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Jamila Khatoon Etc. Vs. Saidul Nisa Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil R. Appeal No. 1930 of 1973
Judge
Reported in1977RLR54
ActsCourt Fees Act, 1870 - Sections 7
AppellantJamila Khatoon Etc.
RespondentSaidul Nisa Etc.
Advocates: P.N. Taiwan,; K.K. Mittal,; M. Dayal,;
Cases ReferredJugal Chandra Mondal v. Monindra Nath Mondal
Excerpt:
.....for enforcement of right to share the joint property, the court fee should be payable under clause (b) of the act. - - ' this rule is still a good law in punjab, and delhi. in a suit for partition it is not only that the plaintiff claims separate possession of the share of the property, but the court has to deal with the property as a whole and determine the shares of other persons as well, and in doing so it may separate their shares or may also order sale of the whole property by public auction......the share in the property. this valuation for purposes of court fees in view of section 8 of the suit valuation act, also constitutes the value for purposes of jurisdiction. the high court of punjab has in a full bench decision, krishan kumar grover v. parmeshwari devi, , held likewise, this view also finds support from a decision of the judicial committee reported as bai shevantibai v. janardhan , which has also been relied upon in a number of cases cited at the bar. this category of cases does not present any difficulty and admits of no other answer. the problem, however, is different when we consider the second category of partition suits, where the planitiff is in joint possession. ... ( (5) in such cases, if the plaintiff wishes to enforce a right to share a joint family property,.....
Judgment:

B.C. Misra

(1) This revision has been filed U/S 115 of C.P.C., by in the defendant against against the order of Sub-Judge, 1st class dt. 25. 10. 72 by which he has held that value of suit falls within his pecuniary jurisdiction.

(2) Plaintiff instituted suit for partition and separate possession of 1/4 5th share... valuation for: purposes of jurisdiction Rs. 5,000.00 being equal to market value of the interest claimed... The deferdants Contested it... ...It was answered by the Court below in favor of plaintiffs.......

(3) The Court below has held that plaintiffs have claimed l/45th of property and for purposes of jurisdiction, Rs, 5,000.00 being equal to the market value of the interest claimed by the plaintiff is the valuation of the property in dispute and as such the jurisdictional value of the suit was only Rs. 5,000.00, which fell within the competence of the court below. The court relied upon Shibgobinda v. Surinab All Air 1970 Tripura 64, Yumlembam Devi v. Naorem Devi Air 1968 Mani 52, and Sebastian v. Rodolf : AIR1962Bom4 , and held that the subject matter of the suit consisted only of share claimed by the plaintiffs and not the whole of the property. Consequently, issue No. 4 was answered in favor of the plaintiffs. In my opinion, the decision of the court below is legally not sustainable and it has committed an error in assuming the jurisdiction which it does not possess. The pecuniary jurisdiction of the court of Sub-Judge, I class, in Delhi is up to Rs. 25,000.00 and from Rs. 25,000.00, to Rs. 50,000.00 with the District Court, and suits above the valuation of Rs. 50,000.00 are tried on the original side of the High Court.

(4) The relevant legal position may now be examined. The partition suits fall in two categories, viz. (1) in which the plaintiff is out of possession, and (2) in which be is in joint possession. So far as the first category is concerned, the plaintiff has to recover possession of the property and he has to value the suit for purposes of court fees under section 7(v) of the Court Fees Act on the market value of the share in the property. This valuation for purposes of court fees in view of section 8 of the Suit Valuation Act, also constitutes the value for purposes of jurisdiction. The High Court of Punjab has in a Full Bench decision, Krishan Kumar Grover v. Parmeshwari Devi, , held likewise, This view also finds support from a decision of the Judicial Committee reported as Bai Shevantibai v. Janardhan , which has also been relied upon in a number of cases cited at the bar. This category of cases does not present any difficulty and admits of no other answer. The problem, however, is different when we consider the second category of partition suits, where the planitiff is in joint possession. ... (

(5) In such cases, if the plaintiff wishes to enforce a right to share a joint family property, the court fee will be paid as prescribed by sub- clause (b) of clause (iv) of section 7 of the Court Fees Act. If it is not a case of joint family property and the plaintiff claims separate partiton of the property of which heis in joint possession, the suit is of the nature in which it is not possible to estimate at money value the subject matter in dispute (and it is not otherwise provided for) in such suits, the court fees paid will be as prescribed by clause (iv) of item 17 of the Second Schedule of the Court Fees Act, amounting to Rs.19.50, as amended by a local Punjab Amendment Act as extended to Delhi on 21st July, 1959 with effect from 1st August, 1959. Such suits can, for purposes of jurisdiction, not follow the valuation fixed for purposes of court fees. Reference in this connection may be made to a decision of the High Court of Lahore Nikka and other v. Fazal Dad Khan, Air 1930 Lahore 839, where a Division Bench held as follow :

