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indumatiben Chimanlal Desai Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberAppeal No. 77 of 1967
Judge
Reported inAIR1969Bom423; (1969)71BOMLR340
ActsSpecific Relief Act, 1963 - Sections 34, 37 and 38; Bombay Court- Fees Act, 1959 - Sections 6 - Schedule - Article 23; Code of Civil Procedure (CPC), 1908 - Sections 9 and 15 - Order 7, Rule 10; Letters Patent - Suits Valuation Act, 1887 - Sections 3 and 4
Appellantindumatiben Chimanlal Desai
RespondentUnion of India and anr.
Appellant AdvocateHemendra K. Shah and ;B.J. Kapadia, Adv. i/b., Ratilal Desai and Co., Attorneys
Respondent AdvocateV.H. Gumaste, Govt. Pleader and ;R.R. Jahagirdar, Asstt. Govt. Pleader
Excerpt:
.....1959), schedule i article 7; schedule ii article 23(b); sections 6(ix), 6(iv) (d), 6(v), 6(vi) - suits valuation act (vii of 1887), sections 3, 4, 8--letters patent (bombay), clause 12--bombay city civil court act (bom. xl of 1948), sections 3, 5, 12--attachment of house to recover amount of income-tax more than value of house--suit for permanent injunction to restrain attachment and sale of house--valuation of suit for purpose of court-fee--'land' in section 6(ix) of court-fees act whether includes houses and gardens--distinction between section 6(iv)(d) and section 6(ix)--admission in plaint that subject-matter of suit not capable of valuation--jurisdiction of court to entertain suit--civil procedure code (act v of 1908), sections 9, 15-20.;the additional collector of bombay in..........case on a proper valuation being made of the attached property, it is found that the value of the suit property is less than the amount for which it is attached, by virtue of the proviso the court will have to compute court fees on the value of the land as if it was a suit for possession. section 6(v) provides for suits for possession of land, houses and gardens and states that they shall be value according to the value of the subject-matter and that such valuation would be deemed to be, where the subject-mater is a house or garden, according to the market value of the house or garden. in case where the subject-matter is land the valuation would be as provided in the said clause.11. now i come to the contention of the plaintiff that the suit would fall under article 23(f) of schedule ii.....
Judgment:

1. This is an appeal against an order dated 8th March 1967 passed by a Judge of the Bombay City Civil Court returning the plaint to the plaintiff for want of jurisdiction and for presentation to the proper court under the provisions of Order 7, Rule 10 of the Civil Procedure Code.

2. The plaintiff has filed the suit from which the present appeal arises in the Bombay City Civil Court on the following allegations:

The plaintiff is the widow of one Chimanlal Chhotalal Desai who died on or about 22nd January 1965. The defendant No.1 is the Union of India. The defendant No.2 is the Additional Collector of Bombay in charge of income-tax recoveries. The deceased Chimanlal Desai, the husband of the plaintiff, was assessed to income-tax amounting to Rs.8,82,427.65 p. In realization of the said amount of income-tax the defendant No.2 had attached a property bearing city Survey No.7/596 of Malbar and Cumbala Hill Divisions, situated at Bhulabhai Desai road, in the compound known as 'Oomer Park', Bombay. The building on the land is known as 'American View'. The total area of the land is 950 square yards. The tenure is pension and tax (sic) and the ground rent is about Rs.360/- per mensem. The plaintiff contends that by a deed of assignment dated 6th November 1950 she and her husband Chimanlal purchased the said property in their joint names and as joint tenants and that on the death of her husband she has become the absolute owner of the said property by survivor-ship. According to her, as the attachment of the property is after the death of her husband, the property is not liable to attachment because she is the absolute owner of the said property. The second contention of the plaintiff is that her husband left a Will under which he has wrongfully disposed of the said property as if the same belonged absolutely to him, giving to her a permanent right of residence in the said property during her life-time and enjoyment of all the rents and profits of the said property during her life-time. The plaintiff contends that her husband had no right to dispose of this property by his Will in the aforesaid manner. Her third contention in the alternative is that in any event she has the right of residence and maintenance for which the said property is charged. Her fourth and the last contention is that she made an application to the authorities to investigate her claim but without any investigation the authorities are putting the property to sale which they are not entitled to do. The plaintiff contends that the defendants, had no right to attach or to continue the attachment of the said property in proceedings for recovery of income-tax due by her deceased husband. In the plaint, the relief prayed for is only for an injunction in the following terms: 'That the Defendants be decreed and ordered by a permanent injunction and order both by themselves and by their agents and servants, from attaching, or continuing to attach, or from selling or dealing with or disposing or taking any proceedings relating to or from interfering with the plaintiff's rights in relation to the said property, being 'American View', situated at Oomer Park, Bhulabhai Desai road, Bombay 26, or any part thereof;'

