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Balu Deochand Kulmi and anr. Vs. Fundibai Amichand Kulmi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 108 of 1966
Judge
Reported inAIR1972MP22
ActsCourt-fees Act, 1870 - Sections 7
AppellantBalu Deochand Kulmi and anr.
RespondentFundibai Amichand Kulmi
Appellant AdvocateK.B. Joshi, Adv.
Respondent AdvocateS.D. Sanghi, Adv.
Cases Referred and I. T. Commr. Madras v. Firm Muar
Excerpt:
- - chandrala lakshmamma, air 1952 mad 83 it was explained that when a specific property is claimed, that can never be an unspecified fractional share of the property, though, of course, it will be, like any portion of land, some fraction of the entire land. the weight of authorities clearly is in favour of the view taken in kashirao's case, 1936-43 taxing decisions 39 (nag) cited above. (as he then was) quoted, with approval, the following passage from the decision of the madras high court in air 1927 mad 1002: it is difficult to say that a fraction means a simple fraction like, 1/3, or 1/4 and not a complicated fraction like 19/48 or 37-72, etc. the opposite conclusion can be easily evaded by a clever plaintiff describing the plot he claims and not as so many acres and cents but as.....s.p. bhargava, j.1. this order shall also govern the disposal of the point referred to the full bench in civil revisions nos. 497/66, 498/66 and 521/67. in this case and cases nos. 497/66 and 498/66 reference has been made by krishnan, j. and in the last case by s.b. sen, j. all these revisions were filed in the high court by plaintiffs in different cases who were required to pay the deficit court-fee on market value under section 7(v)(d) of the court-fees act (hereinafter called the act). the references are confined to the question that whether for purposes of assessing the court-fee in a suit regarding a fraction or part of a holding the whole of which is assessed to revenue or to payment of the nature of rent in the absence of revenue, the plaintiff should be required to pay the.....
Judgment:

S.P. Bhargava, J.

1. This order shall also govern the disposal of the point referred to the Full Bench in civil revisions Nos. 497/66, 498/66 and 521/67. In this case and cases Nos. 497/66 and 498/66 reference has been made by Krishnan, J. and in the last case by S.B. Sen, J. All these revisions were filed in the High Court by plaintiffs in different cases who were required to pay the deficit court-fee on market value under Section 7(v)(d) of the Court-fees Act (hereinafter called the Act). The references are confined to the question that whether for purposes of assessing the court-fee in a suit regarding a fraction or part of a holding the whole of which is assessed to revenue or to payment of the nature of rent in the absence of revenue, the plaintiff should be required to pay the court-fee on his claim on the market value of the land under Section 7(v)(d) of the Court-fees Act, or whether the subject-matter should be allowed to be valued on the basis of the revenue payable on the entire estate and the plaintiff should be allowed to distribute the land revenue proportionately on the area claimed by him in the suit. In other words, the question for consideration is as to whether in such cases the claim of the plaintiff falls within Section 7(v)(b) or Section 7(v)(d) of the Act. These clauses read as follows:--

'(v) In suits for the possession of land, houses and garden--according to the value of the subject-matter; and such value shall be deemed to be

Where the subject-matter is land, and--

(b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or where the land forms part of such estate and is recorded as aforesaid;

(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above-mentioned the market value of land;

Explanation-- The word 'estate' as used in this paragraph means--

(i) any land subject to the payment of revenue, for which the proprietor or farmer or raiyat shall have executed a separate engagement to Government, or which, in the absence of such engagement, shall have been separately assessed with revenue;'

2. There is no specific provision, in Sub-clause (b) for the valuation of a fractional share of a part of an estate but in exercise of the powers vested in the State Government under Section 35 for reductions and remissions of court-fees, the State Government has enacted the following rule:--

'(2) When a part of an estate paying annual revenue to the provincial Government under a settlement which is not permanent is recorded in the Collector's register as separately assessed with such revenue, the value of the subject-matter of a suit for the possession of, or to enforce a right of pre-emption in respect of, a fractional share of that part shall, for the purposes of the computation of the amount of the fee chargeable in the suit, be deemed not to exceed five times such portion of the revenue separately assessed on that part as may be rateably payable in respect of the share.'

