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Darbari Lal and ors. Vs. Smt. Dharam Wati - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 419 of 1954
Judge
Reported inAIR1957All541
ActsCourt-Fees Act, 1870 - Sections 2 and 7; General Clauses Act, 1897 - Sections 3; Stamp Act, 1898 - Sections 2
AppellantDarbari Lal and ors.
RespondentSmt. Dharam Wati
Advocates:Gopal Behari, J.
Excerpt:
civil - court-fees - sub-section (ii)(a) of section 7 of court fees act, 1870 - personal maintenance by female - determination of the question of payment of court-fees - held, it is value of the amount actually claimed by the plaintiff in the suit and not the lesser amount decreed by the trial court. - - an appeal clearly cannot come within the ambit of the proviso unless it is against a decree in a suit which has been instituted by a female or a minor; 20. the taxing officer has reported that the court-fee paid by the appellants, in respect of their second appeal as well as in respect of the cross objection which they had filed in the lower appellate court, was insufficient and both the appeal and the cross objection had been wrongly valued. 'a cross objection' and a suit includes 'a.....mootham, c.j.1. this case involves the interpretation of section 7 clause (ii) (a). court-fees act. as in force in this state. the relevant facts are these :2. the respondent, a hindu widow, filed a suit for the recovery of arrears of maintenance, and for an order for future maintenance at the rate of rs. 40 per month to be secured by a charge on certain property in the hands of the appellants. the appellants are the respondent's deceased husband's brother and two minor sons of the latter. the trial court granted the respondent a decree for future maintenance at the rate of rs. 20 a month and directed that the payment of such maintenance be made a charge on the appellant's property.against this order the respondent filed an appeal and the appellants a cross objection, both of which were.....
Judgment:

Mootham, C.J.

1. This case involves the interpretation of Section 7 Clause (ii) (a). Court-Fees Act. as in force in this State. The relevant facts are these :

2. The respondent, a Hindu widow, filed a suit for the recovery of arrears of maintenance, and for an order for future maintenance at the rate of Rs. 40 per month to be secured by a charge on certain property in the hands of the appellants. The appellants are the respondent's deceased husband's brother and two minor sons of the latter. The trial Court granted the respondent a decree for future maintenance at the rate of Rs. 20 a month and directed that the payment of such maintenance be made a charge on the appellant's property.

Against this order the respondent filed an appeal and the appellants a cross objection, both of which were dismissed by the lower appellate Court. The appellants have now filed a second appeal in this court, and the question has arisen as to the sufficiency of the court-fee paid by the appellants on their second appeal and on the cross objection which they filed in the lower Court. It is only with the latter that we are now concerned.

3. The appellants paid a court-fee of Rs. 24 on their cross objection; the Taxing Officer is of opinion that the value of the subject-matter of the cross objection was Rs. 2,400 upon which a court-fee of Rs. 275-8-0 is payable, to which must be added Rs. 18/12/- as the court-fee on that part of the cross objection which seeks to have set aside the order directing that payment of future maintenance be charged on the appellants' property. To the payment of this latter sum no objection is taken

4. Now Section 7, Clause (ii) (a), of the Court-Fees Act reads thus :

'7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows;

(ii) (a) In suits for maintenance and annuities or other sums payable periodically--According to the value of the subject-matter of the suit such value shall be deemed to be ten times the amount claimed to be payable for one year ;

Provided that in suits for personal maintenance by females and minors, such value shall be deemed to be the amount claimed to be payable for one year.'and Section 2 of the Act provides that unless there is anything repugnant in the subject or context 'appeal' includes a cross objection and

' 'suit' includes a first or second appeal from a decree in a suit and also a Letters Patent Appeal.' Reading these two provisions together, the proviso, ia the case of a first appeal, accordingly reads thus : 'Provided that in first appeals from decrees in suits for personal maintenance by females and minors, such value shall be deemed to be the amount claimed to be payable for one year'. The question is whether this proviso applies only when the appeal is filed by females or minors or whether, as the appellants contend, it is immaterial by whom the appeal is filed provided it is from a decree in a suit for personal maintenance which was instituted by a female or a minor. The matter has been considered by this Court on three occasions In Chief Inspector of Stamps v. Brij Raj Singh : AIR1950All55 . Seth. J., took the view for which the appellants now contend, but that case was subsequently overruled in Shankar Ojha v. Mst. Jotia : AIR1952All605 . The correctness of that decision is now challenged. The third case is Chief Inspector of Stamps v. Ram Avadh Chowdhury : AIR1953All175 , a case not cited in argument but to which my attention has been drawn by my brother Srivastava. In that case I took a view similar to that which subsequently found favour in Shankar Ojha's case (B).

