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Pooran Mal Bansal Vs. Smt. Chhutto Devi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1076 of 1968
Judge
Reported inAIR1970All188
ActsCourt-fees Act, 1870 - Sections 7(9); Suits Valuation Act, 1887 - Sections 4 and 8; Transfer of Property Act, 1882 - Sections 60
AppellantPooran Mal Bansal
RespondentSmt. Chhutto Devi
Appellant AdvocateK.C. Agarwal, Adv.
Respondent AdvocateK.N. Seth, Adv.
DispositionRevision dismissed
Excerpt:
.....board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - the view of the learned munsif is well supported by the decision cited by the learned counsel for the petitioner in the cases of and air1948all55 .however, i am not in agreement with the view of the learned munsif that section 7, sub-clause (9) of the court-fees act is not applicable to the facts of this case. in my opinion having regard to the various provisions of the suits valuation act as well as the court-fees act it has to be held that the present case not having been covered by section 4 of the suits valuation act the suit has to be valued in terms of section 7, sub-clause (9) of the court-fees act read with section 8 of the suits valuation act as such the valuation for the purposes of jurisdiction..........has to be upheld but on a different reason than the munsif has given in this case. before the learned munsif the plaintiff opposite party contended that on the facts of the present case it was clear that there were as a matter of facts two mortgages joined in a single document of mortgage and since one of the two mortgages had been extinguished the plaintiff was entitled to redeem the remaining mortgage which was only for a sum of rs. 4250, it was also argued that the integrity of the mortgage having been broken the plaintiff was entitled to value the suit at rs. 4250. the learned munsif repelled both these arguments but came to the conclusion that in a suit for redemption of this type the suitcould not be valued in terms of section 7, sub-clause (9) of the court-fees act with the.....
Judgment:
ORDER

S.N. Singh, J.

1. This revision is directed against the decision of Munsif, Agra, deciding the issue of jurisdiction.

2. The issue about jurisdiction arose in the following circumstances. It appears that the plaintiff in the instant suit is successor-in-interest of the mortgagors who had mortgaged the property in dispute on 8th March 1943 in favour of two persons Sri Hazari Lal Jain and Sri Raghubir Saran for a consideration of Rs. 8500. The mortgage deed which had been executed in favour of these two persons showed that each one of them had advanced Rs. 4250 and in the mortgage deed it was recited that the mortgage had been executed in favour of the two mortgagors (sic mortgagees) giving them possession over half of the property. The words used in the mortgage deed are 'Ba hissa masawi rehan dakhli kiya'. This would show that Hazari Lal was put in possession over half of the property for a consideration of Rs. 4250 and Raghubir Saran was put in possession over the other half of the property for a consideration of Rs. 4250. The plaintiff mortgagor acquired the interest of one of the mortgagees Sri Hazari Lal whose heir executed a document to this effect in favour of the plaintiff. The plaintiff by the instant suit sought redemption of the mortgage dated 8th March, 1943 and valued the suit at Rs. 4250.

3. An objection was raised on behalf of the contesting defendants that the suit should have been valued at Rs. 8500 the amount secured under the mortgage dated 8th March 1943, with the result that the Court of the Munsif had no jurisdiction to entertain the suit.

4. An issue about jurisdiction was raised and the Munsif has decided the issuein favour of the plaintiff opposite party necessitating the filing of the present revision.

5. It has been argued on behalf of the petitioner that the present suit being one for redemption Section 7, Sub-clause (9) of the Court-fees Act read with Section 8 of the Suits Valuation Act applied to the facts of the case, with the result that the suit should have been valued for the purposes of jurisdiction at Rs. 8500 the amount expressed to have been secured by the instrument. It was further argued that on the facts of the present case the integrity of the mortgage not having been broken there was no escape for the plaintiff but to value the suit at Rs. 8500. Reliance was placed on the cases of Abdul Haq v. Shamsuddin : AIR1941All357 , Umarkhan v. Mahomedkhan, (1885) ILR 10 Bom 41, Basant Lal v. Lalta Prasad : AIR1946All304 , Shiva Harakh Rai v. Akbar Ali : AIR1948All55 , Pokhan Singh v. Radhey Lal : AIR1953All240 and Narain Singh v. Teja Singh .

6. On the other hand it was contended on behalf of the plaintiff opposite party that the valuation put by the plaintiff in the instant case was correct. It was submitted that on the facts of this case half of the original mortgage was extinguished by the acquisition of the right of one of the mortgagees by the plaintiff mortgagor as such the mortgage money expressed in the instrument of the mortgage which remained to be redeemed was Rs. 4250. Reliance was placed on a Full Bench decision of this Court in Amanat Begam v. Bhajan Lal, (1886) ILR 8 All 438 & Balkrishna Dhondo v. Nagvekar, (1882) ILR 6 Bom 324. The view of the trial Court that in the instant case the suit could not be valued in terms of Section 7 Sub-clause (9) of the Court Fees Act was also sought to be supported by relying on the case of Mohammad Akbar Khan v. Mt Motai .

