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Gulam Mohamed Yunus and anr. Vs. Lalchand Chelaram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 25 of 1975
Judge
Reported inAIR1976Bom389
ActsBombay Court-fees Act, 1959 - Sections 6 - Schedule - Article 7
AppellantGulam Mohamed Yunus and anr.
RespondentLalchand Chelaram and ors.
Appellant AdvocateP.P. Joshi, Adv.
Respondent AdvocateN.H. Pardasani and ;Natvarlal L. Bhatta, Advs.
Excerpt:
.....defendant no. 1 claimed on a sill, which he will have to prove, where the dispute is not only regarding the mortgage deed, but shares the character that some of the interest could be transferred to the first defendant and he could validly put up for auction the suit property will have to be looked as falling under article 7, schedule 1 of the court-fees act, 1959. the finding arrived at by the trial judge as well as by the learned appellate judge, looks unimpeachable and hence the appeal fails......than on 7th july 1971, the parents of plaintiff no. 1 and aishabai executed a mortgage of the suit property in favour of the 1st defendant. the two plaintiffs say that they were unaware of this mortgage transaction until july 1973 when the 1st defendant came on the property and was interested in showing it to others. on enquiry they learnt that the property was put up for auction, allegedly under the mortgage of 7th july 1971. plaintiff no. 2 who is his guardian and maternal uncle made inquires and learnt of the execution of mortgage by defendants nos. 2, 3 and 4. they had, however, no copy of that mortgage-deed of 7th july 1971 or of any prior document. he also understood from those defendants that no amount was paid to any of them under the alleged deed of mortgage, and that they.....
Judgment:

Dighe, J.

1. The point for determination in this Letters Patent Appeal is regarding the provisions of the Bombay Court-fees Act, 1959 under which the plaint in the suit should be charged.

2. The trial Judge as well as the Appellate Judge have come to the conclusion that the suit was falling under Article 7 of the First Schedule of the Court-fees Act, 1959, and that valuation was more than Rs. 25,000/- and as such the City Civil Court had no jurisdiction.

3. The dispute in this case related to the property in Kurla admittedly belonging to the two brothers Allarkhan Maulabax and Kallu Maulabax. Kallu died some 13 years before the suit leaving behind his widow Aishabai, the 2nd defendant. Plaintiff No. 2 Sheikh Abdul Kader happens to be her son. He has brothers and sisters. One of his sisters was married to Mohamed Yunus Allarkhan, the 3rd defendant. Plaintiff No. 1 is a minor, born of Yunus and Hussainbi, the 4th defendant. Plaintiff No. 1 claims under a will of Allarkhan to be his sole heir. There is not dispute that in the absence of such a will, his father and mother the third and fourth defendants will be preferential heirs to Allarkhan Maulabux.

4. It appears than on 7th July 1971, the parents of plaintiff No. 1 and Aishabai executed a mortgage of the suit property in favour of the 1st defendant. The two plaintiffs say that they were unaware of this mortgage transaction until July 1973 when the 1st defendant came on the property and was interested in showing it to others. On enquiry they learnt that the property was put up for auction, allegedly under the mortgage of 7th July 1971. Plaintiff No. 2 who is his guardian and maternal uncle made inquires and learnt of the execution of mortgage by defendants Nos. 2, 3 and 4. They had, however, no copy of that mortgage-deed of 7th July 1971 or of any prior document. He also understood from those defendants that no amount was paid to any of them under the alleged deed of mortgage, and that they had no need to borrow any monies at the time of the execution of the document. They had no legal advice and they were told by the 1st defendant that the document was a mere renewal of an earlier mortgage after adding interest was done because Allarkhan died and a fresh document was considered necessary by the mortgagee.

5. According to the plaintiffs, the document of 7th July 1971 is illegal for want of title in the executants and is also without any consideration. The 1st defendant had no right, title and interest in the properties mentioned therein. He had, therefore, no right to exercise or enforce the mortgage or any rights reserved thereunder. The plaintiffs, therefore, prayed for a declaration that-

'deed of mortgage dated 7th July 1971 or any such prior document executed by defendants Nos. 2, 3 and 4 in favour of defendant No. 1 are illegal, void and unenforceable and of no legal effect and not binding upon the plaintiffs, and that the defendant does not derive any right, title or interest in the properties viz. .........................'