3. The plaintiff had valued the suit relief in para 13 of the plaint and states that the said relief is incapable of monetary valuation and that for the purpose of Court-fees the suit would fall under Art.23 (f) of Sch. II of the ?Bombay Court fees Act. After lodging the plaint the plaintiff took out a Notice of Motion for interim injunction and applied to the learned Judge for ex parte ad interim order, on 8th March 1967. Instead of granting the ad interim order, the learned Judge ordered the plaint to be returned to the plaintiff. The order of the learned Judge is in the following terms:-

'Plaint returned for want of jurisdiction and for presentation to the proper Court as in my view, the 'subject matter' of suit is beyond the pecuniary jurisdiction of the Court'.

It is against the said order that the present appeal has been preferred.

4. Mr. Shah appearing for the plaintiff drew my attention to the provisions of Order 7 Rule 1 (I) of the Code of Civil Procedure which provides that the plaint shall contain a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and court-fees, so far as the case admits. He contended that para 13 of the plaint did not set out the value of the subject-matter of the suit for the purpose of jurisdiction. He, therefore, asked me to remand the suit to the Bombay City Civil Court where he would amend para 13 of the plaint so as to put the valuation below Rs. 25,000/- Civil Court would have jurisdiction to entertain the suit. I, however, did not accede to this request of Mr. Shah, because it appears to me on the face of it that the subject-matter of this litigation was land admeasuring 950 sq. yds. on Bhulabhai Desai Road, Bombay, with a building thereon which property would be of a value not less than Rs.5 lacs of which the land alone would exceed rupees three lacs in value. I asked Mr. Shah to make a statement as to the market value of the property according to the plaintiff. Mr.Shah was unable to make a statement in absence of any valuation by qualified valuer, but he stated that at the previous attempted sale by the income-tax authorities the highest bid was Rs. 35,000/-. In my opinion, this would not be the market value of the property. But even if it were, it would be beyond the jurisdiction of the Bombay City Civil Court.

5. Coming to the form of the suit, the suit is so framed as to be a suit for an injunction. Under section 34 of the Specific Relief Act of 1963, a person may file a suit for a declaration as to any legal character, or as to any right to any property. This is a discretionary relief. Section 34 provides that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Section 37 pertains to injunctions. Sub-section (2) provides that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, from the commission of an act. which would be contrary to the rights of the plaintiff. Section 38 prescribes when a perpetual injunction may be granted. The difference between Section 34 on the one hand and Sections 37 and 38 on the other hand is that the Court may not grant a declaration where the matter is capable of consequential relief. But there is no such restriction put on injunctions and the Court may not grant a deceleration where the matter is capable of consequential relief. But there is no such restriction put on injunctions and the Court may grant an injunction as a substantive relief without any prayer for declaration, although in many cases a declaration may be implicit in the grant of a perpetual injunction.

6. In this appeal I am concerned with the valuation of the suit for the purpose of jurisdiction under the provisions of the Suits Valuation Act. But for this purpose one would have to consider the relevant provisions of the Court Fees Act applicable to a suit of this nature. Prior to 1959 the court fees in this State were governed by the Court Fees Act VII of 1870, which is a Central Act, as amended in its application to the State of Bombay. Section 7(iv)(c) provided for a declaration with consequential relief. Section 7(iv)(d) provided for suits for injunctions only. In both these cases it was provided that the plaintiff may put any valuation on the suit. Under the Bombay amendment of Section 8A of the Suits Valuation Act, the valuation put by the plaintiff if inadequate could be questioned. With this however we are not concerned. Article 17 (iii) of Schedule II to that Act provided for a declaratory decree without consequential relief. Section 8 of the Suits Valuation Act applied to suits falling under Section 7(iv)(c) and (d) with the result that the value of the suit for the purpose of jurisdiction was the same as the value for the purpose of Court-fees. The point to be borne in mind is that under the provisions of the Court Fees Act, 1870, in suits for declaration with consequential relief and in suits for injunction without declaration the plaintiff was allowed to put his own valuation on the suit, even though arbitrary, although in the State of Bombay arbitrary valuation could be questioned.

