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Pannalal and ors. Vs. Nand Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 360 of 1972
Judge
Reported inAIR1973Raj309
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 47, Rule 4; Court Fees Act, 1870 - Sections 7
AppellantPannalal and ors.
RespondentNand Lal and ors.
Appellant Advocate R.R. Chacha, Adv.
Respondent Advocate H.C. Jain, Adv.
Cases Referred and Subramanian Chettiar v. Kumarappa
Excerpt:
- - on the basis of air 1959 andh pra 305 referred to above, learned counsel for the non-petitioner contends that it is a composite order in the second as well as in the third stage. at best, he can claim contribution for the same. if the money which he had expended were advanced out of, a separate property without an intention of making a present of it to the family he would then be entitled to reimbursement for his outlay as well on partition as before it......there had occurred an error apparent on the face of the record. after hearing arguments on the review application the learned civil judge by his order dated 29-7-1972 dismissed the review application and granted 15 days' further time to the defendant to submit the court-fee. the defendants pannalal, dhirajkumar and shanti lal thereafter filed the present revision application on 9-8-1972 wherein it was prayed that the revision may be allowed and the order under revision be set aside. certified copies of the orders of the lower court dated 26-7-1972 and 29-7-1972 were submitted along with the revision. the title of the revision application was mentioned as under:-- 'revision under section 115, c. p. c. against the order dated 26-7-1972 in c. o. 107/69 of the court of civil judge,.....
Judgment:
ORDER

C.M. Lodha, J.

1. This revision application by the defendants arises out of a partition suit and raises a question regarding payment of court-fee. In order to appreciate the point it would be necessary to state a few facts:

2. The parties are the sons and daughters of Madanlal, who died on 3-8-1957. Defendants Pannalal, Dhirajkumar, Shantilal, Smt. Pushpa and Smt. Nawali are the sons and daughters of Madanlal by the second wife whereas the plaintiff Nandlal is by the first wife. Madanlal was adopted by Mohanlal, who executed a will on 12-1-1937 by which he bequeathed half of his property to Nandlal and the other half to Madanlal. After the death of Madanlal which took place on 10-2-1938. Nandlal filed the present suit for partition of that half of the property of Mohanlal which had been bequeathed to Madanlal.

3. Nandlal's suit was resisted by defendant No. 1 Pannalal. He pleaded that he had discharged the debts due from Madanlal, and had also spent the following amounts on behalf of the joint family constituted by the parties:--

(a) Rs. 2200/- on account of funeral expenses of Madanlal.

(b) Rs. 19,500/- on the marriages of the two daughters of Madanlal viz. defendant Nos. 4 and 5 Smt. Pushpa and Smt. Nawali.

(c) Rs. 8000/- on the marriage of defendant No. 2, Dhiraj Kumar.

(d) Rs. 300/- for delivery and 'Muklawa' of Smt. Pushpa, Smt. Nawali and a sister of Madanlal.

(e) Rs. 37,000/- on account of household expenses of the joint family.

(f) Rs. 10,000/- on repairs and improvements of the house belonging to the joint family.

4. It was prayed that while determining the plaintiff's share in the joint family property, due allowance may be made for his share of expenses in respect of the items mentioned above.

5. After the issues had been framed an application was filed by the plaintiff on 26-7-1972 raising an objection that the defendant No. 1 was not entitled to get an enquiry made into the items of expenditure claimed by him unless he paid the court-fee on the total amount alleged to have been spent by him for the purposes of joint family, that is Rs. 79,700/-. After hearing arguments the learned Civil Judge, Nagaur by his order dated 26-7-1972 turned out a very short order directing that the defendant may pay court-fee on Rs. 79,700/- the next day lest the issue regarding the counter claim or set off for Rs. 79,700/- would be struck off and then he said that the court-fee may be paid within 7 days.