It may be observed at the outset that the prayer clause vaguely and generally refers ' to any such prior document', though relief in terms of deed is also asked. In the recitals in the plaint there is a reference to the renewal of earlier mortgage. Unfortunately when the trial proceeded the documents or their copies did not come to be tendered in the Courts. Copies of two mortgage documents, however, were produced in this Court. The indenture of the mortgage date 7th July 1971 shows that it is executed by Aishabai widow of Kalu Moulazux, the 2nd defendant and the parents of the 1st l, defendants Nos. 3 and 4 in favour of the 1st defendant for a consideration of Rs. 18,000/-. The recitals show that that was a debt in addition to the debt of the earlier mortgage amounting to Rs. 12,000/- under the document dated 30th December 1968. This would, therefore, be in effect a second mortgage of the property.

6. Copy of the deed dated 30th December 1968 shows that it is a mortgage in favour of the 1st defendant for a consideration of Rs. 12,000/-. The same is executed by Allarkhan, the 2nd defendant-Aishabaiand the 3rd defendant Mohammad Yunus. It would be of importance to note that Allarkhan was a party-executant.

7. According to the plaintiffs, debt of this mortgage is really merged into the subsequent mortgage of 7th July 1971. That is not admitted by the contesting respondents. It will have to be observed, however, that if that is so, the liability of Allarkhan arising under the first mortgage, whatever be its extent, would merge in the liability arising out of the second document. Even if, therefore, the 1st plaintiff claims under the will of Allarkhan, he would be bound by the mortgage-deed executed by Allarkhan. At any rate, the recitals in the Plain do not indicate as to how such liability is avoided.

8. Mr. Joshi, appearing on behalf of the appellants, contended that Article 7 of Schedule 1 of the Court-fees Act will not apply to such a case. According to him, the case would fall under Section 6 (iv) (j) of that Act. Alternatively, he says that the suit may fall under Article 23 (f) of Schedule II of the Court-fees Act. Lastly, he has contended that the subject-matter of the mortgage is of Rs. 18,000/-. and therefore, the City Civil Court would have jurisdiction to deal with the claim arising on such a mortgage.

9. A glance at the three provisions of the Court-fees Act, referred to above, would reveal that Section 6(iv)(j) of that Act relates to other suits for declaration. A variety of suits have been referred to under Section 6 of that Act According to clause (j), in suits where declaration is sought with or without injunction or other consequential relief and the subject-matter in dispute is not susceptible of monetary evaluation and if the suit is not otherwise provided for by the Act, then the court-fee payable would be the amount on the subject-matter of Rs. 300/-. Such court-fees works to Rs. 30/-.

10. Article 7 of Schedule I of that Act provides for a fee on the amount of monetary gain or loss to be prevented according to the scale prescribed under Schedule I. This is in relation to any other plaint, application or petition to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss.

10A. Article 23 (f) of the Second Schedule of the Act is again residuary article and to the extent to which it is relevant runs as follows:-

Number Proper fee1 2 3Plaint petition or application (including memorandum of appeal) which is capable of being treated as a suit.(a) ........... Ad valorem fee payable as if the amount or value of the subject(b) ........... matter was three hundred rupees.'(c) ...........(d) ...........(e) ...........(f) in or any Civil Court not otherwise provided for and the subject-matter of which is not capable of being estimated in money value.

Ad-valorem fees amounting in effect to Rs. 30/- would be payable under this Article.

11. It looks possible to weed out of discussion Article 23 (f) of the Second Schedule of the Court-fees Act. inasmuch as it relates to suits 'not otherwise provided for'. This is patently a suit for a declaration and an injunction. It is a matter for discussion whether Article 7 of the First Schedule applies, but in case that Article is inapplicable, the present suit would squarely fall in the description of 'suits where declaration is sought, with or without injunction', so that as between Section 6(iv)(j) and Article 23 (f) of the Second Schedule, Article 23 (f) should have no application. The question for consideration, therefore, is really whether, as propounded by Mr. Joshi for the appellants, Section 6(iv)(j) of the Act applies or whether, as held by the two Courts below. Article 7 of the First Schedule will apply.

