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Sanatkumar Bhikhabhai Patel and ors. Vs. the State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR946
AppellantSanatkumar Bhikhabhai Patel and ors.
RespondentThe State of Gujarat and ors.
Cases ReferredVillaya Konar v. Ramaswami Konar A.I.R.
Excerpt:
- - shah's next argument is that even if that be so if the categorisation affects the jurisdiction of the court to try the suit the defendant could well be adversely affected and would in that case be an aggrieved party and can come in revision. the contention raised by the defendant was that the suit fell under sub-section (xi)(e) of section 7 of the court fees act, 1870 and should have been valued at the amount of rent of the property payable in the year next before and date of the presentation of the plaint and on that valuation the value of the suit would clearly be far below rs. bakshi relies on the following observations at page 386: having reviewed these authorities, it is clear in our opinion that the law accepted by the court and clearly enunciated in the various decisions to.....akbar s. sarela, j.1. the short point arising in this civil revision application is the adequacy of the court fees paid on the plaint of the suit instituted by the opponent no 1.2. the petitioners were defendants nos. 1 to 5 in the suit instituted by opponent no. 1. opponent no. 1, the plaintiff, was a creditor of defendant no. 6 who is opponent no. 2 in this civil revision application, i will refer to the parties as plaintiffs and defendants as the case may be. defendant no. 6 while he was still a debtor of the plaintiff passed a gift deed of the suit property in favour of defendants nos. 1 to 5 (the petitioners) on 13-1-1963. the suit was to avoid that gift deed. the plaintiff prayed for a declaration that the said gift deed made by defendant no. 6 in favour of defendants nos. 1 to 5 be.....
Judgment:

Akbar S. Sarela, J.

1. The short point arising in this civil revision application is the adequacy of the court fees paid on the plaint of the suit instituted by the opponent No 1.

2. The petitioners were defendants Nos. 1 to 5 in the suit instituted by opponent No. 1. Opponent No. 1, the plaintiff, was a creditor of defendant No. 6 who is opponent No. 2 in this civil revision application, I will refer to the parties as plaintiffs and defendants as the case may be. Defendant No. 6 while he was still a debtor of the plaintiff passed a gift deed of the suit property in favour of defendants Nos. 1 to 5 (the petitioners) on 13-1-1963. The suit was to avoid that gift deed. The plaintiff prayed for a declaration that the said gift deed made by defendant No. 6 in favour of defendants Nos. 1 to 5 be declared fraudulent as having been made with intent to defeat his creditors. The plaintiff also prayed that the said gift deed be set aside.

3. The plaint was stamped with a fixed court fee of Rs. 30/- on the footing that the suit fell under Section 6(iv)(j) of the Bombay Court Fees Act, 1959 (hereinafter referred to as the Act). The defendants Nos. 1 to 5 contended that the suit fell under Section 6(iv)(d) of the Act and that court fee payable was on an ad valorem basis to be calculated on the market value of the property covered by the gift deed. The lower Court upheld the plaintiff's valuation and held that the suit fell under Section 6(iv)( j) of the Act. Defendants Nos. 1 to 5 have come in revision.

4. At the outset Mr. Bakshi appearing for the plaintiff-opponent No. 1 raised the contention that the petitioners have no right to come in revision as they are not an aggrieved party. His submission was that this is a matter affecting revenue and therefore it is a matter between the State and the plaintiff. In the present case the Government of Gujarat being itself the plaintiff even on that footing there was hardly any matter between the State and the plaintiff. The decision relating to court fees therefore is not a decision with which the petitioners can be said to be aggrieved and unless a person is aggrieved by the decision he has no right to invoke the revisional jurisdiction of the High Court under Section 115 of the Civil Procedure Code. In support of this argument he relied on the decision of the Supreme Court in Rathnavarmaraja v. Smt. Vimla : [1961]3SCR1015 . He particularly relied on the following observations at page 1300:

Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the Court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by Clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the subordinate Court or assumption of jurisdiction which the Court does not possess or on the ground that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no right to move the superior courts by appeal in revision against the order adjudging payment of court fee payable on the plaint.