3. Krishnan. J., in the order of reference, has mentioned the position which emerges on the basis of the Single Bench decisions in Dwarka Prasad v. Pyarelal, 1962 Jab LJ (SN) 376; Bidhichand v. Barelal, 1964 Jab LJ (SN) 83 and Santosh v. Lingraj, 1959 MPLJ (SN) 21 as anomalous because the litigant is required to pay ten or fifteen times more the court-fee if the suit is in respect of a part or fraction of the holding on the market value of the land claimed in the suit, but if he sues for the entire holding he is required to pay only a small fraction of what he had to pay in the suit for a part. The learned Judge also draws attention to the other anomaly which is the result of the first, that in case of a fraction or part of the land the plaintiff is required to file a suit in the Court of larger jurisdiction but he files a suit with regard to the entire holding, in a Court of lower status as in the former case the valuation arrived at on the basis of the market price is many times higher than the value which is calculated on the basis of the multiples of land revenue as stated in Clause (b) of Section 7(v). The learned Single Judge has suggested that the said anomaly can be removed by adopting one or other of the following two alternatives:--

'In any case we can insist on the litigants evaluating the suit as if it is one for the entire holding; the hardship if any would be on him and the excuse obviously is that the fraction or the portion for which the suit is filed is to be deemed equal in value to the whole. A more logical way of doing it is that in the case of an un-demarcated fraction to value it on the basis of the proper multiple of the same fraction of the assessment; in the case of a definite portion to treat that portion as being so valued as to represent for our purposes the entirety of the holding. Either way, the multiple would be much less than the market value calculated according to (d). This I would base upon the recognized principle that statutes on taxation should be applied in a manner most favourable to the citizen, and simply because he has been moderate enough to bring a suit in respect of a part instead of filing it as a whole, not to tax him excessively. One can never get over the absurdity of the present situation where the part becomes much more valuable than the whole and a suit for the part is to be heard by courts of a higher status than the suit for the whole. It is also of interest to note that a litigant who overstates his case and claims the entire holding will pay much less and need go only to a court of lower status. In fact he does not lose much except possibly in the matter of part of the costs because it would be open to the court in a suit for the entire holding to grant relief in respect of the portion or fraction to which the plaintiff has succeeded in proving his claim.'

4. Obviously. S. B. Sen, J., does not agree with the alternatives suggested by Krishnan, J. in the paragraph quoted above. He has pointed out that--

'Undoubtedly, statutes on taxation should bo applied in a manner favourable to the citizen, but there should be a scope for such application. When two views are possible, invariable rule in taxation cases is that it should be interpreted in favour of the subject. If there is no ambiguity in the statute, there is no scope for a different interpretation. If for the possession of an entire holding a smaller amount of court-fee is necessary, then when the claim is for possession of a part, we have only to see what the statute says unequivocally, if, unluckily, he has to claim a portion only, he must pay court-fee for that and not challenge the law on the ground that a luckier person would pay less court-fee.'

The reason which the learned Judge mentioned for making the reference is that as a reference has been made in civil revision No. 108/66 by Krishnan, J., he also referred the case before him.

5. The first point for consideration before us is as to what is the true scope of the provisions made in Section 7(v)(b) and 7(v)(d) quoted above. This question came up for consideration before Mr. Justice Bose (as he then was) in Kashirao v. Ramchandra, 1936-43 Taxing Decisions 39 (Nag). The learned Judge first pointed out that it was necessary to read Section 7(v)(b) along with Section 7(v)(a) because the word 'aforesaid' which was used in Clause (b) related back to Clause (a). He further stated that Clause (a) is divided into two separate paragraphs. The first deals with (a) an entire estate, and (b) a definite share of an estate which pays annual revenue to Government. The second deals with land which 'forms part of such an estate (that is to say, of an estate which pays annual revenue to Government) and is recorded in the Collector's Register as separately assessed with such revenue.' Clause (b) also divides the subject in the same way. The learned Judge then explained the difference between 'part' as opposed to 'definite share' by making the following weighty observations:--

'Therefore the crux of the situation is not the number of digits in the fraction defining the share but whether the claim is for a definite share of a whole estate as opposed to a part of an estate separately assessed to revenue.

