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Gajanan Anandrao Dake and anr. Vs. Vishwanath Ahilaji thembekar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal No. 446 of 1975
Judge
Reported inAIR1978Bom1; 1978MhLJ30
ActsBombay Court-fees Act, 1959 - Sections 6 - Schedule - Articles 1 and 5; Code of Civil Procedure (CPC), 1908 - Order 7, Rule 10; Court-fees Act, 1870 - Sections 7 and 7(5); Transfer of Property Act - Sections 55
AppellantGajanan Anandrao Dake and anr.
RespondentVishwanath Ahilaji thembekar and anr.
Appellant AdvocateD.R. Dhanuka and ;K.R. Dhanuka, Advs.
Respondent AdvocateD.S. Parekh and ;Sheela Balsari, Advs.
Excerpt:
.....the computation of court fees, in a suit filed for cancellation of documents and for possession of suit property falling under section 6(iv) (d) of the bombay court fees act, 1959 - the court adjudged that the plaintiff was required to pay full ad valorem fee on the market value of the property - further, plaint for relief of possession was not covered under article 5, schedule i of the act. - - 7,000/-.all the stock-in-trade of the running business along with the tenancy right, good-will etc. 4. in this suit they primarily want that the two documents of assignment-deed as well as declaration-deed respectively dated 1st of march 1957 and 26th of february 1957 be adjudged void or voidable. the very concept of specific performance has got to be seen from the contract made as well as an..........on the amount sought to be recovered. the second proviso further adds that when the consequential reliefs sought also include a relief for possession, the amount of fee shall be the full ad valo-rem fee on the amount sought to be recovered. this provision certainly seems to have a logic. where the property is land for recovery of taxes and that claim for taxes is satisfied, the property must be returned to the plaintiff concerned. in the circumstances the legislature says that payment of ad valorem fee on the amount of tax is enough and on the success the plaintiff will be given consequential relief of return of his property to him. on the same principle clause (b) has been enacted. it deals with moveable property being returned and the two provisos are drafted in the same manner as the.....
Judgment:

1. This is plaintiffs' Appeal from Order of the learned Judge of the City Civil Court directing their plaint to be returned to the proper court under Order. 7, Rule. 10 of C. P. C.

2. A few facts that indicate the nature of the dispute may be noted. Originally the suit was filed by one Laxmibai widow of Anandrao Dake and her son Gajanan Anandrao Dake as plaintiffs Nos. 1 and 2. Their case is that one Anandrao, the husband of original plaintiff No. 1 and father of original plaintiff No. 2, owned a Hair Cutting Saloon at Bombay Central and the tenancy in respect of the premises stood in the name of Anandrao. After the death of Anandrao the entire business including the tenancy right was inherited by Laxmibai and her son Gajanan. The two original plaintiffs had executed a document of conducting in favour of one K. Ramdas for a period of six years some time in the year 1952. While that contract was still running both of them executed an assignment-deed or sale-deed dated 1st March 1957for a total consideration of Rs. 7,000/-. All the stock-in-trade of the running business along with the tenancy right, good-will etc. were sought to be transferred under this document and possession was delivered to the defendants. From the date of alienation in their favour, the defendants began to recover the royalty for conducting the shop from K. Ramdas.

3. Some time at the end of 1960 the original plaintiffs began to claim that the document of assignment was in fact a mere loan transaction and that the loan was actually repaid in the form of recoveries and royalty from K. Ramdas. The defendants then came out with a reply that they were the owners of the shop and the plaintiffs had nothing to do with it. When this claim was heard by them, the plaintiffs took a search of the record and obtained a copy of the sale-deed and realised that they were defrauded by making them execute a document of sale. Hence on 30th June 1961 the present suit was filed.

4. In this suit they primarily want that the two documents of assignment-deed as well as declaration-deed respectively dated 1st of March 1957 and 26th of February 1957 be adjudged void or voidable. They should be produced for cancellation and accordingly the Registrar be informed of the cancellation. They further want as a consequential relief that possession be handed * over to the plaintiffs.

5. In such a suit a technical objection to the maintainability of the suit in the City. Civil Court and the payment of Court-fees were raised. The Court, therefore, heard that question as a preliminary issue. According to the defendants this was a suit where possession of immovable property wag sought and that Court-fees should have been paid on the market value of the premises in question. That market value has already been assessed by the plaintiffs at Rs. 35,000/- in the plaint. Not only Court-fees should have been recovered on Rs. 35,000/- from the plaintiffs but the suit ought to be valued at Rs. 35,000/-which is beyond the pecuniary jurisdiction of the City Civil Court. In the circumstances the plaint ought to be returned for presentation to proper Court.