Mr. K. C. Shah who appears for the petitioners submits that these observations relates to valuation or appraisement and not categorisation. If, he argues, there is no dispute as to the provision under which the plaint falls and the only dispute is whether the valuation or appraisement of the subject matter under that provision has been correctly made, then as that dispute is concerned only with the amount of court fee payable by the plaintiff and only affects revenue, the defendants cannot be said to be aggrieved by the decision which adversely affects the revenue but the same cannot be said to be the case where the decision relates not merely to valuation of appraisement but also to categorisation that is to say the provision under which the suit falls. Now, it is true that in the Supreme Court case the dispute was as to valuation or appraisement and not as to categorisation but the observations made therein are general. The test to be applied according to the Supreme Court is whether the party has been aggrieved and therefore even if the decision relates to categorisation if the result is only a difference in revenue it would not be possible to hold that the defendant or defendants concerned are aggrieved by the decision. Mr. Shah's next argument is that even if that be so if the categorisation affects the jurisdiction of the Court to try the suit the defendant could well be adversely affected and would in that case be an aggrieved party and can come in revision. There is, in my opinion, substance in argument. In the observations above quoted this position appears to be implicit. In the concluding portion of the judgment also their Lordship say:

In our view, the High Court grievously erred in entertaining revision applications on questions of court fee at the instance of the defendant, when no question of jurisdiction was involved.

Reference may also be made to observations of the Supreme Court in Sathappa Chettiar v. Ramanathan Chettiar : [1958]1SCR1021 . They say (at p. 251):

Normally the dispute between the litigant and the Registry in respect of court-fees arises at the initial stage of the presentation of the plaint or the appeal and the defendant or the respondent is usually not interested in such a dispute unless the question of payment of court-fees involves also the question of jurisdiction of the court either to try the suit or to entertain the appeal.

Therefore, when in the decision relating to proper Court-fees question of jurisdiction of the Court to try the suit is involved the party affected by the decision would be an aggrieved party and would be entitled to approach the High Court in revision.

5. The question then is whether here the decision of the lower Court has given rise to such an error relating to jurisdiction. What is necessary to be considered is whether if the decision had been that the suit falls under Clause (d) of Sub-section (iv) of Section 6 of the Act, the Court in which the suit was instituted, or which would try the suit, would be the Court in which the suit could be instituted and tried. To appreciate the question it is necessary to read Clauses (d) and (j). The first para of Clause (d) reads as under:

(d). In suits for declaration in respect of ownership, or nature of tenancy, title, tenure, right, lease, freedom or exemption from, or non-liabilty to, attachment with or without sale or other attributes, of immovable property, such as a declaration that certain land is personal property of the Ruler of any former Indian State or public trust property of any class or community one fourth of ad valoram fee leviable for a suit for possession on the basis of title of the subject-matter, subject to a minimum fee of eighteen rupees and seventy-five naya paise.

There are provisos to this clause to which it is not necessary to turn for the present. They set out cases in respect of which more than one-fourth of the fee is payable. Clause (j) reads as under:

(j). In suits where declaration is sought, with or without injunction or other consequential relief and the subject matter in dispute is not susceptiable of monetary evaluation and which are not otherwise provided for by this Act-thirty rupees.

