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Govindarajulu Mudaliar Vs. the North Vellore Thottapalayam Town Co-operative Bank by Its Secretary and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1869 of 1949
Judge
Reported inAIR1951Mad661; (1951)IMLJ192
ActsCourt-fees Act, 1870 - Sections 7; Code of Civil Procedure (CPC) , 1908 - Sections 6 and 15; Suits Valuation Act, 1887 - Sections 8; Madras Civil Courts Act, 1873 - Sections 12
AppellantGovindarajulu Mudaliar
RespondentThe North Vellore Thottapalayam Town Co-operative Bank by Its Secretary and anr.
Appellant AdvocateG.R. Jagadesa Iyer, Adv.
Respondent AdvocateT.C. Venkatarama Iyer, Adv.
DispositionPetition dismissed
Cases ReferredHameed Rowther v. Mohideen Pichai
Excerpt:
.....sought to be set aside must of itself have secured property - there must have been conveyance of suit property or of release of rights which would operate as an extinguishment of right of person conveying or releasing - suit for declaration without any consequential relief regarding lands or houses likely to be affected by declaration to be valued for purposes of jurisdiction - according to section 12 on basis of market value of lands or houses - not according to plaintiff's pleasure or according to valuation under court-fees act as if it were suit for possession of such lands or houses - held, suit cognisable in sub-court and court-fee payable rs. 100. - - 4. the view of the cts below that a sale certificate is a document of title & therefore comes within the scope of section 7,..........that there was an understanding between him and the president of deft 1 bank and deft 2 :'that the suit property might be purchased by deft 2 that on his being recouped from the income or cash payment a reconveyance could be obtained from him. it was because of this specific arrangement that properties worth over rs. 5000 were allowed to be sold for rs. 610 only'.the pltf would have it that the defts refused to abide by this agreement & he therefore sued(a) for a declaration that the sale by the cooperative society was opposed to law, not in accordance with the terms of the award or decree, & that it could not pass 'absolute title' & was null & void; or that in any event deft 2 could get only a right to be in possession till satisfaction of the debt covered by the mtge;(b) for a.....
Judgment:
ORDER

Balakrishna Ayyar, J.

1. The pltf is the petnr. In 1928 he executed a mtge over some of his properties in favour of the North Vellore Thottapalayam Town Co-operative Bank, for a sum of Rs. 300. The amount was repayable in instalments. A clause in the deed of mtge entitled the bank in case of default by the pltf to take possession of the hypotheca and appropriate the income towards the debt due to it. The pltf fell intoarrears & the Deputy Registrar of Co-operative Societies passed what is called an award but which is really in the nature of a decree. In execution of this award the hypotheca was sold on 23-2-1935 & purchased by deft 2 for Rs. 610. The sale was confirmed on 14-4-1935 & the sale certificate was issued in due course. According to the pltf, the secretary of deft 1 bank is a relation of his. Deft 2 who purchased the property at the auction sale is also another relation of his. The pltf alleged that there was an understanding between him and the president of deft 1 bank and deft 2 :

'That the suit property might be purchased by deft 2 that on his being recouped from the income or cash payment a reconveyance could be obtained from him. It was because of this specific arrangement that properties worth over Rs. 5000 were allowed to be sold for Rs. 610 only'.

The pltf would have it that the defts refused to abide by this agreement & he therefore sued(a) for a declaration that the sale by the Cooperative Society was opposed to law, not in accordance with the terms of the award or decree, & that it could not pass 'absolute title' & was null & void; or that in any event deft 2 could get only a right to be in possession till satisfaction of the debt covered by the mtge;(b) for a direction to deft 2 to render an account of the income from the suit properties from about 1-7-1935 till delivery of possession after adjusting it towards the balance due on the mtge; & (c) for possession of the properties.

2. In view of the admission that the property was worth over Rs. 5000 the issues were raised Whether the Ct of the Dist Munsif in which the plaint had been presented had jurisdiction to try the suit & whether the court-fee paid was correct.

3. Section 7, Clause (ivA) Court-fees Act provides that in a suit for cancellation of 'a......document, securing money or other property having such value', court-fees shall be paid according to 'the value of the subject-matter of the suit'. Decisions of this Ct have made it clear that 'value' here means 'market value'. The learned Dist Munsif took the view that the sale certificate which had been issued in favour of deft 2 was a document of title & therefore a document securing property having money value, that the pltf could not get the reliefs he had asked for without removing the impediment created by the sale deed, that in substance the suit was one for cancellation of that instrument & that the pltf should pay court-fee on the market value. He also held that the suit was beyond his pecuniary jurisdiction & so returned the plaint for being presented to the proper Ct. An appeal was taken to the Dist J of Vellore who dismissed it. The petnr has now come to this Ct.

4. The view of the Cts below that a sale certificate is a document of title & therefore comes within the scope of Section 7, Clause (iv A) of the Act is clearly erroneous. As far back as the case in 'Mt. Buhuiis Koonwar v. Lalla Buhoree Lall', 14 MIA 496: 10 Beng LR 159 it has been laid down that,

'a sale certificate does no more than create statutory evidence of the transfer in place of the old mode of transfer by bill of sale'.

See also Tribeni Prasad v. Ramasray Prasad', : AIR1932Pat80 where this position has been re-stated :

'A purchaser of immoveable property at an auction sale can establish his title by evidence independent of the sale certificate 'which does not create title but is merely evidence of it'.

Title passes when the sale is confirmed and notbecause a sale certificate is issued.

