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Mitthoo Lal Vs. Gopal Chand - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3281 of 1968
Judge
Reported inAIR1979All226
ActsSuits Valuation Act, 1887 - Sections 4; Uttar Pradesh Suits Valuation (Amendment) Act
AppellantMitthoo Lal
RespondentGopal Chand
Appellant AdvocateJagdish Misra, Adv.
Respondent AdvocateV.D. Ojha, Adv.
DispositionAppeal dismissed
Excerpt:
property - partition of property - section 4 of suits valuation act, 1887 - dispute between family members - decree passed for partition of property in question by lower courts - appeal made - contended that trial court had no jurisdiction as value of property more than rs. 5,000 - held, for purpose of jurisdiction - value of share of property of plaintiff is to be considered. - - in any case the earlier documents clearly indicate the extent of the property of abdul rahman. in this deed both the brothers clearly showed 'shop rahin' towards east. section 4 of the suits valuation act also refers to section 7(v) and it clearly says that suits for possession of a building for the purposes of jurisdiction shall be valued at the market value of the property involved......mortgaged in favour of parmeshwar das father of the appellant by mortgage deed ex. a 21. in this deed shop of sutaedar has been shown towards east. the position that follows from the two mortgage deeds is that to the east of the three shops of abdul rahman there was shop of subedar which still exists at the place where it was.7. to the south of the shops of abdul rahman, there was house of one chhiddu. chhiddu sold this house to parmeshwar das by sale deed dated 21-2-1920, ex. 9. this house was facing towards south. jn this sale deed in the northern boundary shops of abdul rahman mortgaged with parmeshwar das and ganga ram are mentioned. in the eastern boundary house of subedar has been mentioned.8. there is one more mortgage deed dated 2-2-1931, ex. a 18, executed by the appellant.....
Judgment:

P.N. Goel, J.

1. This is a defendant's appeal against the judgment and decree dated 29-8-1968 passed by the Civil Judge, Etawah, confirming the preliminary decree for partition dated 10-7-1967 passed by 1st additional Munsif, Etawah in Orignal Suit No. 489 of 1963.

2. One Parmeshwari Das had 5 sons including Tara Chand, father of the respondent Gopal Chand, Mitthoo Lal, appellant and Shambhu Dayal. The respondent claimed half share in 3 shops detailed at the foot of the plaint situate in the town of Etawah. The property in dispute was valued at Rs. 7680/- as found by the Additional Munsif in his order dated 10-9-1966. The respondent, therefore, valued the suit at Rs. 3840/-. These shops were purchased from one Abdul Rahman by sale deed dated 20-10-1930 Ex. A-19. This sale deed is in favour of the appellant and his brother Tara Chand, father of the respondent.

3. In the plaint the boundaries of the shops are mentioned as:

East-- shop of Subedar

West-- Stairs and shop of Durga Swarup

North-Road

South-- House of Shambhu Dayal.

In the sale deed the boundaries of the 3 shops sold are:--

East-- Shop of Mitthoo Lal

West-- Shop of Jyoti Swarup

North-- Road

South-- House of Shambhu Dayal and Mithoo Lal.

4. These three shops were later on converted into two shops vide map, 4/5C (165) part of the decree. One shop towards west has been shown in green colour. The other shop towards east and south has been shown in yellow colour. To the east of eastern yellow shops, shop of Subedar has been mentioned.

5. Defence of the defendant appellant was that he was the exclusive owner of the eastern shops shown in yellow colour, that in fact he alone had purchased the shops through Abdul Rahman, that the name of Tara Chand was just fictitious and ostensible, that the suit was barred by time as the respondent was not in possession of the disputed shop.

6. There were two mortgage deeds dated 21-1-1919 Exs. A20 and A21 executed by Abdul Rahman. The two shops towards west were mortgaged in favour of Ganga Ram by mortgage deed, Ex. A 20. One shop towards east was mortgaged in favour of Parmeshwar Das father of the appellant by mortgage deed Ex. A 21. In this deed shop of Sutaedar has been shown towards east. The position that follows from the two mortgage deeds is that to the east of the three shops of Abdul Rahman there was shop of Subedar which still exists at the place where it was.