6. Dissatisfied with the order of the learned Civil Judge calling upon him to pay ad valorem court-fee on Rs. 79,700/- the defendant No. 1 filed an application for review on 27-7-1972. The learned Civil Judge ordered issue of notice of this application to the plaintiff and the plaintiff submitted his reply on 28-7-1972. It was submitted in the reply that no ground had been made out for re-viewing the order dated 26-7-1972. It may be observed here that the ground relied upon by the defendant for the application for review was that the order had been passed without taking the defendant's reply into consideration and without hearing his arguments, and as such there had occurred an error apparent on the face of the record. After hearing arguments on the review application the learned Civil Judge by his order dated 29-7-1972 dismissed the review application and granted 15 days' further time to the defendant to submit the court-fee. The defendants Pannalal, Dhirajkumar and Shanti Lal thereafter filed the present revision application on 9-8-1972 wherein it was prayed that the revision may be allowed and the order under revision be set aside. Certified copies of the orders of the lower Court dated 26-7-1972 and 29-7-1972 were submitted along with the revision. The title of the revision application was mentioned as under:--

'Revision under Section 115, C. P. C. against the order dated 26-7-1972 in C. O. 107/69 of the Court of Civil Judge, Nagaur.'

7. A preliminary objection was raised by the learned counsel for the plaintiff-respondent as to the maintainability of the revision application on the ground that the order dated 26-7-1972 had merged in the order dated 29-7-1972, and consequently no revision was maintainable against the order dated 26-7-1972.

8. Arguments were heard on this preliminary objection by the Hon'ble Shri Jagat Narayan, C. J. (now in Chambers) on 14-11-1972 and 8-1-1973 but the case remained part-heard. Meanwhile the counsel for the petitioners made an application on 6-3-1973 praying that in case the Court comes to the conclusion that revision can He only from the order dated 29-7-1972, the present revision application may be treated as one against that order.

9. In support of the preliminary objection, learned counsel for the respondent has placed reliance on Vadilal v. Fulchand, (1906) ILR 30 Bom 56; Nanhe v. Mangat Rai, (1913) 20 Ind Cas 647 (All); Gour v. Nilmadhab, AIR 1923 Cal 113 and Mallikarjunappa v. Rudrasetti, AIR 1959 Andh Pra 305. On the other hand learned coursel for the petitioners relies on Md. Rowther v. Swaminatha, AIR 1938 Mad 573.

10. In (1906) ILR 30 Bom 56 Jenkins, C. J. made valuable observations as to the three stages of a review application. The first is the ex parte stage when the Court may either reject the application at once or may grant a rule calling on the other side to show cause why the review should not be granted. In the second stage the rule may either be admitted or rejected. If the rule is discharged the case ends then and there. If, on the other hand, the rule is made absolute, then the third stage is reached. The case is reheard on the merits and may result in a repetition of the former decree or some variation of it. In either case the whole matter having been reopened there is a fresh decree. The observations of Jenkins, C. J. were adopted in (1913) 20 Ind Cas 647 (All); AIR 1923 Cal 113; AIR 1959 Andh Pra 305 and AIR 1938 Mad 573 and also in two cases of our own Court Maji Mohan Kanwar v. State, AIR 1967 Raj 264 and Umrao Singh v. Commissioner Khudkasht, Rajasthan, Jaipur, 1972 Raj LW 129. The analysis of the three successive stages in an application for review is thus of fundamental importance.