5. I may observe at once that in my opinion neither Rs. 240, the amount open which the appellants contend the court-fee should be determined, nor Rs. 2,400, the amount upon which the Taxing Officer calculated the fee, is correct. Under Clause (ii) (a) of Section 7 the court-fee is payable on the value of the subject-matter of the suit which is artificially fixed at either the amount of the maintenance claimed to be payable for one year (under the proviso) or at ten times that amount under the clause itself. As the maintenance claimed to be payable was Rs. 40 a month or Rs. 480 a year the court-fee will be payable either on Rs. 480 or on Rs. 4,800.

6. In Shankar Ojha v. Mst. Jotia (B), the Court held that it was the intention of the Legislature that only females and minors suing for their persona! maintenance should be given a concession in the matter of court-fee, and that accordingly the benefit of the proviso had to be confined to such persons. The Court was further of opinion that 'since the word 'suit' includes an appeal the expression 'by females and minors' must also refer to appeals filed by them'.

7. With great respect to the learned Judges who decided Shankar Ojha's case (B), I think that the construction which Seth, J., gave to this proviso is to be preferred and that on further consideration the conclusion at which I arrived in Chief Inspector of stamps v. Ram Avadh Chowdhury (C), is erroneous.

8. In my opinion the phrase 'by females and minors' in the first sentence of the proviso:--

'Provided that in first appeal from decrees in suits for personal maintenance by females and minors. ........'

must, as a matter of grammatical construction, refer to the persons who have instituted the suits and not to those who filed the appeals. I think that these words cannot be transposed and read as though they appeared in the proviso after the word 'appeal' without doing some violence to the language. The proviso applies to appeals from decrees in certain suits, and if tile question be asked; which suits?--the answer in my opinion can only be the suits for personal maintenance which have been instituted by females and minors. An appeal clearly cannot come within the ambit of the proviso unless it is against a decree in a suit which has been instituted by a female or a minor; tout that will be the consequence if the proviso is read as if the words 'by females and minors' are transposed for the proviso will then refer to an appeal from the decree in any suit for personal maintenance, I venture to think that it is an error to regard the word 'suit' in Clause (ii) (a) as including an appeal without giving due weight to the qualifying words from a decree in a suit'.

9. An interpretation clause does from time to time lead to unforeseen results. The Shop Hours Act, 1892, (55 and 56 Vict. c. 62) defined the word 'shop' as including licenced public houses and refreshment houses of any kind. It was held in Savoy Hotel Co. v. London County Council, (1900) 1 QB 665 (D) that as the Savoy Hotel had a licened public house attached to it it was a shop within the meaning of the Act. In the course of his judgment Channell, J., said-

'. . . . .we ought not to give any importance to the fact that the Act appears to apply to establishments which one would have thought there would be no intention to include within its scope, for the result of an interpretation clause is frequently to bring the most incongruous things within the operation of a statute.'

10. I am of opinion, with respect, that Shankar Ojha v. Mst. Jotia (B), was not rightly decided and that the 'value of the subject-matter of the appellant's cross objection must be taken to be the amount claimed by the respondent to be payable for one year, namely Rs. 480. The appellants must, therefore, pay a court-fee on this amount and in addition the sum of Rs. 18/12/- in respect of which there is no dispute.

Dayal, J.

11. I agree.

Mukherji, J.

12. I agree.

Mehrotra, J.

13. I agree.

Srivastava, J.

14. I very much regret my inability to share the view which my learned brothers are taking in this case.

15. The question for the decision of which this Full Bench has been formed relates to court-fee. The decision turns on the interpretation that has to be put on the proviso to Section 7(ii)(a) of the Court-Fees Act, as amended by this State.

16. The facts, which have given rise to the question, are not in dispute. The respondent, a Hindu widow, filed a suit to recover arrears of maintenance. She also claimed future maintenance at the rate of Rs. 40/- per month and wanted it to be secured by a charge on some property in the hands of the appellants who are her deceased husband's brother and the two minor song of the latter. She valued the relief for future maintenance at Rs. 480/- under the proviso to Section 7, Court-Fees Act.