7. To the south of the shops of Abdul Rahman, there was house of one Chhiddu. Chhiddu sold this house to Parmeshwar Das by sale deed dated 21-2-1920, Ex. 9. This house was facing towards south. Jn this sale deed in the northern boundary shops of Abdul Rahman mortgaged with Parmeshwar Das and Ganga Ram are mentioned. In the eastern boundary house of Subedar has been mentioned.

8. There is one more mortgage deed dated 2-2-1931, Ex. A 18, executed by the appellant Mithoo Lal and Tara Chand, father of the respondent. Out of the three shops purchased from Abdul Rahman, two shops were mortgaged by means of this document. In this deed in the eastern boundary 'Dookan Rahin' is written.

9. Parties led oral evidence in support of their respective cases. On an appraisal of the entire oral and documentary evidence, the First Additional Munsiff found that in the sale deed dated 20-10-1930, Ex. A-19, shop o Mithoo Lal vendee was wrongly written in the eastern boundary, that the boundaries of the three shops given in the plaint were correct, that Tara Chand's name in the sale deed, Ex. A-19 was not fictitious or ostensible; that therefore, the respondent had half share in the shops, and that the suit was not barred by time as contended by the appellant.

10. These findings were affirmed in appeal by the Civil Judge.

11. Learned counsel for the appellant firstly contended that the courts below were not justified in holding that the shop of Subedar was to the east of the three shops sold by Abdul Rahman, that in fact there was shop of Mitthoo Lal, appellant to the east of the shops sold by Abdul Rahman on 20-10-1930, that as such the shop shown in yellow colour was the exclusive property of the appellant. This contention is fully negatived by the mortgage deeds Exs. A-20 and A-21 and sale deed Ex. 9 which have been indicated above. There is no substance in the contention of the appellant's counsel that as these documents came into existence prior to the sale deed in question, they were not material. Correctly speaking these documents are material to indicate whether the eastern boundary was correctly written in the sale deed Ex. A 19. Burden lay upon the appellant to indicate that this boundary was correctly written because according to the appellant himself he was mainly responsible in obtaining the sale deed from Abdul Rahman and his brother's name was simply fictitious. Both the courts below have found that the name of Tara Chand was not fictitious. In any case the earlier documents clearly indicate the extent of the property of Abdul Rahman. One of these documents is in favour of Parmeshwar Das, father of the appellant. Then there is mortgage deed Ex. A 18 in respect of two shops which are towards west and shown in green colour in the map. In this deed both the brothers clearly showed 'shop rahin' towards east. Thus the shop towards east was of both the mortgagors, Mithoo Lal and Tara Chand. It is not easily possible to say that on the basis of the word 'rahin' used therein that it was shop of Mithoo Lal only. If the contention of the appellant's counsel is correct that instead of 'Rahiman' only word 'Rahin' was written, then the shop can be said to be of Tara Chand only. Ordinarily singular includes plural and plural includes singular. Therefore, eastern boundary of mortgage deed, Ex. A18 shows that to the east of the shop mortgaged thereby there was shop of Mithoo Lal and Tara Chand both.

12. The result of what has been said above is that the documentary evidence considered as a whole leaves no room for doubt that the shop shown in the yellow colour was included in the sale deed of Abdul Rahman and as such the respondent had half share in the shops shown in green and yellow colours in the map.

13. The appellant's counsel next contended that the name of Tara Chand was simply benami. In this connection he pointed out that the mortgage deed Ex. A18 was redeemed by Mithoo Lal only. Both the courts below found that the name of Tara Chand was not fictitious. The main ingredient to indicate whether the transaction was benami is from whose coffers the consideration flowed. This is a question of fact which has been decided by both the courts below against the appellant. Therefore, the finding that the name of Tara Chand was not fictitious or ostensible cannot be interfered with by this Court.

14. The mortgage was redeemed in the year 1936. Tara Chand had died in August 1934. At the time of the redemption of the mortgage, the appellant was the appointed guardian of the respondent. Record shows that the appellant had withdrawn the money of the respondent from a Bank. The appellant has not filed copies of the accounts which he must have filed in court in the guardianship case. Therefore, in these circumstances, it cannot be held that the appellant alone had redeemed the mortgage. Even if he had alone redeemed the mortgage, he can seek contribution. But on this ground he cannot say that the rights of the respondent had passed to him.

