Srinivasan, J.
1. These three matters arise out of the same suit O.S. No. 1101 of 1987. For the purpose of convenience, the parties are referred to by their rank in the suit.
2. C.R.P. No. 2338 of 1994 is against an order dated 23.12.1993 made by the trial Court on the preliminary issue of payment of Court-fee paid in the suit. Defendants 1 to 3 are the petitioners therein. The plaintiff, the 7th and 9th defendants are the respondents. The 9th defendant was later given up in the revision petition. C.R.P. No. 2339 of 1994 is against an order of the same date, made in I.A. No. 452 of 1993 permitting the plaintiff to amend the plaint by substituting 'Section 25(d) in the place of 'Section 40' of the Court-fees Act in paragraph 21 of the plaint. CM. A. No. 844 of 1994 is against an order made on the same date in I.A. No. 1358 of 1987 granting injunction restraining the appellant from alienating or encumbering the suit property in any manner till the disposal of the suit.
3. The plaint was originally filed by the plaintiff and his brother Shanmugavelayutham, who got transposed later as the 10th defendant. The plaintiff is the son of the 7th defendant, who was the second wife of one Rangasamy, who died in 1967. The 8th defendant is the sister of the plaintiff. The 10th defendant is the son of the first wife of the said Rangaswamy. Defendants 1 and 4 are the brothers of the said Rangaswamy. The second defendant is the wife of the first defendant, while the third defendant is their son. The 5th defendant is the wife of the fourth defendant and the 6th defendant is their son. The allegations in the plaint are shortly as follows: The father of the plaintiff, the first defendant and the fourth defendant constituted a Hindu joint family and owned ancestral properties. In spite of a deed of partition, they continued to live jointly and carried on business as such. They ventured into several businesses like running a rice mill, match factory, powerlooms etc. They were also carrying on business in timber and had taken coup contracts. Enormous investments were made and several immovable properties were acquired in various places out of the family income and profits derived from the business. They are set out in Schedule 'A' to the plaint as items 1 and 2. In all the business activities and acquisition of properties, the plaintiffs father played a prominent part. He was not only a successful businessman but also an active participant in public life. He was killed in a motor accident on 26.5.1967, when he was aged about 44. His widow, the 7th defendant, was not much educated. The plaintiff was aged about 19 at that time undergoing training at National Defence Academy at Kadakavasala at Poona. The 10th defendant was aged only 11, studying in school. All the properties, assets and business came into the hands of the first defendant. The heirs of Rangaswamy left themselves and their properties under the control and protection of the first defendant in utmost faith, reposing trust and confidence in him. He was looked upon as their protector and guardian and they obeyed his instructions and directions without any question or demur. Even the insurance amount of Rs. 1,00,000 received on the demise of Rangaswamy was handed over to the first defendant and it was ploughed into the assets and business of the family. That amount was mainly responsible for the growth and development of the business and properties. In 1968 the plaintiff took up an L.I.C. Policy for Rs. 25,000 designating the first defendant as his nominee. The 7th defendant was taken as a partner in the' business in the place of her husband. In 1969 a land was purchased and a factory was put up wherein a sizing unit with the name of Sri Ranga Vilas Warping and Sizing Factory is functioning. Properties were acquired in 1972, 1975, 1976 and 1978 with the joint income and for the benefit of the family. All the properties were under the dominant control of the first defendant. The plaintiff and the 10th defendant were living under the shelter of the first defendant. They were gullible youngsters obediently acting to the orders and directions of the first defendant. They dare not question his decisions or directions, not only because of the age difference but also due to the utmost trust and confidence they had in him. The first defendant used to take the signatures of the plaintiff and the 10th defendant in several blank papers and blank stamp papers under the pretext and representation that they are required for tax purposes and administration of the properties and several partnership firms were constituted for purposes of tax concession and benefit. Those firms were intended only for tax benefits and concessions. The family continued to live jointly treating all the properties and business as joint family properties. The first defendant was venturing and choosing sick and failing units in order to revive them as the investments were giving him an advantage on the taxation side. One such unit was Sri Vasudeva Industries Limited, which was always under heavy liability and went into liquidation in 1967. The first defendant took it on lease from the Official Liquidator of Madras High Court and managed to acquire sizeable shares which were worthless and redeemed the company from liquidation by syphoning the family funds-. He changed the name of the Company as Sri Vasudeva Textiles Limited in 1984. In spite of all efforts, it continued to work on loss. The shares were worthless. The plaintiff and the 10th defendant never suspected the bona fides of the first defendant as he never denied their 1/3rd share in the properties, assets and income as well as the business. They were recognised and treated as co-owners and they were in joint possession of the properties. In 1983 the first defendant arranged to secure loan from Punjab National Bank for Sri Vasudeva Industries Limited. Defendants 1, 4, the plaintiff and the 10th defendant were the Directors of the Company. The plaintiff and the 10th defendant signed documents for personal guarantee as directed by the first defendant. They did not act independently; but simply obeyed his directions. The entire affairs, administration and management of the company continued to be in the hands of the first defendant, though the proceedings were shown to be at the instance of the Board of Directors.