For considering the question of jurisdiction I shall assume that the suit falls under Clause (d) as contended by the petitioners. The question then is whether in holding it to fall under Clause (j) the lower Court committed an error which related to the jurisdiction of the Court to try the suit. Mr. Bakshi argues that there was no such error, and for two reasons. One reason, according to Mr. Bakshi, is that the plaintiff was entitled to put his own valuation on the subject matter under Clause (d) and he having put the valuation at Rs. 99/- that valuation is conclusive for the purpose of court fee and it also determines under Section 8 of the Suits Valuation Act, 1887, the jurisdiction. Therefore, even under Clause (d) the lower Court would have jurisdiction to try the suit. The other reason advanced by Mr. Bakshi is that even if the valuation for the purpose of court fee were to be made on the basis of the market value of the property covered by the gift deed, which property is valued in the gift deed at Rs. 25000/-, even then as under Clause (d) one-fourth of that valuation would on that basis have to be taken for the purpose of calculating ad valorem fee, the value of the subject matter would be Rs. 6250/- and the suit would still by within the jurisdiction of the lower Court. He argued that even if the case fell under the last proviso to Clause (d) which requires that when consequential relief other than possession is prayed half the ad valorem fee be paid and when possession is sought full ad valorem fee be paid as leviable on a suit for possession on the basis of the title of the subject matter, even then the lower Court being the Court of the Civil Judge, Senior Division, had jurisdiction to proceed with the suit. On these two grounds Mr. Bakshi says that no error affecting the jurisdiction of the Court to try the suit has been committed by the decision of the lower Court and therefore also the petitioners cannot be said to be aggrieved persons. The first of these two grounds cannot in my opinion be sustained but the second ground deserves to be accepted.

6. In support of the first ground Mr. Bakshi first relied upon the decision of the Bombay High Court in Burjor v. Nariman : AIR1953Bom382 , which was a suit for a declaration that the terrace of a building and the terrace room were comprised within the plaintiff's tenancy, for mandatory injunction directing the defendant to remove the obstruction and permanent injunction restraining defendant from . interfering with plaintiff's exclusive use and enjoyment of same. The suit was valued for the purpose of the court fee at more than Rs. 25000/- and the same was the value for the purpose of jurisdiction. The City Civil Court at Bombay had jurisdiction upto Rs. 25000/ - and therefore this suit was instituted in the High Court. The contention raised by the defendant was that the suit fell under Sub-section (xi)(e) of Section 7 of the Court Fees Act, 1870 and should have been valued at the amount of rent of the property payable in the year next before and date of the presentation of the plaint and on that valuation the value of the suit would clearly be far below Rs. 25000/-. That contention was negatived and it was held that the suit was substantially a suit for a declaration as to the plaintiff's right and for a consequential relief viz. the two injunctions sought by the plaintiff, and the suit fell under Section 7 (iv)(c) which deals with suits for obtaining a declaratory decree or order where consequential relief is prayed. It was next contended that even so having regard to Section 8 of the Suits Valuation Act, 1887, the value for the purpose of jurisdiction was the value as determinable by the Court and it was argued that it cannot be left to the option and of the plaintiff to determine in which Court he will file his suit. That argument was rejected it being held that the expression 'determinable' used in Section 8 of the Suits Valuation Act means determinable as laid down in the Court Fees Act and not determinable by the party but determinable by law and that the Court must turn to the Court Fees Act in order to find out how the value is to be determined. Their Lordships went on to observe that under Section 7(iv)(c) of the Court Fees Act, 1870 the value is to be determined by the plaintiff, he being given the right to state the amount at which he values the relief. Mr. Bakshi relies on the following observations at page 386:

Having reviewed these authorities, it is clear in our opinion that the law accepted by the Court and clearly enunciated in the various decisions to which reference has been made, is that a plaintiff is entitled to put his own valuation upon the relief which he seeks in the suit if the suit falls under Section 7(iv) of the Court Fees Act, and if he has put a valuation, then that valuation is conclusive for the purpose of Section 8 of the Suits Valuation Act and the jurisdiction of the Court must be determined according to the valuation so put by the plaintiff. It is not open to the Court to go behind that valuation and to consider whether the valuation is a proper valuation or not.

