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Brij Bhushan Mittal Vs. Mannoo Lal Mittal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 33 of 1971
Judge
Reported inAIR1973All313
ActsCourt Fees Act, 1870 - Sections 7
AppellantBrij Bhushan Mittal
RespondentMannoo Lal Mittal and ors.
Appellant AdvocateS.N. Varma, Adv.
Respondent AdvocateK.C. Agarwal, Standing Counsel
DispositionAppeal allowed
Excerpt:
property - benamidar - section 7 (iv a) (u.p.) of court fees act, 1870 - benamidar has no right, title or interest in the property - executed document declaring himself benamidar - held, document does come within the expression 'instrument securing property'. - - the suit clearly is not a suit for adjudging void or voidable the deed, which, it is not disputed is an instrument. shugan chand air1968all216 ,has held that a sale-deed is an instrument 'securing property' within the meaning of section 7 (iv-a) and has observed that the only sense in which an instrument may be regarded as securing immovable property is that it makes the title thereto or its possession and enjoyment safe or certain......i may respectfully say so, very rightly, that the document did not materially differ from a sale deed. the document, in the instant case is not for consideration nor transfers any property nor secures any property. the plaintiff therefore could not be held liable to pay any court-fee under section 7 (iv-a).12. in view of the above finding the third point has become merely academic. it need not therefore be decided. i may, however, all the same mention that under more or less similar circumstances this court in a number of cases has held that court fees would be payable on the consolidated amount of the two reliefs and not separately for each relief (see chief inspector of stamps v. suraj karan, (air 1949 all 170); mt. jileba v. mt. parmesra : air1949all641 ; and suraj prasad v......
Judgment:

A.K. Kirty, J.

1. This is an appeal under Section 6-A of the Court Fees Act (hereinafter called the Act).

2. The plaintiff, his two brothers (defendants Nos. 1 and 3) and their father Piarey Lal constituted a Hindu Joint Family. Piarey Lal died on 9-3-1966; whence, the Share of each of his sons in the coparcenery property became 1/3rd by survivorship. Piarey Lal in his capacity as the Karta of the family had purchased two bungalows with joint family funds. The bungalows belonged to the joint family. Shortly before filing the suit the plaintiff came to know that taking undue advantage of Piarey Lal's old age and mental and physical infirmity, defendant No. 1 in collusion with defendant No. 3 had managed to get a deed dated 24-10-1945 executed by Piarey Lal transferring the bungalows in question to his wife, defendant No. 2. The said deed is void and no title passed to defendant No. 2 thereunder; nor is the plaintiff in any way bound by the same. Upon these allegations, the plaintiff-appellant filed the suit for partition and separate possession of his 1/3rd share in the bungalows.

3. Defendants Nos. 1 and 2 denied the plaintiff's claim and asserted that the bungalows were in reality purchased by defendant No. 2 herself with her own funds, but benami in Piarey Lal's name and never belonged to or were possessed by the coparcenery. In order to avoid any dispute in future Piarey Lal subsequently executed the deed dated 24-10-1945, honestly and truthfully acknowledging and admitting the real facts. It was also pleaded that defendant No. 1 was living separately from his father and brothers since 1927. It was further pleaded that the suit was undervalued and that the plaintiff had not included in the plaint some other property, which was the only property of the family.

4. The plaintiff amended the plaint by including another property and valuing the bungalows at the market value as determined by the court on the basis of the report of the commissioner appointed by it. The plaintiff thereafter paid additional court-fees, and there is no dispute that the total court-fee of Rs. 1307.50 P. paid by the plaintiff is adequate for the relief of partition of the bungalows and the other subsequently included property.