4. In the beginning of 1984, the first defendant represented that as the plaintiff and the 10th defendant had given, personal guarantee to the Bank, it would be risky and not expedient to have the family properties in their names and it would be advantageous and safe to keep off their names from the records as owners. He further represented that the entire family properties would be kept in the names of defendants 1 and 4 for the purpose of record and to avoid the risk of any bank claim. He assured that the said arrangement would not affect or extinguish the legitimate share of the plaintiff and the 10th defendant in the properties. He arranged to file a suit in the Sub Court, Coimbatore through the family lawyer. It was a collusive suit and a mere make-believe affair. There was no misunderstanding or provocation for any one of the members of the family to go to a Court of Law for partition. That suit O.S. No. 37 of 1984 on the file of Sub Court, Coimbatore was filed by the fourth defendant's son Senthil Kumaravel, who was then aged 21. He was a bachelor, and a college student at that time. His prayer was for partition of his share in the joint family properties. He is the 6th defendant in this suit. The plaint was in fact prepared at the instance and instructions of the first defendant. The Schedule to the plaint was not complete. The plaintiff and the 10th defendant did not go to any lawyer; nor did they take any steps to assert their claim for partition. They did not file any written statement in that case. The first defendant represented and assured that the suit was intended only to preserve and safeguard the family properties from any possible risk or danger from the claims of creditors of a defunct and sick textile unit in which he was greatly interested. On 16.8.1984 the plaintiff and the 10th defendant were taken to the court by the first defendant and their signatures were taken. They were made to stand before the Presiding Officer of the Court and say that they were accepting the contents of the compromise petition. They obeyed the first defendant and acted to his direction. They learn now that lawyers of the same office had signed and filed a petition for compromise into court and secured a decree thereon. They submit that the entire proceedings in O.S. No. 37 of 1984 was a collusive one and mere make-believe affair. The first defendant had abused the process of Court. The entire proceedings and the decree secured from the court was a fraud played not only on the plaintiff and 10th defendant but also against the court. The decree is void as per Section 44 of the Evidence Act. The rights of the plaintiff and the 10th defendant were never discussed. They never even thought of relinquishing or giving up their rights in valuable properties. The so called decree obtained from the Court confers only the worthless shares in a defunct company which had never seen any profit ever since its inception till this date. The plaintiff and the 10th defendant signed the compromise only on the assurance of the first defendant that their legitimate shares in their properties would be never denied to them. In spite of the so called decree and compromise, all the properties, assets, investments and business continued to be in the hands of the first defendant. The compromise decree, which was intended only to secure and sageguard the properties is sham and nominal besides being fraudulent. There is now a change in the attitude of the first defendant, who is giving a go-by to his assurance and wants to press the compromise decree against the plaintiff and the 10th defendant to deprive their legitimate share in the estate. The illegal and irregular nature of the transaction can also be assessed from the fact that-family members who do not have any share in the properties were allotted properties and that too disproportionately by allotting negligible and useless shares to the plaintiffs mother, who was a sharer, and allotting substantial immovable properties to defendants 2 to 5 who were not even sharers. These and other facts would clearly establish the untenable nature of the transaction.
5. The plaintiff and the 10th defendant recently came to know that some alienations have taken place with regard to portions of joint family properties at the instance of the first defendant. Though the alienations are strictly not binding on the plaintiff, he does not want to unnecessarily complicate the issue by seeking to dispute the alienations. The plaintiff is entitled to the relief of accounting in respect of these alienations and also with regard to the other transactions of the first defendant. The first defendant is refusing to give proper accounts. It is not open to any of the defendants to contend that the share of the plaintiff would be only the useless shares in the defunct company. Such a partition besides being inequitable and unfair, is also unenforceable in law due to the reasons mentioned supra. There is also a vast disparity in the value of the properties allotted to each group and no member in his sense would have accepted. The first defendant's share consists of 150 acres of tea plantations in Coonoor Municipal Limits with a Tea Factory, 50 acres of coconut thope, a spinning mill and a huge bungalow in 33 cents of land in Coimbatore town and the entire outstandings. The fourth defendant's share consists of 100 acres of garden lands in three Revenue villages in Palladam Taluk, a spinning mill in Somanur, a sizing mill with powerlooms and a big bungalow on about half an acre of land in Somanur and the ancestral house plus outstandings. The plaintiffs group has been allotted only shares in a public limited company, the position of which is shaky and the shares themselves are unmarketable, while no share in any immovable property has been allotted to them. The disparity in value is so great and the division so unfair on the face of it that the decree could not have been a real transaction seriously intended to be operative. The fact that no share in the property was allotted to the plaintiff and the 10th defendant in any of the immovable properties is not only curious but is self-explanatory with regard to the circumstances under which the so called compromise decree came into existence on account of the collusion on suggestion by the first defendant. Hence, the plaintiff is obliged to come forward with this suit claiming a partition in respect of the entire suit properties. The plaintiff and the 10th defendant are also seeking a declaration that the decree passed in O.S. No. 37 of 1984 is ultravires, collusive, invalid, unsustainable and unenforceable. On that ground also, they are entitled to partition. The fact that the shares have no value, stand proved by the fact that for the years 1983-84, 1984-85 and 1985-86 returns have been submitted to the Wealth Tax Officer, Coimbatore on the basis that the shares held by the plaintiff and the 10th defendant had no value whatsoever, as the company had incurred heavy loss. That was accepted by the Wealth Tax Department and the assessment was completed accordingly.
6. Recently, the plaintiffs' elder brother has entered into some sort of arrangements with the first defendant. He is therefore no longer interested in the suit, since his claim appears to have been settled by some arrangement. The details are not fully available to him. He was figuring as the first plaintiff. He has been transposed as the 10th defendant as per the orders of the Court in I.A. No. 89 of 1993. Certain items of properties have been sold by defendants 1 and 2 after the filing of the suit. Those transactions are hit by the doctrine of lis pendens and they are not binding on the plaintiff and the transferees will not get any right. Such pendente lite transferees are not necessary parties. The cause of action for the suit arose on 27.5.1967 when late Rangasamy died and on subsequent dates including the filing of the suit in O.S. No. 37 of 1984, on 16.8.1984 when the collusive decree in that suit was filed and subsequent dates when the parties continued to be joint and the properties are managed by the first defendant during the past few months when the first defendant's hostile attitude became open and when the plaintiff came to know several clandestine transactions brought about by the first defendant to the detriment of the plaintiff, on subsequent dates when the plaintiff demanded partition and when the first defendant adopted an evasive attitude. The 9th defendant has been impleaded because he was a party to O.S. No. 37 of 1984.
