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Hakim MartIn De Silva Vs. MartIn De Silva Ii and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 59 of 1955
Judge
Reported inAIR1957Raj275
ActsCourt-fees Act, 1870 - Sections 8 - Schedule - Article 17; Land Acquisition Act, 1894 - Sections 30 and 54; Rajasthan Land Acquisition Act, 1953 - Sections 30 and 54
AppellantHakim MartIn De Silva
RespondentMartIn De Silva Ii and ors.
Appellant Advocate C.B. Bhargava, Deputy Govt. Adv.; G.C. Kasliwal, Adv.
Respondent Advocate S.N. Saksena and; B.K. Bhargava, Advs.
Cases ReferredT. B. Ram Chandra Rao v. A. N. S. Ram
Excerpt:
.....to be enjoyed by the claimant during her life time. such dispute forms no part of the award, and it would indeed be strange if a controversy between two people as to the nature of their respective interests in a piece of land should enjoy certain rights of appeal which would be wholly taken away when the piece of land was represented by a sum of money paid into court......that 'the award as constituted by statute is nothing but an award which states the area of the land, the compensation to be allowed and the apportionment among the persons interested in the land, of whose claims the collector has information, meaning thereby people whose interests are not in dispute but from the moment when the sum has been deposited in court under section 31, sub-section 2, the functions of the award have ceased; and all that is left is a dispute between interested people as to the extent of their interest. such dispute forms no part of the award, and it would indeed be strange if a controversy between two people as to the nature of their respective interests in a piece of land should enjoy certain rights of appeal which would be wholly taken away when the piece of.....
Judgment:

Bapna, J.

1. The present matter relates to the determination of proper court-fees in an appeal under section 54 of the Rajasthan Land Acquisition. Act from the decision of the District Judge, Jaipur City, on a reference under section 30 of the Jaipur Land Ac-quisition Act.

2. A certain property, known as Hakim Martin's house, situated on the east side of the Amer Road in Jaipur City, was desired to be acquired under the Jaipur Land Acquisition Act. The Land Acquisition Officer fixed Rs. 10,883/12/- to be the proper compensation for acquisition, but he could not decide the relative claims of the various claimants. Hakim Martin s/o Guston De Silva as Tihai of the family claimed the whole amount for himself by explaining that the other claimants were living in the house with, his permission by way of grace. The other claimants Martin De Silva II. Louis De Silva, Zavier De Silva, Angelo De Silva, and James Michael urged that they were entitled to certain shares according to their shares in the Jagir or their possession of the portion of the house. The Land Acquisition Officer by order dated 15th February, 1945, referred the dispute as to apportionment of the compensation to the District Judge under section 30 of the Jaipur Land Acquisition Act 1943. That section is substantially the same as section 30 of the Rajas than Land Acquisition Act, 1953. The District Judge, Jaipur City, by an order of 11th November 1954, held Hakim Martin De Silva son of Guston De Silva and Martin De Siiva II son of Shavier De Silva entitled to one-fourth share each, while, Zavier De Silva, Angelo De Silva and James Michael De Silva entitled to get the remaining half share in equal proportions. In the concluding portion of his order he declared that

'parties Nos. 1 and 2 will each get 1/4th of the compensation amount, i.e., Rs.' 2720/15/- each, while the remaining three claimants included in party No. 3 will get the remamining half in equal shares of Rs. 1813/15/4 each.'

Martin De Silya son of Gustin De Silva has filed this appeal claiming the entire amount for himself. He paid a court-fee of Rs. 10/-. The office reported that he should pay ad valorem court-fee on Rs. 8162/13/-.

3. Notice was given to the respondents and the Government Advocate.

4. The Government Advocate relied on In re Ananda Lal Chakrabutty, AIR 1932 Cal 346 (A); Ganesh Das v. Kanthu, AIR 1935 Lah 448 (B); A. Mahalinga Kudumban v. Theetharappa Muda-liar, AIR 1929 Mad 223 (C) in support of his contention that ad valorem court-fees were payable on the difference between the amount awarded and the amount claimed by the appellant.

5. In the Calcutta case (A), the appellants were Zamindars, and a certain property on Diamond Harbour Road had been compulsorily ac-quired. Portions of the property acquired lay within the ambit of the Zamindaries of the appellants. The Tribunal, however, held that the property was revenue-free property and no part of the mal lands of the appellants. The Tribunal allotted the whole of the compensation to the Kainani Industrial Bank rejecting the claim of the Zamin-dar-appellants to any portion thereof. The Zamin-dars appealed to the High Court. It was argued that in a case where the claim of the appellant was not that the total amount awarded was insufficient, but that a portion of it should have been awarded to him, section 8 of the Court-fees Act did not apply. Rankin C. J., who delivered the judgment, observed that

'Section 8 dealing with the amount of fee payable makes a comparison between two things--the amount awarded and the amount claimed by the appellant. It appears to be reasonably clear that the comparison can only be between the amount awarded to the appellant & the amount claimed by the appellant. There can be no comparison between the amount awarded to a number of persons & the amount claimed by one individual representing his individual interest.'