In my opinion the section means this. If the plaintiff Claims 1/4, or 5 as, or 6 7/8 pies, or any other fraction (however clumsy) of an entire estate which pays annual land revenue to Government, then the first part of Clause (a) or (b), as the case may be. applies. All this would be a definite share. But if he claims a specified area (22 acres here), then that relates to a 'part' as opposed to a 'definite share', and the second portion will apply if that area is separately assessed. If it is not, then Section 7(v)(d) will apply.

The word 'share' is ordinarily used in litigation to denote a definite fraction of a bundle or parcel of rights and is an abstraction. When therefore the section speaks of shares in an estate as opposed to parts of an estate (which is what it does), then it seems to me that it is drawing a distinction between the abstract rights in an estate and the concrete or physical portion of it.'

6. The view taken in Kashirao's case. 1936-43 Taxing Decisions 39 (Nag); Baldeo Gulabrao v. Abdul Hafiz, AIR 1950 Nag 249 and was referred to and followed by Shrivastava. J. in 1962 Jab LJ (SN) 376 as also by Bhutt, J. in 1959 MPLJ (SN) 21. We will refer to 1964 Jab LJ (SN) 83 later.

7. The words 'definite share' as used in paragraph (v) of Section 7 have all along been considered to mean an undivided and un-demarcated fraction of an estate as distinct from a definite demarcated plot which has been taken out of an estate.

(See Godavarty Sundaramma v. Godavarty Mangamma, AIR 1918 Mad 25; Kundasami Goundan v. Subbai Goundan, AIR 1924 Mad 646; P. Kesanna v. Boya Bala Gangappa, AIR 1947 Mad 297 (FB); Baldeo Gulabrao v. Abdul Hafiz, AIR 1950 Nag 249.

8. In Venkatasubba Rao v. Venkata Rao. 1951-1 Mad LJ 73 = (AIR 1951 Mad 698) a Division Bench of the Madras High Court explained that 'a fractional share predicates that the owner of that share is entitled to every bit of the total extent of the land till a partition is held and specific part is allotted to him.' In Chandrala Seshayya v. Chandrala Lakshmamma, AIR 1952 Mad 83 it was explained that when a specific property is claimed, that can never be an unspecified fractional share of the property, though, of course, it will be, like any portion of land, some fraction of the entire land. It was further explained that where the plaintiff is claiming not a partition of an unspecified fractional share of undivided land but is claiming a specific portion of that undivided land, namely, the 'northern half of the land, court-fee is payable under Clause (d) of Section 7(v) on the market value of the property,

9. If a suit is for a distinct plot and not for a definite share of a separately assessed estate, court fee has to be paid on the market value (see Reference under the Court-fees Act, (1894) ILR 16 All 493; Chandhan v. Bishan Singh, (1911) ILR 33 All 630; Randhir Singh v. Randhir Singh, ILR (1937) All 128 = (AIR 1937 All 206); Haliman v. Mediya, ILR 55 All 531 = (AIR 1933 All 414); Ma Shin v. Maung Hman. 79 Ind Cas 579 = (AIR 1924 Rang 102); Buniad Lal v. Shyamlal, (1908) 12 Cal WN 990; Chandra Narayan Singh v. Asutosh De, ILR 41 Cal 812 = (AIR 1914 Cal 442).

10. The decisions cited above make it clear that Clause (d) is a residuary provision intended to supplement Clauses (a) and (b) and the court-fee is payable on the basis of the Government revenue where the subject-matter of suit is (i) an entire estate or a definite share of an estate paying revenue to Government, or (ii) a part of an estate recorded as separately assessed, or (iii) a fractional share of a part of an estate recorded as separately assessed. However, if the subject-matter of the suit is the land which forms part of such an estate, i.e., if a specified area or a demarcated area is claimed out of an estate, for bringing it within Clause (b) it is necessary that that part must be recorded in the Collector's register as separately assessed with such revenue. In cases not falling strictly within the purview of Clauses (a), (b) and (c), the court-fee has to be paid on the market value as provided by Clause (d). Clause (a) which dealt with land permanently settled has been omitted in the Madhya Pradesh Court-fees Act by Madhya Pradesh Act 9 of 1953.

