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Onkar and Nath Vs. Rameshwar Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 55D of 1966
Judge
Reported inAIR1972Delhi80; ILR1972Delhi380
ActsCourt Fees Act, 1870 - Sections 1(4) and 7(4); Court Fees (Punjab Amendment) Act, 1953; Transfer of Property Act, 1882 - Sections 8
AppellantOnkar and Nath
RespondentRameshwar Dass and ors.
Advocates: A.B. Lal and; D.N. Raizada, Advs
Cases ReferredRam Kanwar Kidarmal v. Naurang Rai Kundan Lal
Excerpt:
(i) court fees act (1870) - section 7 (iv) (c)--suit for division of joint right of management--valuation thereof--applicability of proviso by court fees (punjab amendment), act, 1953 (as extended to delhi) and section 7 (v) of court fees act.; that what is to be valued is not the property but only the division of right of management so that parties may enjoy their own shares of the right of management without friction. this share of the appellant in the right of management on behalf of the other parties is simply incapable of ad valorem valuation. it cannot, thereforee, be valued under section 7 (v) of the court fees act. this is precisely the reason why it must fall under the principal part of section 7 (iv) (v) of the court fees act. the proviso added by the court fees (punjab..........there was friction between them. he, thereforee, in effect prayed that the court should divide the joint right of management of the appellant and respondent no. 1 into two separate shares so that the appellant would manage the property in one year while the respondents 2 to 6 would manage it next year, the respondent no. 1 would manage in the year thereafter and respondents 2 to 6 would again manage it for one year after which the turn of the appellant should come. the suit is opposed by the respondent no. i on the ground that the compromise provides for joint management by the appellant and the respondent no. 1 and this arrangement cannot be varied at the instance of the appellant alone.(4) the relief prayed for in the plaint is a declaration that the appellant and the respondent no. 1.....
Judgment:

V.S. Deshpande, J.

(1) Section 7(iv)(c) of the Court Fees Act as amended by the Court Fees (Punjab Amendment) Act, 1953 as extended to Delhi runs as follows :-

'7.The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :- ** ** ** (iv) In Suits- ** ** ** (c) to obtain a declaratory decree or order, where consequentialrelief is prayed, ** ** ** according to the amount at which the relief sought is valued in the plaint or memorandum of appeal : In all such suits the plaintiff shall state the amount at which he values the relief sought : Provided that the minimum court-fee in each case shall be thirteen rupees. Provided further that in suits coming under sub-clause (c) in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of this section.'

(2) It is common ground between the parties that in a former suit jointly filed by the appellant and the Respondent Mo. I against the Respondents 2 to 6, a compromise decree was passed according to which the appellant and Respondent No. 1 jointly in one year and the Respondents 2 to 6 jointly in the next year were to alternately manage the following private wakf property, namely, houses known as Thakurdwara Raja Ji Sukh Rai which include a Thakurdwara, attached shops and godowns situated at Gali Peepal Mahadee, Delhi.

(3) The present suit was instituted by the appellant alleging that the Respondent No. 1 did not allow the appellant to share in the management of the property and there was friction between them. He, thereforee, in effect prayed that the Court should divide the joint right of management of the appellant and Respondent No. 1 into two separate shares so that the appellant would manage the property in one year while the Respondents 2 to 6 would manage it next year, the Respondent No. 1 would manage in the year thereafter and Respondents 2 to 6 would again manage it for one year after which the turn of the appellant should come. The suit is opposed by the Respondent No. I on the ground that the compromise provides for joint management by the appellant and the Respondent No. 1 and this arrangement cannot be varied at the instance of the appellant alone.

(4) The relief prayed for in the plaint is a declaration that the appellant and the Respondent No. 1 are entitled to manage the property separately for one year each alternately during the period of their joint turn or in such other manner as the Court may determine and the consequential relief of injunction restraining the Respondent No. 1 from interfering in such separate management by the appellant. For the purposes of court-fee and jurisdiction, the suit is valued at Rs. 130.00 for the relief of declaration coupled with the consequential relief by way of injunction. The Respondent No. 1 objects to the valuation on the ground that in view of the Punjab Amendment of section 7(iv)(c) of the Court Fees Act, the plaintiff appellant was bound to pay court-fees on the market value of the property which was jointly manageable by the parties and in which the plaintiff appellant was claiming to be entitled to a separate management for one half of the period for which the appellant and the Respondent No. 1 were entitled to joint management so that the Respondent No. 1 should also separately manage the property for the other half of the period of the joint management of the appellant and the Respondent No. 1. The objection to the valuation of the relief was rejected by the trial Court but was allowed by the Senior Subordinate Judge, Delhi. Hence this second appeal against the order directing the plaintiff to pay court-fees en the market value of the property which is the subject-matter of the joint management of all the parties.