7. By virtue of the Bombay Court Fees Act XXXVI of 1959, the Court Fees Act, 1870 has been repealed in its application to this State. Mr. Shah appearing for the plaintiff contended before me that the present suit would fall either under Section 6(iv)(d) first proviso or under Article 23 (f) of Schedule II to the Bombay Court Fees Act, 1959. Section 6(iv)(d) provides for suits for declaration in respect of ownership, freedom or exemption from, or non-liability to, attachment with or without sale or other attributes, of immovable property. The first proviso to this clause states 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 Rs. 15/- whichever is less. If the suit had been for a declaration of freedom or exemption from or non-liability to attachment of the property which is the subject-matter of the suit, the suit would undoubtedly have fallen under S.6(iv)(d), first proviso. In that case, the Court-fees payable would have been ad valorem fee according to the valuation of the property subject to a maximum of Rs.15/-. Although the Court-fees may not have exceeded Rs.15/-, for the purpose of jurisdiction under Section 8 of the Suits Valuation act, the valuation would have been the value of the property. But in my opinion, section 6(iv)(d) has no application to the present suit, because this suit is not for a declaration. The plaintiff has chosen to bring the suit in the form of a suit for injunction only, and as I stated above, under the provisions of the Specific Relief Act he is not compelled to seek a declaration.

8. The next contention of the plaintiff is that the suit would fall under Article 23 (f) of Schedule II of the Bombay Court Fees Act, 1959, which provides a fixed fee of Rs. 30/- in a plaint in a Civil Court mot otherwise provided for and the subject-matter of which is not capable of being estimated in money value. Actually in the plaint, this is the provision relied upon by the plaintiff. Before I deal with this provision, I propose to deal with the contention of the learned Government Pleader appearing for the defendants.

9. According to the learned Government Pleader, the suit would fall under Section 6(ix) of the Bombay Court-fees Act, 1959. This provision pertains to suits to set aside an attachment f land or of an interest in land and states that the valuation shall be according to the amount for which the land or interest was attached. The proviso to this clause states that where such amount, meaning the amount for which the land is attached, exceeds the value of the land or interest, the amount of fee shall be computed as if the suit were for the possession of such land or interest. If we examine the prayer in the plaint carefully, we find that the plaintiff has asked for a permanent injunction against the defendants restraining them from attaching or continuing to attach the property. this in effect would give to the plaintiff relief contemplated by the property. This in effect would give to the plaintiff relief contemplated by the provision s of Section 6(ix) of the Bombay Court Fees Act without using the exact words of that provision. That provision talks of suits to set aside the attachment of land. What the plaintiff wants the Court to do is to grant the plaintiff an injunction against the defendants asking them to discontinue the attachment. This is no more nor less than asking the Court to set aside the attachment. In my opinion, the prayer in the plaint is equivalent to a prayer for setting aside the attachment. But even if it were not so, the prayer for setting aside the attachment would be implicit in the prayer in the plaint because without setting aside the attachment the Court cannot ask the defendants to discontinue the attachment. Before the Court asks the defendants to discontinue the attachment, the Court must come to the conclusion that the attachment is liable to be set aside. I, therefore, hold that the suit falls under Section 6(ix) of the Court my attention to a Full Bench decision of this Court in the case of 'Dayachund Fees Act. Mr. Shah for the plaintiff invited Nemchand v. Hemchand Dharamchand' ILR (1902) Bom 515 where it has been held that the term 'land' in Section 7(viii) is in the same terms as Section 6(ix) of the Bombay Court Fees Act. Mr. Shah therefore contended that Section 6(ix) was not applicable. However even if the building is not included, the value of land alone would far exceed Rs. 25,000/- and would put the suit outside the jurisdiction of the Bombay City Civil Court.