7. Paragraphs 21 and 22 of the plaint are in the following terms:
21. The value of the suit for the purpose of Court-fees and jurisdiction is Rs. 30,68,600 and a Court fee of Rs. 1,371 is paid thereon under Section 40 read with Section 37(2) of the Tamil Nadu Court-fees and Suit Valuation Act.
Details of valuation
---
(a) For the relief of declaration with regard to the decree in O.S. No. 37 of 84 on the file of Sub-Court, Coimbatore, the plaintiffs value the relief at Rs. 15,100.
Court-fee paid Rs. 1,133.
NOTE:
The Auditors' report which has been accepted by the Wealth Tax and Income Tax Authorities would show that these shares have no value. However, the value of Rs. 15,100.
The plaintiff submits that Court-fee is payable only with regard to their share of the decree though the entire decree is questioned since court-fee is payable only for their share and these worthless shares have only been allotted to them under the partition.
(b). For the relief of partition the value is as per details below:
Item-1 lands Rs. 10,00,000
Item-2 house 10,000
Value of B Schedule properties:
Item 1
15,00,000
2
50,000
3
50,000
4
1,00,000
5
7,00,000
6
30,00,000
7
5,00,000
8
7,00,000
9
1,00,000
10
15,00,000
91,60,000
Value of plaintiffs l/3rd share is Rs. 30,53,000 Note: A court-fee of Rs. 200 is paid under Section 37(2) of the Court-fees Act since the plaintiffs are and must be deemed to be in joint possession of the entire family properties.
(c) For the relief of Accounting the plaintiffs value the suit at Rs. 500. Court-fee of Rs. 38 is paid under Section 35 of C.F. Act.
Note:
The plaintiffs undertake to pay difference in Court-fees on the ascertainment of the correct amount due to them since the value that has been adopted now is only tentative.
Correct amount will be fixed only after the 1st Defendant tenders accounts.
Total value Rs. 30,68,600
Court-fee paid. Rs. 1,371
22. Therefore, the plaintiff prays that this Hon'ble Court may be pleased to pass a decree:
(a) declaring that the decree passed in O.S. 37 of 84 on the file of Sub Court, Coimbatore is sham and nominal, ultra vires, collusive unsustainable, invalid, unenforceable and not binding on the plaintiffs:
(b) granting a decree for division of the entire schedule mentioned properties by dividing the suit properties into three equal shares, and allotting one such share to the plaintiff.
(c) directing the 1st Defendant or such of those defendants who are found liable to furnish true and proper accounts to the plaintiffs with regard to the income from the joint family properties and ascertain the amount payable to the plaintiffs.
(d) directing the Defendants to pay the plaintiffs the costs; and
(e) granting the plaintiffs such other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.
8. Along with the plaint, an application was filed in I.A. No. 1358 of 1987 for an order of interim injunction restraining the first defendant from in any way alienating or encumbering the suit properties pending disposal of the suit. Another application in I.A. No. 1359 of 1987 was filed for appointment of a receiver to take charge of the suit properties. The 7th defendant, the mother of the plaintiff, filed I.A. No. 171 of 1993 for the same relief. In her written statement she had claimed the relief of allotment of l/12th share to her. She paid the court-fee therefor.
9. Defendants 1 to 3 filed their written statement and also additional written statements challenging the averments contained in the plaint. It is not necessary to refer to the same in detail. They have taken a preliminary objection to the framing of the suit and the maintainability thereof. They have also questioned the correctness of the valuation of the suit and the Court-fee paid thereon. In short, their plea is that the suit is not maintainable without a prayer for setting aside the compromise decree in O.S. No. 37 of 1984 and the suit should be valued under Section 37(1) read with Section 40 of the Court-fees Act. It is also their contention that the compromise decree cannot be challenged by a separate suit and any attack against the decree could be agitated only in the same proceedings.
10. The plaintiff filed I.A. No. 452 of 1993 for amending paragraph 21 of the plaint pertaining to valuation. The only amendment prayed was to delete 'Section 40' and substitute 'Section 25(d)' therefor. All the interlocutory applications referred to above were contested by the defendants. The learned Subordinate Judge heard all of them together and passed separate orders on 23.12.1993. In the suit he held on issue No. 4 and additional issue No. 3 relating to the valuation and the Court-fee, that the suit had been valued properly and appropriate court-fee had been paid. While arriving at the said conclusion, the learned Judge gave the following findings:
(1) The compromise decree in O.S. No. 37 of 1984, marked as Ex.C-2, was only a decree for partition, though it was a family arrangement and it was not acted upon.
(2) The properties allotted to the first defendant under the said decree were all of much higher value than the shares allotted to the plaintiff.
(3) The shareholders of the Public Limited Company Vasudeva Textiles Limited, were not entitled to any share in the assets of the company; but were only entitled to dividend. They could not get any dividend as the shares had no value.
(4) Though there was a registered partition deed in 1960 the plaintiffs case that even thereafter the members of the family continued to be a joint family and were acquiring assets jointly and carrying on business jointly is true.
(5) The version of the plaintiff that the decree in O.S. No. 37 of 1984 was brought about at the instigation of the first defendant for the purpose of preventing action against family properties by the creditors of the plaintiff and the 10th defendant and that the decree is sham and nominal, void and unenforceable is true.
(6) The prayer of the plaintiff for declaring the decree to be sham and nominal, ultra vires, collusive, unsustainable, invalid, unenforceable, and not binding is correct and there is no necessity to set aside the decree.
(7) The payment of court-fee under Section 25(d) and Section 37(2) of the Court-fees Act is correct.
(8) Even though the time for setting aside the decree has expired, the 7th defendant is entitled to plead for setting aside the document as an equitable defence and thus she can claim l/12th share in the property.