11. The important question, therefore, is whether the order dated 29-7-1972 on the review petition was one passed in the second or in the third stage? On the basis of AIR 1959 Andh Pra 305 referred to above, learned counsel for the non-petitioner contends that it is a composite order in the second as well as in the third stage. There is no denying the fact that the first stage of the review application was passed when the Court did not reject it under Clause 1 of Order 47, Rule 4, Civil P. C. and ordered issue of notice to the opposite party to enable him to appear and be heard in support of the order sought to be reviewed. Order 47, Rule 8 provides that when an application for review is granted a note thereof shall be made in the register and the Court may at once rehear the case or make such order in regard to the rehearing as it thinks fit. In the present case the Court did not make any specific order granting review nor any note to that effect was made in the register. The sole emphasis of the learned counsel for the non-petitioner is that since the learned Judge made observations as to the merits of the question regarding payment of court-fee and repeated the former order, it must be treated as an order in the third stage, whereas the contention of the petitioners' counsel is that the order specifically mentions that the review application is rejected and no note granting the application for review has been made in the register. It is urged that no doubt the Court has made some observations on the merits of the case in the order dated 29-7-1972 presumably because it had not given any reasons in its former order, but that does not change the stage of the order in which it was passed.

12. After giving my thoughtful consideration to the matter, I have come To the conclusion that the order dated 29-7-1972 must be treated as having been passed in the second stage rejecting the review application and not a decision after rehearing. The reasons which have prevailed with me to take this view are that the learned Judge has expressly stated that the review application was being rejected. Admittedly no note was made in the register granting the review. It appears to me that the distinction between second and third stages of a review was not brought to the notice of the learned Judge at all and for the purpose of disposing of the review application the learned Judge examined the merits of the case. The Judge himself observed that he was rejecting the review application. I do not see any sufficient reason to hold in face of this observation that he had granted the review and decided the case over again on merits. As pointed out by Jenkins, C. J. in the case already cited, the hearing of the review in the second stage may involve to some extent an investigation into the merits also. But that does not affect the character of the order made and in each case the Court has to decide as to at what stage the order was passed and what is its effect. In the facts and circumstances of the present case, I am of opinion that the order dated 29-7-1972 must be deemed as one passed in second stage and not in the third stage.

13. This brings me to the merits of the revision application. Learned counsel for the petitioners has relied on Subramania v. Shamugham, AIR 1967 Mad 300; Mst. Sehdat v. Abdul Jabar, 1951 Raj LW 219 -- (AIR 1951 Raj 155); Kanhaiyalal v. Jagannath, 1971 WLN 263 = (AIR 1972 Raj 120); Haidari Begam v. Gurzar Bano, AIR 1914 All 273; U Ba Pe v. Sun Press, AIR 1940 Rang 300 and Jogarao v. Venkatarao, AIR 1949 Mad 471 whereas the learned counsel for the non-petitioners has placed reliance on Alamelu Ammal v. Thayarammal, AIR 1961 Mad 355 and Subramanian Chettiar v. Kumarappa, AIR 1955 Mad 144. It may be observed that none of the cases relied upon by learned counsel is in point, and hence I do not consider it necessary to discuss them.

14. It is crystal clear that if the defendants' claim is considered as a counter claim or set off, the defendants are liable to pay ad valorem court-fee. If on the other hand the claim is considered as one for adjustment of equities at the time of partition, no court-fee is leviable. It is further clear that where any party to a partition suit claims any amount out of joint family funds by way of contribution or as a debt due to him, it is a counter claim and cannot be investigated unless he has paid Court fee on it. It would, therefore, be proper to take each of the items claimed by the defendants separately in order to determine the question of court-fee.

15. The debts alleged to have been paid by the defendants as due from Madanlal have not been specified at all and no contribution or adjustment has been claimed in this respect and therefore no enquiry can be allowed to be held as to the debts alleged to have been paid by the defendants on behalf of Madanlal.

16. Rs. 2,200/- have been claimed as funeral expenses on the death of Madanlal. These expenses cannot be considered as loan. If the petitioner is proved to have incurred these expenses, he is entitled to have them adjusted at the time of partition of the property. I am, therefore, of opinion that no court-fee is leviable on this amount.

17. As to the marriage expenses of Dhiraj Kumar Rs. 8,000/-, there is no obligation on the joint family in respect of the son's marriage. The defendant is therefore not entitled to claim this amount by way of adjustment of equities. At best, he can claim contribution for the same. He is, therefore, liable to pay court-fee on the plaintiff's share of this amount which he wants to be adjusted against the plaintiff.