17. The trial Court awarded future maintenance at the rate of Rs. 20 per month only and also made the amount a charge on the appellant's property. Against that decree, the respondent preferred an appeal in which she claimed that the amount of her maintenance allowance be Increased to Rs. 40 per month as originally claimed. The appellants filed a cross objection in which they contended that the respondent was not entitled to maintenance at all. They valued the cross objection at Rs. 240, the amount payable for one year at the rate fixed by the trial Court.

18. The lower appellate Court dismissed both the appeal and the cross objection.

19. The appellants have now filed a second appeal in this Court and have valued it at the same figure at which they had valued their cross objection in the lower appellate Court.

20. The Taxing Officer has reported that the court-fee paid by the appellants, in respect of their second appeal as well as in respect of the cross objection which they had filed in the lower appellate Court, was insufficient and both the appeal and the cross objection had been wrongly valued. He is of the view that the appellants were not entitled to take advantage of the proviso to Section 7(ii)(a). Court-Fees Act and to value their cross objection or second appeal at the amount of maintenance payable for one year at the rate allowed by the trial Court.

According to him, they were bound to value it at ten times that figure under the main clause and to pay ad valorem court-fee on that amount. In addition, the appellants were bound to pay the fixed court-fee of Rs. 18-12-0 on that part of the cross objection and the second appeal which related to the creation of a charge on their property.

21. Learned counsel for the appellants did not dispute their liability in respect of the last mentioned amount, but contended that the view of the Taxing Officer about the valuation of the second appeal and the cross objection was not correct. The Taxing Officer, in support of his view, relied on the case of : AIR1952All605 , while learned counsel for the appellants sought support for his contention from the observations of Seth J. in the case of : AIR1950All55 , which case was expressly overruled by the case of : AIR1952All605 . The question of proper valuation of the cross objection in the lower appellate Court was referred to the Taxing Judge. He thought that the question required re-consideration by a larger Bench. This Full Bench was therefore, constituted to decide the question.

22. Section 7(ii)(a), Court-Fees Act, reads thus :--

'7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:--

(ii) (a). In suits for maintenance and annuities or other sums payable periodically--according to the value of the subject-matter of the suit and such value shall be deemed to be ten times the amount claimed to be payable for one year; Provided that in suits for personal maintenance by females and minors, such value shall be deemed to be the amount claimed to be payable for one year'. Section 2 of the Act provides that-

'. . . . unless there is anything repugnant in the subject or context:-- (i) 'Appeal' includes a cross objection (iv) 'Suit' includes a first or second appeal from a decree in a suit and also a Letters Patent Appeal.'

23. Two contentions have been pressed before us on behalf of the appellants. They are;

1. According to the definition clause, an appeal includes. 'A cross objection' and a suit includes 'a first appeal from a decree in a suit'. If, therefore we at first substitute the term 'a first appeal from a decree in a suit' in place of the word 'suit' in the proviso to Section 7 and then substitute the word 'cross objection' for the word 'appeal', the proviso will read like this :--

'Provided that in a cross objection, against a decree in a suit for personal maintenance by females and minors, such value shall be deemed to be the amount claimed to be payable for one year.' Irrespective of the person who filed the cross objection, the valuation of a cross objection if it is against a decree passed in a suit for personal maintenance' by females and minors must be made at the amount 'claimed to be payable for one year. The appellants had, therefore rightly valued their cross objection in the lower appellate Court at the sum of Rs. 240/- which was the amount payable to the respondent as maintenance for a year according to the decree of the trial Court. As the appellants too could get the advantage of the proviso, it was not necessary for them to value their cross objection at ten times the amount, claimed to be payable for one year.

2. That, in any case, the Taxing Officer was Incorrect in his view that the appellants were bound to value their cross objection at RS. 4,800. The 'respondent had certainly claimed maintenance at the rate of Rs. 40 a month or Rs. 480 a year in her suit, but the trial Court had allowed her maintenance at the rate of Rs. 20 per month or Rs. 240 a year only. After the decree, the amount payable for one year became Rs. 240 only. The appellants could not, therefore, toe compelled to value their dross objection at Rs. 4,800. If the proviso applied, they were entitled to value it at Rs. 240 and if the main clause applied, they could value it at Rs. 2.400/-.