10. Section 8 of the Suits Valuation Act in its application to the State of Maharashtra covers Section 6(ix) of the Bombay Court Fees Act. Accordingly, the value of the suit for the purpose of jurisdiction shall be the same as the valuation of the suit for the purpose of Court-fees. If we take the amount for which the property is attached, the said amount is Rs. 8,82,427.65. But in case on a proper valuation being made of the attached property, it is found that the value of the suit property is less than the amount for which it is attached, by virtue of the proviso the Court will have to compute Court fees on the value of the land as if it was a suit for possession. Section 6(v) provides for suits for possession of land, houses and gardens and states that they shall be value according to the value of the subject-matter and that such valuation would be deemed to be, where the subject-mater is a house or garden, according to the market value of the house or garden. In case where the subject-matter is land the valuation would be as provided in the said clause.

11. Now I come to the contention of the plaintiff that the suit would fall under Article 23(f) of Schedule II to the Bombay Court Fees Act of 1959, because the subject-matter of the suit, according to the plaintiff, is not capable of being estimated in money value. Assuming that the subject-matter is not capable of being estimated in money value for the purpose of the Court Fees Act, it may still be capable of valuation for the purpose of Suits Valuation Act and jurisdiction. The suit obviously relates to land or interest in land. The plaintiff seeks to avoid the attachment of the suit land for payment of income-tax due by her husband. Section 4 of the Suits Valuation Act, 1887 provides that such interest in land is to be valued in accordance with the rules framed by the State Government under Section 3 of the Suits Valuation Act. It is conceded that no rules have been framed under Section 3 of the said Act. Under these circumstances, the judgment of the Bombay High Court in the case of 'Dayaram Jagjivan v. Gordhandas Dayaram : (1906)8BOMLR85 provides that the valuation must be based on the market value of the land. The same question also came up for decision in the Patna High Court in the case of Jadunandan Gope v. Syed Najmuzzaman : AIR1957Pat560 where it is observed that suits relating to lands coming under the scope of Section 7(iv)(c) of the Court Fees Act are governed by Section 4 of the Suits Valuation Act, and, if no rules have been made under Ss. 3 and 4 of the Suits Valuation Act for the valuation of an interest in land which is, the subject-matter of a suit under Section 7(iv)(c) of the Court Fees Act, the market value of the subject-matter has always been taken as the value for the purposes of court-fees and jurisdiction. Bearing the judgments of the Bombay and Patna High Courts in mind I have no hesitation in coming to the conclusion that where the suit related to interest in land prior to the coming into force of the Bombay Court Fees Act, 1959, it would have fallen under Section 7(iv)(c) of the Court Fees Act, and would have been valued in accordance with sections 3 and 4 of the Suits Valuation Act, and if no rules were prescribed by the State Government, the suit would have been valued in accordance with the value of the interest in land at the market rate prevailing at the date of the constitution of the suit.

12. Section 4 of the Suits Valuation Act as applicable to the State of Maharashtra expressly makes the said Section applicable to suits falling under Art. 23(f) of Schedule II of the Bombay Court Fees Act, 1959. Even if the contention of the plaintiff that her suit falls under that provision were correct, for the purpose of jurisdiction the suit would have to be valued at the market value of the property which would in any case exceed Rs.25,000/- and be beyond the jurisdiction of the Bombay City Civil Court.

13. If the suit fell under Article 23(f) of Schedule II of the Court Fees Act and it was incapable of being estimated in money value both for the purposes of Court Fees as well as for the purpose of jurisdiction under the Suits Valuation Act there would be another difficulty in the way of the plaintiff instituting this suit in the Bombay, by clause 12 of the Letters Patent the High Court in its original jurisdiction of the Bombay Small Cause Court or the Bombay City Civil Court. The residuary jurisdiction vests in the High Court on its original side. It is not contended by the plaintiff that the suit falls within the jurisdiction of the Bombay Small Cause Court. In fact the suit has been instituted in the Bombay City Civil Court. We must see if the suit will fall within the jurisdiction of the Bombay City Civil Court. If it will not, it must fall within the residuary jurisdiction of the Bombay High Court on its original side.