(5) The question for decision is whether the relief sought by the plan- tiff is ''with reference to any property' within the meaning of the proviso inserted by the Punjab Amendment in section 7(iv)(c) of the Court Fees Act. The consideration of this question may be divided into the following parts, namely :-

(1) What is the nature of the joint right of management of which a division is prayed for by the plaintiff, and (2) If the right of management is property, then is the relief sought by the plaintiff appellant 'with reference to any property' within the meaning of the proviso added to section 7(iv)(c) of the Court Fees Act by the Punjab Amendment

(6) Right of management is an incident of property in the sense that it is one of the components of the various rights which go to form the concept of property. If property is transferred, the right of management of such property would also be transferred with it. For, unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. (Section 8 of the Transfer of Property Act). But the converse of this proposition does not follow. The transfer of a legal incident of a property without more cannot operate to transfer the property itself. In other words, while the transfer of the principal thing will pass the incident of the right to property, the transfer of an incident will not pass the property itself. That is to say, the accessory right of management goes with the property but the property itself does not go with the accessory right of management.

(7) Further the right of management itself is of two kinds, namely, (a) right of exclusive management for the benefit of the manager alone excluding other co-owners of the property, and (b) right of management on behalf of the other co-owners with accountability to the others. It may possibly be argued that the right of exclusive management without accountability to the other co-owners may to some extent affect the rights of other co-owners to the property. But the right to manage a property on behalf of the other co-owners with accountability to them for the profits cannot in any way affect the rights of the other co-owners in the property. The principle underlying this view was recognized by the Supreme Court in Chiranjitlal Chowdhuri v. Union of India. : [1950]1SCR869 Mukherjea, J., with whose views Kania C.J.. concurred, and to whose views Fazi Ali, J. subscribed to a certain extent said as follows :-

'possession of an agent, it is said, cannot juridically be the possession of the principal, if the agent is to act not according to the commands or dictates of the principal, but under the direction of an exterior authority.'

Das, J. made the same point in the following words :-

'in order that the possession of the servant or agent may be juridically regarded as the possession of the master or principal. the servant or agent must be obedient to, and amenable to the directions of, the master or principal.'

(8) These observations were followed by Mahajan J. speaking for the majority in Dwarkadas Shrinivas v. The Sholapur Spinning and Weaving Co. Ltd., and others : [1954]1SCR674 (2)

(9) Judged by the above test, the rights of the respondents in the property would in no way be affected by the division of the joint management of the plaintiff and Respondent No. 1 into two shares, one for separate management by the appellant and the other of separate management by Respondent No. 1. For, the management has to be on behalf of the co-owners and subject to all their rights to see that the management by the plaintiff is carried out properly. If the plaintiff makes any mistake, the other co-owners would have a right to object and to enforce their right that the management is carried out correctly by the plaintiff appellant on behalf of all. On the first part of the question, my opinion, thereforee, is that the right of one of the co-owners to the division of the right of joint management is completely consonant with the rights of all the co-owners. A physical division of the joint right of management does not, thereforee, in any way amount to a denial of the right of management by the other co-owners. The right of management is only an incident of the property. A division of such incident without denying the rights of other co-owners to manage the property according to their own compromise is merely a matter of convenient arrangement but does not amount to the denial of the rights of other co-owners to the management of the property as a whole and for all the time. Each co-owner can separately manage such property on behalf of the others. Just as the partition of joint property by metes and bounds is only a change in the mode of enjoyment but not in the rights of the parties similarly a partition of the joint right of management is only a change in the mode of management.

(10) The meaning of section 7(iv)(c) is to be understood in the context of the scheme of section 7(iv) as a whole which itself is a part of section 7. It would be observed that section 7(iii) provides that in suits for moveable property where the subject-matter has a market-value, the valuation has to be according to such value. Similarly, section 7(v)provides that in suits for the possession of lands, houses and gardens, the valuation has to be according to the value of the subject-matter, the value being determined in different ways. In-between the two lies section 7(iv) which deals with suits in respect of things which are not capable of valuation according to market value. For instance, section 7(iv)(a) deals with suits for moveable property where the subject matter has no market-value Section 7(iv)(b) deals with the right to share in any property on the ground that it is joint family property. Section 7(iv)(d) deals with an injunction. Section 7(iv)(c) is pitch forked among these provisions. It would be legitimate to think thereforee, that it also deals with things which are not capable of valuation according to market-value. This is why in all the cases under section 7(iv), the valuation has to be according to the amount at which the relief sought is valued in the plaint or in the memorandum of appeal.

