R.P. Gill Vs. L. Varadaraghavayya and Twelve ors. - Court Judgment
|Judge||John Wallis, Kt. C.J. and ;Sadasiva Ayyar, J.|
|Respondent||L. Varadaraghavayya and Twelve ors.|
|Cases Referred||Ahamuddin Tamijuddin v. Amiruddin|
.....act, 1944.[c.a. no. 1/1944]. section 11: [p. santhasivam, a. kulasekaran & s. tamilvanan, jj] possession of property taken by bank under the securitisation & reconstruction of financial assets and enforcement of security interest act, 2002 - claim towards tax due priority - held, where the bank took possession of the property under section 13 of the s..r.f.a.e.s.i. act, it would be a secured creditor and would have precedence over crowns debt namely excise department in instant case, in the absence of specific provision of first charge in central excise act as well as customs act. generally, the dues to government i.e., tax, dues etc (crows debts) get priority over ordinary debts. only when there is a specific provision in the statute claiming first charge over the property, the..........that a suit, such as the present, for a partition by a plaintiff alleging himself to be already in joint possession is incapable of valuation within the meaning of schedule ii, article 17(6), and is not governed by clause (v) of section 7, and, though the point was not expressly decided by the full bench in rangiah chetty v. subramania chetty : (1911)21mlj21 , the reasoning of all the learned judges who heard the reference is in accordance with this view. the same view is taken in tara chand mukerji v. afzal beg i.l.r. (1912) all. 184.3. in these circumstances, we are not prepared to agree with the decision in referred case no. 5 of 1894 : (1894)4mlj110 , that the value of the subject-matter of such a suit is not incapable of valuation but easily ascertainable; or with dagdu v. totaram.....
John Wallis, Kt. C.J.
1. In this case the plaintiff sues for partition of certain immoveable property, of which he alleges he is in possession as a co-tenant on behalf of himself and the other co-tenants. This is not a suit to enforce a right to share in the possession of property on the ground that it is joint family property within the meaning of Section 7(iv)(6) of the Court Fees Act (VII of 1870), and therefore the question of the applicability of that sub-section to suits for the partition of joint family property, which was decided by a Full Bench of this Court in Rangiah Chetty v. Subramania Chetty : (1911)21MLJ21 , does not arise.
2. There is a long course of decisions in Calcutta that a suit, such as the present, for a partition by a plaintiff alleging himself to be already in joint possession is incapable of valuation within the meaning of Schedule II, Article 17(6), and is not governed by Clause (v) of Section 7, and, though the point was not expressly decided by the Full Bench in Rangiah Chetty v. Subramania Chetty : (1911)21MLJ21 , the reasoning of all the learned Judges who heard the Reference is in accordance with this view. The same view is taken in Tara Chand Mukerji v. Afzal Beg I.L.R. (1912) All. 184.
3. In these circumstances, we are not prepared to agree with the decision in Referred Case No. 5 of 1894 : (1894)4MLJ110 , that the value of the subject-matter of such a suit is not incapable of valuation but easily ascertainable; or with Dagdu v. Totaram I.L.R. (1909) Bom. 658, assuming that the point arose in that case, which is not clear. The balance of authority appears to us to be strongly in favour of the view that such a suit as the present is governed by Schedule II, Article 17, Clause 6, the latest case being Ahamuddin Tamijuddin v. Amiruddin 44 IND.CAS., 216, and we must so hold and set aside the order rejecting the plaint and remand the case to the lower Court for disposal according to law.