11. However, in Subramania Ayyar v. Rama Ayyar, AIR 1927 Mad 1002 and Kuljas Rai v. Pala Singh, AIR 1945 Lah 15 a different view was taken. In AIR 1927 Mad 1002 (supra) it was held that the words 'fractional share' in the notification (which corresponds to the rule quoted above under Section 55) cover not only a definite fraction but also an indefinite fraction and the deciding factor was whether the land formed part of an estate paying land revenue to the Government. In AIR 1945 Lah 15 (supra) it was held that when a person sues for possession of a plot of land which can be arithmetically worked out as a proportion or a fraction of the property that has been assessed to land revenue and is not noted in the jamabandi, the provisions of Section 7(v)(b) are applicable and not the provisions of Section 7(v)(d). The reasoning followed by the Lahore High Court was that when a person sues for land jointly owned by two persons even if specific plots are sold, in law it is treated as a sale of a share of the joint property because no co-sharer has any right to sell specific plots out of the joint khata and therefore the value of an individual plot comprised in the joint khata is wholly immaterial in determining the point of court-fee.

12. However in AIR 1947 Mad 297 (FB) the Full Bench overruled the view which was taken in AIR 1927 Mad 1002. Thus the Lahore High Court appears to be the only High Court which takes the view that even when the possession of a demarcated part of land is asked for, the case will be governed by Section 7(v)(b) even though that part may not be separately assessed to land revenue. The weight of authorities clearly is in favour of the view taken in Kashirao's case, 1936-43 Taxing Decisions 39 (Nag) cited above.

13. However, it appears that in two Single Bench decisions of this Court a different view has been taken. The first case is 1964 Jab LJ (SN) 83. In this case the view taken is that a suit for possession of a fraction of a khasra number which was assessed to separate land revenue was governed by Section 7(v)(d) and court-fee should have been paid on the market value of the fraction claimed in the suit. This view ignores both the Explanation under Section 7(v)(b) as also the Rule made by the State Government under Section 35. The other case taking such view is Babulal v. Bismilla, Civil Revn. No. 4 of 1965, D/- 23-5-1965 (Madh Pra). In this case S. B. Sen. J. was concerned with a suit for partition governed by Section 7(vi-a) of the Court-fees Act. where the court-fee according to the Explanation to paragraph (vi-a) is required to be paid on the market value which in the case of immovable property shall be deemed to be the value as computed in accordance with paragraph (v). The claim was in respect of 2/3 share of the .ioint Hindu family estate which was separately assessed to land revenue. The learned Judge held that though the claim was in respect of a definite share, yet as that share was not separately assessed to land revenue, the court-fee was payable under Section 7(v)(d). In our view, the requirement of the share being separately assessed to land revenue was wrongly insisted upon. The claim was not in respect of a 'specified' or 'definite' area, but only for a 'definite share' and therefore the court-fee was payable in this case also in accordance with Section 7(v)(b) at twenty times of the proportionate land revenue assessed on the estate.

14. We. therefore, find ourselves to be in complete agreement with the view expressed in Kashirao's case, 1936-43 Taxing Decisions 39 (Nag) (supra) about the true scope and implications of Clauses (b) and (d) and hold that suits are required to be valued accordingly. The rule which has been enacted by the State Government under Section 35 enables a plaintiff to pay court-fee on the computation prescribed in the rule only when he is suing for a fractional share of that part of the land which pays annual revenue to the Provincial Government under a settlement which is not permanent and the part is recorded in the Collector's register as separately assessed. It is plain that the rule can have no application where the part is not separately recorded in the Collector's register and a part thereof is claimed in the suit.

