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Ganpatsinh Kalyansinh Thakore and ors. Vs. Shantilal Kalyansinh Thakore - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1965)6GLR402
AppellantGanpatsinh Kalyansinh Thakore and ors.
RespondentShantilal Kalyansinh Thakore
Cases ReferredChhotalal Kalidas v. Laxmidas Mayaram
Excerpt:
- - on these findings the learned judge has called upon the plaintiffs to put the correct valuation of the relief sought for as best as they can on the materials available to them in the light of the foregoing within eight days failing which necessary orders shall be passed for the appointment of a commissioner by the court at the cost of the defendant to determine the correct valuation. shah as he then was has clearly observed that in a case in which the valuation made by the plaintiffs was not shown to be wrong the jurisdiction of the court to determine the correct valuation was not attracted......senior division godhra in regular civil suit no. 119 of 1961 ordering the plaintiff to put the correct valuation of the relief sought. the plaintiffs have filed the suit for the administration of the estate of the deceased chhotalal alias chhotusinh kalyansinh and for accounts of the same and for other incidental reliefs. this suit was filed in the court of the civil judge senior division godhra.2. the plaintiffs stated in the plaint that it was a suit for administration i.e. for ascertaining the property and administration after taking accounts and valued the suit at rs. 200/for court-fees and pleaders fees and court-fee stamp of rs. 20 was accordingly affixed. the opponent filed an application exhibit 41 by which he contended that the suit was wrongly valued and prayed for an.....
Judgment:

M.U. Shah, J.

1. This is a plaintiffs revision application against the order of the Court of the Civil Judge Senior Division Godhra in Regular Civil Suit No. 119 of 1961 ordering the plaintiff to put the correct valuation of the relief sought. The plaintiffs have filed the suit for the administration of the estate of the deceased Chhotalal alias Chhotusinh Kalyansinh and for accounts of the same and for other incidental reliefs. This suit was filed in the Court of the Civil Judge Senior Division Godhra.

2. The plaintiffs stated in the plaint that it was a suit for administration i.e. for ascertaining the property and administration after taking accounts and valued the suit at Rs. 200/for court-fees and pleaders fees and court-fee stamp of Rs. 20 was accordingly affixed. The opponent filed an application Exhibit 41 by which he contended that the suit was wrongly valued and prayed for an inquiry under Section 8 of the Bombay Court-fees Act 1959.

3. The learned Civil Judge in para 4 of his judgment has observed that Looking to the plaint and the commissioners report Exhibit 11 read with the schedules attached thereto it appears that the deceased left the following properties at the time of his death.... The learned Judge then goes on to mention the properties (1) to (5) and then learned Judge says that it would appear that the properties left by the deceased Chhotusing Kalyansinh is at least worth about Rs. 20000/-. The learned Judge has also observed that if the will propounded by defendant No. 2 in his favour is not proved the plaintiffs would be entitled to get 3/4th share in the property and the valuation of their share is definitely more than Rs. 200 The learned Judge has also observed that is the plaintiffs have nowhere averred in the plaint that the deceased had any debt due from him at the time of his death. On these findings the learned Judge has called upon the plaintiffs to put the correct valuation of the relief sought for as best as they can on the materials available to them in the light of the foregoing within eight days failing which necessary orders shall be passed for the appointment of a commissioner by the Court at the cost of the defendant to determine the correct valuation. The original plaintiffs being aggrieved by the said order have come in revision before this Court.

4. The order of the Court calling upon the plaintiffs to put the proper valuation appears to have been passed under Section 8 of the Bombay Courtfees Act 1959 as applied to this State. Now in order to attract the provision of Section 8 the Court has to form the opinion that the subject matter of the suit has been wrongly valued. The Court can also revise the valuation suo motu and determine the correct valuation and may hold such inquiry as it thinks fit for such purpose. In order therefore to attract the provision of Section 8 of the Court-fees Act it must be shown that there was some standard by reference to which it was possible to value the subject-matter of the suit and then if the Court comes to the conclusion that the valuation made by the plaintiffs was wrong it was open to the Court to revise the valuation made by the plaintiffs.

5. In order to appreciate the contention of Mr. Shastri who appears on behalf of the opponent and who has been called upon to argue it is necessary to state that the suit is a suit for accounts of the property and for the due administration of the estate left by the deceased. In such a suit the creditors are entitled to come in and put in their claims and the debts due from the estate of the deceased have to be paid for the legacies have to be paid off and all other incidental expenses have to be defrayed. The provision of order 20 Rule 13 of the Code of Civil Procedure will be a correct guidance in the matter and I will reproduce the relevant rule which is as under:

13. (1) Where a suit is for an account of any property and for its due administration under the decree of the Court the Court shall before passing the final decree pass a preliminary decree ordering such accounts and inquiries to be taken and made and giving such other directions as it thinks fit.