12. The analysis of the two provisions would show that Section 6 (iv) (j) contemplates suits where the subject-matter in dispute is not susceptible of monetary evaluation and where the suit is not otherwise provided for by the Court-fees Act. Article 7, on the other hand, refers to the obtaining of substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss. Thus, whereas Section 6(iv)(j) lays emphasis on the subject-matter of the suit, under Article 7 substantive relief is to be looked into. The expression 'subject-matter; is a wider expression. In looking to the recitals of the plaint and in assessing the prayers the objective should be to find out what relief is substantively asked for. That would be the primary function for determining the application of Article 7 of Schedule I, so that the next step would be to find out whether such relief is or is not capable of being valued in terms of money value or at least loss to be occasioned could be estimated in money value. Apparently, if any suit satisfies the element of Article 7, Schedule I, it could be said with reason that the suit is provided for by the Act so that it would automatically be out of the purview of Section 6(iv)(j) of the Act. All these aspects, therefore, have to be looked into for finding out whether Section 6(iv)(j) applies or Article 7 applies and that will have to be done by looking into the subject-matter so far as the former provision is concerned. The learned counsel for the plaintiffs says that the mortgage-deed or other such document, is void, unenforceable and of no legal effect. According to him, that prayer has nothing to do with the evaluation of mortgage property or the mortgage debt. Subject-matter of the suit, thus, being the declaration itself, Article 7, Schedule I, will not be attracted. As in the Court below, he relied upon the decision reported in: Jafferali Allibhai v. S. R. Dossa & Co., : AIR1969Bom66 . The question was discussed in connection with representative suit filed under Section 53 of the Transfer of Property Act, 1882. The suit was by creditors of the defendant for a declaration that a deed of assignment of property passed by him was void, as against them. It was held by Vimadalal, J.

'The subject-matter of suit is not the property comprised in the Deed of Assignment which was sought to be set aside, but is the relief by ways of declaration itself, namely, the declaration that the Deed of Assignment was void as against the plaintiffs and the same is not susceptible of monetary evaluation.'

13. We do not think, however, that the appellants can draw any assistance from this decision. It was entirely a different matter having a different complexion. The suit did not seek to set aside the deed of assignment but merely sought a declaration that the same was void, against the plaintiffs and other creditors. Although, the prayer in the present suit relates to a deed, it is one in which the plaintiffs have far different type of interests. The plaintiffs in the reported decision were asking for relief for and on behalf of a number of creditors and there was nothing like monetary gain or monetary loss qua the plaintiffs in relation to the properties comprised in the deed of assignment. Their joint interest was sought to be protected by attacking assignment. It is on this background that the observation are made that the subject-matter of the suit was a relief by way of a declaration itself.

14. The learned Appellate Judge has relied upon some other decision and Mr. Joshi for the appellants, seeks to draw a distinction for the non-application of the principles involved in it. Reliance is placed on the decision in : Rajdutt Anand Satam v. Anand Krishna Satam, in Appeal From Order No. 290 of 1969 (Bom), decided on 8th September 1970 by Kantawala, J. (as he then was ). The suit there was in respect of property owned by one Krishna Arjun Satam. The plaintiff No. 1 was his grand-son. Other plaintiffs were other heirs. The 1st defendant had from time to time mortgaged properties and the plaintiffs' contention was that the properties were joint family properties. They had share therein. The 1st defendant had no right to raise any loan or create mortgage or charge on the said property, all such burdens were not for legal necessity and the said creditors were not entitled to put up the property for sale by public auction. It was pointed out that the plaintiffs were not parties to the transaction of mortgage. It is held that the plaintiffs were liable to pay court-fees in accordance with the provisions of Article 7 of Schedule I of the Court-fees Act. Such value was in far excess of Rs. 25,000/- and the City Civil Court, Bombay, had no jurisdiction to entertain the suit.

