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idol Shri 'Shriji' and Ors. Vs. Chaturbhai Mangalbhai Patel and Anr. (23.02.1962 - MPHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 403 of 1961
Judge
Reported inAIR1965MP4; 1964MPLJ362
ActsMadhya Pradesh Public Trusts Act, 1951 - Sections 32; Court-Fees Act, 1870 - Sections 7 - Schedule - Article 17
Appellantidol Shri 'Shriji' and Ors.
RespondentChaturbhai Mangalbhai Patel and Anr.
Appellant AdvocateA.P. Sen and ;A.H. Saifi, Advs.
Respondent AdvocateR.S. Dabir and ;V.S. Dabir, Advs.
Cases ReferredIn Motiram v. Daulat
Excerpt:
- - and it is well established that such a suit is governed by section 7(iv)(c) of the court-fees act, whereunder court-fees must be paid on the valuation put by the plaintiff; well be quite disproportionate to the fair value of theproperty......it had no concern with the plaintiff idol or the 'public endowment'; and consequently the suit property, which was the property of the plaintiff idol, could rot be attached and sold in execution of the decree against the said vallabhalalji or his legal representative the widow goswamini ratan prabha, it would thus be seen that the suit property, which is also sometimes spoken of as the property of the idol, has its nucleus in the 'public endowment' created by the late seth moolchandji for 'a public religious and charitable purpose'. the property is thus alleged to be property of a public trust administered for the benefit of the plaintiff idol as opposed to its being the personal property of the late shebait vallabhalalji. on that allegation the instant suit must be held to be a.....
Judgment:

Naik, J.

1. The order in this civil revision shall also govern the disposal of civil revision No. 463 of 1961.

2. Chaturbhai Mangalbhai Patel of Bombay obtained a money decree for about Rs. 3,40,000/- inclusive of interest and costs against Goswamini Ratan Prabha widow of Goswami Vallabhalalji of Bombay as the heir and legal representative of her deceased husband, the original judgment-debtor. Thereafter, having got the said decree transferred to Bhopal for execution, he sought to execute it by attachment and sale of the suit properties. These properties have been specifically mentioned in the decree as belonging to the judgment-debtor.

3. Laxminarayan and Purushottamdas as next friends of the applicant, Idol Shri 'Shriji' of Mandir Shriji, Bhopal, filed a suit (civil suit No. 19-A of 1961) for a declaration and injunction against the aforesaid decree-holder, Chaturbhai Mangalbhai and Goswamini Ratan Prabha, as defendants 1 and 2 respectively, in the Court of the Civil Judge, Class II, Bhopal, inter alia, on the following allegations:

(a) that the suit properties were the properties of the applicant Idol as they were dedicated to it by a public religious and charitable endowment;

(b) that the judgment-debtor Vallabhalalji was only a shebait of the said public endowment;

(c) that the said shebait never incurred any loan for the purpose of keeping up the religious worship or for the benefit and preservation of the property of the idol;

and

(d) that the decree obtained by the decree-holder Chaturbhai Mangalbhai against the shebait Goswami Vallabhalalji or Goswamini Ratan Prabha was personal against them and could not be executed against the property of the idol.

4. The reliefs claimed by the plaintiff in the aforesaid civil suit were:

'(a) That declaratory decree be passed to the effect that plaintiff's properties described above and in Schedule 'A' being public endowment is not liable to attachment and sale in execution of the decree against defendant No. 2 (viz., Goswamini Ratan Prabha).

(b) That permanent injunction order be passed to restrain defendant No. 1 (viz., decree-holder Chaturbhai Mangalbhai) from proceeding with the attachment of plaintiff's properties described above in suit in execution of the decree against defendant No. 2, (viz., Goswamini Ratan Prabha).'

5. The decree-holder defendant contested the suit, inter alia, on the grounds:

(1) That the suit was barred under the provisions of Section 32 of the Madhya Pradesh Public Trusts Act.

(2) That the suit was not properly valued for purposes of Court-fees and jurisdiction.

6. The first question was decided in favour of the decree-holder defendant 1, Chaturbhai Mangalbhai; while the second was decided in favour of the applicant-plaintiff. Both the parties have, therefore, come up to this Court for revision of the said order under Section 115 of the Code of Civil Procedure. Civil Revision No. 403 of 1961 is the revision filed by the plaintiff Idol; while civil revision No. 463 of 1961 is the revision filed by defendant No. 1, decree-holder Chaturbhai Mangalbhai.

7. In order to understand the first question, the provisions of Section 32 of the Madhya Pradesh Public Trusts Act may first be noted. The section says:

'(1) No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court.

(2) The provisions of Sub-section (1) shall apply to a claim or set-off or other proceeding to enforce a right on behalf of such public trust.'

8. The trial Court has held that the claim in suit on behalf of the plaintiff Idol was a suit 'to enforce a right on behalf of a public trust' and as the said trust was not registered under the Madhya Pradesh Public Trusts Act, the suit could not be heard or decided by it.