7. I have considered the respective submissions of the learned counsel for the parties and in my opinion the decision of the Munsif about jurisdiction has to be upheld but on a different reason than the Munsif has given in this case. Before the learned Munsif the plaintiff opposite party contended that on the facts of the present case it was clear that there were as a matter of facts two mortgages joined in a single document of mortgage and since one of the two mortgages had been extinguished the plaintiff was entitled to redeem the remaining mortgage which was only for a sum of Rs. 4250, It was also argued that the integrity of the mortgage having been broken the plaintiff was entitled to value the suit at Rs. 4250. The learned Munsif repelled both these arguments but came to the conclusion that in a suit for redemption of this type the suitcould not be valued in terms of Section 7, Sub-clause (9) of the Court-fees Act with the help of Section 8 of the Suits Valuation Act. He held that prima facie on the basis of the plaint allegation since the plaintiff has alleged full payment and extinction of half the mortgage the suit was within jurisdiction of the Court and it was immaterial what amount was secured under the mortgage. I agree with the decision of the Munsiff so far as the question of the breaking of the integrity of the mortgage is concerned. The Munsif is right that on the facts alleged and found in this case the integrity of the mortgage could not be held to be broken. The view of the learned Munsif is well supported by the decision cited by the learned counsel for the petitioner in the cases of and : AIR1948All55 . However, I am not in agreement with the view of the learned Munsif that Section 7, Sub-clause (9) of the Court-fees Act is not applicable to the facts of this case. In my opinion having regard to the various provisions of the Suits Valuation Act as well as the Court-fees Act it has to be held that the present case not having been covered by Section 4 of the Suits Valuation Act the suit has to be valued in terms of Section 7, Sub-clause (9) of the Court-fees Act read with Section 8 of the Suits Valuation Act as such the valuation for the purposes of jurisdiction will be the same as that for the purposes of court-fees. Having come to this conclusion it has to be seen whether the valuation put by the plaintiff in the instant case is the correct valuation.

8. Having considered the respective arguments of the learned counsel for the parties and having looked into the various authorities cited by the learned counsel I am inclined to accept the argument put forth on behalf of the plaintiff opposite party that for all practical purposes the interest of the two mortgagees were quite distinct and with the acquisition of the right of one of the mortgagees by the mortgagor half of the mortgage stood extinguished and the mortgage money secured expressed in the instrument would be deemed to be Rs. 4250 for the purposes of redemption in this case. Having come to this conclusion it is necessary to notice the relevant cases cited by the learned counsel for the parties on this point. The two cases relied on by the learned counsel for the petitioner in support of his argument on this point in my opinion are distinguishable. In the case of : AIR1941All357 it was that in a second appeal or first appeal from a decree in a suit against a mortgagee for the recovery of the mortgaged property the court-fee must be paid ad valorem on the principal sum secured by the mortgage. In the body of the judgment it was observed that if there was a mortgage securing a debt of onelac rupees and the plaintiff came to Court on the allegation in a suit for redemption that only Rs. 50 were due even then the plaintiff would be required to pay court-fees on the full amount of Rupees one lac. The facts of this case are distinguishable. The other case relied on by the learned counsel for the petitioner on this point is the case of (1885) ILR 10 Bom 41. In this case it appears that there was a mortgage of Rs. 1152/15/4 in favour of two persons. The decree for redemption directed the payment of Rs. 568/9/8 to one defendant and Rs. 584/5/8 to another defendant. Two appeals were filed and the Bombay High Court held that each memorandum of appeal should be valued at Rs. 1152/15/2 for the purposes of the payment of court-fees. Both the above cases are distinguishable from the facts of the present case.

9. As against these two cases reliance was placed by the plaintiff opposite party on the cases of (1886) ILR 8 All 438 and (1882) ILR 6 Bom 324. In the case of (1886) ILR 8 All 438 it was held that 'where on account of purchase of a portion of equity of redemption by the mortgagee, the mortgage debt has been pro tanto extinguished and some of the mortgagors became entitled to recover a portion only of the mortgaged property, in a suit for redemption of such portion, 'the principal money expressed to be secured' on which the court-fees for the suit is to be calculated under Article 9, Section 7 of the Court-fees Act, must be taken to be the proportionate amount of the debt for which the portion sought to be redeemed would be liable.' In the case of (1882) ILR 6 Bom 324 it was held that 'in cases in which it is competent to the mortgagor to sue to recover a portion of the mortgaged property, the debt must be regarded as distributed over the whole property; and as regards the portion of the property sued for. 'the principal money expressed to be secured' must be taken to be the proportionate amount of the debt for which such portion of the property is liable.'

10. The facts of these two cases are also not similar to the facts of the present case, but the principle of law enunciated in these two cases can safely be applied to the facts of the instant case. In the present case on the allegations in the plaint it is clear that half of the original mortgage stood extinguished by the act of the parties. The mortgagor having acquired the rights of one of the mortgagees half of the mortgage got extinguished and only half of it remained to be redeemed. The principal amount of this remaining half is Rs. 4250 and in my opinion this should be deemed to be the principal amount expressed in the instrument of the mortgage as contemplated by Section 7, Sub-clause (9) of the Court-fees Act. The other cases relied onby the learned counsel for the petitioner other than those already noticed above relate to Section 23 of the Agriculturist Relief Act and are not relevant for the purposes of this case; hence they need not be noticed.

11. In view of what has been said above this revision cannot succeed. Accordingly it is dismissed but there will be no order as to costs.


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