11. In I.A. 452 of 1993, the learned Subordinate Judge held that the proper Section is only 25(d) of the Court-fees Act and the plaintiff is entitled to amend paragraph 21 of the plaint by substituting 'Section 25(d)' in the place of 'Section 40'.
12. In I.A. 1358 of 1987, the learned Judge granted an injunction as prayed for till the disposal of the suit. In I.A. 1359 of 1987 and I.A. 171 of 1993 the learned Judge passed an order appointing an advocate by name P.R. Arulmozhi as Receiver to take charge of the properties and administer the same and submit accounts once in a month.
13. Against the order appointing Receiver, two appeals were filed, one by the first defendant and another by defendants 1 to 3. They were taken on file in this Court as A. A.O. Nos. 2 and 3 of 1994. As they were moved urgently, they were heard by Swamidurai, J. and allowed on 28.3.1994. The learned Judge set aside the order appointing Receiver on the footing that the plaintiff was yet to establish that the compromise decree was vitiated by fraud and undue influence and misrepresentation and it was null and void and unenforceable or that the suit was not barred by Order 23, Rule 3-A, C.P.C. or by limitation.
14. These two revisions and appeal have come before me. Before referring to the contentions of counsel on both side sand dealing with the same, one peculiar fact has to be mentioned. I have already stated that the Subordinate Judge passed his orders on 23.12.1993. But, curiously, the plaintiff had filed a caveat in this Court on 28.7.1993 (vide Caveat No. 2320 of 1993) showing all the ten defendants as respondents. As per the cause title in the caveat petition a Civil Revision Petition was expected against the order in I. A. No. 171 of 1993. The fact that a caveat was filed nearly five months prior to the passing of orders by the Subordinate Judge gives rise to a suspicion. It passes one's comprehension as to how the plaintiff was so sure that there would be an order in his favour by the Subordinate Judge and a revision would be filed against such an order. After the orders were passed by the learned Subordinate Judge on 23.12.1993, fresh caveats were filed on 28.12.1993. The above circumstances that a caveat was filed inexplicably long before the passing of the orders by the Subordinate Judge, if taken along with the fact that the Additional Subordinate Judge has chosen to give categoric findings on the merits of the claim of the plaintiff even at this stage before any evidence is recorded and before any of the parties had an opportunity to prove their respective cases raises a question whether the Subordinate Judge was guided by materials other than those on record.
15. In this context, it is relevant to notice the following observations made by Swamidurai, J. in his order dated 28.3.1994 in A.A.O. Nos. 2 and 3 of 1994.
In the facts and circumstances of the case, the plaintiffs have yet to establish that the compromise decree in O.S. No. 37 of 1984 is vitiated by fraud and undue influence and misrepresentation and it is null and void and unenforceable in the court of law and the plaintiffs have also to prove that the suit is not barred under Order 23 Rule 3-A C.P.C. and is not barred by limitation. One other thing the plaintiffs are yet to prove is in the suit is as to how the compromise decree is effected unequal divisions. Before establishing the same, it is not just and expedient for appointment of a Receiver to take charge of the properties. In the circumstances, the orders of the lower court made in two applications appointing Receiver are not according to law and so, they are liable to be set aside and accordingly, the CM. As., are allowed and in the circumstances, there will be no order as to costs.
16. The Subordinate Judge has exceeded his jurisdiction in rendering findings on the merits of the main case while dealing with the issue relating to the valuation of the plaint and Court-fee payable preliminarily. The orders passed by the Subordinate Judge fall well within the four corners of Section 115, Code of Civil Procedure. There is no merit in the objection taken by learned Counsel for the respondents that the revisions are not maintainable on the footing that a defendant in a suit has no right to challenge a decision of the Subordinate Court on the question of court-fee payable in the suit. Reliance is placed by the respondents on the following cases: A. Muhammad Ellaiyas v. Rahima Bee 56 M.L.J. 302, Rathnavarmaraja v. Smt. Vimla : [1961]3SCR1015 , Vasu v. Chakki Mani : AIR1962Ker84 and Shamsher Singh v. Rajinder Prashad : AIR1972SC2296 . No doubt, in those cases it has been held that no revision will lie against the decision on the adequacy of court-fee at the instance of the defendant unless the question of court-fee involves also the jurisdiction of the Court. But none of the rulings will help the respondents in the present case inasmuch as the Subordinate Judge has travelled very much beyond his jurisdiction and almost decided the suit in favour of the plaintiff even at this stage. Hence, the revisions cannot be thrown out as falling outside the scope of Section 115 of the Code of Civil Procedure. If the findings rendered by the Subordinate Judge are eschewed, nothing remains in his orders to show that he has applied his mind to the question of proper court-fee payable on the plaint in accordance with the settled principles of law.
17. It has been held that the question of court-fees must be considered in the light of the allegations made in the plaint and the decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits. Vide Sathappa Chettiar v. Ramanathan Chettiar : [1958]1SCR1021 , Selvahimar Rice and Oil Mills, Salem v. Tamil Nadu Electricity Board, 99 L. W. 740, Ramu Udayar v. Tamil Nadu Electricity Board, 1990 T.L.N.J. 107 and Santhana Kesari v. Kathija Bai. : (1994)2MLJ413 .
18. However, Courts have always taken care to point out repeatedly that mere astuteness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for and the Court should look into the allegations in the plaint to see what is the substantive relief that is asked for. In Shamsher Singh v. Rajinder Prashad : AIR1972SC2296 , the plaintiffs prayed for a relief on the basis that the property in dispute was a joint Hindu family property and there was no legal necessity to execute a mortgage. They sued for a declaration that the decree obtained by the appellant before Supreme Court against their father was not binding on them. The Court held that they were really asking either for setting aside the decree or for the consequential relief of injunction restraining the decree-holder from executing the decree against the mortgaged property as he was entitled to do. They referred to the decision of the Full Bench of the Lahore High Court in Mr. Zeb-ul-nisa v. Din Mohamed A.I.R. 1941 Lah 97 and quoted the following passage:
The mere fact that the relief as stated in the prayer clause is expressed in a declaratory form does not necessarily show that the suit is for a mere declaration and no more. If the relief so disclosed is a declaration pure and simple and involves no other relief, the suit would fall under Article 17(iii).
