants and establishment of his own. On the authority of the decisions referred to earlier and the reasoning contained in them, with which we respectfully agree we hold that the present suit falls under S.4(v) of the Cochin Court Fees Act and that court fee has to be paid accordingly: However before concluding it is only proper that we refer to a few decisions which take a view different from ours as to the applicatory provision of the Court Fees Act with reference to suits of the present nature. In Hara Gouri Saha v. Dukhi Saha (1910) 5 Indian Cases 582 Cal. the suit was for partition after setting aside a partition arrangement effected under the terms of a previous decree. The learned judges in that case held that the suit was for a declaratory decree and for consequential reliefs and that an ad valorem court fee was payable on the plaint under S. 7 Cl. (iv)(c) of the Indian Court Fees Act. This case was followed in Pasilat Khatuan v. Bahimbux, A.I.R. 1951 Sind 154. The anomaly that would result from adopting the view laid down in those cases is well brought out in two of the cases already referred to. In Narayana Rao & others v. Subah Row & others the following passage occurs in the judgment: "If this suit can be held as falling under, Sub-s. 4 simply on the ground that there is a declaration of right and also a relief asked for on the basis of that declaration, almost every suit for recovery of property can be brought under that clause." In Maroof Sahib v. Ayyakkannu A.I.R. 1935 Madras 569 after citing with approval the view expressed in Chinnammal v. Madrasa Rowther, Venkatasubha Rao, J. said: "A little reflection will show that if the opposite view should prevail, most anomalous consequences would follow. Supposing before action a person's right to a sum of money claimed by him is denied, in such a case the plaintiff, contending that the declaration is not an idle relief may so frame his plaint as to contain prayers both for declaration and recovery of money. Supposing before action a person's right to a sum of money claimed by him is denied, in such a case the plaintiff, contending that the declaration is not an idle relief may so frame his plaint as to contain prayers both for declaration and recovery of money. In effect, whenever there is a previous denial of the plaintiff's right to the money, he may contrive to file his suit in that form; it seems unreasonable that because there is a prayer for declaration, the suit is not to be valued as for money but under S. 7(iv)(c). Similarly, in every suit for possession of land, on the ground that the plaintiff's title had been previously denied, he may frame his plaint as one for declaration and recovery of possession; to hold likewise that such a suit is to be valued not as one for possession but under S. 7(iv)(c), seems opposed to the scheme of the Act. These examples will serve to show, that it is both good practice and good sense, that as observed by Boddam and Bhashyam Ayyangar, JJ., in the passage quoted above, the relief claimed consequent on the declaration should be valued under the paragraph dealing with that particular relief and not under S. 7(iv)(c)." Further comments to show that the opposite view does not commend itself to us would appear to us to be superfluous. 16. Mention may here be made that for obvious reasons Travancore case law cannot throw much useful light on the question involved here. In the first place under the Travancore Court Fees Act VI of 1067, in suits to obtain a declaratory decree, whether or not consequential relief is prayed for the amount of fee payable on the plaint is according to the market value of the subject matter. Vide S. 4(v)(d). Secondly under the Travancore decisions in a suit for partition court-fee was leviable on the value of the plaintiff's share of the common properties that is as in a suit for recovery of land. See Ittooly Amma v. Kesavan (1926) 42 T.L.R. 473 (F.B.). The same view obtained in Bombay until recently in 1947 when a Full Bench of the Bombay High Court (1947 A.I.R. Bom. 259) held that for purposes of court-fee Art.17(vii) of Schedule II governed partition suits. The decision in Ittooly Amma v. Kesavan followed Chellamuthu v. Devanayagom (1925) 40 T.L.R. 205. The same view obtained in Bombay until recently in 1947 when a Full Bench of the Bombay High Court (1947 A.I.R. Bom. 259) held that for purposes of court-fee Art.17(vii) of Schedule II governed partition suits. The decision in Ittooly Amma v. Kesavan followed Chellamuthu v. Devanayagom (1925) 40 T.L.R. 205. In that case some of the family properties had been alienated by the father and the plaintiff, one of the sons, brought a suit for partition of his share together with various declarations such as that he was entitled to a one fifth share of the suit properties, that the alienations effected by the father were invalid and not binding on him or the family etc. The Munsiff held that the several reliefs claimed in the suit should all be separately valued and that when so valued he will have no jurisdiction to try the suit. On appeal while the two learned judges of the Division Bench agreed that the Munsiff's view was wrong and that the appeal should be allowed they reached that result by different modes of approach. Varughese, J. thought that the suit fell under S. 4(v)(d) of the Travancore Court Fees Act i.e. a suit for a declaration with consequential reliefs while Sankara Pillai, J. was of opinion that the case fell under S. 4(v) (c). The latter stated that having regard to the main reliefs set out in the plaint the suit was essentially one for partition and recovery of possession of the plaintiff' share. As such according to him the suit fell under Cl. (c) of sub-s. (v) of S. 4 i.e. a suit for recovery of land. It was further pointed out that no separate fee need be paid in respect of the several declarations prayed for as those declarations were merely ancillary to the main relief of partition and recovery of the share. It is the view of Sankara Pillai, J. that we see followed in Ittooly Amma v. Kesavan. No reference was made at the Bar to these cases. Notwithstanding the difference noticed in the provisions of the Travancore Court Fees Act and the different views taken there as to court fee payable in an ordinary suit for partition, these cases in a way support the view we have taken here. 17. No reference was made at the Bar to these cases. Notwithstanding the difference noticed in the provisions of the Travancore Court Fees Act and the different views taken there as to court fee payable in an ordinary suit for partition, these cases in a way support the view we have taken here. 17. In the argument before us no reference was made to the relief as to accounting or as to the court fee paid with respect thereto. It is for the trial court to decide whether in the light of the facts disclosed by the plaint and the view we have taken of the nature and scope of the suit defendants 1 to 3 could really be called upon to render accounts of their management of the properties after the date of the prior partition arrangement. If they continued to be "accounting parties" the court fee paid on the plaintiff's valuation with respect to that relief will no doubt be sufficient, but if such a liability did not survive the previous partition arrangement the plaintiff cannot recover any share of the profits unless the amount claimed is specified and ad valorem court fee is paid thereon. These observations are made lest it should be misunderstood that our decision covers all the reliefs claimed in the suit. When ad valorem court fee is paid on the value of the plaintiff's share on the basis that the suit is in substance to recover that share no further court fee is leviable for setting aside the decree and the execution proceedings or for partition or even for the injunction asked for in the plaint. The relief by way of rendition of accounts, or for recovery of the plaintiff's share of the profits, as the case may be, constitutes a distinct relief for which separate court fee has to be levied. 18. In the result, we allow this revision petition and set aside the lower court's order on issue No. 10 tried preliminarily. The plaintiffs will have one month from the date the lower court receives the records from here to ask for necessary amendments to the plaint and for payment of the deficit court fee. The court fee paid for all reliefs except that for rendition of accounts will of course be given credit for in fixing the amount in deficit. The plaintiffs will have one month from the date the lower court receives the records from here to ask for necessary amendments to the plaint and for payment of the deficit court fee. The court fee paid for all reliefs except that for rendition of accounts will of course be given credit for in fixing the amount in deficit. Plaintiffs 1 and 2 will pay defendant 1 the costs of this revision and bear their own. Allowed.