Mr. Bakshi has invited my attention to a similar decision of Single Judge in Rajdhar v. Umakant : AIR1958Bom310 , where it was held that in a suit under Section 7(iv) of the Court Fees Act, 1870, a plaintiff is entitled to put his own valuation upon the reliefs which he seeks and it is not open to a Court to consider the correctness or appropriateness or otherwise of the valuation so placed by the plaintiff. The point is concluded by the decision of the Supreme Court in Sathappa Chettiar v. Ramanathan Chettiar (supra) to which Mr. Bakshi invited my attention and in which the Supreme Court has taken the same view. Therefore, the proposition is well established that in respect of a suit falling under Section 7(iv) of the Court Fees Act, 1870 the plaintiff is entitled to place his own valuation on the relief sought and that valuation will be the valuation for the purpose of jurisdiction.

7. Mr. Shah argues that these decisions would not apply to Clause (d) of Section 6(iv) of the Act because the wording of that clause is different from the wording of Section 7(iv) of the Court Fees Act, 1870. There is substance in that argument and it is necessary therefore to refer to the relevant wording. Section 7(iv) of the Court Fees Act, 1870 deals with certain types of suits, Clause (a) thereof concerns a suit for immovable property when the subject matter has no market value, Clause (b) concerns suits to enforce the right to share in any property on the ground that it is joint family property, Clause (c) concerns suits to obtain a declaratory decree or order, where consequential relief is prayed, Clause (d) is concerned with obtaining an injunction, Clause (e) with a suit for a right to some benefit (not herein otherwise provided for) to arise out of land, and Clause (f) concerns a suit for accounts. Now, in respect of these suits it is provided that the amount of court fees payable shall be computed 'according to the amount at which the relief sought is valued in the plaint or memorandum of appeal' and the section further provided that 'in all such suits the plaintiff shall state the amount at which he values the relief sought'. Therefore, under this provision the plaintiff is given a right to value in plaint or memorandum of appeal the relief sought and is required to state at which amount he values the relief sought. Having regard to this provision, as pointed out by the Bombay High Court in Burjor v. Nariman (supra), it is not a case of plaintiff exercising his discretion but is a case of the plaintiff having an unfettered right. Therefore, if in exercise of that right he values the relief sought at a particular amount the Court has to accept that valuation. Clause (d) of Section 6(iv) of the Act under consideration however does not give a right to the plaintiff to value the relief sought. No doubt at the end of the various clauses of the said Section 6 (iv) it is stated that 'in all suit under Clauses (a) to (i) the plaintiff shall state the amount at which he values the relief sought, with reasons for the valuation', but this clause only requires the plaintiff to state the amount at which he values the relief; the valuation has to be done in the manner specifically provided for in Clause (d) itself. Under Clause (d) it is specifically provided that the amount of fee payable in suits falling under the clause shall be 'one fourth of the ad valorem fee leviable for a suit for possession on the basis of title of the subject matter subject to a minimum of Rs. 18. 75 P. ' Therefore the plaintiff is not given a right to value the relief sought. The valuation is required to be on the footing of a suit for possession on the basis of title of the subject matter. Now, a suit for possession of a house falls under Sub-section (v) of Section 6 and under that provision the value has to be according to the market value of the house. In my opinion, therefore, the first part of the argument of Mr. Bakshi cannot be accepted.

8. The second part of the argument of Mr. Bakshi however appears to be well founded. It is not disputed that the market value of the property covered by the gift deed, which property would, under Clause (d) of Section 6(iv) of the Act, be the subject matter of the suit, if the provision applies, is Rs. 25000/ -. Therefore, under that clause one fourth of the ad valorem fee subject to a minimum fee of Rs. 18. 75 P. would be leviable and if it is held that the consequential relief other than possession has also been claimed one half the ad valorem fee would be leviable. For the purpose of court fee therefore the ad valorem valuation would be Rs. 12500/- at the highest. The Court in which this suit was filed and by which it is tried is the Court of the Civil Judge, Senior Division, within whose local jurisdiction the property is situate. It is undisputed that the Court has the necessary territorial and pecuniary jurisdiction to try this suit. In fact, in view of Section 32 of the Bombay Civil Courts Act, 1869, that is the only Court which could try the suit because the Government is a party. This being the position, even the suit fell under Clause (d) of Section 6(iv) the decision of the lower Court that it fell under Clause (j) would not affect the jurisdiction of the lower Court to try the suit and therefore the petitioners cannot be said to be an aggrieved party and would not be entitled to come in revision against that decision.

