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Sadhu Mahadu Jagdale Vs. Tatya Sadhy Jagdale and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberA.F.O. No. 379 of 1970
Judge
Reported inAIR1973Bom91; (1972)74BOMLR712; ILR1973Bom787; 1972MhLJ935
ActsSuits Valuation Act, 1887 - Sections 8; Bombay Court-fees Act, 1959 - Sections 6
AppellantSadhu Mahadu Jagdale
RespondentTatya Sadhy Jagdale and ors.
Appellant AdvocateP.S. Patankar, Adv.
Respondent AdvocateB.M. Deshmukh, Adv.
Excerpt:
.....of court-fees act and for jurisdiction at market value which was higher -- whether value for court-fees and jurisdiction not the same.;the plaintiffs filed a suit for partition and separate possession of a share of joint family property which inter alia consisted of agricultural and non-agricultural lands. in the plaint the plaintiffs valued the agricultural property which was assessed to government revenue at twenty times the survey assessment under para, (v) of section 6 of the bombay court-fees act, 1959, and for the purpose of jurisdiction they valued the same property at its market value which was very much higher than the value for purposes of court-fees. it was contended by the plaintiffs that as the suit was governed by para, (v) of section 6 of the bombay court-fees act,..........(vii) of section 6 of the bombay court fees act undoubtedly provides that for the purpose of court-fees the land assessed to land revenue is to be valued as if it were a suit for possession of land. nonetheless a suit for partition and separate possession of a share of joint family property does not become a suit for possession and does not fall under paragraph (v) of section 6 of the bombay court-fees act for the purposes of section 8 of the suits valuation act. a suit for partition and separate possession of a share of joint family property continues to be governed by paragraph (vii) of section 6 of the bombay court-fees act for the purpose of section 8 of the suits valuation act and the value for court-fees and for jurisdiction must be the same. 7. in the result, the appeal is.....
Judgment:

1. This is an appeal by the Plaintiff No. 1 against the order dated 30th June, 1970, passed by the learned Judge, Senior Division, Sholapur, holding that he did not have exclusive pecuniary jurisdiction to try and decide the suit, that the learned Civil Judge, Junior Division, Mohal, had also jurisdiction to try the suit, that under Section 15. Civil Procedure Code the suit must be instituted in the Court of the lowest grade competent to try it, viz., the learned Civil Judge, Junior Division, Mohal, and returning the plaint to the plaintiffs for presentations to the proper Court. The respondents Nos. 1 to 4 are the Defendants in the same suit. The Respondent No.5 is the plaintiff No.2.

2. The Plaintiffs filed the suit from which the present appeal arises for a declaration that the suit properties belonged to joint family and for partition and separate possession of their 5/6th share in the said properties, and for other reliefs. The properties consist of agricultural land, non-agricultural land and movables. In the plaint the plaintiffs have valued the subject-matter of the suit for the purpose of court-fees at Rs. 8336.59, whereas for the purpose of jurisdiction they have valued the suit at Rupees 45,600/-. According to the Plaintiffs, if the agricultural properties which are assessed to Government revenue are valued at twenty times the survey assessment under paragraph (v) of Section 6 of the Bombay Court-fees Act, 1959 (hereinafter referred to as 'the Bombay Court-fees Act.'), the value for the purpose of court-fees will be lower and if the same properties are valued for the purpose of jurisdiction at their market value, that value will be higher and the learned Civil Judge, Senior Division, Sholapur would have jurisdiction to the exclusion of the learned Civil Judge, Junior Division, Mohol.

3. Paragraph (v) of Section 6 of the Bombay Court-fees Act provides that the amount of fee payable in a suit for possession of land, houses and gardens shall be computed according to the value of the subject-matter and where the subject-matter is land held on a permanent settlement or on a settlement for any period exceeding thirty years and pays the full assessment to Government, the value shall be deemed to be a sum equal to twenty times the survey assessment. Paragraph (vi) of Section 6 of the Bombay Court-fees Act makes provision for suits to enforce a right of pre-emption and paragraph (x) of Section 6 provides for suits against mortgagee for recovery of property mortgaged and suits by mortgagee to foreclose the mortgage. Paragraph (vii) of Section 6 provides for suits for partition and separate possession of a share in joint family property and states that the amount of fee payable in respect of such suits shall be computed according to the value of the share in respect of which the suit is instituted. Explanation to that paragraph provides that if the property in which a share is claimed consists of or includes an land assessed to land revenue for the purpose of agriculture, the value of such land shall be deemed to be the value as determined under paragraph (v).

4. There can be therefore no objection to the plaintiffs valuing the suit for the purpose of court-fees at Rs. 8336.59. In such valuation in respect of land assessed to land revenue, the value of the land will be a sum equal to twenty times the survey assessment. Different considerations however apply in valuing such suit for the purpose of jurisdiction.

5. Section 8 of the Suits Valuation Act, 1887, (hereinafter referred to as 'the Suits Valuation Act') in its application to the State of Maharashtra provides that in suits other than those referred to in paragraphs (v), (vi) and (x) and clause (d) of paragraph (xi) of Section 6 of the Bombay Court-fees Act where court-fees are payable ad valorem, the value as determinable for the computation of court-fees and the value for the purpose of jurisdiction shall be the same. A suit for partition and separate possession of a share in joint family property is as I have stated hereinabove governed by paragraph (vii) of Section 6 of the Bombay Court-fees Act, and is a suit other than those governed by paragraphs (v), (vi) and (x) and clause (d) of paragraph (xi) of Section 6. In a suit for partition and separate possession the value as determinable for the purpose of computation of court-fees and the value for the purpose of jurisdiction shall be the same. In this case therefore the value for the purpose of court-fees being Rs. 8336.59, the value of the purpose of jurisdiction must also be the same and not the sum of Rs. 45600/- which is the value put by the plaintiffs in the plaint.

6. It has been argued on behalf of the Appellant that because the Explanation to paragraph (vii) of Section 6 provides that where some of the property to be partitioned is land assessed to land revenue, it shall be valued in accordance with the provisions of paragraph (v) of Section 6, therefore, a suit for partition and separate possession of a share of joint family property is a suit governed by paragraph (v) of Section 6 of the Bombay Court-fees Act and therefore under the provisions of Section 8 of the Suits Valuation Act the value for the purposes of court-fees and for jurisdiction need not be the same, but for the purpose of jurisdiction the Plaintiff is entitled to put the market value of agricultural land notwithstanding the artificial rule of valuation under paragraph (v) of Section 6 of the Bombay Court-fees Act. I am afraid I am unable to accept this argument. The Explanation to paragraph (vii) of Section 6 of the Bombay Court Fees Act undoubtedly provides that for the purpose of Court-fees the land assessed to land revenue is to be valued as if it were a suit for possession of land. Nonetheless a suit for partition and separate possession of a share of joint family property does not become a suit for possession and does not fall under paragraph (v) of Section 6 of the Bombay Court-fees Act for the purposes of Section 8 of the Suits Valuation Act. A suit for partition and separate possession of a share of joint family property continues to be governed by paragraph (vii) of Section 6 of the Bombay Court-fees Act for the purpose of Section 8 of the Suits Valuation Act and the value for court-fees and for jurisdiction must be the same.

7. In the result, the appeal is dismissed with costs.

8. Appeal dismissed.


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