18. As regards the amount of Rupees 10,000/- alleged to have been spent on improvements and repairs of the immoveable property belonging to the joint family, it may be noticed that money laid out by one of the members of the family upon the improvement of the property or for any other object of common benefit would constitute a debt to him from the rest of the family. If the money which he had expended were advanced out of, a separate property without an intention of making a present of it to the family he would then be entitled to reimbursement for his outlay as well on partition as before it. It is, however, not clear as to when and in what way this amount has been spent and on which part of the joint family property. In absence of such details it cannot be said that the defendant is entitled to deduct proportionate share of this amount from other parties by way of adjustment in the allotment of properties and consequently if he wants to get this matter investigated he must pay court-fee on the plaintiff's share of the amount for which he wants to make the plaintiff liable.

19. As regards household expenses Rs. 37,000/- claimed by the defendant, it is sufficient to point out that there was no joint messing of the parties after the death of Madanlal. As a matter of fact Nandlal had separated from Madanlal even during the latter's life time and litigation had started between them. It is then difficult to understand how the share of household expenses which the defendants may have incurred for themselves while living separately from Nandlal can be claimed by way of adjustment from Nandlal. However, if the defendants think that they are entitled to recover a part of those expenses from Nandlal, they must pay court-fee on that part which they claim to be recoverable from Nand Lal.

20. The petitioner Pannalal has also claimed Rs. 19,500/- on account of the marriage expenses of the two daughters of Madanlal viz. Smt. Pushpa and Smt. Nawali -- defendants Nos. 4 and 5. Learned counsel for the non-petitioner plaintiff has urged that the question of provision of marriage expenses for the daughters does not arise in a case governed by the Hindu Succession Act, 1956 for the simple reason that the daughters are also equally entitled to a share along with their brothers in the property of their father. This is correct. In view of this position under the Hindu Succession Act, 1956 marriage expenses for the marriage of a daughter incurred by one member in the family can be accounted for only between the daughter and the male member who has incurred those expenses. Such expenses cannot be claimed by way of adjustment at the time of partition specially when the suit is filed against another male member. Prima facie it appears that this is a matter inter se between the petitioners and defendants Nos. 4 and 5. At any rate if the petitioner claims any share of these expenses from the plaintiff Nandlal by way of contribution, then he must pay court-fee on the same. Learned counsel for the petitioners submits that they are entitled to adjust this amount as against the shares of the two daughters. It may be pointed out that in para No. 5 of the written statement it has been stated by the defendant-petitioners that the plaintiff's share of the total amount of expenses claimed by them may be first set off against him and then the property may be partitioned. They have not claimed any adjustment of these expenses against the daughters who are their real sisters. Consequently, the petitioners can get an enquiry made into this matter only if they pay court-fee on the amount of expenses which they claim by way of contribution from the plaintiff. Since no contention has been raised in the pleadings that the defendant-petitioners are entitled to get the amount of expenses alleged to have been incurred by them in connection with the marriages of the two daughters of Madanlal from the daughters, I do not think it necessary to express my opinion in that connection, at this stage, and the petitioners, if so advised, may move this matter afresh before the trial Court.

21. The observations made by me in connection with the marriage expenses of the two daughters apply with equal force to the delivery and 'Muklawa' expenses Rs. 3,000/-alleged to have been spent by the petitioners for the two daughters and my finding is that if the petitioners want that the plaintiff should pay part of these expenses according to his share in the joint family property, then they should pay court-fee on it.

22. It may, however, be made clear, and it is also conceded by the learned counsel for the non-petitioner-plaintiff that if the petitioners want the whole claim made by them to be investigated, even then it would be necessary for them to pay ad valorem court-fee only on the proportionate share of the plaintiff.

23. In the result, I partly allow this revision application and modify the order of the lower Court regarding payment of court-fee on the lines indicated above. There will be no order as to costs of this revision application.


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