(2) In the administration by the Court of the property of any deceased person if such property proves to be insufficient for the payment in full of his debts and liabilities the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities and future and contingent liabilities respectively as may be in force for the time being within the local limits of the Court in which the administration-suit in pending with respect to the estates of persons adjudged or declared insolvent; and all persons who in any such case would be entitled to be paid out of such property may come in under the preliminary decree and make such claims against the same as they may respectively be entitled to by virtue of this Code.

It is therefore very clear that the preliminary decree that will be passed in an administration suit will make a provision for the administration in the manner enjoined by Order 20 Rule 13 of the Code. Now if we go to the form of the decree in an administration suit which is Form No. 17 in Appendix D to the First Schedule of the Civil Procedure Code the form of the preliminary decree provides that it is to order that the accounts and inquiries be taken and made in the three cases (1) in creditors suit (2) ill suits by legatees and (3) in suits by next-of-kin and it also orders the taking of accounts and making of inquiries of what or of what share if any the plaintiff is entitled to as next-of-kin of the intestate. An account of the funeral and testamentary expenses and an account of the movable property of the deceased come to the hands of defendant or to the hands of any other person has also to be taken and an inquiry has to be made as it is provided in the decree. It is therefore clear that when a suit is filed for administration of the estate of the deceased and taking accounts: the plaintiff will not be in a position to say what exactly would be the amount or the share to which he would be entitled to on taking accounts. It is therefore that Section 6(iv)(i) of the Court-fees Act provided that in such a suit which will be treated as a suit for accounts the court-fee will be payable according to the amount at which the relief is sought and subject to the provision of Section 8 and subject to a minimum fee of Rs. 20/-. It will also be necessary to state that it is required in all suits falling under clauses (a) to (i) of Section 6(iv) of the Court-fees Act the plaintiffs have to state the amount at which the relief sought is valued and the reasons for the valuation. In the instant case there will be no correct standard available to the plaintiff when he files the suit to state the exact valuation that could be put and there would be no standard by reference to which the valuation made by the plaintiffs of the subjectmatter of the suits can be demonstrated to be wrong. The learned Civil Judge as stated by me above has observed that the plaintiffs will be entitled to 3/4th share and that there are no debts payable and therefore the property which will come to the share of the plaintiffs will be worth at least Rs. 20 0 The learned Judge seems to have been in manifest error in considering that in the plaint in administration suit the plaintiff should state that there are debts due to the deceased or that there are other amounts payable. As I have observed above various accounts have to be taken various payments have to be made and various formalities have to be under one and an inquiry to be made before a final decree in an administration suit can be passed as provided by order 20 Rule 13 read with form No. 17 in Appendix D to Schedule I of the Code Hence it cannot be said that there was any standard by reference to which the plaintiff could have valued the suit. But the learned Judge has come to the findings which I have referred to above and then he goes on to say that this was a patent case of wrong valuation and therefore he has called upon the plaintiff to put the correct valuation of the relief sought for. In my view to attract the provision of Section 8 of the Court-fee Act the Court has to first come to a definite finding on the materials on the record in the plaint that the valuation has been wrongly put. Simply to state that the valuation has been wrongly put would not satisfy the requirement of Section 8 and would not give jurisdiction to the Court unless the Court can come to a conclusion and base its view on some standard which would be available to the plaintiffs or to the Court to value correctly the subject matter of the suit and the relief prayed. In the case of Chhotalal Kalidas v. Laxmidas Mayaram reported in 60 B.L.R. at page 587 in the Letters Patent Appeal that was filed against the judgment of Mr. Justice Bavdekar Mr. Justice J.C. Shah as he then was has clearly observed that in a case in which the valuation made by the plaintiffs was not shown to be wrong the jurisdiction of the Court to determine the correct valuation was not attracted. I am bound by the judgment of the Bombay High Court which was given before the formation of the State of Gujarat.

6. Mr. Shastri has raised an objection that this Court will not have revisional power on a decision of the Civil Court under Section 8 of the Court-fees Act. The Civil Court will have jurisdiction to revise the valuation under Section 8 only if it is a case of wrong valuation and as I have found that it is not shown to be a case of wrong valuation which is a question of jurisdictional fact this Courts exercising its revisional power will be entitled to interfere. To permit the order of the Court to stand would be to throw out the case of the plaintiff and throw the plaintiff out of the Court because the lower Court appears to have observed that the share of the plaintiff would in any case come to at least Rs. 200 and therefore when Mr. Shastri has contended before me that this is not a final order but that this is only an order calling upon the plaintiffs to put the valuation and in the event of the plaintiffs not putting the proper valuation the Court will appoint the commissioner Mr. Shastri is not on stronger grounds. The order of the lower Court is in my view without jurisdiction and therefore cannot be sustained.

In the result the order of the lower Court is set aside and it is held that the valuation that has been put by the plaintiffs is the correct valuation and that the plaintiff was entitled to put the valuation as such and that the court-fee paid is proper. The application is therefore allowed and the rule made absolute with costs.


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