5. Objections, however, were raised by the Chief Inspector of Stamps, as also by the Munsarim of the Court, to the effect that the suit involves adjudging void or voidable the deed dated 24-10-1945, which is an instrument securing property and that therefore the plaintiff is liable to pay ad valorem court-fee under Section 7 (iv-A) of the Act separately on Rs. 27,975.75, being 1/5th of the market value of the two bungalows. These reports were contested by the plaintiff; but the court below has upheld the same and has ordered him to pay further court-fee of Rs. 2507.50 P. The deed dated 24-10-1945 has been treated as a deed of release by the court below. The plaintiff by this appeal challenges the correctness of the order of the trial court and his liability to pay additional court-fee under Section 7 (iv-A) of the Act.

6. Section 7 (iv-A) of the Act (omitting the portions not relevant for purposes of this case) provides as follows:--

Section 7. 'Computation of fees payable in certain suits --

The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:--...(iv-A) For cancellation or adjudging void instruments and decrees--

In suits for or involving cancellation of or adjudging void or voidable ..... an instrument securing money or other property having such value (market value) .....'

The points for determination may be formulated thus:

1. Whether the suit involves adjudging void the deed dated 24-10-1945;

2. Whether the deed is an instrument securing the property (viz., the two bunglows):

3. Whether in case the above questions are answered in the affirmative court-fees will be payable separately under Section 7 (iv-A) and Section 7 (iv-A) both or only on the consolidated amount of all the reliefs.

7. I shall deal with these points in seriatim.

8. In the plaint the only relief claimed is for partition of the bungalows upon the averment that they are and at all material times were coparcenery property. The suit clearly is not a suit for adjudging void or voidable the deed, which, it is not disputed is an instrument. So the question is; Does the suit involve any such adjudgment? It has been argued by Sri Verma learned counsel for the appellant, that the Act being a taxing statute. Section 7 (iv-A) thereof, which casts a very heavy and onerous burden on a litigant, must be strictly construed; and the word 'involving' occurring therein must not be given any liberal connotation. According to him, Section 7 (iv-A) cannot be attracted unless the particular suit necessarily and directly involves, i.e., calls for an adjudication as to whether an instrument of the specified category is void or voidable. The test should be whether such an adjudication would be a condition precedent or an essential pre-requisite to the grant of the relief sought by the plaintiff. If, however any such question arises incidentally or collaterally or by way of a 'side-issue', Section 7 (iv-A) will not be attracted. On the other hand, the learned Standing Counsel has contended that the section should be literally construed and since the word 'involves' itself is a word of wide import, ft must be held to have been advisedly used by the legislature connoting its ordinary and natural meaning.

9. I am inclined to agree with the above contention of the learned Standing Counsel that the word 'involving' occurring in Section 7 (iv-A) of the Act has to be read and construed in the light of the ordinary dictionary meaning of the verb 'involve'. There is nothing in the context to show nor any special reason has been shown why the normal rule of construction should be departed from. Indeed, the legislative history and background would also show that the legislature deliberately used the expression because the word 'involve' itself is not a word which signifies, nor is normally used as signifying something specific, categorical or ascertained but is a word which inherently carries with it a signification of wide and undefined amplitude. I, however, do not consider it necessary to deal with this matter more fully or further because in my opinion the appellant is entitled to succeed on the second point.

10. The Court below has treated the deed dated 24-10-1945 to be a 'deed of release' and on that basis has held the plaintiff to be liable to pay court-fee under Section 7 (iv-A) separately. In my view the document is not a deed of release nor it secures the property, i. e. the two bungalows. According to the plaintiff the bungalows were purchased by his father Piarey Lal with joint family funds in his capacity as the Karta of the family and they were and throughout remained coparcenery property. On the other hand, the contesting defendants assert that Piarey Lal was merely a benamidar for defendant No. 2, who was the real purchaser and had paid the entire consideration from her own funds. It is true that the plaintiff's suit for partition of the bungalows cannot succeed if it is established that Piarey Lal was merely a nominal purchaser, the real purchaser being defendant No. 2; but if it is not established that Piarey Lal was a benamidar for defendant No. 2, the document dated 24-10-1945 will be of no consequence at all. Equally, it will be of no consequence if on the other hand it is proved that defendant No. 2 was the real purchaser and Piarey Lal was merely her benamidar. The document in question is not a deed of conveyance not transfers title or any interest in the property to defendant No. 2. By it Piarey Lal did not release or relinquish any right or claim to the property or some interest therein. Such a document in pith and substance, evidences an admission and acknowledgment and, therefore, may be a valuable piece of evidence, but it does not legally secure any property.