15. It is true that the anomalies pointed out by Mr. Justice Krishnan are there. These anomalies were pointed out in the decision in 1951-1 Mad LJ 73 = (AIR 1951 Mad 698) in the following words:--

'We may point out that by reason of the Full Bench decision many anomalies are introduced in the application of Section 7(v)(d) and the notification issued by the Government. In a suit for possession of a specified plot a larger court-fee may be payable, whereas for partition and possession of a fractional share in regard to a larger extent a smaller court-fee may suffice. In the case of a fractional share, a suit for its recovery may be filed in a District Mun-sif's Court whereas for a smaller extent, if the property is a specified one with boundaries, it will have to be filed in the Subordinate Judge's Court. This situation is not only illogical but sometimes makes the members of the litigant public feel its oppressiveness by contrast. Though this decision was made as early as 6th January 1947, no attempt has yet been made by the Legislatures to remove the anomalies, without at the same time overburdening the litigant public.'

16. In ILR 41 Cal 812 = (AIR 1914 Cal 442) it was argued on behalf of the plaintiff that he should not be called upon to pay a larger amount as court-fee than what he would have had to pay if he had been the owner of all the fifty-two ghatwali mahals and sued to recover possession thereof. This contention was held to be fallacious for two reasons, namely, first, that the plaintiff cannot avail himself of Sub-clause (a) unless he brings his case strictly within its terms, and for that purpose the determining factor is the land in suit and not a larger property in which it may be included; and, secondly, that even if the plaintiff had sued for recovery of all the fifty-two ghatwali mahals. the questions would require careful examination, whether those mahals constitute an estate paying annual revenue to Government.

17. The Taxing Officer had indicated the anomaly briefly even when Kashirao's case (supra) was referred to the Taxing Judge. The same anomaly was referred to in ILR 55 All 531 = (AIR 1933 All 414) also. However, our view is that the legal provision is not affected at all on account of the said anomalies and it is for the Legislature alone to remove the anomalies by proper legislation. Consideration of hardship, injustice or absurdity as avoiding a particular construction is a rule which must be applied with great care. Lord Moulton explained in Vacher & Sons v. London Society of Compositors, 1911-13 All ER 241 at P. 252 as to why great caution is necessary in such cases by observing:

'There is a danger that it may degenerate into a mere judicial criticism of the propriety of the acts of legislature. We have to interpret statutes according to the language used therein, and though occasionally the respective consequences of two rival interpretations may guide us in our choice in between them, it can only be where, taking the Act as a whole, and viewing it in connection with existing state of the law at the time of the passing of the Act, we can satisfy ourselves that the words cannot have been used in the sense to which the argument points.'

In our opinion, the language employed in Section 7(v)(b) and Section 7(v)(d) is not open to two different interpretations. In fact, if we agree with the view suggested by Krishnan, J., we feel that the provision made in Section 7(v)(d) would be rendered nugatory and therefore in spite of the possible hardships or anomaly we have to stick to the natural construction. To allow a litigant to pay court-fee on a part of the holding which is not recorded in the Collector's register as assessed to separate revenue would amount to construing the language of Section 7(v)(b) and Section 7(v)(d) into a meaning which the words used therein cannot bear.

18. It is true that a taxing provision has to be construed strictly and must always be interpreted in a manner most favourable to the citizen. However, in our opinion this rule has no application where the language of the statute is absolutely clear and unambiguous and does not yield to two interpretations. Lord Cairns' stated the principle by saying that 'if the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax cannot bring the subiect within the letter of the law, the subiect is free, however, apparently within the spirit of law the case might otherwise appear to be.' (See Charles James Partington v. The Attorney General, (1869) 4 HL 100. As the words of the statute are clear we cannot import a rule of equitable construction by reading something not in the relevant provisions nor can any thing be read as implied therein (See Gursahai v. I. T. Commr. AIR 1963 SC 1062 and I. T. Commr. Madras v. Firm Muar, AIR 1965 SC 1216).

19. In cases falling under Section 7(v)(d) of the Act, the plaintiff cannot be allowed to pay court-fee either on the basis of land revenue on the whole estate of which the land claimed in suit forms part but is not assessed to separate land revenue, nor can the plaintiff be allowed in such cases to work out the proportion of the land revenue in respect of a part of the land claimed by him and pay court-fee on the proportionate multiple of the land revenue by working it out according to Section 7(v)(b).