6. After hearing the Counsel on either side and after taking into consideration the pleadings in the plaint and the documents which were sought to be set aside,the learned trial Judge felt that the proper valuation of this suit ought to have been done under Section 6(iv)(ha) of the Bombay Court-fees Act, 1959. In that view of the matter, he directed the plaint to be returned to the proper Court. Being aggrieved, the plaintiffs have filed this appeal. It may be noted that in the meanwhile Laxmibai died and original plaintiff No. 2 Gajanan has stepped in her shoes as original plaintiff No. 1 also. He therefore appears in the representative capacity as original plaintiff No. 1 and in his own right as plaintiff No. 2.

7. I would at once note that the learned Counsel Shri Parekh does not support the conclusion of the trial Court that the provisions of Section 6(iv)(ha) apply to the valuation of the present suit. According to him, either the suit falls under Section 6(iv)(d) or Section 6(v) of the Bombay Court-fees Act, 1959. On the contrary the learned Counsel for the plaintiffs argued that this suit essentially falls under Article 5 of Schedule I of the said Act.

8. So far as Article 5 of Schedule I is concerned, it is not possible to hold the contention of Mr. Dhanuka that the present suit falls under that Article. That Article contemplates a plaint in a suit, application or petition (including memorandum of appeal) to set aside alienation to which the plaintiff, applicant or appellant, as the case may be, was a party, either directly or through a legal guardian other than de facto or de hoc guardian, Manager or Partner or Court. The very language of this Article is plain. It merely contemplates a suit for setting aside alienation and nothing more. That alienation must be one where the plaintiff is a party to it either himself directly or through some legal guardian. The present suit does not stop at merely asking the setting aside of the alienation. In fact it is not a suit at all for setting, aside alienation. What is alleged in the I present suit is that a certain transaction was undoubtedly agreed upon, but by playing fraud upon the plaintiff or by, misrepresentation a different kind of document was got executed. The plaintiff therefore wants to avoid this transaction and has specifically asked for a declaration that the transaction be declared as void or voidable. If it is voidable it should be actually set aside. The plaintiff does not stop there. Not only he wants the documents to be produced and cancelled but further wants that possession be restored to the plaintiff. This re-lief of possession at once takes this plaint out of the provisions of Article 5 of Schedule I of the said Act.

9. The next question to consider is what provisions of the said Act mav apply. Shri Dhanuka's main argument is that this is essentially a suit for a declaration and the relief of possession contained in prayer clause (dd) is merely incidental to the avoidance of the document. Being an incidental relief it need not be separately valued. The moment the transaction is set aside, the plaintiff would be entitled to recover possession as the defendants were given possession under that transaction itself. It would be therefore mere consequential to the setting aside of the document that possession will be delivered to the plaintiff. Thus it would still continue to be a mere suit for setting aside an alienation as contemplated by Article 5 of Schedule I of the said Act.

10. In order to substantiate this argument he took an instance of the suit for specific performance. In a suit for specific performance the Court-fees payable is on the value of the transaction. When specific performance of a sale of immovable property is granted, the Court has to grant possession and the decree for possession in that case is never treated as a separate decree for possession for the purpose of valuation. He referred to the judgment of this Court where the Court-fee payable under the provisions for possession under Section 7(v) of the Court-fees Act, 1870 was less than under Section 7(x)(a) of the same Act. The first is the general provision whereas the second is a specific provision for a suit for specific performance. Treating this as a suit for possession the plaintiff wanted to pay less Court-fees under Section 7(5); whereas the defendant wanted the plaintiff to pay higher Court-fees under Section 7(x)(a). A Division Bench of this Court points out in Muljibhai Pitambardas v. Baj Chanchal : AIR1945Bom81 that a suit for specific performance is of a different type which has been specifically provided by the legislature. The very concept of specific performance has got to be seen from the contract made as well as an incidental provision of Section 55 of the T. P. Act that as soon as the document is executed by the vendor in favour of the purchasers, it is his duty as a vendor to place the purchaser in possession of the property. In that sense, it is merely an incidental obligation of transfer of titleunder the contract that possession has to be delivered, and therefore the legislature has provided specific Court-fee. That specific Court-fee being under Section 7 (x) (a) of 1870 Act the Court-fees has to be collected under that provision.