11. A Full Bench of this Court, in Smt. Bibbi v. Shugan Chand : AIR1968All216 , has held that a sale-deed is an instrument 'securing property' within the meaning of Section 7 (iv-A) and has observed that the only sense in which an instrument may be regarded as securing immovable property is that it makes the title thereto or its possession and enjoyment safe or certain. It has further observed that a sale-deed 'assures' in the most effective manner the divesting of the title of the transferor in a property and the vesting of that title in the transferee, and where the sale of a property can take place only by means of a deed it is the sale-deed alone that 'assures' the extinction of the transferor's interest and the acquisition of that interest by the transferee. Gangeshwar J., who delivered the judgment of the Bench, referred to and drew support from--

1. Kamala Devi v. Sunni Central Board of Waqfs, AIR 1949 All 63;

2. J. Balireddi v. Khatipulal Sab, AIR 1935 Mad 863;

3. K. Kutumba Sastri v. Bala Tripura Sundaramma, AIR 1939 Mad 642 (FB);

4. Ram Kumar v. Damodar Das : AIR1949All535 ;

5. Udai Pratap Gir v. Shanta Devi : AIR1956All492 . in arriving at the conclusion that a sale-deed is such an instrument. The learned Judges overruled Chief Inspector of Stamps v. Jashpal Singh, : AIR1956All168 in which a contrary view was taken by a Division Bench. The instruments considered in these cases were either sale-deeds or Waqfnamas or wills by means of which ownership or proprietary title was conveyed or conferred. In the instant case, as already indicated the deed is not a deed of release nor is it a deed of relinquishment; for release or relinquishment both postulate some right interest or claim of the executant in or to the particular property which he foregoes or gives up for the benefit of the person or persons in whose favour he executes the deed. A benamidar has no right title or interest in the property of which he is merely nominal owner, the real owner being someone else. This is the legal position as between the benamidar and the real owner. Therefore, when a benamidar executes a document declaring that he is a benamidar for a person, he merely acknowledges or admits openly and publicly a fact viz., that that person alone acquired title, ownership or interest in the property in question. He does not release or relinquish, any title, interest or claim. Legally he had none. Such, a document, in my opinion, will not come within the mischief of Section 7 (iv-A) of the Act or the expression 'instrument securing property.' I have come across only one reported decision in which a deed of release has been held to be 'an instrument securing money.' In Doraiswami Reddiar v. Thangavelu Mudaliar : AIR1929Mad668 , however by the document in question the rights of the plaintiffs in a partnership and its property had been transferred to the defendants for consideration. The learned Judge, who decided the case, was of opinion and, if I may respectfully say so, very rightly, that the document did not materially differ from a sale deed. The document, in the instant case is not for consideration nor transfers any property nor secures any property. The plaintiff therefore could not be held liable to pay any court-fee under Section 7 (iv-A).

12. In view of the above finding the third point has become merely academic. It need not therefore be decided. I may, however, all the same mention that under more or less similar circumstances this Court in a number of cases has held that Court fees would be payable on the consolidated amount of the two reliefs and not separately for each relief (See Chief Inspector of Stamps v. Suraj Karan, (AIR 1949 All 170); Mt. Jileba v. Mt. Parmesra : AIR1949All641 ; and Suraj Prasad v. Jagannath Prasad : AIR1955All319 .

13. In the result the appeal succeeds and is allowed. The order of the Court below requiring the plaintiff to pay additional court-fee of Rs. 2507.50 is set aside. The parties shall bear their own costs.


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