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Kailash Narayan Vs. Bundi Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 321 of 1973
Judge
Reported inAIR1978MP94; 1978MPLJ109
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Suits Valuation Act, 1887 - Sections 9; Suits Valuation Rules - Rule 1(3)
AppellantKailash Narayan
RespondentBundi Bai and ors.
Appellant AdvocateR.D. Jain, Adv.
Respondent AdvocateG.G. Mangal, Adv.
DispositionRevision allowed
Cases ReferredNoksingh v. Bholu Singh
Excerpt:
- - nkn iq'rsuh mugha ds uke dkxtkr uxjikfydkxksgn vkfn esa ntz gsa the aforesaid averments in the plaint clearly indicate that there was a joint ancestral property of the husband of the plaintiff, namely, jagannath prasad, defendant no. it is not disputed that if the adoption in question of the defendant, applicant is valid, he has a right, title and interest in the joint family property of the adoptive father like that of a natural son who, by birth, has right, title and interest in the joint ancestral property......declaration that the adoption of the applicant by non-applicant no. 3 is void and ineffective. the suit was valued initially at rs. 100/- and fixed court-fee of rs. 30/- was paid. on an objection having been raised by the applicant that the suit was under-valued and the court-fees paid were insufficient, ad valorem court-fee was required to be paid. on this objection, two preliminary issues were framed by the trial court which were issues nos. 4 and 5 reading as under: 'issue no. 4:d;k oknh us mfpr dksvz qhl fn;k gsa'issue no. 5:d;k bl u;k;ky; dks okn lquus dk vf/kdkj ugha gs 3. the trial court decided these issues vide its order dated 6-11-1970, the operative part whereof, relevant for consideration is thus:'para 10-- in view of the above rulings it is held that the plaintiff should.....
Judgment:
ORDER

U.N. Bhachawat, J.

1. This is a revision by the defendant against the order of the Civil Judge, Class II, Gohad, dated 24-4-1973 in Civil Suit No. 41-A/68 regarding the valuation of the suit and payment of court-fees.

2. The short facts leading to this revision are these:

The plaintiff-non-applicant No. 1 herein has filed a suit against the applicant and non-applicants Nos. 2 and 3 in their capacity as the wife of non-applicant No. 3 (sic) for a declaration that the adoption of the applicant by non-applicant No. 3 is void and ineffective. The suit was valued initially at Rs. 100/- and fixed court-fee of Rs. 30/- was paid. On an objection having been raised by the applicant that the suit was under-valued and the court-fees paid were insufficient, ad valorem court-fee was required to be paid. On this objection, two preliminary issues were framed by the trial Court which were issues Nos. 4 and 5 reading as under:

'Issue No. 4:

D;k oknh us mfpr dksVZ Qhl fn;k gSA

'Issue No. 5:

D;k bl U;k;ky; dks okn lquus dk vf/kdkj ugha gS

3. The trial court decided these issues vide its order dated 6-11-1970, the operative part whereof, relevant for consideration is thus:

'Para 10-- In view of the above rulings it is held that the plaintiff should value the suit for the purposes of jurisdiction and court-fees at the market value of the property affected by the adoption. The arbitrary valuation put by the plaintiff at Rs. 100/- and the fixed court-fees Rs. 30/- paid by her is wrong.'

4. Being aggrieved by the aforesaid order of the trial Court, the plaintiff filed a revision before this Court which was registered at No. 64 of 1971. This revision was rejected at motion hearing with the following observations:

'On the merits, there can be no doubt that the plaintiff's suit falls within Rule 3 and for purpose of the Court-fees Act, has to be treated as if the subject-matter of the suit was of the value of Rs. 400/-. The suit does not fall within the Proviso because neither the plaintiff nor the adopted son has any present right or title to the property which admittedly belongs to the plaintiff's husband, being his self-acquired property. That being so, the suit does not affect a title to property within the meaning of the Proviso.'

5. In view of the aforesaid observations of this Court, the trial Court vide the impugned order, held that the valuation for court fees fixed at Rs. 400/- by the plaintiff and the court-fees paid thereon was proper. In other words, the trial Court rejected the defendant's objection that the suit ought to have been valued for the purposes of court-fee and jurisdiction at the market value of the property in respect of which the rights, title and interest of the parties were involved in the suit. The Trial Court has, in the impugned order, not given its own independent reasoning, but has in view of the fore-quoted order of this court, passed the impugned order.

6. The first question, therefore, for consideration and more particularly in view of the arguments in counter of the learned counsel for the non-applicant is whether the fore-quoted order passed by this Court in Civil Revision No. 64 of 1971 (Bundi Bai v. Kailash Narayan) decided on 25-3-1971 (Madh Pra), was binding on the parties and the question could not be re-agitated. It may be mentioned that this court, while observing that Rule 3 of the Rules framed under Section 9 of the Suits Valuation Act, 1887, by the erstwhile State of Judicial Commissioner, C. P. and Berar, which are admittedly adopted and extended by this Court to the area within the jurisdiction of this Court, (hereinafter referred to as the Rules) applies to the instant case, further observed that in view of that Rule, the valuation of the suit at Rupees 400/- was proper as the Proviso to that Rule was not attracted on account of the admitted position that the property belonged to the plaintiff's husband being his self-acquired property.