24. The second contention appears to be clearly untenable. Both in the main clause and in the proviso the words used are 'the amount claimed to be payable for one year''. The 'claim' referred to is obviously the claim of the plaintiff. If the plaintiff claimed maintenance at the rate of Rs. 40 a month, the amount claimed to be payable for one year by her was Rs. 480. The fact that the Court had decreed the claim at a lesser rate appears to be entirely immaterial at least for the purposes of valuation of the cross objection or the appeal.

The words used are not 'the amount held to be payable for one year', but the 'amount claimed to be payable for one year'. In the circumstances it appears to be clear beyond doubt that if the proviso applies, the cross objection must be valued at Rs. 480 and if the main clause applies, it must be valued at Rs. 4800. In no case could the appellants have valued their cross objection at a figure lower than Rs. 480.

25. The main question, however, is the one raised by the first contention, viz., whether the appellants were bound to value their cross objection under Section 7 itself or whether they could get advantage of the Proviso to that clause.

26. For a correct approach to the question, it is in my opinion, necessary to bear in mind four considerations about which there cannot be much dispute, namely-

1. The general rule appears to be laid down in Section 7(ii)(A) itself according to which all suits for maintenance and annuities or other sums paid periodically have to be valued at ten times the claim for one year.

2. The proviso to the clause enacts an exception to the general rule. The proviso was added by Section 6 of U.P. Act No XIX of 1938 and the obvious intention with which it was enacted was to provide a cheaper, means to females and minors to claim their maintenance in certain cases. It in a way, provides a concession for females and minors who cannot be expected financially to be as well off as other persons. They are, therefore, allowed to value their claim at one-tenth of the figure at which it has to be valued, if it is filed by any other person. The concession is, however, subject to two conditions.

The first condition is that the suit should be for personal maintenance and not for maintenance of any other kind. The second condition is that the suit should be instituted by females or minors. The concession was not intended to be available to any other kind of disabled or poor persons. Thus if the plaint relates to the maintenance of an adult lunatic, it will have to be valued under the general rules, even though it is filed by a female as the next friend of the lunatic. Similarly even a minor will not be entitled to take advantage of the proviso if the suit, which he files, does not relate to his personal maintenance but is for the recovery of an annuity payable to him otherwise.

3. The valuation of a claim for maintenance, annuity or other amount payable periodically cannot be made at the discretion of the plaintiff according to his own sweet will. It has to be made at a figure fixed by the Legislature. The valuation is thus artificially fixed. If the case falls under, the main clause the valuation will have to be made at ten times the annual amount claimed and if it falls under the proviso it will have to be made at the amount claimed for a year only.

4. Section 7 of the Court-Fees Act deals only with the way in which the subject-matter of various kinds of suits has to be valued. It does not deal with the payment of court-fee, 'Court-fee' is chargeable in respect of documents filed in the High Court under Section 4, Court-Fees Act and in respect of documents filed in the Mofussil Courts or any public office under Section 6 of the Act. Both these sections contain a reference to the first or second Schedule of the Act under which the court-fee payable on each document is mentioned, plaints and memoranda of appeal are mentioned in Article 1 of Schedule I. Originally, a cross objection was also specifically mentioned in that article.

When, however, by Act XIX of 1938 the word 'appeal' was defined in Section 2(1) of the Act as including a cross objection, the word 'cross objection' was deleted from the article. Ad valorem court-fee calculable on the basis of the subject-matter in dispute has, therefore, to be paid in respect of a plaint, memorandum of appeal or cross objection under Article l of Schedule I. The 'subject-matter in dispute' has to be valued according to the provisions of Section 7. In most cases, the subject-matter in dispute in an appeal is likely to be the same as that of the suit. The court-fee payable in an appeal is, therefore, usually the same as is payable in the suit.

