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Sabir HusaIn and anr. Vs. Farzand Hasan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All406
AppellantSabir HusaIn and anr.
RespondentFarzand Hasan and ors.
Excerpt:
- - i think this ruling can be clearly distinguished upon the facts. it may be difficult to make an exact estimate of the value of the assets, but it is clear that the assets have a money value and this clause cannot apply to the case of property which clearly has a money value, although it may be difficult to estimate such value correctly......person and personal property of defendant 1, but refused to pass a decree against the assets of sibte hasan in the possession of defendants 2 to 5. the claim for interest was dismissed.3. the plaintiffs in the appeal claim a further sum of rs. 2,166-10-8 on account of interest. they also ask that the suit may be decreed against the assets of sibte hasan in the hands of defendants 2 to 5. an ad valorem court-fee has been paid on the amount of interest claimed. in respect of the relief that the suit be decreed against the assets of sibte hasan in the hands of defendants 2 to 5, a court-fee of rs. 10 only has been paid.4. the stamp reporter contends that the court-fee in respect of this relief is payable ad valorem on the value of the assets of sibte hasan and that there is a deficiency.....
Judgment:
ORDER

King, J.

1. This is a reference under Section 5, Court-fees Act, 1870.

2. The suit was for Rs. 8,333-5-4 as the plaintiffs' share of the dower of their deceased daughter who was married to defendant 1; Rs. 2,994-0-8 was also claimed as interest. The trial Court decreed the plaintiff's suit for Rupees 8,333-5-4 against the person and personal property of defendant 1, but refused to pass a decree against the assets of Sibte Hasan in the possession of defendants 2 to 5. The claim for interest was dismissed.

3. The plaintiffs in the appeal claim a further sum of Rs. 2,166-10-8 on account of interest. They also ask that the suit may be decreed against the assets of Sibte Hasan in the hands of defendants 2 to 5. An ad valorem court-fee has been paid on the amount of interest claimed. In respect of the relief that the suit be decreed against the assets of Sibte Hasan in the hands of defendants 2 to 5, a court-fee of Rs. 10 only has been paid.

4. The stamp reporter contends that the court-fee in respect of this relief is payable ad valorem on the value of the assets of Sibte Hasan and that there is a deficiency of Rs. 345 in the court-fee paid. The appellants' counsel urges that he-only seeks a declaration that the assets of Sibte Hasan in the hands of defendants 2 to 5 shall be made liable for the decretal amount, and if a court-fee is payable-on the value of such assets, then it is impossible to put a money value upon the assets, and therefore a court-fee of Rs. 10 is sufficient under Article 17 (vi), Schedule 2.

5. I am unable to accept the appellants' contention. They seek to make defendants 2 to 5 liable for a sum of Rs. 10,500 to the extent of the assets of Sibte Hasan-which may be in their possession. The value of the subject-matter in dispute in this appeal therefore should in my opinion be held to be the value of the assets of Sibte Hasan in the possession of defendants 2 to 5, or the sum of Rupees 10,500 claimed by the appellants, whichever is less.

6. The appellants have relied upon Ujagar Lat v. Mohan Kunwar [1886] A.W.N. 312. In that case the plaintiff claimed to recover a certain sum by enforcement of a mortgage upon two immovable properties P and K. The trial Court decreed the plaintiff's claim for a certain sum, but-annexed a condition that the property P be first proceeded against, and only in the event of its not satisfying the decretal amount, recourse may be had to property K. The plaintiff appealed claiming inter alia that the condition in the decree be set aside and that he be allowed to proceed against both the properties at once. The Court held that in respect of this relief, a court-fee of Rs. 10 only was payable, apparently on the ground that it was not possible to estimate this relief at a money value. I think this ruling can be clearly distinguished upon the facts. In that case, both the properties mortgaged were made liable for the satisfaction of the decretal amount, the only restriction imposed upon the decree-holder being that he should proceed first against the property P before having recourse to property K. In the present case, the trial Court has entirely excluded the assets of Sibte Hasan in the-hands of defendants 2 to 5 from liability for the decretal amount. The appellants now seek to make this property liable. If they succeed, then they could recover the whole amount of Rs. 10,500 from defendants 2 to 5 to the extent of the assets of Sibte Hasan in their possession In these circumstances, I think the decision in Kachera v. Kharag Singh [1911] 33 All. 20 which follows the Full Bench ruling the Madras High Court in Kesavarapu v Kotta Kota Reddi [1907] 30 Mad. 96 and the decisior in Jugal Pershad Singh v. Parbhu Narain Jha [1910] 37 Cal. 914, Amir Chand v. Kanhaya Ram [1912] 86 P.R. 1912 and Ramasami v. Subbusami [1890] 13 Mad. 508, are applicable. I take the correct view to be, in accordance with these rulings, that, so far as the appellants seek to render the property in the hands of defendants 2 to 5 liable, the court-fee is payable ad valorem on the liability sought to be imposed, namely Rs. 10,500 or the value of the assets of Sibte Hasan in the hands of defendants 2 to 5, upon which the liability is to be imposed, whichever is less. I am quite unable to accept the view that Article 17(vi) applies. It may be difficult to make an exact estimate of the value of the assets, but it is clear that the assets have a money value and this clause cannot apply to the case of property which clearly has a money value, although it may be difficult to estimate such value correctly. The appellants should be required to state the value of such assets and this valuation will govern the amount of the court-fee payable in the first instance. The court-fee payable on this relief will be in addition to the ad valorem court-fee which has already been paid in respect of the interest claimed by the appellants both against defendant 1 and against the assets in the hands of the other defendants.


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