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Syed Dewan Khaja Moideen Saheb Vs. D.M. Abdul Gaffoor Sahib - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1941)2MLJ962
AppellantSyed Dewan Khaja Moideen Saheb
RespondentD.M. Abdul Gaffoor Sahib
Cases ReferredZamindar of Kallikote v. Mongolopur
Excerpt:
- - if this suit had been one for the administration of a debtor's estate, i should have been compelled to regard this well-considered decision as a very strong authority for mr. clearly section 7 (iv) (f) was not applied in that case. they pointed out that it would be improper in a fiscal enactment like the court-fees act to argue by analogy and to apply to an administration suit rules that were laid down solely for a suit for accounts. and if he satisfied the court that he had suffered prejudice by the wrongful exercise of jurisdiction by the district munsif, he would be able to get the decree set aside......of mr. ramachandra aiyar for the respondent that an administration suit should be treated as a suit for accounts and that, therefore, section 7 (iv) (f) is applicable. he has cited khatija v. shekh adam husenally i.l.r.(1915) 39 bom. 545 shashi bhushan bose v. manindra chandra nandy i.l.r.(1916) cal. 890 saraju bala dasi v. jogemaya dasi i.l.r.(1917) cal. 634 shivaprasad singh v. prayagkumari debee i.l.r.(1933) cal. 711 san paw v. ma yin (1918) 55 i.c. 258 and ma thin on v. ma ngwe hmon i.l.r.(1934) rang. 512 in most of which cases it was held that section 7 (iv) (f) was the proper provision of the court-fees act to apply. of these cases, however, only one, namely, shashi bhushan bose v. manindra chandra nandy i.l.r.(1916) cal. 890 discusses this question fully and directly. that was.....
Judgment:

Horwill, J.

1. This petition has been filed against the finding of the District Munsif of Udumalpet in O.S. No. 46 of 1940 that he has jurisdiction to try the suit.

2. The suit was one for the administration of the estate of one Kairunnissa Bibi, for accounts and for division of the assets amongst the heirs under the Muhammadan Law. The short point that arises in this petition is whether the provisions of Section 7 (iv) (f) of the Court-Fees Act or Article 17-B of Sch.II apply. At first sight, there is a very formidable array of authority in support of the contention of Mr. Ramachandra Aiyar for the respondent that an administration suit should be treated as a suit for accounts and that, therefore, Section 7 (iv) (f) is applicable. He has cited Khatija v. Shekh Adam Husenally I.L.R.(1915) 39 Bom. 545 Shashi Bhushan Bose v. Manindra Chandra Nandy I.L.R.(1916) Cal. 890 Saraju Bala Dasi v. Jogemaya Dasi I.L.R.(1917) Cal. 634 Shivaprasad Singh v. Prayagkumari Debee I.L.R.(1933) Cal. 711 San Paw v. Ma Yin (1918) 55 I.C. 258 and Ma Thin On v. Ma Ngwe Hmon I.L.R.(1934) Rang. 512 in most of which cases it was held that Section 7 (iv) (f) was the proper provision of the Court-Fees Act to apply. Of these cases, however, only one, namely, Shashi Bhushan Bose v. Manindra Chandra Nandy I.L.R.(1916) Cal. 890 discusses this question fully and directly. That was a case where there was a trust for sale created by a debtor for the benefit of his creditors. The history in the English Courts of administrative actions was discussed; but the whole of the reasoning, the discussion, and the conclusions were confined to that particular kind of administration suit in which a creditor seeks to have administered the estate of a deceased debtor for the benefit of the creditors. If this suit had been one for the administration of a debtor's estate, I should have been compelled to regard this well-considered decision as a very strong authority for Mr. Ramachandra Aiyar's position that Section 7 (iv) (f) was the proper provision of the Court-Fees Act to determine both the question of court-fee and the question of jurisdiction; but can the analogy for purposes of court-fee between an administration suit and a suit for accounts be extended to other kinds of administration suits in which the next of kin, the legatee, or the executor seeks to have the estate of the deceased person administered for the benefit of those entitled to some share of the deceased person's property, and which may involve not merely the taking of accounts but the division of movable and immovable property

3. In Khatija v. Shekh Adam Husenally I.L.R.(1915) 39 Bom. 545 the question discussed was whether the suit, which was for accounts and the administration of an estate of a deceased person, was really an administration suit or whether it was not a suit for a definite share of property. The pleadings were discussed and the learned Judges came to the conclusion that it was an administration suit. They did not discuss what provision of the Court-Fees Act to apply to an administration suit. They say:

According to the provisions of the Court-Fees Act, if the plaintiff succeeds in showing upon the accounts that she is entitled to a share in the property and assets of Tyeballi Sheikh Adam, she will not be able to obtain execution of any decree that may be passed in her favour by reason of the provisions of S 11 of the Court-Fees Act until the difference between Rs. 130 and the fee which would have been payable, had the suit comprised the whole of the amount decreed, has been paid to the proper officer. That being so there does not appear to be any reason why this should not be treated as a suit for account and for the share which may be found due to the plaintiff upon taking of such account, and if it is a suit for an account falling under Section 7 (iv) (f) of the Court-Fees Act, the plaintiff is at liberty to value it at Rs. 130 or any other sum she pleases.

Saraju Bala Dasi v. Jogemaya Dasi I.L.R.(1917) Cal. 634 was an administration suit of a somewhat similar kind to that in Khatija v. Shekh Adam Husenally I.L.R.(1915) 39 Bom. 545 but the learned Judges do not discuss whether that particular kind of administration suit would properly be governed for purposes of court-fee by Section 7 (iv) (f) of the Court-Fees Act. They follow Khatija v. Shekh Adam Husenally I.L.R.(1915) 39 Bom. 545 and Shashi Bhushan Bose v. Manindra Chandra Nandy I.L.R.(1916) Cal. 890 without expressing any reasons. Shivaprasad Singh v. Prayagkumari Debee I.L.R.(1933) Cal. 711 has been quoted by Mr. Ramachandra Aiyar because of a sentence found in the judgment in which the learned Judges were discussing whether the suit under consideration was an administration suit or not. They held that it was not; because (quoting Shashi Bhushan Bose v. Manindra Chandra Nandy I.L.R.(1916) Cal. 890 'an administration suit is in essence a suit for accounts'. San Paw v. Ma Yin (1918) 55 I.C. 258 merely follows Khatija v. Shekh Adam Husenally I.L.R.(1915) 39 Bom. 545 and Shashi Bhushan Bose v. Manindra Chandra Nandy I.L.R.(1916) Cal. 890 without argument. Ma Thin On v. Ma Ngwe Hmon I.L.R.(1934) Rang. 512 dealt with an administration suit, the nature of which is not clear from the judgment. The learned Judges purported to follow C.K. Ummar v. C.K. Ali Ummar I.L.R.(1931) Rang. 165 (F.B.) which, however, did not deal with an administration suit at all, but with a suit for accounts. They apparently assumed, as a proposition that needed no argument, that an administration suit is a suit for accounts. Ma Thin On v. Ma Ngwe Hmon I.L.R.(1934) Rang. 512 also contains a reference to Ma Fatima v. Momin Bibi I.L.R.(1929) Rang. 164 which dealt with a suit for the administration of the estate of a deceased Muhammadan. There, the ' relief was valued by the plaintiff at Rs. 2,000, that being her share in the property. It was held by the learned Judge that that was the correct valuation. Clearly Section 7 (iv) (f) was not applied in that case. The learned Judge went on to say that as the suit was not of the nature described in the Court-Fees Act, Section 7, paragraphs 5, 6 and 9 and paragraph 10 of Clause (d), and that as the court-fee was payable ad valorem on the claim, the value of the suit for the computation of court-fees and the value for purposes of jurisdiction were the same. He therefore concluded that the value of the share of the plaintiff in the deceased's estate determined jurisdiction.