7. In my opinion, as the observations were made while rejecting the revision at motion hearing, the defendant had no opportunity to be heard; the defendant had, therefore, the right to re-agitate this question and this court is competent to re-examine the question on merits after hearing both the parties; more particularly when it is contended that the correct position as to the nature of the property involved in the suit was not stated before this Court during the hearing on admission.

8. At this stage, it would be pertinent to set out certain averments from the plaint to indicate the nature of the property in respect whereof defendant No. 1's right, title and interest is involved:

^^okfn;k ds [kkunku dh iq'rSuh tk;nkn iq[rkedku ok nqdku pkS[kV~Vk djck xkSgn ij fLFkr gSA okfn;k ds [kkunku esa ysu nsuvkfn dk dkjksckj gSA ;g fd okfn;k ds [kkunku dk leLr dkjksckj okfn;k ds ifrizfroknh uEchj 3 gh djrs gSA o lc tk;nkn iq'rSuh mUgha ds uke dkxtkr uxjikfydkxksgn vkfn esa ntZ gSA

The aforesaid averments in the plaint clearly indicate that there was a joint ancestral property of the husband of the plaintiff, namely, Jagannath Prasad, defendant No. 3, since dead, whose, the defendant No. 1 applicant herein, claims to be the adopted son.

9. I would now advert to the following provisions of the Rules which read as under:

'1. Suits of the following classes shall for the purposes of the Court-fees Act, 1870, the Suits Valuation Act, 1887, the Central Provinces Courts Fees Act, 1917, be treated as if the subject-matter of such suits were of the value of Rs. 400/-;

(1) Suits for the restitution of conjugal rights, for declaration of the validity of marriage, or for a divorce.

(2) Suits for the custody or guardianship of minor,

(3) Suits for a declaration that an adoption is valid or invalid: Provided that if a suit for declaration that an adoption is valid or invalid affects a title to property, then the value of that property, if it exceeds Rs. 400, shall be deemed to be the value of the subject-matter of the suit.'

10. On a plain reading of his fore-quoted Rule, especially the Proviso, it is transparently clear that a suit for declaration that an adoption is invalid when it affects a title to property and the value of the property, if exceeds Rs. 400/-, the value of the property shall be deemed to be the value of the subject-matter of the suit.

11. Bearing the fore-quoted Rule and its interpretation in mind, the present suit has to be valued. From the relevant averments of the plaint quoted herein-above, in paragraph 8 of this order, it is apparent that there is a joint ancestral property of the husband of the plaintiff. It is not disputed that if the adoption in question of the defendant, applicant is valid, he has a right, title and interest in the joint family property of the adoptive father like that of a natural son who, by birth, has right, title and interest in the joint ancestral property. Thus a decision in the present suit which is for a declaration that the alleged adoption of the defendant-applicant is invalid is bound to affect his title to the joint ancestral property. The defendant-applicant has, in the written statement, contended that the value of such property is more than Rs. 25,000/-. If this contention is found correct, then in view of the aforesaid Rule, the suit has to be valued accordingly. This will have a bearing on the jurisdiction of the trial Court and also on the quantum of court-fees. I am supported in my view from a decision of this Court in Apparao v. Bhagubai, (AIR 1949 Nag 263) wherein a decision in Noksingh v. Bholu Singh, (AIR 1930 Nag 73) has been relied on. The relevant facts and observations of the fore-quoted decision are quoted herein below:

'The plaintiff-appellant Apparao filed a suit in the Court of the Additional Subordinate Judge, Second Class, Pusad, against the widows of one Yeshwantrao and one Gunwantrao for a declaration that Gunwantrao was not the adopted son of Yeshwantrao and in the alternative for a declaration that the adoption of Gunwantrao by the widows or anyone else was null and void. The plaintiff, who claims to be one of the next rever-sioners of Yeshwantrao valued the suit for the purposes of jurisdiction at Rs. 400/- and paid a fixed court-fee of Rs. 15/-, as the court apparently took the view that he was claiming two separate declarations. The defendants contended that the claim was undervalued and under-stamped, and on 20th Feb. 1941 the Court held that as Yeshwantrao's estate was admittedly worth more than Rs. 5,000/-the value of the claim for the purposes of jurisdiction exceeded Rs. 5,000/- and the plaintiff must pay ad valorem courtfees in accordance with the decision in (AIR 1930 Nag 73).'

'The Rules under Section 9, Suits Valuation Act, provide that if a suit for a declaration that an adoption is valid or invalid affects a title to property then the value of that property, if it exceeds Rs. 400/-, shall be deemed to be the value of the subject-matter of the suit. The point was considered in (AIR 1930 Nag 73) and so far as I am aware that decision has never been dissented from since. It has been suggested that these rules, which were made by the Judicial Commissioner, are no longer valid; but the establishment of a High Court in this Province did not alter the law previously in force, and this particular rule has been included in the Rules and Orders (Civil) issued by this High Court.'

12. In this view of the matter, the market value of the property to which the title of the defendant-applicant by virtue of the declaration that his adoption is invalid would be affected should be determined and the suit should be valued for the purpose of court-fee and jurisdiction accordingly.

13. As a result of the foregoing discussion the revision deserves to be allowed which is accordingly allowed with costs.

The impugned order of the trial Court is set aside and the case is sent back to the trial Court to determine the market value of the property as indicated herein-above for the purposes of its jurisdiction and court-fees.


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