15. The learned Counsel for the appellants contends that in this decision stress was laid on the Chamber Summons given by the plaintiffs whereby the recitals in relation to the payment of court-fees were changed. They themselves had admitted that the court-fees was payable in terms of prevention of monetary loss and as such it is said that the ratio of this decision is not applicable. The contention, however, is fallacious. It is no doubt true that paragraph 18 of the plaint as it obtained before the amendment recited that

'under the circumstances there was no standard for measuring the loss which the plaintiffs suffered by the said illegal, wrongful action. The plaintiffs have, therefore, paid the fixed court-fee of Rs. 30/- under Article 23 (1) (f) of Schedule 2 of the Bombay Court-fees Act.'

After the amendment of paragraph 18 of the Plaint, the statement in paragraph 18 of the plaint was that the suit in substance was for preventing the 4th defendant from putting up for auction the property described in the plaint on the ground that the property was a joint family property. The plaintiffs valued the subject-matter of the suit at Rs. 5,000/-, being the estimated monetary gain or loss to be prevented by virtue of this suit. It is not, however, that the decision is based on the concession embodied in para. 18 in the amended from that the suit was to be looked into as one for preventing monetary loss. The decision is not as if on admission, though reference to it is made for purposes of substantiating the conclusion arrived at.

16. It was vehemently argued that Article 7 would not apply. That argument is looked into in pros and cons and it is said:

'If regard be had to the nature of the suit, the suit is in effect a suit for a declaration that the properties described in Ex. 'A' to the plaint are joint family properties in which plaintiff No. 1 has an undivided coparcenary interest and plaintiffs Nos. 2 to 5 have the interest therein, .................'

Analysing further prayers, this is what is said.

'Thus the subject-matter of the suit in effect is that the properties described in Ex. 'A' to the plaint are joint family properties in which the plaintiffs are interested, that the encumbrances by way of mortgage and charge created in favour of defendant No. 4 and defendant No. 5 are not binding upon their interest in the property and they should be restrained by an injunction from putting the properties to auction sale as threatened.'

On the basis of the averments, therefore, the total relief was looked into and that was the guiding line for saying:

'It is essential in the present suit, therefore, for the plaintiffs to establish their claim that they, as members of the joint family, are interested in the properties described in Ex. 'A'.

17. In other words, the legality of the document was challenged. In considering the application of the provisions of the Court-fees Act, full recitals of the plaint, together with consideration of the substantive relief was looked into.

18. It may be observed that in our case the plaintiffs asked for a declaration not only in relation to the mortgage-deed of the year 1971, but also in relation to 'any such prior document' which expression, in its wake, would automatically include the document of 1968. Although usual phraseology, that the deed is illegal, void, unenforceable and of no legal effect is used, it is difficult to conclude on the basis of the facts averred in the plaint that defendant No. 1 does not derive any right, title or interest in the properties mentioned therein is correct. The plaint refers to the renewal of the mortgage. That debt was incurred by the deceased Allarkhan Maulabax. Plaintiff No. 1 claims under the will of Allarkhan. In normal circumstances he cannot go behind the commitment of Allarkhan, and it is also important to note that he shall have to prove the Will before qualifying himself for the reliefs he has asked. It is only on such background that this contention regarding the parents, defendants Nos. 3 and 4 not having any right to convey his interest, could be appreciated. He could attack the conveyance made by the 2nd defendant. Her share may be limited, but, it appears from the recitals in the Plaint that she was well within her rights to convey her own interest. The case, therefore, does not move on the lines that certain third parties not having anything to do with the suit properties have purported to create a document and a declaration is claimed by the real owner that such a document is unenforceable and not binding on him.