After referring to the observation of the Full Bench of the Lahore High Court that in deciding whether a suit is purely declaratory, the substance and not merely the language of the form of the relief claimed should be considered, the Court quoted the following passage:
It seems to me that neither the answer to the question whether the plaintiff is or is not a party to the decree or the deed sought to be declared as null and void, nor to the question whether the declaration sought does or does not fall within the purview of Section 42, Specific Relief Act, furnishes a satisfactory or conclusive test for determining the court fee payable in the suit of this description. When the plaintiff is a party to the decree or deed, the declaratory relief, if granted, necessarily relieves the plaintiff of his obligations under the decree or the deed and, hence it seems to have been held in such cases, that the declaration involves a consequential relief. In cases where the plaintiff is not a party to the decree or the deed, the declaratory relief does not ordinarily include any such consequential relief. But there are exceptional cases in which the plaintiff though not a party to the deed or the decree is nevertheless bound thereby. For instance, when a sale or mortgage of joint family property is effected by a manager of a joint Hindu family, the alienation is binding on the other members of the family (even if they are not parties to it) until and unless it is set aside. Similarly, a decree passed against the manager will be binding on the other members of the family If therefore a coparcener sues for a declaration that such an alienation or decree is null and void, the declaration must I think be held to include consequential relief in the same way as in those cases in which the plaintiff is himself a party to the alienation or the decree, which is sought to be declared null and void. The case dealt with ib AIR 1936 Lah 166 seems to have been of this description. The case of an alienation by a mutwalli of waqf property would also appear to stand on a similar footing. In the case of waqf property, it is only the trustee or the mutwalli who can alienate the property. If he makes an alienation it is binding on all concerned, until and unless it is set aside. If therefore, a person sues to get such an alienation declared null and void, he can only do so, by getting the deed invalidated. The relief claimed in such cases also may therefore be found to include a consequential relief.
In Vembu Animal v. Swaminathan : (1986)1MLJ105 , a single Judge of this Court said:
No doubt in computation of the fee, the recitals in the plaint have to be taken into account. But, there are exceptions to that rule. Then (sit.) the plaintiff by a clever device tries to say that she is in possession it is the duty of the court to see whether, in the circumstances mentioned in the plaint, she could have been in possession. The plaint allegation cannot be taken into consideration on the face value itself, when the circumstances would lead to the conclusion that what is stated cannot be true.
19. If the allegations made in the plaint in the present case are considered, one can have no doubt whatever that in substance the suit is for setting aside the compromise decree passed in O.S. No. 37 of 1984. The plaintiff cannot get any relief in the suit without setting aside the said decree. Admittedly he was a party to the decree himself. His age at the time of the present suit is stated to be 36 years in the plaint. At the time of the decree in the earlier suit O.S. No. 37 of 1984, he must have been 33 years old. The 10th defendant, who was the first plaintiff in the present suit when it was instituted is stated to be 45 years old at the time of the plaint. He would have been 42 years old at the time of the compromise decree. Both of them were represented by counsel in that suit. The grounds on which the compromise decree is sought to be set aside are that it is vitiated by collusion, fraud,' undue influence and misrepresentation. I have set out earlier in detail the summary of the plaint. A perusal thereof is sufficient to point out that though the plaintiff has chosen to pray for the relief of declaration, in substance he is praying for setting aside the decree and displacing the same, when only he can seek the relief of partition. The mere fact that the plaintiff has chosen to introduce an allegation that the compromise decree is sham and nominal, invalid, unsustainable and unenforceable, will not alter the nature of the suit or absolve the plaintiff from the necessity to have the decree set aside.
20. In Nemi Chand v. Edward Mills Company : [1953]4SCR197 , the Court considered the finality of a decision on the question of court fee. Referring to the difference in the phraseology employed in Sections 5 and 12 of the Court-fees Act, 1870 the Court said that the same indicated that the scope of Section 12 was narrower than that of Section 5. It was pointed out that Section 5 declared decisions on question of court-fee, whenever they arise in the chartered High Courts as final; but under Section 12, a decision on every question relating to valuation for the purpose of determining the amount of any fee payable under Chapter 3 on a plaint or memorandum of appeal was final. The Court held that the finality declared by Section 12 was limited only to a question of valuation pure and simple and did not relate to the category under which a certain suit fell. After referring to the rulings on the subject, the Court said:
(10) The difference in the phraseology employed in Sections 5 and 12, Court-fees Act, indicates that the scope of Section 12 is narrower than that of Section 5. Section 5 which declares decisions on question of court-fee whenever they arise in the chartered High Courts as final makes a decision as to the necessity of paying a fee or the amount thereof final. Whereas Section 12 makes a decision on every question relating to valuation for the purpose of determining the amount of any fee payable under Chap. 3 on a plaint or memorandum of appeal final. Had Section 12 been drafted somewhat as follows:
If any dispute arises as to the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal, it shall be decided by the Court in which such plaint or memorandum is filed and such decision shall be final as between the parties.Then the construction contended for by Mr. Setalvad might have been upheld. When the two sections in the same Act relating to the same subject-matter have been drafted in different language, it is not unreasonable to infer that they were enacted with a different intention and that in one case the intention was to give finality to all decisions of the taxing officer or the taxing judge, as the case may be, while in the other case it was only intended to give finality to questions of fact that are decided by a Court but not to questions of law. Whether a case falls under one particular section of the Act or another is a pure question of law and does not directly determine the valuation of the suit for purposes of court-fee. The question of determination of valuation or appraisement only arises after it is settled in what class or category it falls.
