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Allah Newaz Sheikh Vs. Mt. Raqiya Bibi and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1949All270
AppellantAllah Newaz Sheikh
RespondentMt. Raqiya Bibi and ors.
Excerpt:
- - if, however, a decree' had been passed in that case, the appeal would clearly be from the decree and then the full bench case of this court mentioned above would clearly apply......in favour of the daughters stood confirmed. in a way, therefore, this appeal is against the decrees-passed in favour of the daughters and the appellant claims that the decrees should have been passed in his favour. the matter was considered by a full bench of this court in jagdish pratap bahadur singh and ors. v. raj kumar udai pratap bahadur singh and ors : air1938all97 and it was decided that in appeals from orders under section 14, ad valorem court-fee-has to be paid under schedule 1, article 1, court-fees. act.6. learned counsel for the appellant relies on two cases, the first is the case of ganga kuar v. sukhjit singh reported in : air1941all163 . there the written statement of the claimant was rejected' on the ground that it was filed beyond the time prescribed by section.....
Judgment:

Wanchoo, J.

1. These are two connected appeals by Allah Newaz in an Encumbered Estates Act matter.

2. The facts giving rise to them are these. There were two applications under the Encumbered Estates Act by two sets of debtors. It so happened that one Farzand Ali was a creditor of both the sets of debtors. On the date the debtors filed their application, Farzand Ali was dead. The debtors, therefore, impleaded Farzand Ali's daughters as heirs of Farzand Ali and showed them in the list of creditors. Necessary notices were issued and eventually a decree was passed in one case for over Rs. 9,500 in favour of the daughters, while in the other case, a decree for over Rs. 5,000 was passed in favour of the daughter's. Both these decrees were under Section 14, Encumbered Estates Act. In both these oases, the present appellant filed objections. His case was that he was the rightful heir of Farzand Ali and that the decrees under Section 14 should have been passed in his favour. The matter was considered by the Special Judge, Second grade, and he dismissed the objections of the appellant in both the cases with costs to the daughters of Farzand Ali. The appellant appealed to the District Judge.

3. A preliminary objection was raised at the hearing of the appeal before the District Judge to the effect that the court fee paid was insufficient. The main point of contention, in this connection, was whether the court-fee should be levied under Schedule l, Article 1, Court-fees Act, or under Schedule 2, Article 11 of the same Act. The contention of the appellant was that the court-fee should be levied under Schedule 2, Article 11 while the contention, on the other side, was that it should be levied under Schedule 1, Article 1. The Court below has decided that the court fee should be levied under Schedule 1, Article 1, that is, ad valorem. The present appeal is from this order of the Court below.

4. The present appellant was not shown as a creditor in the debtors' application. He could, however, make a claim under Section 9, Encumbered Estates Act, because it is possible even for a person who has not been shown as a creditor to come and make a claim under that section. The Special Judge considered the claim made by the appellant in the two cases and came to the conclusion that the appellant was not entitled to a decree. This was a case where there were two rival claimants each claiming to be the heir of Farzand Ali, who was the original creditor. The trial Court decided that the daughters were the heirs and, therefore, the decrees in their favour which had been passed already in the absence of he appellant were confirmed, while the claim of the appellant was rejected and costs were allowed to the daughters of Farzand Ali. These proceedings took place under Section 14 of the Act and these appeals are against the orders passed under Section 14. Section 14 specifically provides that the orders of the Special Judge will have the force of a decree of a competent Court. Ordinarily, therefore, appeals from such orders would be governed by Schedule l, Article 1, Court-fees Act, and court fee will have to be paid ad valorem.

5. It has been urged, on behalf of the appellant, that the real question decided by the Court below was that the daughters and not the appellant were the heirs of Farzand Ali and the decision of this point did not amount to a decree under Section 14, Encumbered Estates Act, and, therefore, Schedule 2, Article 11 applied to the case. This argument, to my mind, is not correct. The real question for the decision before the lower Court was as to whether the claim of the appellant for the amount due to Farzand Ali should be decreed. Of course, the decision of this question depended upon whether the appellant was the heir of Farzand Ali or his daughters were his heirs. The Court decided that the appellant was not the heir and consequently the claim of the appellant was dismissed and the decrees in favour of the daughters stood confirmed. In a way, therefore, this appeal is against the decrees-passed in favour of the daughters and the appellant claims that the decrees should have been passed in his favour. The matter was considered by a Full Bench of this Court in Jagdish Pratap Bahadur Singh and Ors. v. Raj Kumar Udai Pratap Bahadur Singh and Ors : AIR1938All97 and it was decided that in appeals from orders under Section 14, ad valorem court-fee-has to be paid under Schedule 1, Article 1, Court-fees. Act.

6. Learned Counsel for the appellant relies on two cases, The first is the case of Ganga Kuar v. Sukhjit Singh reported in : AIR1941All163 . There the written statement of the claimant was rejected' on the ground that it was filed beyond the time prescribed by Section 11, Encumbered Estates Act. Obviously, such an order could not be a decree. In that case, the Full Bench case of this Court referred to above was considered and was distinguished on the ground that an order passed under Section 14 becomes a decree as specifically pro vided therein. The second case is the one reported in Kr. Rameshwar Bakhsh Singh and Ors. v. L. Govind Prasad and Ors. A.I.R. (28) 1941 Oudh 60. The judgment of that case shows that the appeal was from the decision of two issues framed in a creditor's claim under Section 14 of the Act It does not appear-that any decree had been passed in favour of the creditor. It was then held that that was an appeal against a decision only and fell within the scope of Schedule 2, Article 11 of the Act. If, however, a decree' had been passed in that case, the appeal would clearly be from the decree and then the Full Bench case of this Court mentioned above would clearly apply. In the present case, the order of the Special Judge really amounts to a decree in favour of the daughters against which the appellant is appealing. I am, therefore, of opinion that the lower Court was right in demanding ad valorem court-fee.

7. The appeal is, hereby, dismissed with costs.


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