20. Jurisdiction depends on the valuation and therefore when a larger amount is required to be paid as court-fee, no grievance can be legitimately made about the suit for part of the land being required to be filed in a court of superior jurisdiction.

21. The reference is, therefore, answered by saying that in cases where court-fee is required to be paid on the market value under Section 7(v)(d) the plaintiff cannot be allowed to pay court-fee on the whole estate of which the land claimed in suit forms part but is not assessed to separate land revenue; nor can the plaintiff be allowed in such cases to work out the proportion of the land revenue in respect of the part of land claimed by him and pay court-fee on the proportionate multiple of the land revenue worked out according to Section 7(v)(b).

B. Dayal, C.J.

22. I agree.

Bhave, J.

22-A. I agree with the conclusions reached by our brother Bhargava, J., though for slightly different reasons.

23. Krishnan, J., has noted certain anomalies resulting from the literal interpretation of Sub-clauses (b) and (d) of Clause (v) of Section 7 of the Court-fees Act. He has, therefore, made this reference with a request that the matter be placed before a Full Bench for resolving the anomalies flowing from the literal interpretation. Krishnan, J. has made certain recommendations in the matter of interpretation of the sub-clauses so as to avoid the anomalies. Those recommendations I shall consider at the proper place.

24. Clause (v) of Section 7 of the Court-fees Act provides that in suits for possession of land, houses and gardens the court-fee is payable according to the value of the subject-matter. That clause further provides that where the subject-matter is land, such value shall be deemed to be--

'(a) (Omitted by local amendment);

(b) Where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or where the land forms part of such estate and is recorded as aforesaid (that is, recorded in Collector's register as separately assessed with such revenue) and such revenue is settled, but not permanently--twenty times the revenue so payable;

(c) (Not material for our purposes);

(d) Where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above-mentioned the market value of the land.' The word 'estate' has been defined by adding an explanation. According to the Explanation, 'estate' means--

'(1) any land subject to the payment of revenue, for which the proprietor or farmer or raiyat shall have executed a separate engagement to Government, or which, in the absence of such engagement, shall have been separately assessed with revenue;'

The first part of Sub-clause (b) refers to an entire estate, or a definite share of an estate, paying annual revenue to Government. Now, when an entire estate pays annual revenue to Government, it follows that a share thereof also pays annual revenue to Government. When the sub-clause speaks of a 'definite share of an estate, paying annual rent to Government', it means that the annual revenue must be fixed vis-a-vis that definite share of an estate distinct from the 'entire estate' as such. If I am correct here, it follows that on that on the literal interpretation of Sub-clause (b) it would appear that it covers three types of cases: (i) when the suit for an entire estate on which land revenue is payable; (ii) when the suit is for a 'definite share of an estate' and the land revenue is payable as such a share, that is to say. the land revenue is not to be worked out on the basis of the land revenue fixed for the whole estate and is fixed vis-a-vis the definite share itself; and (iii) when the suit is for land which forms part of an estate, but that part of land is recorded in the Collector's register as separately assessed to land revenue. It is thus apparent that Sub-clause (b) contemplates suits for whole parcels of land which are either estates or definite share of an estate or part of an estate. But in all these cases those parcels of land are such on which land revenue is payable or assessed as a unit.