14. Section 3 of the Bombay City Civil Court Act, 1948 provides that the City Civil Court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding Rs.10,000/- in value and arising within the Greater Bombay except suits or proceedings which are cognizable by the Small Cause Court. The Sate Government is empowered to increase the jurisdiction of the City Civil Court by a notification upto a sum of Rs.25,000/-. The State Government has done so. The present jurisdiction of the Bombay City Civil Court therefore is to try and dispose of suits of a civil nature not exceeding Rs.25,000/- in value. If, according to the plaintiff, her suit is not capable of being estimated in money value, it cannot be predicted or stated that the suit will not exceed Rs.25,000/- in value. In order to be able to state that the suit does not exceed Rs.25,000/- in value, the plaintiff should be able to estimate the money value of the suit. If she has not been able to estimate the money value, the City Civil Court will have no jurisdiction and the suit must be filed in the Bombay High Court on its Original Side by virtue of the residuary jurisdiction under clause 12 of the Letters Patent.

15. A similar question arose before Allahabad High Court in the case of Paras Ram v. Janki Bai, : AIR1961All395 (FB). In an appeal from an order under Section 24 of the Hindu Marriage Act, 1955 made by the Civil Judge. Kanpur, the question arose whether in view of the fact that the subject-matter was incapable of monetary valuation, the appeal would lie to the District Court which heard appeals in matters not exceeding Rs.10,000/- in value or to the High Court. It was held in that case by a Full Bench of Allahabad High Court that when no value was fixed on the petition and when there was no law also under which a certain value or a value not below or not exceeding a certain sum ought to have been fixed, it cannot be said that the value of the petition did not exceed Rs.10,000/-. The Full Bench further held that the appeal in that case would lie to the court of the District Judge only if it could be predicted that the valuation of the petition did not exceed Rs.10,000/-. In the case of a subject-matter not capable of pecuniary valuation it cannot be said that it does not exceed any particular sum of money. It further held that the residuary power to entertain an appeal vests in the High Court not only when the value of the suit exceeds Rs.10,000/- but also when the subject-matter of the suit is incapable of pecuniary valuation. As I have observed in this case, if the subject-matter of the plaintiff's suit is not capable of being estimated in money value, for the purpose of jurisdiction under the Suits Valuation Act, she cannot state that it does not exceed Rs. 25,000/- in value, and unless she could state this the suit will not fall within the jurisdiction of the Bombay City Civil Court and must inevitably fall within the jurisdiction of the Bombay High Court on it original Side.

16. Mr. Shah appearing for the plaintiff invited my attention to the judgments in : AIR1959Mad253 . In my opinion, none of these judgments has application to the facts of this case because these cases pertain to valuation under Section 7(iv)(c) of the Court Fees Act, 1870, which permits the plaintiff to put arbitrary valuation on his plaint and they do not pertain either to Section 6(iv) (d) or Section 6(ix) or Article 23(f) of Schedule II of the Bombay Court Fees Act. 1959.

17. At the end of the arguments, Mr. Shah appearing for the plaintiff, handed me a draft of a proposed amendment and applied that I should permit the plaintiff to amend the plaint in terms of the said draft. This amendment introduces a fresh prayer (a) which in terms seeks a declaration that the attachment levied by the defendants on the suit property is null and avoid. The amendment retains the prayer for injunction. This amendment, if granted, may also take the suit to Section 6(ix) of the Bombay Court Fees Act, 1959, and would require the suit to be valued in the manner provided in the said provisions. In this amendment, the plaintiff seeks to value the prayer at Rs. 300/- for the purpose of Court fees and jurisdiction as if the suit fell under Section 6(iv)(d) first proviso. However, in view of the fact that I have already held that the suit does not fall under that provision and would not fall under that provision even if the amendment were allowed. I reject the plaintiff's application for amendment. If the contention of the plaintiff is that such amendment would take the suit to Section 6(iv)(d), third proviso, viz, a suit for declaration that the property is not liable to attachment with consequential relief, the suit would still be beyond the jurisdiction of the City Civil Court because ad valorem feel leviable in a suit for possession would be charged, The plaintiff would be free to repeat the amendment application before the Court to which she re-presents the plaint.

18. In the result, the appeal fails and is dismissed with costs.

19. The application for amendment to be treated as a civil application and the same is also dismissed with costs

20. Appeal dismissed.


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