4. In none of the above decisions was it considered whether it would not be more appropriate to apply Article 17-B of Schedule II of the Court-Fees Act. The question in each case was whether the plaintiff should pay court-fee on a reasonable valuation of his share of the deceased's assets. If not, it was assumed that Section 7(iv)(f) was the correct provision of the Court-Fees Act to apply. The learned District Munsif quoted the decision of Mr. Justice Wadsworth in C.M.A. No. 235 of 1938. This was a short order on a check slip put up by the office in which the learned Judge pointed out that an administration suit was not merely a suit for account, that Section 7 (iv) (f) could not therefore be applied, and that as there was no provision in the Court-Fees Act applicable to an administration suit it followed that the residuary provision of Article 17-B of Schedule II would have to be applied. He did not discuss the case-law on this point, beyond saying that Ramaswami Aiyar v. Rangaswami Aiyar : AIR1931Mad683 was an authority for the position that an administration suit was not a suit for accounts. The point that fell for decision in Ramaswami Aiyar v. Rangaswami Aiyar : AIR1931Mad683 was whether creditors who were impleaded in an administration suit as defendants would have to pay court-fee on the value of their claims. It was argued by the learned Government Pleader, on the analogy of Section 11 of the Court-Fees Act, that as a suit for administration was substantially a suit for accounts, the defendant creditors would have to pay a court-fee. The learned Judges, while conceding that in a sense a creditor's suit for administration was a suit for accounts, pointed out that the analogy between an administration suit and an ordinary suit for accounts broke down in many respects. They were not prepared to consider it a suit for accounts for the purpose of applying Section 11 of the Court-Fees Act. They pointed out that it would be improper in a fiscal enactment like the Court-Fees Act to argue by analogy and to apply to an administration suit rules that were laid down solely for a suit for accounts. The learned Judges avoided expressing any opinion as to the court-fee payable by the creditor who filed the suit; but if we exercise the caution thought necessary by the learned Judges in applying the provisions of a fiscal enactment relating to one type of suit to another, it is clear that we ought not to regard an administration suit as a suit for accounts for any purpose relating to court-fee, above all in a suit which is not one by a creditor for the administration of the assets of a deceased person to be divided amongst the creditors, but one in which a division of movable and immovable property might have to be made. I therefore respectfully agree with Mr. Justice Wadsworth's expression of opinion in C.M.A. No. 235 of 1938 that as an administration suit is not a suit for account, it should be valued under Article 17-B of Schedule II of the Court-Fees Act.

5. It is conceded that if Article 17-B of Schedule II of the Court-Fees Act is to govern the court-fee, then the jurisdiction is determined by the market value of the property. If the market value exceeds the pecuniary jurisdiction of the Court, then the plaint will have to be returned for presentation in the Court having jurisdiction. As this is conceded, it is not necessary to discuss the authorities on this point. It is sufficient to refer to Karuppanna Nadar v. Karuppa Nadar : AIR1939Mad776 , which follows Vasireddi Veeramma v. Butchayya (1926) 52 M L.J. 381 : I.L.R. Mad. 646. The learned Munsif while holding that Article 17-B of Schedule II governed the court-fee, came to the conclusion that the court-fee paid was sufficient; because the plaintiff had paid Rs. 22 whereas, under Article 17-B of Schedule II, all that was necessary was a court-fee of Rs. 15. On the question of jurisdiction, he contented himself with saying:

As regards issue X, since there is nothing preventing an administration suit being filed in this Court and since this suit is a suit for administration, I find on this issue that this Court has jurisdiction.

He did not consider whether, despite its being an administration suit, the value of the property was such as to preclude him from trying the suit. It seems probable that the market value of the property exceeded the pecuniary jurisdiction of the Court; but as the learned District Munsif has not given any definite finding on this point, he will have to do so.

6. It was argued by Mr. Ramachandra Aiyar that even though the District Munsif erred in holding that he had jurisdiction, this Court ought not to interfere at this stage; for if the suit is decreed in favour of the plaintiff, the defendant would be entitled to raise this question in appeal; and if he satisfied the Court that he had suffered prejudice by the wrongful exercise of jurisdiction by the District Munsif, he would be able to get the decree set aside. He quoted Zamindar of Kallikote v. Mongolopur : AIR1926Mad1047 , in support of his argument. I do not think that Zamindar of Kallikote v. Mongolopur : AIR1926Mad1047 can be considered to be an authority for the position that this Court should not interfere in revision on a question of jurisdiction when it arises at a preliminary stage in the suit. The learned Judges thought that under the peculiar circumstances of the case before them, it was not necessary for them to consider the principal point raised in revision. This Court has frequently interfered before the disposal of a suit where it has been found that a Court has wrongfully assumed jurisdiction. I quite appreciate the argument as to the inconvenience caused by holding up the trial of a suit in order that this Court might consider the correctness of decisions made during the course of trial. If I had considered the question of inconvenience soon after admission, I might have held that it was not advisable to interrupt the trial of the suit; but that inconvenience has already been caused and the disposal of the suit has been delayed for a considerable time owing to the pendency of this Civil Revision Petition. That cannot now be avoided; so there is no longer any reason why, when the suit is still in its early stages, this Court should not interfere to correct an error which affects jurisdiction.

7. The petition is therefore allowed and the suit remanded to the District Munsif for fresh consideration of the question of jurisdiction. If he finds that the market value of the property exceeds Rs. 3,000, he should return the plaint to the plaintiff for presentation in a Court having jurisdiction. The costs of the parties to this application will abide the result and will be provided for in the order of the District Munsif. The Government Pleader will be entitled to his costs from the Government.


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