Before the abolition of proprietary rights, often times the estates comprised a village or groups of villages, the revenue of which was settled as a unit. In some cases the village was divided into and the land revenue was fixed vis-a-vis the patties. All this happened during the settlement. But in between two settlements, estates used to be partitioned through the revenue Courts and in those cases, record used to be made in Collector's register showing separate assessment for the divided parts. It is for this reason that all the three categories were included in the sub-clause which contemplated suits for units of land assessed to land revenue. On the other hand, Sub-clause (d) speaks of 'part of an estate', but that part must be such as is not a definite share of an estate and is not separately assessed, that is, is not recorded in the Collector's register as separately assessed. In as much as a definite share of estate or part of an estate separately assessed to land revenue is also a part of an estate, special precaution is taken in Clause (d) to exclude definite share or part of a share from the operation of Clause (d). It thus follows that Sub-clause (d) comes into operation when the land forms part of an estate but is not a suit of assess-'ment for the purposes of land revenue. Thus, the artificial mode of determining the value of the subject-matter of suit on the basis of multiple of land revenue is available only in the case of the whole estate or a definite share of an estate or a part of an estate if that is a unit for payment of land revenue. In all other cases, the market price is the measure for determination of the value of the land. This to me appears to be the plain and literal interpretation of the two sub-clauses.

25. In 1936-43 Taxing Decisions 39 (Nag), Bose, J. (as he then was) interpreted Sub-clauses (b) and (d) of Clause (v) of Section 7 in the following manner:

'In my opinion the section means this. If the plaintiff claims 1/4, or 5 annas or 6 7/8 pies, or any other fraction (however clumsy) of an entire estate which pays annual land revenue to Government, then the first part of Clause (a) or (b), as the case may be, applies. All this would be a definite share. But if he claims a specified area (22 acres here), then that relates to a 'part' as opposed to a 'definite share', and the second portion will apply if that area is separately assessed. If it is not, then Section 7(v)(d) will apply.'

From this it would appear that according to Bose, J., only two categories were considered in Sub-clause (b), namely, the estate or a definite share of an estate, and a part of an estate separately assessed to land revenue. A 'part of an estate' is always a 'share of an estate'. But the distinction that Bose, J. appears to have made is that when you sue for a part of an estate, no doubt you sue for a share in the estate, but your suit is with respect to a particular parcel of land comprised in the estate, and not any land that may fall to your share when a partition is effected, and hence if you sue for a_ particular piece of land, if that piece is not separately assessed, you must pay court-fee on the market value of the land. This is a plausible interpretation; but, in my view, it does not take into consideration the words 'definite share of an estate'. When one sues for a part of an estate, though it is with regard to any particular parcel of land, it cannot be said that one is not suing for a definite share. When one says 'I want possession of 22 acres of land', and 22 acres of land represent 1/5th of the whole estate, then one is really suing for a definite share. I, therefore, feel that the distinction drawn by Bose, J. between a 'definite share of an estate' and a 'part of an estate' is not altogether logical.

On the contrary, if Sub-clause (b) is interpreted to mean that where an estate is one unit of land revenue, or a definite share of an estate is a unit of land revenue, or a part of an estate is again a unit of land revenue, as it is separately assessed in the Collector's register, the interpretation becomes more rational, the idea being that inasmuch as the revenue on the share of the estate or the part of the estate has already been determined, its multiple can be worked out. In my opinion, therefore, Sub-clause (b) contemplates only those cases where the suit is for the whole unit over which land revenue is separately assessed. Where this is not so, the case comes under Sub-clause (d) and the court-fee payable is on the market value.

My brother Bhargava, J. has referred to various cases of various High Courts where a view similar to the one taken by Bose, J. was expressed. There is only one case of the Lahore High Court which takes a contrary view. In AIR 1945 Lah 15, Mahajan, J. (as he then was) quoted, with approval, the following passage from the decision of the Madras High Court in AIR 1927 Mad 1002:

'It is difficult to say that a fraction means a simple fraction like, 1/3, or 1/4 and not a complicated fraction like 19/48 or 37-72, etc., as one may get in Mahomedan Law cases. If the words 'fractional share' can cover any kind of fraction, the only question is: Does it make any difference when a plaintiff mentions an area which can be worked out as a fraction of the whole but does not mention it by describing it as a fraction. In our opinion it does not. The opposite conclusion can be easily evaded by a clever plaintiff describing the plot he claims and not as so many acres and cents but as the north-western 37/73. of such and such a survey number or something like that. The liability to pay court-fee should not depend upon the ability to evade or not to evade court-fee. The Court-fees Act is a fiscal enactment and ought to be liberally construed. On this reasoning it was held by Mahajan, J. : 'When a person sues for land jointly owned by two persons, even if specific plots are sold, in law it is treated as a sale of a share of the joint property. No co-sharer has any right to sell specific plots out of the joint khata and, therefore, the value of an individual plot comprised in the joint khata is wholly immaterial in determining the point of court-fee.'