That judgment has been followed by the Madhya Pradesh High Court in Upbhokta Sahakati Bhandar v. Vinod Lal 1979 M.P.L.J. 253 which held that the finality declared by Section 12 of the Court Fees Act is limited only to question of valuation pure and simple and does not relate to the category under which the suit falls and in such cases, a revision is maintainable against the order of the trial court.
21. In the present case, the plaint referred to Section 40 of the Court-fees Act in the first instance. By amendment ordered in I.A. No. 452 of 1993, Section 25 (d) is substituted therefor. I have already pointed out that the suit is in substance one for setting aside the compromise decree in O.S. No. 37 of 1984, though the prayer is only for a declaration. Section 40 of the Tamil Nadu Court Fees and Suits valuation Act reads as follows:
(1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed; if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.
(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff s share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree whichever is less.
The section in the present form was introduced in the Act of 1955. In the old Court-fees Act of 1870, Section 7(iv-A) was introduced in this State by Madras Court-fees (Amendment) Act (V of 1922). That was the section which corresponded to Section 40. That section read as follows:
In a suit for cancellation of a decree for money or other property having a money value, or other document securing money or other property having such value, according to the value of the subject matter of the suit and such value shall be deemed to be:
If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or the other document executed:
If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property
22. The difference in the language brought into the Act of 1955 is significant. In the old Act, the expression used was 'securing money or other property having such value', while in the present Act, the expression used is 'which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property' Referring to the said aspect of the matter, this Court held in A. Gopalakrishna Iyengar v. P. Sirengammal : (1964)1MLJ278 that a suit by a son for recovery of possession of properties and accounts from his mother who claimed to have a life estate in respect of the properties under an earlier partition, is governed by Section 40 and court-fee for cancellation of the partition has to be paid by the plaintiff irrespective of whether the partition document is void or voidable. The relevant passage in the judgment reads thus:
It is contended by Mr. Sitarama Ayyar, learned Counsel for the petitioner that Section 40 would be inapplicable to the present case as the document of partition is void and need not therefore be set aside as a void document is non est in law. But Section 40 would apply to a case of cancellation of a document which 'purports or operates to create, declare, assign'' etc. It cannot be gainsaid that this document of partition purports to create certain rights. The question now is not whether it is void or voidable, but the question is, whether it would fall within the ambit of Section 40. Having read the provisions of the Act, I am unable to say that this document, whatever its real character may be, void or voidable, would not fall within the ambit of the said provision.
23. In Muthammal v. Narmada : (1975)2MLJ304 the Court pointed out that from the wording of Section 40 (1) of the present Act, it may be seen that a drastic change has been made in the matter of payment of Court-fee in respect of suits where cancellation of a decree is asked for. Holding that a compromise decree passed in a partition suit is a document, which purports to operate, create, declare and assign the right, title and interest of the parties in the properties involved in the suit, the Court said that unless that compromise decree is set aside, the plaintiff will not be entitled to ask for the reliefs of declaration, partition and possession.
24. In Mrs. J. Kasthuri v. Seth Ghamhamdas Vonsimal Deva Bank : (1979)2MLJ11 , the prayer in the suit was for declaration that the three documents styled as hundies executed in favour of the first defendant in the suit were invalid, inoperative and void. The Court pointed out that the form of the prayer did not matter and the substance of the relief should be. ascertained for determining the court-fee payable. The Court said:
There can be no doubt whatever that for purpose of determining the court-fee payable, it is the substance of the relief that a plaintiff prays for that has to be taken into account and not the technical form of the prayer. It is to be otherwise, mere astuteness and ingenuity of the person drafting the plaint will have the effect of not only camouflaging and disguising the real relief which a plaintiff claims in a suit but also nullifying and defeating the provisions of law dealing with the payment of court-fee based on the nature of the relief litigants seek in a court of law.
After referring to all the earlier rulings on the subject, the Court held that court-fee was to be paid under Section 40 of the Court-fees Act and said:
10. From the above decisions, it is clear that the plaintiffs in the present case having executed the hundies, they will have to have those hundies cancelled or set aside and for that purpose they will have to pay court-fee under Section 40 of the Act. By merely couching the prayer in the form of a declaratory relief, the plaintiffs cannot avoid the reality of the situation, namely, that they are challenging the hundies executed by them on the ground that they were not supported by consideration and they were obtained by misrepresentation or fraud. Under these circumstances, it will be clear that the learned IV Assistant Judge was right in directing the petitioners herein to pay court-fee under Section 40 of the Act.
The Court also distinguished cases in which the party concerned was a minor or a person of unsound mind.
25. In Arumugham Pillai v. A.P. Aruladum Perumal Pillai : (1986)1MLJ462 , the Court held that though the plaintiff had not asked for the relief of cancellation of settlement deed in favour of the defendant, it was clear from the substance of the relief as disclosed in the plaint taken as a whole that without the settlement deed being cancelled and set aside, no relief of declaration of title and recovery of possession could be granted to him in respect of the suit property as he had admitted the execution of the deed. It was not in dispute that the recitals in the document purported to create rights in favour of the defendant in that case.