11. I do not see how there can be any analogy between a suit for specific performance of a contract of sale and the present suit for setting aside a transaction of sale or assignment and claiming possession either independently or as a consequence thereof- Going through the specific provision made by the legislature in that behalf, it appears to me that the plaintiff is asking for setting aside the transaction in the first instance by claiming a certain declaration. He is also claiming possession. The plaintiff never wanted to transfer title under a mere transaction of loan. The plaintiff therefore treats himself as the owner but asks that the cloud that has now been created on that ownership by deceit of the defendant is to be set aside by the Court. Once that is done, he claims possession on the original title which still vests in him. In my view, therefore, this is essentially a suit for possession. Alternatively it can be said that even if the relief for possession is to be treated as consequence upon the declaration, it is a distinct relief which has to be claimed.

12. So far as Bombay Court-fees Act is concerned, suits for declaration combined with consequential reliefs have been specifically dealt with in the various Sub-clauses of Section 6. Section 6(iv) contains several clauses out of which cls. (a) to (d) are relevant for our purposes. Clause (a), for instance, of that Sub-section deals with suits for declaration to obtain adjudication against recovery of money from plaintiff whether the recovery is as land revenue or arrears of land revenue or tax or duty or cess or fee or fine or penalty etc. For such a suit the Court-fee payable is 1/4th of ad valorem fee leviable on the amount sought to be recovered according to the scale prescribed under Article 1 of Schedule I with a minimum fee of fifteen rupees. The first proviso to that clause says that when there is consequential relief which is other than possession then the valuation has got to be 1/2 of ad valorem fee on the amount sought to be recovered. The second proviso further adds that when the consequential reliefs sought also include a relief for possession, the amount of fee shall be the full ad valo-rem fee on the amount sought to be recovered. This provision certainly seems to have a logic. Where the property is land for recovery of taxes and that claim for taxes is satisfied, the property must be returned to the plaintiff concerned. In the circumstances the legislature says that payment of ad valorem fee on the amount of tax is enough and on the success the plaintiff will be given consequential relief of return of his property to him. On the same principle clause (b) has been enacted. It deals with moveable property being returned and the two provisos are drafted in the same manner as the provisos to clause (a). The third clause (c) deals with the declaration of the status of the plaintiff to which remuneration, honourarium, grant, salary, income, allowance or return is attached. Here also initially it is 1/4th of the ad valorem fee leviable on the emoluments. Where merely a declaration of status is to be sought when some other relief is expected except possession, ad valorem Court-fee is raised to 1/2 on such emoluments and when possession is sought as a consequential relief it is raised to full ad valorem fee on such emoluments or value of return. In other words, the principle of cls. (a), (b) and (c) of Sub-section (v) of Section 6 is the same.

13. Clause (d) which seems to be more relevant for the present purposes says that in a suit for declaration in respect of ownership, or nature of ten-ency, title, tenure etc. where mere declaration is sought the Court-fee payable is 1/4th of ad valorem fee leviable for a suit for possession on the basis of the title of the subject-matter. The first proviso says that if the question is of attachment with or without sale the amount of fee shall be the ad valorem fee according to the value of the property sought to be protected from attachment with or without sale or the fee of fifteen rupees whichever is less. The second proviso says that where the defendant is or claims under or through a limited owner, the amount of fee shall be one-sixth of such ad valorem fee, subject to the minimum fee specified above. The last proviso, which is in fact relevant, says that in any of the cases falling under this clause, except its first proviso, when in addition any consequential relief other than possession is sought the amount of fee shall be one-half of ad valorem fee and when the consequential reliefs also sought include a relief forpossession the amount of fee shall be the full ad valorem fee.

14. It is therefore clear that where declaration of ownership or title is claimed accompanied with a consequential relief of possession, the full ad valorem fee on the market value of property will be payable. This is because the last proviso referred to above indicates that the calculation shall be as provided by Sub-section (v) of Section 6. In the circumstances if this suit is to be treated as a declaratory suit where the plaintiff seeks to establish his title in spite of transaction of sale by setting aside the assignment-deed and claims possession on the strength of the title which still subsists in him, then he will have to pay Court-fees on the full market value of the property. If as I say earlier, and which is my view, that this is a suit essentially for possession of immovable property falling under clause (d) of Sub-section (iv) of Section 6, the same Court-fees are leviable. Looked at from any point of view the Court-fees payable is on the full market value of the property. This being my view, though I set aside the reasoning of the learned trial Judge, for the reasons mentioned above, his final conclusion is accepted and confirmed. The order for the return of plaint is thus confirmed.

15. However, the Registrar of the City Civil Court will have now to fix a new date for the purpose of returning the plaint, as the earlier direction of the learned trial Judge has now become ineffective.

16. The appeal thus fails and is dismiss with costs.

17. Appeal dismissed.


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