19. During the course of the arguments, reference was made to the decision given in Short Cause Suit No, 821 of 1968 and to the decision of the Chamber Summons, the parties being Messrs. Jaikrishan and Co., as plaintiffs, and Municipal Corporation for Greater Bombay as the defendants. This is also a decision of Kantawala, J. (as he then was,) dated 14th April 1970. Shortly stated the plaintiffs claimed interest in the suit properties and had also contended that the disputed structures were not unauthorisedly put up and had challenged the demolition notice issued by the defendant Corporation. They prayed for a permanent injunction restraining the Corporation from taking steps pursuant to the said notice. The argument that the suit fell under Section 6(iv)(j) of the Court-fees Act, 1959, was repelled and it was held that Article 7, Schedule I, of the Court-fees Act applied. Among the contentions raised there was a contention that the Corporation was not entitled to carry out the demolition work. It was argued by Mr. Dhanuka, on behalf of the plaintiffs, that the Court should merely look to the reliefs claimed in the suit and not and substantive averments on which issues were likely to arise, probably borrowing the phraseology of Article 7 relating to the substantive relief claimed. That contention was not accepted. The case for the plaintiffs was briefly summarised as one, with averments that their proprietary interest in the properties was sought to be demolished by the Corporation, that the Corporation was not entitled to carry the demolition work and that the notice itself was illegal because of the various grounds enumerated. In considering the arguments, this is what is stated:-

'The suit is not restricted to merely challenging the validity of notice on technical grounds. By the present suit, the right of the Corporation to demolish the structure as well as the issuance of the notice are challenged. These are the objectives which are intended to be carried out by the reliefs that are asked for. Thus, the reliefs are prayed inter alia on the ground that there is no power to carry out the demolition work. When such is the case, the substantive relief in the suit is capable of being valued in terms of prevention of monetary losses. The case is therefore, directly governed by Article 7 of Schedule I of the Bombay Court-fees Act and the plaintiffs are liable to pay court-fees on the amount of the loss to be prevented according to the scale prescribed under Article I, of Schedule 1. If the case is governed by Article 7 of Schedule I, as I consider it to be, the provisions of Section 6(iv)(j) cannot be invoked or applied because it is one of its essential ingredients that the suit must be of the nature as is not provided otherwise by this Act. If the suit is governed by any specific provision of the Act, it is not open to the plaintiffs to value the suit for the purposes of Court-fees Act in accordance with the provisions of Section 6(iv)(j) of the Act. In my opinion, having regard to the averments in the plaint and the reliefs asked for the suit is governed by Article 7 Schedule I of the Bombay Court-fees Act ................................'

According to Mr. Joshi, this case differs because the very right of the Corporation to demolish the structure was challenged. That was in addition to the challenged thrown on the ground of invalidity of the notice. But the reading of the judgment does not show that application of Article 7 of Schedule I of the Court-fees Act is decided because right to demolish is challenged. All averments made in the plaint have been looked into, reliefs asked for substantially are looked into, it is considered how it emerges out of the stated facts and then the conclusion is arrived at, that the relief of prevention of monetary loss would occur in case prayers made by the plaintiffs were not allowed. The decision is not merely on the alleged absence of powers in the Corporation to demolish but it has turned on the facts in issue showing the proprietary interest of the plaintiffs, the challenge thrown and the ultimate effect. In the light of that ratio, so far as the suit with which we concerned would fall under Article 7 of Schedule I of the Court-fees Act.

20. The decision in Appeal No. 317 of 1970 from Order with Appeal No. 356 of 1970 from Order, decided by Deshmukh and Deshpandee, JJ. on 25/26th August 1971 (Bom) was also referred to. In this case the plaintiff had claimed for a declaration that the purported auction sale of the property in suit held earlier than the filling of the suit, was incomplete, illegal, null and void and not binding or enforceable against the plaintiffs and the persons, and the defendants having interest similar to the plaintiffs. The plaintiffs had also prayed for setting aside of that auction sale. Article 7 of Schedule I of the Court-fees Act is held applicable. In trying to distinguish this case, Mr. Joshi, for the plaintiffs says that our suit differs, inasmuch as in the Appeal decided by Deshmukh and Deshpande,, JJ., referred to above, the sale had already taken place, and there was a prayer for setting aside such a sale. It is no doubt true that the complexion of the litigation changes to a great extent by reason of such prayers and the plaintiffs therein came very much near the attraction of the provisions of Article 7. The decision, is relevant on the point that the emphasis is laid in assessing the substantive relief claimed. The moment such relief or the loss to be prevented could be estimated in money value, would appear that Section 6(iv)(j) would be having.