26. In Raja v. Radha Ammal (1988) 1 L. W. 82, a suit was filed for a declaration that the preliminary decree passed in an earlier suit for partition was null and void and not binding on the plaintiffs, who were then minors, and the alleged appointment of guardian for minors in the earlier suit was irregular and illegal as the interest of the guardian was adverse to that of her minor sons and she was, therefore, not qualified to be a guardian and that the minor sons in the said suit were not at all represented and were not deemed to be parties to the suit in the eye of law as the appointments of the guardian was illegal and void and the alleged guardian acted mala fide with gross negligence and remained ex parte in all the proceedings in the earlier suit. The plaintiff treated the suit for purposes of court-fee as one governed by Section 25 of the Tamil Nadu Court Fees Act. The objection raised by the Appeal Examiner that the plaintiffs were parties to the earlier suit and court-fee was payable under Section 40 of the Act was upheld by the trial court. That order was confirmed by this Court in revision. Rejecting the contention that the decree in the earlier suit being ex parte, created an infirmity in the decree, the Court said:
6. It is an established principle of construction that, where there is a specific provision governing a particular case, that provision alone will apply to the facts of the case and the general provision will be excluded. The averments in the plaint show that fault is sought to be found with regard to the appointment of the mother as the guardian of the minors. The plaint itself does not disclose as to how the appointment of the guardian was irregular or illegal. Now under the provisions of the Hindu Minority and Guardianship Act, the mother will be the natural guardian of her minor children in the absence of the father. Shanmugham died during the pendency of the suit and the mother was therefore, the natural guardian and she has been shown on the records as such. Merely by dubbing the appointment of the mother as the guardian illegal or irregular, will not take away the fact that the mother was entitled to act as guardian of her minor children. The fact that a party to a suit is placed ex parte does not create any infirmity in the decree itself. If a party has chosen to remain ex parte, that party may either have to ask for setting aside the decree on the ground that there was sufficient justification for its absence and that the nonappearance was caused by an unavoidable circumstance or it could file an appeal against the ex parte decree. It is for the party against whom the ex parte decree is passed to show that the party had represented as guardian of the minor and the ex parte decree will therefore be binding on the minors. The effect of such an ex parte decree cannot be taken away by pleading or contending that minors cannot be treated as parties to the suit. In my view, this is a case which is squarely governed by Section 40 of the Act..
The above section will, therefore, show that as long as the decree operates to effect the right of the plaintiffs unless that decree is cancelled, the decree will be effective and if the whole of the decree is sought to be cancelled, then the amount of the decree will be the value for purposes of court fees. It is, therefore, not possible for the plaintiffs to argue that they cannot be treated as parties to the suit at all.
The Court proceeded to refer to the judgment of the Full Bench in Ramaswami Iyengar v. Rangachariar A.I.R. 1940 Mad. 113 and said:
Apart from the plain construction of Section 40, which is against the plaintiffs, even this decision holds that a decree of a competent court is a binding decree until it is set aside. The plaintiffs cannot, therefore, seek for cancellation of the decree on the ground that their interest was not represented as the guardian remained absent in the suit.
27. In Govind v. Muralidar : AIR1953Bom412 , a Division Bench of that Court, held that a consent decree passed by a Court of competent jurisdiction cannot be treated on the same footing as a contract between the parties and where a compromise decree contains a term against alienating certain property and gives the other party right to its possession on such alienation, the decree is not a nullity in spite of the fact that the term is opposed to Section 10, Transfer of Property Act. It was held that it was merely contrary to law and bound the parties thereto, unless it was set aside by taking proper proceeding. In Bhima Rama v. Abdul Rahid : AIR1968Kant184 . a Division Bench of the High Court held that where a compromise decree passed by a Court of competent jurisdiction contains a term which is opposed to law or public policy and the decree has not been set aside in proper proceedings, it can be pleaded as constituting estoppel and res judicata in a subsequent proceeding between the same parties. The decision of the Bombay High Court in Govind's case referred to earlier was followed.
28. Learned Counsel for the 7th defendant referred to the rulings in Ramachandra Suru v. Akella Venkatalakshminarayana A.I.R. 1919 Mad. 429, A. Venkataseshayya v. A. Virayya A.I.R. 1958 A.P. 1 and Baldeo Jha v. Ganga Prasad : AIR1959Pat17 in support of his contention that the compromise decree is void ab initio.. The rulings referred to do not have any relevance in the present case. In those cases, the compromise was against express statutory provisions and the decrees were held to be null and void. No reliance can be placed on them in this case. There can be no doubt whatever that the present case is governed by Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and the plaintiff has to pay court-fee under that section. The order of the lower Court permitting the plaintiff to amend the plaint by substituting Section 25(d) in the place of Section 40 is wholly unsustainable.
29. The claim of the plaintiff that Section 37(2) of the Court-fees Act applies to this case is also unsustainable. That sub-section can come into play only when the plaintiff is in joint possession of the suit properties. If the plaintiff has been excluded from such possession, fee shall be computed under Section 37(1) of the Court-fees Act, on the market value of the plaintiffs share. In paragraph 21 of the plaint, after setting out the value of the property a Note is appended stating that the plaintiffs are and must be deemed to be in joint possession of the entire family properties. The said statement is wholly unsustainable in view of the specific averments found in the earlier paragraphs. A perusal of the plaint proves beyond any doubt that the plaintiff is not in joint possession of any of the suit properties. In fact, in paragraph 15 there is a specific allegation that in spite of the decree and compromise in the earlier suit, all the properties, assets, investments and business continued to be in the hands of the first defendant. There is also an admission in paragraph 16 that some of the properties have been alienated at the instance of the first defendant. In those circumstances, the claim of the plaintiff to pay court-fee under Section 3 7(2) of the Court-fees Act is not acceptable. He is bound to pay Court-fee under Section 40 read with Section 37(1) of the Court-fees Act. In the Note found in paragraph 21 of the plaint it is stated that Court-fee is payable only with regard to the share of the plaintiff in the decree though the entire decree is questioned. The contention raised in the Note is very curious and frivolous. Unless the entire compromise decree is set aside, the plaintiff cannot pray for a division of all the properties. By setting aside that part of the compromise decree which allotted to the plaintiff and the 10th defendant shares in Vasudeva Textiles Limited, the plaintiff will not be entitled to get the consequential reliefs prayed for in the present suit, such as partition and rendition of accounts, etc. The order of the Trial Court upholding the correctness of the valuation set out in the plaint and the court-fee paid thereon is, therefore, unsustainable and deserves to be set aside.