5. In the case reported in 'Sodemma v. Krishnamurti', AIR 1938 Mad 824: 181 IC 431 the meaning of the word 'securing' which occurs in Section 7, Clause (iv A) has been explained as meaning :

'documents whereby the rights are transferred or released, such as sales, gifts, leases, mortgages, or releases...... It seems to me thatthe document which is sought to be set aside muse of itself have secured the property, that is, there must have been a conveyance of the suit property or of a release of rights 'thereunder' which would operate as an extinguishment of the right of the person conveying or releasing'.

It is thus clear that the sale certificate in favour of deft 2 is not a document of title securing property which the pltf was bound to sue to set aside.

6. Mr. Venkatarama Aiyar the learned advocate for the resp conceded that the reason given by the Cts below for their conclusion is erroneous. He however contended that the conclusion was right for other reasons. In the present case there had been an award or decree & a sale, in all material respects resembling a sale held by a civil Ct in execution of its decree. The pltf cannot get the relief he wants unless he can get that sale set aside. In other words, he must obtain a declaration that the sale is inoperative & not binding on him. In respect of such declaration he claimed, the market value of the property affected would determine jurisdiction. By way of analogy he referred to a decision of this Ct in 'Vasireddi Veeramma v. Butchayya', 50 Mad 646 : AIR 1927 Mad 563. There the principal question at issue was whether an adoption was good. On the question of the value of the suit for purposes of jurisdiction the Ct ruled:

'A suit for a mere declaration of the factum & validity of an adoption, without any consequential relief regarding lands or houses likely to be affected by the declaration has, for purposes of jurisdiction, to be valued, according to Section 12, Madras Civil Courts Act, on the basis of the market value of the lands or houses likely to be affected by such declaration & not either according to the pltf's pleasure or according to the valuation under the Court-fees Act as if it were a suit for possession of such lands or houses'.

This decision has been followed in the case in 'Nagamma v. Narasimha Garu : AIR1935Mad279 & others.

7. To this argument, Mr. Jagadisa Aiyar replied (1) that in the present instance what the pltf really attacks is not the sale but the award & that if at all, he can be required to pay additional court-fee only on the amount of the award; & (2) that it is not really necessary for the pltf to seek a declaration about the sale at all, because, his contention has always been that the sale is null & of no legal effect whatsoever. It seems to me that both branches ofthis reply must fail. In the plaint there is no material criticism of the award & the pltf does not anywhere say that the award is null & of no effect. His complaint throughout is that the sale was in contravention of the award. In para 6 it is stated :

'the proceedings of the Deputy Registrar should be deemed to be only in enforcement of such a right & what was & could be sold is only the right to enjoy the usufruct till satisfaction. The sale contrary to this stipulation is void & inoperative & the purchaser in any event gets only a right as usufructuary mtgee as per the stipulation in the deed'. This idea is repeated again towards the end of the para : ''The pltf states that the award passed by the Deputy Registrar of Co-operative Societies was only to enforce the term of the mortgage deed and for possession. The sale of the property in contravention of such an award is void and illegal..... .In any view the purchaser cannot get a higher right than right to enjoy the usufruct till satisfaction of the debt subject to liability to account......'

Then in para 7,

'The pltf submits that deft 2 is liable to render an account of the income from the properties & after appropriating the same towards the mtge debt pay such surplus as he may be found to be liable & deliver possession of the properties to the pltf'.

It is no doubt true that in para 11 (a) of the plaint, the pltf alleged that

'in case of secured debts, the Registrar had no jurisdiction to sell......Hence the sale infavour of deft 2 could not pass title & is void' & that he finally wound up by saying that 'the sale is null & void'. Reading the plaint as a whole, the position adopted by the pltf is reasonably clear. He does not seriously impeach the award. What he says is that the sale was in excess of or in contravention of the terms of the award. The purchaser derived some rights under the sale, taut he did not get an 'absolute title' & so the pltf requires deft 2 to give an account of the income derived from the properties & surrender possession when the debt due from the pltf has been adjusted. The protestations in the plaint that the sale was null & inoperative are empty words & in view of the averments made in other places in that document cannot be treated as determining the nature of the relief asked for it must also be noticed that so far as deft 1 is concerned, the pltf specifically asks for a declaration that the sale by the Co-operative Society was opposed to law. If the sale were null & void & was one which the pltf could ignore as if it had no existence & in respect of which he was not bound to seek any relief, the introduction of such a prayer in the plaint becomes difficult to understand.

8. It remains to deal with the decision reported in Hameed Rowther v. Mohideen Pichai : AIR1948Mad451 to which Mr. Jagadisa Aiyar referred. In that case the pltf had executed a sale deed which he alleged was sham & nominal. He prayed for a declaration to that effect and for an injunction restraining the deft from interfering with his possession. It was held that the pltf was not bound to pray for cancellation of the instrument or pay court-fee therefor. Inthe present case we are not concerned with a sale deed executd by the pltf but by a sale in pursuance of an order of a judicial tribunal. Anexecation sale may be vitiated by irregularities,there might be fraud about it, there might be collusion about it, but it is difficult to see how it can ever be described as sham and nominal. This decision therefore has no application.

9. In order to avoid further argument on the subject in the Cts below Mr. Jagadisa Aiyar asked that in the event of my being unable to accept the view he was pressing me to take, namely that the Ct of the Diat Munsif hadjurisdiction & that the court-fee paid was correct, a decision might be given on the questionof court-fee actually payable. The suit wouldbe cognisable in the Sub-Court & he suggestedthat the court-fee payable would be Rs. 100.Since he has already paid Rs. 15, the excess hehas to pay is Rs. 80. Mr. Venkatarama Aiyar,on the other side, agreed that this figure wasright. I too share that view. It is thereforefound that the excess court-fee the pltf hasto pay is Rs. 85. With this observation thiscivil revision petn is dismissed with costs.


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