9. In my opinion, no exception can be taken to the aforesaid finding.

The case of the plaintiff, as disclosed in the plaint, is that the late Seth Moolchandji had not only installed the plaintiff Idol but had also created 'a public religious and charitable endowment' of which the original judgment-debtor, Vallabhalalji, became a shebait on the death of Ranchhodlalji and Gopallalji, the earlier shebaits. It is further alleged that the decree in suit being a personal decree against Vallabhalalij, it had no concern with the plaintiff Idol or the 'public endowment'; and consequently the suit property, which was the property of the plaintiff idol, could rot be attached and sold in execution of the decree against the said Vallabhalalji or his legal representative the widow Goswamini Ratan Prabha, It would thus be seen that the suit property, which is also sometimes spoken of as the property of the Idol, has its nucleus in the 'public endowment' created by the late Seth Moolchandji for 'a public religious and charitable purpose'. The property is thus alleged to be property of a public trust administered for the benefit of the plaintiff Idol as opposed to its being the personal property of the late shebait Vallabhalalji. On that allegation the instant suit must be held to be a suit 'to enforce a right on behalf of the public trust'; and as the said trust is admittedly not registered under the Madhya Pradesh Public Trusts Act, it must further be held that it cannot be heard or decided by the trial Court as held by it.

10. The next question is with regard to the valuation of the suit property in execution of a decree against the judgment-debtor, Goswamini Ratan Prabha. If the plaintiff were to take such an objection in the executing Court and lose therein, it would be filing a suit under Rule 63 of Order XXI of the Code of Civil Procedure and as held by the Privy Council in Phul Kumari v. Ghanshyam Mishra, ILR 35 Cal 202 (PC), to such a suit Article 17 of Schedule II of the Court-fees Act applies and a fixed court-fee would be payable, For purposes of jurisdiction, however, the valuation would be in the words of the Judicial Committee of the Privy Council in ILR 35 Cal 202 (PC) (supra), 'the value to the plaintiff, which, PS pointed out by Pollock, J. in Radhabai v. Madhorao, ILR (1944) Nag 783 : (AIR 1944 Nag 308) means the value of the decree if the value of the property exceeds the decretal amount or else the value of the property if its value is less than the decretal amount. Consequently, in the instant case, if the value of the attached property were about Rs. 85,000/- as alleged by the defendant-decree-holder in his written statement, then that amount, being less than the value of the decree which is about Rs. 3,40,000/- would have governed jurisdiction.

11 and 12. But, this case cannot be governed by Article 17 of Schedule II of the Court-fees Act as the suit is not for setting aside a summary decision of a civil Court. It is a suit for a declaration and an injunction, which, under the circumstances of the case, is a consequential relief and is consequently governed by Section 7(iv)(c) of the Court-fees Act, The plaintiff Idol seeks a declaration of its title to the suit property. The relief of permanent injunction restraining the defendant decree-holder from attaching the said property in execution of his decree is a consequential relief as it flows directly and necessarily from the declaration claimed and is not a relief independent of the relief of the said declaration. I have, therefore, no doubt that the suit of the plaintiff is for a declaration and a consequential relief; and it is well established that such a suit is governed by Section 7(iv)(c) of the Court-fees Act, whereunder Court-fees must be paid on the valuation put by the plaintiff; (see Ratansingh v. Raghurajsingh, ILR (1945) Nag 975 : (AIR 1945 Nag 30) and Waman v. Balwantrao, ILR (1949) Nag 195 : (AIR 1949 Nag 347)).

13. In Motiram v. Daulat, ILR (1938) Nag 558 : (AIR 1939 Nag 50) (FB), it has been pointed out that though court-fee has to be paid on the amount at which the relief sought is valued in the plaint, the plaintiff's valuation must not be arbitrary or capricious, He (the plaintiff) must endeavour to fix a fair value, bearing a relation to the right litigated. If, however, the plaintiff's valuation is arbitrary and unreasonable and the disparity is so great as to show that he has not endeavoured to fix a fair value at all, the Court must correct the valuation.

14. In the instant case, the value of the property in respect of which the declaration of title is claimed is not definitely known. The defendant decree-holderin his written statement alleges it to be Rs. 85,000/-which is less than the value of the decree. The plain-tiff has not given any valuation. All the same it doesappear that Rs. 1,101/- at which the relief of declaration has been valued by the plaintiff is arbitrary and ma?well be quite disproportionate to the fair value of theproperty. As the value of the relief to the plaintiff maywell be the value of the attached property in case it isfound to be less than the value of the decree, it shallhave to be first definitely ascertained. The trial Courtshall, therefore, now decide this question after givingthe plaintiff an opportunity to allege and prove what heconsiders to be the true value of thatproperty. After this valuation is correctly determined, the trial Court shall determine the value of therelief claimed to the plaintiff in the light of the observations made above.

15. Under Section 8 of the Suits Valuation Act, the value of the suit for court-fees and jurisdiction must be the same. As the suit in the instant case would have to be valued at the value of the property for the purpose of jurisdiction, in case the valuation alleged by the defendant is proved to be correct, that would also be the valuation for the purpose of court-fees.

15-A. I am, therefore, of opinion that the case must go back to the trial Court for a proper determination of the value of the attached property. If the valuation to determined takes the case out of the jurisdiction of the Civil Judge, Class II, the plaint shall have to be returned to the plaintiff for presentation to the proper Court, where it shall be tried de novo. If, however, the case continues to be within the jurisdiction of the trial Court, it shall be further dealt with by it in accordance with law on payment of necessary court-fees.

16. In the result, civil revision No. 403 of 1961 is dismissed with costs; while civil revision No. 463 of 1961 is allowed with costs. Counsel's fee Rs. 50/- in civil revision No. 403 of 1961 only.


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