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Vishwambhar Vithalrao Patil and ors. Vs. Madhavrao Piraji Patil and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 575 of 1968
Judge
Reported inAIR1969Bom395; (1969)71BOMLR279; ILR1969Bom979; 1969MhLJ445
ActsBombay Court-fees Act, 1959 - Sections 6 (v) and 6(x); Transfer of Property Act, 1882 Sections 62; Code of Civil Procedure (CPC), 1908
AppellantVishwambhar Vithalrao Patil and ors.
RespondentMadhavrao Piraji Patil and anr.
Appellant AdvocateK.H. Kulkarni, Adv.
Respondent AdvocateV.H.Gumaste, Govt. Pleader
Excerpt:
.....on ground that mortgage satisfied--whether suit covered by clause (v) or (x) of section 6.;a suit for possession simpliciter from the mortgagee on the ground that the mortgage is satisfied and a suit for redemption as such are covered by section 6(x) of the bombay court-fees act, 1959.;bansilala v. sitku [1920] a.i.r. nag. 139, agreed with.;ramprasad v. bishumbhar singh [1946] a.i.r. all. 400, referred to. - - 1505 (osmania sikka). they allege that the said mortgage is satisfied and that they are entitled to physical possession of the property. 62 of the transfer of property act, relating to substantive rights of the parties, so far as the court-fees act is concerned it does not make any distinction between a suit for possession simpliciter from the mortgagee on the ground that..........assessment; .......' clause (x) reads;- 'in suits against a mortgagee for the recovery of the property mortgaged, and in suits by a mortgagee to foreclose the mortgage,......according to the principal money expressed to be secured by the instrument or mortgage;' 4. on a plain reading of the plaint, it is quite obvious that this is a suit for recovery of possession of mortgaged property from the mortgagee by whatever name the suit may be called. inasmuch as the provisions of clause (v) are general provisions relating to suits for possession and clause (x) is a special provision relating to recovery of possession from a mortgagee, evidently the general clause (v) must apply to all cases except those cases which fall within clause (x) according to the general principles of construction.....
Judgment:

Patel, J.

1. This appeal is filed by the appellants against the dismissal of their suit. The appellants alleged that the property in suit is agricultural land and it is alleged by them that the land was mortgaged by defendant No.2 as the Karta of his family, i.e. the gather of the plaintiffs, to defendant No.1 for a sum of Rs.1505 (Osmania Sikka). They allege that the said mortgage is satisfied and that they are entitled to physical possession of the property. In the suit, therefore they claimed possession. Admittedly the value of the property is Rs.20,000. The case of the 1st defendant is that the property was sold to him for Rs.5000 on Amardad 10,1357 Fasli and that it was false that the property was mortgaged to him for Rs. 1505 (O.S)

2. In the trial Court and in this Court the plaintiffs valued the claim for the purposes of court-fees at 121/2 times the assessment under Section 6, Clause (v of the Court-fees Act. Ultimately the suit came to be dismissed. The plaintiffs have filed the First appeal on the same valuation in this Court. As we thought that the court-fees paid were inadequate, we requested the Government Pleader to appear on behalf of the State so that the question may be considered.

3. The two clauses that need be considered are Cls. (v) and (x) of S. 6 of the Court-fees Act. Clause (v) reads:

'In suits for the possession of land, houses and gardens according to the value of the subject-matter;

(a) where the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Government-a sum equal to twelve and a half times the survey assessment; .......' Clause (x) reads;-

'In suits against a mortgagee for the recovery of the property mortgaged, and in suits by a mortgagee to foreclose the mortgage,......according to the principal money expressed to be secured by the instrument or mortgage;'

4. On a plain reading of the plaint, it is quite obvious that this is a suit for recovery of possession of mortgaged property from the mortgagee by whatever name the suit may be called. Inasmuch as the provisions of Clause (v) are general provisions relating to suits for possession and Clause (x) is a special provision relating to recovery of possession from a mortgagee, evidently the general Clause (v) must apply to all cases except those cases which fall within Clause (x) according to the general principles of construction of statutes.

5. It is argued by Mr. Kulkarni relying upon the provisions of Section 62 of the Transfer of Property Act and the decision in Ram Prasad v. Bishambher Singh : AIR1946All400 that where a mortgage is a self-redeeming mortgage, the mortgagor is entitled to claim possession of the property without asking for anything else and the question cannot be one of redemption. If Clause (x) had in terms referred to suits for redemption in the operative portion, Mr.Kulkarni would have been on a somewhat firm ground. However, the words 'to redeem' are only mentioned in the margin while the operative words in the clause itself are 'in suits against a mortgagee for the recovery of the property mortgaged' the words 'to redeem' being absent. Under the circumstances it is clear that even if technically the suit may not be a redemption suit under the provisions of S. 62 of the Transfer of Property Act, relating to substantive rights of the parties, so far as the Court-fees Act is concerned it does not make any distinction between a suit for possession simpliciter from the mortgagee on the ground that the mortgage is satisfied and a suit for redemption as such. All suits where relief claimed is possession of the property from the mortgagee are covered by that clause.

6. A similar view has been taken in Bansilal v. Sitku AIR 1920 Nag 139 by the Judicial Commissioner of the Nagpur, under a similar provision in the Court-fees Act then in force, and we think rightly.

7. The plaintiffs must, therefore, pay court-fees on the principal amount secured in terms of Cl.(x) of Section 6 of the Court-fees Act both in the trial Court and in this Court. We give the plaintiffs four weeks' time to make up the deficit of the court-fees in both Courts. The amount to be deposited in this Court in respect of court-fees in both the Courts.

8. To be placed on Board on 16th December 1968 for further orders.

9. Orders accordingly


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