This rule, is however, not a universal rule without exception. It is possible that the controversy in respect of a portion of the subject-matter may conclude with the decree of the trial Court. In that case, the subject-matter of dispute in the appeal will obviously not be the same as was that of the suit. In some cases, like a suit for account, it is permissible for the plaintiff to value the suit at one figure but when the defendant files his appeal, he may value his appeal, at a different figure vide Ghalib Rasul v. Mangilal : AIR1949All382 . If, however, the Legislature has provided that the valuation of a suit or appeal must be made in a particular manner, it has to be made in that manner irrespective of the range of controversy, even if such a Valuation results in an anomaly. Such an anomaly was noticed in connection with appeal in redemption suits in Abdul Haq v. Shamshuddin : AIR1941All357 and Kishen Lal v. B. Preduman Kishen Singh : AIR1946All303 .

27. The strongest ground urged by the learned counsel for the appellant in support of his first contention is that in view of the definition clause, the proper way to interpret the proviso is to substitute the words 'cross objection from a decree in a suit' for the word 'suit' in the, proviso. If that is done, the phrase 'by females and minors' in the proviso will be found to refer to the persons who have instituted the suit and not to those who filed the cross objection, if, therefore, a suit for personal maintenance had been filed by a female or minor and an appeal or cross objection has to be filed against a decree passed, in that suit, the proviso will apply even if the parson filing the appeal or cross objection is not a female or minor.

The only thing necessary is that the suit for personal maintenance should have been filed by a female or minor. If that is so the proviso will apply. To attract the application of the proviso it is not necessary that the appeal or cross objection itself should be filed by some female or minor.

28. His second ground is that if the Legislature has provided for an artificial valuation of the subject-matter of a suit, the valuation must remain constant throughout all stages of the litigation. The suit having been filed by a female, it had been valued at Rs. 240/-. How, he argues, can it be said that the appeal should be valued at higher figure? Reliance is placed, in this connection, on the case of Rahman v Bal Chand, reported in AIR 1937 Nag. 6 (H).

29. He finally argues that even if it is conceded that the proviso is meant to confer a concession in the matter of court-fee on females and minors the concession is likely to prove illusory at least in some cases if the proviso is interpreted in the way in which it has been interpreted in : AIR1952All605 . Thus if a female obtains a decree for maintenance against which an appeal is later allowed with costs, she will have to pay, if the decision in Shankar Ojha's case (B), is correct, the costs of the appeal which will include ten times the court-fee which she herself paid when she filed the suit. Difficulties are also likely to arise if at the time of the filing of the suit a plaintiff is a minor but at the time of the filing of the appeal he becomes a major.

30. To me it appears that Clause (IV) of Section 2. Court-fees Act, does not intend to provide a synonym or exact equivalent for the word 'suit' so that it may be substituted for that word wherever it occurs in the Act. Reading the proviso by substituting the phrase 'first or second appeal or cross objection from a decree in a suit' for the word suit is not, therefore, the correct way of interpreting the proviso. Words or expressions are defined in statutes by employing the words 'means', 'includes', 'denotes' and 'is deemed to be'.

When 'means' is employed it shows that the definition is a hard and fast definition and that no other' meaning can be assigned to the word or the expression defined than is put down in the definition. The use of the word 'denotes'' shows that the Legislature did not intend to put down a cast iron definition of the word but only sought to describe what the word might mean. When a thing is 'deemed to be' something, the only meaning possible is that whereas it is not in reality that something, the Act directs that it should be treated as if it were that thing.

As pointed out by Sri Jagdish Swarup in his Interpretation of Indian Statutes at p. 165 'The word 'include' or 'shall be deemed to include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute, or where it is intended that while the term defined should retain its ordinary meaning its scope should be widened by specific enumeration of certain matters which its ordinary meaning may or may not comprise so as to make the definition enumerative and not exhaustive, and when it is so used, these words or phrases must be considered as comprehending not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include' .

In Bapu Vithal v. Secy. of State, AIR 1932 Born 370 (I), it was accepted as a well-settled principle of judicial interpretation that the inclusive meaning of a term is not to be necessarily and indiscriminately applied to the word. It was observed at page 374 that :--

'Where a term is interpreted in a statute as 'including' etc., the comprehensive sense is not to be taken as strictly defining what the meaning of the word must be under all circumstances but merely as declaring what things may be comprehended within the term where the circumstances require--that they should'.