There is a great deal of force in this argument. A part of an estate is always a share of an estate; and if you wish to make it a definite share, then in that case you must describe it with reference to its geographical boundaries. In that case alone it can be said to be a definite share. All this difficulty would be obviated if the interpretation put by me on Sub-clause (b) is accepted. In my opinion, therefore, when a suit is brought for a share of a part of an estate, if that share or part of an estate is not separately assessed as a unit of land revenue, the case must fall within the residuary Sub-clause (d) and the court-fee in that case should be on the market value.

26. Krishnan, J. in his order of reference has practically conceded that when a suit is filed for a part of an estate which is not separately assessed to land revenue, the case falls under Sub-clause (d). His Lordship, however, pointed out that the value of a part can, in no case, exceed the value of the whole. It generally happens that if the part is valued on market price, its value would work out to be much more than the value of the whole estate determined on the basis of the multiple of the land revenue. Because of this anomaly, Krishnan, J., thinks that in such cases when a suit is brought for a part of the estate, the plaintiff should be allowed to bring the suit on the basis as if the suit was for the whole estate and he should be made to pay court-fee on that basis, this fiction, of course, being limited for the purposes of determination of court-fees and jurisdiction. Krishnan, J. has observed that though the anomaly was pointed out in several decisions of this Court, the same has not been removed by the legislature and hence the Courts must take a strong attitude in the matter of interpreting Sub-clause (b) and interpret Sub-clause (b) in the manner suggested by him, though literally that is not possible to do.

27. In the matter of interpretation of a statute, the courts are not free to put their own interpretation on the statute for the purpose of removing anomalies. This is the function of legislature. The Courts are required to interpret the statutes as they are; and if there is no ambiguity in the language used, effect must be given to the clear terms of the statute. The second limitation on the Courts is that the interpretation by the Courts of the statute in any particular manner should not render any part of the statute otiose. If the interpretation of Krishnan, J. is accepted, in that case Sub-clause (d) will have to be re-written by the Court to say that in case of part of an estate which is not separately assessed to land revenue, the court-fee shall not be paid on its market value but on the value of the whole estate worked out on the multiple of the land revenue. This the Courts cannot do. If it is held that the suit for a part of an estate not separately assessed to land revenue is also included in Sub-clause (b) itself, in that case Sub-clause (d) is rendered otiose.

28. For the abovesaid reasons, it is clear that where a suit is filed for a part of an estate or a share of an estate, but where such part or share of the estate is not separately assessed to land revenue, the court-foe is payable on the basis of the market value. In those cases where the suit is for an entire estate, or a defined share of an estate, or a part of an estate, assessed to land revenue as a unit, and the suit is for possession of the whole unit, the court-fee is to be charged on the value to be worked out on the basis of the multiple prescribed. On this reasoning, even when a suit is filed for a share of an estate not being any specified part thereof, the court-fee payable would be on the market value and not on the multiple to be worked out. But inasmuch as the decision of Bose. J. in 1936-43 Taxing Decisions 39 (Nag) has been followed in this Court for such a long time and inasmuch as other High Courts have also adopted the same reasoning, I do not wish to take the extreme view which follows from the literal interpretation of Sub-clauses (b) and (d) of Clause (v) of Section 7 of the Court-fees Act and agree that the reference should be answered in the manner proposed by Bhargava, J. This I am doing on the principle of stare decisis; but. in my view, no further relaxation in the matter of interpretation of the sub-clauses is warranted.

29. After the abolition of proprietary rights, now the estates have been reduced to small holdings. There is not much difference in the quality between one part of an estate as compared to the other. It is. therefore, high time that the legislature should intervene and make one uniform rule for fixing the court-fees for the whole estate as well as for the part on the basis of either the market price or the multiple of the land revenue, the proportionate revenue for a part being determined on the basis of acreage.


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