'In an appeal from a suit for possession by partition of certain land where the plaintiff alleges that he was in joint possession of the property in suit and the finding of the trial Court is to the effect that he was in such possession, the provisions of Court-fees Act applicable are Art. 17(6), Sch. 2 and not S. 7(4)(b). The court-fee payable in such case is, thereforee Rs. 10.00 and not an advalorem Court-fee on the market price of plaintiff's share of the property.'

This rule is still a good law in Punjab, and Delhi. A reference may also be made to Jugal Chandra Mondal v. Monindra Nath Mondal, : AIR1958Cal537 , where the

(6) Division Bench construing similar provisions of the Court Fees Act, as amended in Bengal, came to same conclusion and held that the distinction between Schedule Ii, Article 17 Clause (va) and section 7(viA), turned on the averments in the plaint as to whether the plaintiff was or was not in possession of the properties of which he came to be co-sharer and if he was in possession then the relevant clause (va) of Article 17, Schedule Ii would apply, and if he was'not, then the court fees will be paid in accordance with section 7 of the Court Fees Act.

(7) How to determine the jurisdictional value of such partition suits in which the plaintiff is in possession [After reproducing Ss. 8 & 9, judgment proceeds].

(8) In exercise of powers conferred on the High Court by section 9 of the Suits Valuation Act, the High Court has, with the previous sanction of the State Government, framed rules These rules are quoted in extenso in Part C of Chapter Iii of Volume I of the Rules and Orders of the High Court of Punjab. Rule 8 reads as follow : 'Suit for partition of the property : Court Fee-(a) As determined by the Court fees Act, 1870. Value-(b) For the purposes of the Suits Valuation Act, 1887, and the Punjab Courts Act, 1918-the value of the whole of the property as determined by sections 3, 8 and 9 of the Suits Valuation Act, 1887.'

(9) In my opinion, the expression 'whole of the property' occurring in Rule 8, means the whole of the property which is the subject matter of the suit for partition and it is not confined to the plaintiff's share of the property. In contradistinction, where in a State the rules provide for the valuation to be determined on the plaintiff's share of the property, different considerations may arise. But the rule prevelent in this territory determines the valuation as the value of the whole of the property. There can be found a valid reason in support of the rule. In a suit for partition it is not only that the plaintiff claims separate possession of the share of the property, but the court has to deal with the property as a whole and determine the shares of other persons as well, and in doing so it may separate their shares or may also order sale of the whole property by public auction. Thus, the court will be exercising its power and jurisdiction in respect of the whole of the property and not only in respect of the plaintiff's share. thereforee, the rule framed envisages jurisdictional value of the suit to be the value of the whole property rather than merely the value of plaintiff's share. Consequently, the value of the whole of the property of the parties out of which the plaintiff has claimed the share and not merely the value of the plaintiffs' share must fall within the pecuniary jurisdiction of the court tyring the suit. In this view of the matter, plaintiff's in property (being l/45th) is valued at Rs. 5,000.00 and, thereforee, the value of the whole property comes to about Rs. 2,25,000.00. The trial court must, indeed, be able to partition all the shares in the property and pass a final decree in respect of the whole property. The court below does not possess this pecuniary jurisdiction.

(10) Surely we are not concerned with the propriety of the rule of the court and have to apply as it exists. In other States, for example, Mysore, Kerala, Madras and Rajasthan the statutory law determines the jurisdiction value at the value of the share of plaintiff, but those authorities would not apply to the facts of the instant case and so it is not necessary to consider the authorities cited at the bar. It must, however, be observed that neither of the counsel for the parties has been able to cite any authority to support the contentions on the basis of the rule similar to the one in force in Punjab and Delhi with which we are concerned.

(11) As a result, I find that the order of the court below suffers from jurisdictional error and its finding on issue No. 4 is erroneous and is set aside. It is held that the court below has no pecuniary jurisdiction to try the suit and it must return the plaint for presentation to a court of competent jurisdiction. The findings of the lower court on issue No. 3 will not bind the court of competent jurisdiction which would be seized of the suit.


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