When, therefore, 'a suit' was defined in Section 2, Clause (iv) as including 'a first or second appeal from a decree in a suit', the entire phrase 'a first or second appeal from a decree in a suit'' was in my opinion, not intended to be substituted for the word 'suit' whenever that word occurred in that Act. The only intention of the definition clause appears to be to declare that the provisions of the Act which are applicable to suits should be applied mutatis mutandis to appeals arising out of suits also. As was observed in Shankar Ojha's case (B).-

'From the definition of the word 'suit' it follows that we may, if occasion arises, read for the word 'suit' in the proviso, the word 'first appeal' or 'second appeal' or even Letters Patent Appeal'. Such appeal must necessarily be an appeal arising out of a suit for personal maintenance by a female or a minor. When the proviso is sought to be applied to an appeal it seems to us clear that the appeal must also be filed by a female or a minor. Since the word 'suit' includes appeal, the expression 'females and minors' must also refer to 'appeals instituted by them'. The only effect of reading the proviso with the definition clause, therefore, is that the concession available to females and minors under the proviso is available to them not only in suits, filed by them for personal maintenance but also, if it becomes necessary for them to file appeals and cross objections against decrees passed in such suits.

In my opinion, it could not have been the Intention of the Legislature to confine the concession granted by the proviso to females and minors alone in the trial Court but to make it available to persons not falling in that category also in appeals and cross objections. Had that been the intention, the proviso would have been differently worded.

31. It, therefore, appears to me, if I may say so with respect, that the learned Judges, while deciding Shankar Ojha's Case (B), rightly laid down that:--

'The benefit of the proviso must, therefore, it seems to us, be confined--to females and minors. In their case and in their case alone it seems to us, the value of the subject-matter of the suit, if it is a suit for personal maintenance, is to be the amount claimed for maintenance for one year. Beyond these two classes of persons, we think, the Legislature never intended to give any benefit of the proviso to any one else.'

If the method of interpretation, which for want of a better expression may be called the substitution method, is employed for interpreting the proviso to Section 7, the very intention with which the proviso was apparently enacted is likely to be defeated. The method will create difficulties in connection with other provisions of the Court-Fees Act too. An instance of such a difficulty may be found in the case of Zamurrad Husain v. Ram Sarup. : AIR1943All281 , That was a partition suit and under Section 7(vi-A), Court-Fees Act, it was valued 'according to one quarter of the valuation of the plaintiff's share in the property.'

The defendants did not dispute the plaintiff's share. A preliminary decree was passed and it was followed by a final decree. At that stage, some dispute arose about the allotment of properties to the parties. The plaintiff was not satisfied with the allotment made to him by the final decree and preferred an appeal. As his share was not in dispute, he paid the fixed court-fee of Rs. 15/- only. The Taxing Officer was of the view that the court-fee paid was insufficient. He wanted to interpret Section 7(vi-A) of the Court-Fees Act by the 'substitution method' and pointed out that if the relevant part of that provision was interpreted after substituting the, term 'first appeal from a decree in a suit' for the word, 'suit' used in it, it would read 'In a first appeal from a decree in a suit for partition, according to one quarter of the value of the plaintiff's share of the property.''

The plaintiff, appellant was, therefore, bound to pay court-fee on one quarter of the value of the plaintiff's share in the property. The matter was' referred to the Taxing Judge who did not find it easy to accept the interpretation. Obviously, the difficulty would be greater in case the appeal has to be filed by a defendant whose share in the property is smaller than that of the plaintiff. In that case he (the defendant) would require to value his appeal at one quarter of the value not of his own lesser share but of the bigger share of the plaintiff.

The learned Judge, therefore, thought that the interpretation was not in accordance with common sense, justice and equity and that, if the phrase 'first or second appeal from a decree in a suit' was to be substituted for the word 'suit' in' Section 7(vi-A) it was also necessary to substitute the word 'appellant' for the word 'plaintiff', though there was no provision in the Act for making such a substitution. He consequently held that as no share was in dispute in the case, Section 7 did not apply at all and the court-fee paid was sufficient under Article 17 (vi) of the 1st Schedule.