9. The question whether Clause (d) or Clause (j) of Section 6(iv) applied therefore does not call for decision but as both sides have addressed me at length on the point, I propose to deal with it. Clause (j) would apply if the suit is one for a declaration, the subject matter in dispute is not susceptible of monetary evaluation and which is not otherwise provided for by the Act. Therefore, if such a suit is otherwise provided for this clause would not be attracted. Having regard to the argument before me the only question to be considered is whether that other provision is Clause (d). Mr. Shah argues that this is a suit for declaration in respect of ownership or title of immovable property. Mr. Bakshi's argument is that it is not a suit for declaration in respect of ownership or title to immovable property covered by the gift deed but is a suit to avoid a transfer. His argument is that the subject matter is not the immovable property in respect of which the gift deed is passed but is the transaction namely the gift deed and the issue in the suit is not a declaration in respect of the ownership of or title to the immovable property but a declaration as to the genuineness or vulnerability of the transaction under which the said property was gifted away. It appears to me that there is considerable force in the argument of Mr. Bakshi. In a suit falling under Section 53 of the Transfer of Property Act, as this suit is, the only issue is whether the transaction was made with intent to defeat or delay the creditors of the transferor and if it was so made it shall be voidable at the option of the creditors so defeated or delayed. The subject matter of the suit is not the immovable property itself. Nor is the question of the binding nature of the transaction as between the parties to it in issue. Section 53 of the Transfer of Property Act assumes that there is a real transfer intended to pass title to the transferee. The suit is not for annulment of the transfer and the result of a decree in such a suit is not that the transfer is annulled. The result is that the transfer would not affect the right of the creditors to proceed against that property to the extent of their dues. The subject matter is the vulnerability of the transaction against the creditors' claim and the right of the creditors to proceed against the property notwithstanding the transfer. The transfer can be avoided by the creditors only on the grounds stated in the section. Such a suit cannot be said to seek a declaration in respect of ownership of or title to the immovable property. No doubt the suit does ask for a declaration in respect of the transfer but as pointed out in Kalyanji v. Liladhar VI G.L.R. 44, Section 6(iv)(d) cannot be given such a wide meaning as to cover all suits where any declaration is sought in respect of any alienation. The clause must be restricted to the categories indicated in the illustrative part. It cannot be said that the present suit is of such a category. The point under consideration appears to be covered by a direct ruling of this Court in Civil Revision Application No. 700 of 1962 decided by Miabhoy C. J. on 7-10-1966. In that case opponent No. 1 who was indebted to the petitioner under a promissory note executed a sale deed of his immovable property in favour of the other two opponents who were respectively his brother and brother-in-law. The petitioner sued for two reliefs in respect of the sale transaction namely (1) a declaration that the impugned sale was sham and without consideration and therefore void and (2) alternatively, that, the impugned transaction was entered into to defeat or delay the claims of opponent No. 1 's creditors and that therefore the same was not binding on those creditors. A fixed court fee of Rs. 30/- was paid on the plaint under Section 6(iv)(j). It was contended on behalf of the defendants that the court fee payable was ad valorem on the value of Rs. 8000/- for which the property had been sold under the impugned transaction. His Lordship after referring to the decision of the High Court of Bombay in Chhotalal Kalidas v. Laxmidas Mayaram 60 B.L.R. 587 held that the subject matter of the suit was not the property covered by the sale deed in regard to the title of which the question had been raised but the subject matter was the impugned transaction on the lawful or unlawful character of which ultimately the title in case the first prayer is awarded of opponent No. 1 will depend and in case the second prayer is awarded the right of the creditors to proceed against the property in dispute will depend. In either view of the matter, His Lordship said, the property is not directly in dispute, but what is in dispute is the transaction which has been interposed by opponent No. 1 between himself