(11) Human nature being what it is, it was found that attempts were made by certain plaintiffs to value their suits under section 7(iv)(c) when they should have been actually valued under section 7(v). The motive was to avoid payment of ad valorem court-fees. This is why the Punjab Amendment of section 7(iv)(c) provided that where the relief sought is 'with reference to any property' such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of section 7. The intention of the amendment was to prevent such attempts to bring suits which by their nature ought to fall under section 7(v), under section 7(iv)(c) to avoid payment of ad valorem court-fees. But the intention of the amendment could not have been to wipe out the distinction between section 7(iv)(c) and section 7(v). In fact it was impossible for any Legislature to make any such attempt to wipe out the distinction. For, by their very nature the reliefs under Section 7(iv)(c) are incapable of valuation according to market-value. It would have been meaningless, thereforee, for the Legislature to say that they should be valued under section 7(v). This is why it was recognized in Bawa Bir Singh v. An Niwaz Khan. Air 1964 Punjab 381(^that the proviso to section 7(iv)(c) would apply only when valuation under section 7(v) is possible. Similarly, in Parhilli ami others v. Girdhari Air 1965 Punjab l both the majority and the minority were agreed that the consequential relief must be one with reference to the right, title or interest in the property in dispute before which the Punjab Amendment to section 7(iv)(c) can apply. In that case, the majority held that the prayer that the previous decree should be declared null and void and the consequential relief that it should be set aside affected the right, title and interest of the parties in the property though the minority judgment went so far as to think that even such setting aside of the decree would not affect the right, title and interest of the parties in the property. The case before me is a stronger one. The plaintiff does not seek to set aside the previous compromise decree at all. On the other hand, he stands on it and respects the rights of the respondents. He only seeks the help of the Court to find out an arrangement how the appellant and the Respondent No, I should both manage the property alternately so that friction may be avoided.

(12) In Kunjit Meet/inn v. Kvn/aii Marackar Mether Air 1954 T C 51 the suit was brought by a trustee or a manager to remove the defendant from such office and to recover possession of the trust properties from him. It was held that the suit fell under Art. 17 (vi) Schedule Ii of the Court Fees requiring payment of fixed court-fee on the principle that the relief was not capable of valuation according to market-value. It was held that court-fees could not be levied ad valorem on the market-value of the property in such a case. As already pointed out in dealing with the first part of the question for decision, the division of the right of management may be of two kinds, namely, one exclusive and the other concurrent. In the Kunju Meethyan's case, an exclusive right of management was sought and even than it was held to be incapable of ad valorem vakialion. A fortiori, the right of management on behalf of the respondents and without denying their rights sought in the present case was incapable of ad valorem valuation. In Thakur Sitaramji Matiaraj BriJmaii Mandir v. Raghunath Das, : AIR1944All279 a suit between two rival managers for exclusive right to manage trust property was again held not to be a suit for possession and,, thereforee, court-fee under Art. 17 of Schedule Ii was held to be sufficient. The decision in Ram Kanwar Kidarmal v. Naurang Rai Kundan Lal, relied upon by the learned lower appellate Court does not support the order appealed against. For, in that case the cancellation of the lease deed was sought. The Court, thereforee, held that the valuation of the relief was that of the lease-hold rights. In the present case, no cancellation of the compromise decree is sought and, thereforee, the value of the relief cannot be equated with the value of the property which was the subject matter of the compromise.

(13) Once it is grasped that there is no dispute at all about the joint ownership of all the parties including the right of management of the property by all the parties, it must follow that what is to be valued is not the property but only the division of the right of management so that both the appellant and Respondent No. 1 may enjoy then- own shares of the right of management without friction. It is easy to see that this share of the appellant in the right of management on behalf of the other parties is simply incapable of ad valorem valuation. It cannot, thereforee, be valued under section 7(v) of the Court Fees Act. This is precisely the reason why it must fall under the principal part of section 7(iv)(c) of the Court Fees Act. The proviso added by the Court Fees (Punjab Amendment) Act, 1953 is not attracted inasmuch as no valuation of the share in the right of management can be made under section 7(v) of the Court Fees Act.

(14) The appeal is, thereforee, allowed. The order of remand passed by the lower appellate Court which has been appealed against is set aside. The valuation by the plaintiff-appellant is held to be valid. The lower appellate Court is directed to hear the appeal pending before it on merits. In the circumstances, there will be no order as to costs.


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