30. It is contended by learned Counsel for the petitioners that the plaintiff has deliberately omitted to include in the plaint schedule the shares in Vasudeva Textiles Limited allotted to him and the 10th defendant under the decree in O.S. No. 37 of 1984. According to him, that circumstances itself proves the mala fides of the plaintiff in instituting the present suit. It is also argued that the suit is not maintainable without including that property. There is considerable force in this contention. When the plaintiff is claiming that the decree in O.S. No. 37 of 1984 is wholly invalid and unenforceable, he ought to have included all the properties dealt with by that decree and claim them to be joint family properties in the present suit for partition. The plaintiff is, therefore, bound to include the shares in Vasudeva Textiles Limited in the plaint Schedule and add the value thereof to the value of the other properties. He shall make suitable amendments in the plaint regarding valuation and court-fee payable in accordance with this judgment.
31. Learned Counsel for the 7th defendant drew my attention to the judgments in S.N. Kuba v. P.P.I. Vaithyanathan, 1988 T.L.N.J. 1, Association of Lessees of Temple Lands v. Arulmigu Varadaraja Perumal Temple, 1990 T.L.N.J. 66 and Balambika v. Elizabath, 1990 T.L.N.J. 116 and contended that this Court sitting in revision under Section 15, C.P.C. should not exercise its discretion in favour of the petitioner in the revision, whenever justice has been rendered by the Court below, even if the order of the court below is erroneous and beyond its jurisdiction. That principle has no application in the present case, as I have pointed out already that it is very doubtful whether the Court below passed the orders only on the basis of the materials available on record.
32. It is next argued by learned Counsel for the petitioners that the suit being in substance one for setting aside a compromise decree, is barred by the provisions of Order 23, Rule 3A of the Code of Civil Procedure. Though this contention was raised in the additional written statement filed by the third defendant on 3.9.1990 in paragraph 4, it was not considered by the trial court in the orders now challenged before me, probably because the court below had taken the view that there was no necessity to set aside the compromise decree and there was no prayer for the same. The court considered only issue No. 4. and additional issue No. 3 as preliminary issues. Learned Counsel for the petitioners invites me to render a decision on that question as it is one purely of law and depends on the averments in the plaint. Arguments were advanced on both sides on the question whether the suit is barred by Order 23, Rule 3 A, C.P.C. The contention of the plaintiff and the 7th defendant is that Order 23, Rule 3A of the Code of Civil Procedure will not apply to this case as the compromise decree is attacked on the ground that it is vitiated by fraud, undue influence and misrepresentation etc., and not on the ground that it contravened any law. It was submitted by learned Counsel for the 7th defendant that the question not having been considered by the trial Court, at this stage should be relegated to the final disposal of the suit and this Court should now confine its order to the question of Court-fee and valuation. Learned Counsel for the 7th defendant also invoked the principles of equity and justice in support of his contentions. My attention was drawn to the following rulings by counsel on both sides:
Anant v. Achut : AIR1981Bom357 , S.C. Thimmappa v. T. Anantha : AIR1986Kant1 , Janab S.K. Kalalullah Sheriff v. Janab S.K. Jabbar (1988) 2 L.W. 476. Society of the Sisters of the Blessed Virgir Mary v. Madras-e-Bakiyanathus Salihath, Vellore. (1990) 1 L.W. 606, Byram Pastonji Gariwala v. Union Bank of India : AIR1991SC2234 , Bameari Lal v. Chando Devi : AIR1993SC1139 and Meenakshi v. Manikkam (1994) 1 K.L.T. 156.
33.I do not propose to decide the said question here as the Court below has not considered the same. If the valuation in the plaint is amended properly and the appropriate Court-fee is paid as decided above, the trial Court shall consider and decide the question whether the suit is barred by the provisions of Order 23, Rule 3A of the Code of Civil Procedure, as a preliminary issue. The suit can proceed further only if the Court holds that the same is not barred by the said provision of law.
34. The only question which remains to be considered is whether the plaintiff is entitled to the relief of interim injunction restraining the first defendant from alienating the suit properties till the disposal of the suit. The order in I.A. No. 1358 of 1987 is as unsatisfactory as the other two orders. I have already held that the plaintiff is bound to seek the setting aside of the compromise decree. That decree will be in force until it is set aside. As per the said decree, the plaintiff has no share whatever in the suit properties. He cannot claim to have made out a prima facie case for grant of an injunction.
35. Moreover, any alienation during the pendency of the suit will only be hit by the doctrine of lis pendens. The rights of the plaintiff, if any, will not be affected thereby.
36. The plaintiff has not chosen to challenge the alienation said to have been effected prior to the filing of the suit. He has also not impleaded any alienee. He has remained content with a prayer for accounts.
37. In those circumstances, there is no justification whatever for restraining the defendants from alienating or encumbering the property pending the suit, particularly when such alienation or encumbrance, will not bind the plaintiff, if ultimately he succeeds in the suit. Hence, the order in I.A. No. 1358 of 1987 deserves to be set aside.
38. In the result, the Civil Revision Petitions and the Civil Miscellaneous Appeal are allowed. The orders passed by the trial Court on 23.12.1993 are set aside. I.A. Nos. 1358 of 1987 and 452 of 1993 are dismissed. The plaintiff shall amend the valuation of the plaint in accordance with this judgment and also pay the proper Court-fee thereon, within four weeks from this date. After the valuation in the plaint is amended and the appropriate court-fee is paid, the trial Court shall decide the question whether the suit is barred by the provisions of Order 23, Rule 3A of the Code of Civil Procedure as a preliminary issue before proceeding further in the suit. The plaintiff/ 1st respondent shall pay the costs of defendants 1 to 3/petitioners in C.R.P. No. 2338 of 1994. Counsel's fee Rs. 2,000. There will be no order as to costs in C.R.P. No. 2339 of 1994 and C.M.A. No. 844 of 1994.