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Umardaraz Ali Khan and ors. Vs. Wilayat Ali Khan - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All165
AppellantUmardaraz Ali Khan and ors.
RespondentWilayat Ali Khan
Excerpt:
act no. vii of 1870(court fees act), section 12 - court fees--question of deficiency of court fees not raised in the court of first instance--practice--estoppel. - - 2. the first objection raised in this appeal is that the suit was barred by limitation by reason of the plaint having been written on stamp paper of insufficient value, and the deficiency not having been made good until after the expiry of the period of limitation. as soon as the mistake was discovered they made good the amount of the deficiency......to the house no. 6, in which a school is held. it is contended that this house is apart of the waqf property under the will. the lower court has held against the defendant on this point, and we are of opinion that its conclusion is right. it is true that the will has provided for the expenses of a school, but there is nothing to show that the building in which the school is held was made waqf property. another item of property, which the defendant appellant urges is waqf property under the will, is item no. 9 of list b. i.e., grove land no. 4509. the will declared muafi and resumed land adjoining the mosque and idgah to be a part of the waqf property. it has been proved that there is a plot no. 560 which answers fully the description of the land referred to above. it is resumed muafi.....
Judgment:

Banerji and Aikman, JJ.

1. The plaintiffs in the suit out of which this appeal has arisen are the heirs of Mansab Ali, who died on the 10th of August 1878. On the 18th of June 1878 he made a will by which he devised certain property to his heirs; he made a waqf of certain other property; and died intestate as regards the rest. It was the property last mentioned, in which a share was claimed by the plaintiffs. The suit was dismissed by the Court of First Instance, but, on appeal to this Court, the decree of the lower Court was set aside, and the case was remanded, under Section 562 of the Code of Civil Procedure, for trial on the merits. It has been tried, and the Subordinate Judge has decreed a part of the claim. Both parties have appealed. This appeal has been preferred by the defendant. The original defendant was the widow of Mansab Ali, but, she having died during the pending of the suit, the present appellant was substituted for her as her legal representative.

2. The first objection raised in this appeal is that the suit was barred by limitation by reason of the plaint having been written on stamp paper of insufficient value, and the deficiency not having been made good until after the expiry of the period of limitation. The plaint was filed on the 13th of May 1890. It was discovered on the 9th of May 1894 that there was a deficiency in the amount of the court fees payable for the plaint. The deficiency was of a very small amount, and arose out of a mistake which any one under the circumstances might naturally have made. The deficiency had reference to the valuation of the claim in respect of two pieces of land which were revenue-free, but in respect of which, in the patwari's papers, certain sums were entered as payable to Government. These sums were, by a natural mistake on the part of the plaintiffs, assumed by them to be revenue payable for the land, and on that mistaken assumption they valued the claim. As soon as the mistake was discovered they made good the amount of the deficiency. It is true that this was done after the expiry of the period of limitation for the institution of the suit; but we are of opinion that we should not for this reason be justified in allowing the plea of limitation to be raised and in holding the claim to be barred. under Section 12 of Act No. VII of 1870 the decision of the Court of First Instance upon a question relating to valuation, not affecting the question of category, is final. Had the objection as to valuation, which has now been raised, been taken before the decision of the suit by the Court of First Instance in 1891, and had the decision of the Court upon that question been adverse to the defendant, that decision would have been final. This is a plea which might have been taken before the decision of the suit by the Court of First Instance on the first occasion and before the remand by this Court. Under such circumstances we must hold that the Court must be deemed to have decided the question adversely to the party who now seeks to raise it. We refuse to entertain an objection raised at this stage of the suit and nearly four years after the filing of the plaint.

3. The next objection taken in the memorandum of appeal relates to the house No. 6, in which a school is held. It is contended that this house is apart of the waqf property under the will. The lower Court has held against the defendant on this point, and we are of opinion that its conclusion is right. It is true that the will has provided for the expenses of a school, but there is nothing to show that the building in which the school is held was made waqf property. Another item of property, which the defendant appellant urges is waqf property under the will, is item No. 9 of list B. i.e., grove land No. 4509. The will declared muafi and resumed land adjoining the mosque and idgah to be a part of the waqf property. It has been proved that there is a plot No. 560 which answers fully the description of the land referred to above. It is resumed muafi land, and a grove exists on it. In our opinion the land adjoining the mosque and idgah which was declared to be waqf did not consist of two plots, but was one plot of land on which a grove existed: such a plot is No. 560. The land, No. 4509, does, it is true, contain a grove, but it is not resumed munfi land and therefore it does not answer the description of the property mentioned in the will. In our judgment the Court below has rightly decreed the claim in respect of these two properties. This disposes of the appeal, which we dismiss with costs.


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