15. The appellant's counsel pointed out that the suit was barred by time. The respondent was born on 12-11-1930. On attaining the age of 18 years, he became major on 12-11-1948. The suit was filed on 27-11-1963. It was pointed out that it was in evidence that the respondent and his mother were turned out by the appellant in the year 1947.

This statement shows that the respondent and his mother who were living along with the appellant were turned out of the house. This part of the statement does not show that the respondent was turned out of the disputed property and that from the year 1947, the possession of the appellant on the disputed property became adverse. Therefore, it is not correct to argue that the suit for partition was barred by time.

16. Lastly, the appellant's counsel contended that the trial court had no jurisdiction to try the suit because the entire disputed property was worth more than Rs. 5000/-. The pecuniary jurisdiction of a Munsif extends up to Rupees 5000/-. The entire property was valued by the learned Munsif at Rs. 7680/-.

17. In this connection the appellant's counsel further urged that the shop was worth Rs. 15000/- and that the finding of the learned Munsif that the shop was worth Rs. 7680/- was not correct,

18. Taking the finding of the learned Munsif dated 10-9-1976 as correct, the respondent valued the suit at Rs. 3840/-, the value of his half share. Section 4 of the Suits Valuation Act, 1887 as amended in this State lays down that the suits mentioned in paras iv-a......... vi-a of Section 7 of the Court Fees Act shall be valued for the purpose of jurisdiction at the market value of the property involved in or affected by or the title to which is affected by the relief sought or at the amount involved in or affected by or the title to which is affected by the relief sought,

19. Section 7(vi-a)' of the Court Fees Act relates to suits for partition. In the case of Mohd. Mustaq v. Mst Baqridan, AIR 1952 All 413 it was held that a suit for partition of the plaintiffs' share must be valued for purposes of jurisdiction under Section 4 of the Suits Valuation Act according to the share of the plaintiff. In this case an earlier decision of this Court was relied on. Thus there is a direct authority of this Court against the appellant. Moreover, the words used are 'property involved in or the total of which is affected by the relief sought'. In the instant case the respondent claims half share in the property. Thus the suit relates to the half share of the respondent in the property. The relief claimed relates to the half share of the respondent in the property. There is no dispute to the half share of the appellant in the property.

This point may be considered from another aspect. In suits for partition, where the plaintiff is not in actual possession of the property sought to be partitioned, relief of possession is claim- . ed. Section 7(VI-A) of the Court Fees Act lays down that in suit for partition the court fees is chargeable according to the one quarter of the value of the plaintiff's share, or according to the full value of the plaintiff's share, if the plaintiff was out of possession on the date of presenting the plaint. There is an explanation attached to this sub-clause. This explanation says that the value of the property shall be the market value computed in accordance with sub-section (V), Sub-sections (V-A) and (V-B) are not mentioned here because they are not applicable to the instant case. Section 7(V)(II) lays down that in suits for possession of a building, the court-fee chargeable is according to the market value of the building. Section 4 of the Suits Valuation Act also refers to Section 7(V) and it clearly says that suits for possession of a building for the purposes of jurisdiction shall be valued at the market value of the property involved. Thus where in a suit for partition the plaintiff also claims possession of the property allotted to him, he would be liable to pay court fee on the market value of the property upon which he seeks possession. Therefore, for the purposes of jurisdiction also the property upon which possession is sought has to be valued at its market value. Thus there is reciprocity between Section 7(V) of the Court Fees Act and Section 4 of the Suits Valuation Act.

20. The result of what has been said above is that in a suit for partition, for the purpose of jurisdiction the share of the plaintiff in the property is to be Valued and not the value of the entire property out of which the share is claimed.

21. For what has been found above it is not correct to say that the suit was not triable by the learned Munsif.

22. With regard to the market value there is a clear finding of the learned Munsif. There appears no mistake in arriving at the said value. It shall be noticed that the learned Munsif fixed the value at 20 times of the annual rental. This is one of the modes of finding out the valuation and it cannot necessarily be said to be wrong.

23. No other point was urged.

24. For the findings arrived at above, this appeal is wholly without merit Appeal is dismissed with costs.


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