32. In the case of : AIR1952All175 , the wife had filed a suit for maintenance and had paid court-fee in accordance with the provision to Section 7. The suit had been decreed. The husband appealed and wanted to take advantage of the same proviso. The Chief Inspector of Stamps, however, urged that the court-fee on appeal should have been computed; in accordance with Section 7 and not in accordance with the proviso to Section 7. His contention was accepted by Mootham, J. (as he then was) who laid down that :--

'A 'suit' is defined in Section 2 of the Act as including a first or second appeal, and therefore in proceedings for reduction or enhancement of maintenance, whether by way of suit or appeal, the court-fee must be computed in the manner prescribed in Section 7(ii)(b) of the Act.' He pointed out that in rejecting the contention of the Chief Inspector of Stamps, the District Judge Bad overlooked that the relief sought for in the appeal was not an order for personal maintenance by a female which would have attracted the provisions of Sub-section (ii) (a) of Section 7 but was an order for the reduction of maintenance already awarded and that the court-fee in such case was regulated by another Sub-section namely (ii) (b).

33. Section 7(ii)(b) reads like this :--

'In suits for reduction or enhancement of maintenance and annuities or other sums payable periodically:--

According to the value of the subject-matter of the suit and such value shall be deemed to be ten times the amount sought to be reduced or enhanced for one year.' Now if the substitution method of interpretation is employed and the phrase 'an appeal from a decree in a suit' is substituted for the word 'suit' occurring in the clause, the clause will read thus:--

'In an appeal from a decree in a suit for reduction or enhancement of maintenance and annuities or other sums payable periodically :--

according to the value of the subject-matter of the suit and such value shall be deemed to be ten times of the amount sought to be reduced or enhanced for one year.' Read in that way, the clause could not apply to the husband appellant because the suit, in that case, was not a suit for reduction or enhancement of maintenance. It is, therefore, obvious that Mootham J. did not interpret the clause by the substitution method. He preferred the other way. The appellant was claiming in his appeal the reduction of the maintenance allowance. Had he filed a suit for the same relief, he would have valued it under Section 7(ii)(b). As the considerations applicable to suits were applicable to appeals also in view of the inclusive definition of the word 'suit' as given in Section 2, he was bound to value the appeal also under the same provision.

34. Incidentally this case provides as additional ground in support of the view that the appellants should have valued the cross objection at Rs. 4,800/-. They were, in effect, praying for the reduction of the maintenance allowed to the respondent and could be required to value it under Section 7. No question of their taking advantage of the proviso to Section 7 would arise in that case.

35. In my opinion, therefore, the first contention of learned counsel for the appellant is untenable and cannot be accepted.

36. The usual rule, as I have said above, certainly is that the valuation of the suit should not vary but remain constant throughout all stages of the litigation. It is, therefore, not necessary for anyone to dispute the correctness of the general proposition laid down in the case of Rahman v. Bal Chand (H), relied upon by learned counsel for the appellants. As already observed, the rule has certain well known exceptions. In the present case, the Legislature itself appears to have provided an exception. It provided a concession to females and minors in a particular class of cases, whether suits or appeals. The concession was not available to persons not falling in that category. In this, class of cases, therefore, the valuation of the appeal or cross objection could be different from the valuation of the suit.

37. It appears to me to be obvious that when the Legislature enacted a proviso to Section 7.

It was only conferring a concession on females andminors in connection with the amount needed initially to start a suit or appeal, it could not beconcerned with the costs of the entire litigation. Ifa, suit for maintenance happens to be frivolous orvexatious, even a female plaintiff can be saddledwith special costs. The mere fact that a femaleplaintiff, if she ultimately looses the appeal, mayhave to pay some extra amount cannot, therefore,justify the extension of the concession, meant forthe particular class of persons mentioned in theproviso, to others not mentioned there. The case of a minor plaintiff attaining majority by the timehe finds it necessary to file an appeal stands on adifferent footing. If the concession is applicableto minors only, it will certainly not be availableto a person if, at any stage of the litigation, he attains majority.

38. I have, therefore, come to the conclusion that the interpretation, put on the proviso by the Division Bench in the case of : AIR1952All605 , was the correct one and it is only if the proviso is interpreted in that manner, that the intention of the Legislature can be carried out.

39. I, would, therefore hold that the cross objection filed by the appellant in the lower appellate Court should have been valued by him under the main Clause (ii) (a) of Section 7, Court-Fees Act at Rs. 4800/- i, e., ten times of the amount claimed to be payable for one year and an ad valorem court-fee should have been paid on that amount.

BY THE COURT--The court-fee payable on the appellant's cross objection will be calculated on a valuation of Rs. 480/- plus a court-fee of Rs. 18/12/- on the relief to have set aside the direction that payment of future maintenance be charged on the appellant's property.


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