and his creditors. For those reasons he held that Clause (j) of Section 6(iv) would apply. The case of Chhotalal Kalidas (supra) relied on in that decision was a suit to claim a declaration that a sale deed passed by defendent No. 1 in favour of defendent No. 2 in purported exercise of the power conferred upon defendent No. 1 by the mortgage deed was illegal, void, invalid, ineffective and bad in law and the same be set aside and for an injunction against the defendants restraining them from proceeding further with the completion of the sale. The plaintiffs valued the claim for the purpose of court fee and jurisdiction at Rs. 420/- on the footing that the suit fell under Section 7(iv)(c) of the Court Fees Act, 1870. The defendants contended that the subject matter of the suit was the property covered by the sale deed which was valued in the plaint at Rs. 1, 00, 000/-. The High Court, in appeal, held that the suit fall under Section 7(iv)(c) of the Court Fees Act, 1870 and that the plaintiffs were entitled to put their own valuation on the subject matter of the suit. The Court did not accept the contention that the property covered by the sale deed formed the subject matter. It is true that that suit was not under Section S3 of the Transfer of Property Act. But the ratio of that decision applies, for it was held that the subject matter was not even the equity of redemption and it was not the equity of redemption of the plaintiffs that was to be valued for the purpose of court fees but the subject matter was the relief which the plaintiffs claimed namely the declaration of invalidity or ineffectiveness of the sale deed, as against the plaintiffs. As against this Mr. Shah invites my attention to the decision of Raju J. in Civil Revision Application No. 173 of 1963 decided on 9th January 1967. There also the suit was under Section 53 of the Transfer of Property Act and the relief claimed was a declaration that a gift deed in respect of a house executed by defendant No. 1 in favour of defendants Nos. 2 and 3 was with 4 view to defeat the dues of the plaintiffs and other creditors of the defendants, and for a further declaration that the gift deed is not binding on the plaintiffs and other creditors and for a declaration that the plaintiffs can recover the amount of decree out of the said property. The lower Court held that the suit fall under Section 6(iv)(d) and not under Section 6(iv)(j). Against that the plaintiffs case in revision and the learned Judge upheld the lower Court's decision and rejected the revision application. The view of the learned Judge was that the plaintiffs having prayed for a declaration that they were entitled to attach the particular property or to recover money by the sale of that property, it became a suit in respect of a right to immovable property and therefore fell under Section 6(iv)(d). The learned Judge further held that the suit was impliedly for a declaration that defendant No. 1 is the owner of the house and the plaintiffs can recover their decretal due from the house. On both these grounds it was held that the suit fell under Section 6(iv)(d). It does not appear that the attention of the learned Judge was invited to the decision in Chhotalal Kalidas v. Laxmidas Mayaram (supra), Kalyanji v. Liladhar (supra) and Civil Revision Application No. 700 of 1962 decided by the Chief Justice. For the reasons which I have given I am in agreement with the view taken by My Lord the Chief Justice in Civil Revision Application No. 700 of 1962. Accordingly, I hold that this suit falls under Section 6(iv)(j).

10. Mr. Shah for the petitioners had a further submission to make. He pointed out that the plaintiffs had prayed for two reliefs, one of declaration that the suit deed was fraudulent as having been made with intent to defeat the creditors and the other that the said gift deed be set aside. He argued that the second prayer was an independent relief and should have been separately valued and court fees paid on it. Mr. Bakshi's submission was that it was a consequential relief and was covered by Clause (j). Mr. Bakshi further submitted that it was not even necessary in law for the plaintiffs to ask for setting aside the gift deed.

11. He invited my attention to Villaya Konar v. Ramaswami Konar A.I.R. 1939 Mad. 894. He thereafter asked for an amendment of the plaint dropping that relief of setting aside the gift deed. As that amendment was granted by this Court and the said relief was dropped it is not necessary to consider the question whether it was not a consequential relief and whether it required to be separately valued for purposes of court fees.

12. In the result the revision application is dismissed with costs. Rule discharged.


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