21. The learned trial Judge in deciding the matter has been influenced by the judgment reported in: Keshore Premlal Dalaya v. Ukaji Premji, : AIR1974Bom133 . The suit was for a declaration that the mortgage and sale of mortgaged property by mortgagees were void and not binding upon the plaintiffs. Claim was valued under Section 6(iv)(j). The decision shows that Article 7 of Schedule I was made applicable. Here also the learned Advocate for the plaintiffs contended that the sale had already taken place and hence the case is different. But the decision looks to the contentions that there was no legal necessity, that the sale was by Karta of the joint family and that in that context the relief claimed was capable of being valued in terms of monetary gain or prevention of monetary loss.

22. During the course of the argument, another decision reported in: Balgonda Appanna v. Ramgonda Shivgonds, decision of a Single Bench of this Court. Article 7 of Schedule I was not specifically put discussions. The plaintiff claiming that he was protected tenant in possession of the land in dispute, brought a suit against the landlord defendant No. 1 as well as the purchaser defendant No. 2 from him, for a declaration that the sale Bombay Tenancy & Agricultural Lands Act, was not binding on him, and prayed for an injunction restraining defendant No. 2 purchaser from interfering with his possession. The contention, that the court-fee was payable under Section 6(iv)(j) is repelled and it is stated that Section 6(iv)(d) would apply. The plaintiff-tenant it appears had become the owner of one-half interest by reason of the provisions of the Tenancy Act and continued to be a protected tenant of the other half. The purported transfer jeopardised his interest. It appears that the plaintiff had over-valued the claim. The discussion concentrated on the question of such over-valuation. But, in making Section 6(iv)(j) of the Court-fees Act applicable, it is stated that the right which was the subject-matter of the suit was the right claimed by the plaintiff to continue to be in uninterrupted possession and the right to challenge the sale: that the rights were incapable of valuation. Thus the subject-matter of the suit is the right to remain in possession which is taken a incapable of valuation. It may also be usefully remarked that from that angle of monetary gain and monetary loss the transaction entered into between the 1st defendant and the 2nd defendant would not have materially affected the plaintiff. His rights were governed by the Tenancy Act and the declaration was claimed only to make that position clear. The case was comparable to transactions between third parties having absolutely no interest in the suit property but attempting to affect rights of the owner thereof. In terms of monetary loss, therefore, relief in such cases could not be estimated and hence such suits would be falling under Section 6(iv)(j) of the Court-fees Act.

23. Viewed in the light, the present suit where plaintiff No. 1 claimed on a Sill, which he will have to prove, where the dispute is not only regarding the mortgage deed, but shares the character that some of the interest could be transferred to the first defendant and he could validly put up for auction the suit property will have to be looked as falling under Article 7, Schedule 1 of the Court-fees Act, 1959. The finding arrived at by the trial Judge as well as by the learned Appellate Judge, looks unimpeachable and hence the appeal fails.

24. A further point was sought to be argued by Mr. Joshi. According to him, even if Article 7 applies, he should not be forced to value the entire suit property. Speaking generally, he contends that in a given case prevention of monetary loss in terms of the burden on the property could be much smaller than the total value of property and it would be inequitable and unjust to ask the plaintiff to value the entire property. Monetary loss to be avoided would in effect be the total burden on the property. It seems just at this stage we are not called upon to decide that point. There is no gain-saying that even if the valuation is made on the value of the burden to be avoided in this case such valuation exceeds Rs. 25,000/-- so that the City Civil Court has no jurisdiction. It would be open to Mr. Joshi's client to press his point before the appropriate Court. On the basis of the contention raised here Article 7 of Schedule I applies to the present case. On its application, the City Civil Court, Bombay has no jurisdiction to decide the suit, and hence the appeal cannot be accepted. Same is dismissed with costs. The order of the trial Court top return the Plaint for filing in proper Court, therefore, stand .

25. Appeal dismissed.


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