It was held that Section 8 was applicable and the amount of fee payable was ad valorem on the difference between the amount claimed and the amount awarded, This case was followed in Ganesh Das v. Kanthu (B), and ad valorem court-fees were required to be paid when apportionment made by the District Judge was questioned in appeal. In a later case of the Calcutta High Court, Rash Be-hari Sanyal v. Gosto Behari Goswmai AIR 1935 Cal 243 (D), however, a single Judge of that Court took a different view. The property, which was the subject-matter of the proceedings, had been acquired by the Calcutta Improvement Trust com-pulsorily, and a sum of Rs. 6,339-6-0 had been awarded to Gosto Behari Goswami as the owner of the property at the time when it was acquired, as compensation. Certain Sanyals claimed before the Tribunal that they were the reversioners of Bhuban Mohini's husband, and therefore, entitled to the property in question, after the death of Bhuban Mohini, who had transferred the property to Gosto Behari without legal necessity. The learned Judge observed that it was not a case of an appeal against any order relating to compensation under any Act. The appeal was really against the decision of the Tribunal upholding the validity of the sale. He further observed that the dispute could not in any sense be properly said to be concerned with the amount of compensation payable by reason of the compulsory acquisition of the property owned by Bhuban Mohini, but the appellants were really asking for a declaration and some consequential relief, namely that the money should be invested instead of being handed over to Goswami, and in that view of the matter the case fell within the provisions of Section 7, Sub-section (iv) (c) of the Court-fees Act. It was also held that Schedule 2, Article 17(iii) could also be applicable, and the appellants were permitted to pay court-fees accordingly.

6. In some of the Madras cases a view has been taken that Section 8 of the Court-fees Act cannot apply where there is no dispute as regards the amount of compensation awarded, but the dispute relates to apportionment. It was nevertheless held that the Court-fees were payable under Schedule I, Article 1 of the Court-fees Act, that is, ad valorem on the amount claimed. In Thammayya Naidu v. Venkataramanamma, AIR 1932 Mad 438 (E), the District Judge held a Hindu widow entitled to compensation, and a distinction was drawn where a successful claimant is declared entitled to immediate payment and where the money was to be in-vested & only income thereof was to be enjoyed by the claimant during her life time. In the former case it was held that ad valorem court-fees were payable, but in the latter case a court-fee as for a mere declaration would be sufficient.

7. It is difficult to reconcile these cases, but certain observations of their Lordships of the Privy Council in T. B. Ram Chandra Rao v. A. N. S. Ram-chandra Rao 49 Ind App 129: (AIR 1922 PC 80) (P) seem to provide guidance for decision of the question in issue. The question in the appeal before their Lordships was whether a certain judgment which arose out of proceedings under the Land Acquisition Act, 1894, was res judicata, and it was observed that

'When once the award as to the amount has become final all questions as to fixing of compensation are then at an end; the duty of the Collector in case of dispute as to the relative rights of the persons together entitled to the money is to place the money under the control of the Court, and the parties then can proceed to litigate in the ordinary way to determine what their right and title to the property may be.'

It was further observed that

'The award as constituted by statute is nothing but an award which states the area of the land, the compensation to be allowed and the apportionment among the persons interested in the land, of whose claims the collector has information, meaning thereby people whose interests are not in dispute but from the moment when the sum has been deposited in Court under Section 31, Sub-section 2, the functions of the award have ceased; and all that is left is a dispute between interested people as to the extent of their interest. Such dispute forms no part of the award, and it would indeed be strange if a controversy between two people as to the nature of their respective interests in a piece of land should enjoy certain rights of appeal which would be wholly taken away when the piece of land was represented by a sum of money paid into Court.'

8. In the present appeal the appellant does not question the amount of the award. (He has questioned the amount separately and has paid ad valorem court-fees according to the difference between the amount awarded and the amount claimed in that appeal). What is in dispute in the present appeal is the relative shares of the parties in the house property in dispute. The appellant wants a declaration that he alone was the owner of the property which had been acquired. The apportionment will follow the declaration as a matter of course. The money is still in the hands of the court, and his purpose would be fully served by a mere declaration of his right, title or interest in the property which has been acquired. In our opinion Section 8 of the Court-fees Act is not at all applicable to a case of this nature for the amount awarded as compensation for the property acquired is not at all in dispute. For a relief of declaration of that nature Schedule II, Article 17, Clause (iii), would, in our opinion, be applicable. The appellant has paid Rs. 10/-, which is the amount required to be paid under Schedule II, Art, 17 (iii) of the Court-fees Act. The court-fee paid is sufficient. Further proceedings Will now be taken in this appeal.


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