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Osuri Narayanaswami and ors. Vs. Savanam Venkataswami and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtChennai
Decided On
Reported inAIR1943Mad372; (1943)1MLJ82
AppellantOsuri Narayanaswami and ors.
RespondentSavanam Venkataswami and ors.
Cases Referred and Chaudhuri Talib Ali v. Mst. Kaniz Fatima Begam I.L.R.
Excerpt:
- - it is therefore clearly a case of sale, and if it is a case of sale, on the ground that the price was capable of being ascertained in money, it could not be said that the relief is one which is not capable of being valued so as to attract the provisions of article 17-b of schedule ii of the court-fees act......contract it should be valued at rs. 24,000, the amount due under the mortgage on the date of the contract sought to be specifically enforced. the learned subordinate judge agreed with the court-fee examiner and found that additional court-fee should be paid and directed the same to be paid. it is that order that is sought to be revised.4. it was contended that the contract sought to be specifically enforced is not really a contract of sale, as in this case it is only the unliquidated amount payable in respect of the mortgage without the same being ascertained that was stated to be the consideration for the sale. reliance was placed upon the decisions in madam pillai v. badrakali ammal : air1922mad311 and chaudhuri talib ali v. mst. kaniz fatima begam i.l.r.(1927) luck 575. in the.....
Judgment:

Kuppuswami Ayyar, J.

1. This is a petition to revise the order of the learned Subordinate Judge of Narasapur directing the plaintiffs to pay additional court-fee on the basis that the claim for specific performance of the contract should be valued at Rs. 24,000 and not at Rs. 4,006 as shown in the plaint.

2. The plaintiff had a mortgage right over certain properties and it was arranged in 1937 that in view of the amount due under the mortgage the properties which are the subject-matter of the suit should be conveyed to him, and there was a further clause that in case the properties are not conveyed he will be entitled to recover the money due under the mortgage. Subsequently the Madras Agriculturists' Relief Act was passed and if the amount payable to the mortgagee was scaled down it entitled the plaintiff to recover only Rs. 4,000. Naturally the mortgagors refused to execute a conveyance, and a suit had to be filed for specific performance of the contract, for sale or in the alternative for recovery of the amount due under the mortgage. Certain other persons who were not parties to the mortgage or the contract which was sought to be specifically enforced were impleaded, and a prayer for recovery of possession of the properties from them also was made in the plaint. The plaintiff valued the claim at Rs. 4,000 and paid court-fee thereon.

3. The court-fee examiner raised an objection to the valuation and stated that separate court-fee should be paid for the relief as against the other defendants who are not parties to the contract or mortgage under Section 7, cl. (5) and that with regard to the relief for specific performance of the contract it should be valued at Rs. 24,000, the amount due under the mortgage on the date of the contract sought to be specifically enforced. The learned Subordinate Judge agreed with the court-fee examiner and found that additional court-fee should be paid and directed the same to be paid. It is that order that is sought to be revised.

4. It was contended that the contract sought to be specifically enforced is not really a contract of sale, as in this case it is only the unliquidated amount payable in respect of the mortgage without the same being ascertained that was stated to be the consideration for the sale. Reliance was placed upon the decisions in Madam Pillai v. Badrakali Ammal : AIR1922Mad311 and Chaudhuri Talib Ali v. Mst. Kaniz Fatima Begam I.L.R.(1927) Luck 575. In the former case the sale was in discharge of a claim for future maintenance; it would not be possible to postulate how long the maintenance holder would live and how much may have to be paid for maintenance. It was therefore considered that the consideration for the transaction was not capable of being ascertained definitely in money and consequently it could not be held to be a sale. The Lucknow case was also a transfer of properties for partial release of a dower debt. In this case the consideration for the conveyance of the properties was the amount due under the mortgage. The amount so due was capable of being ascertained in money, and it is the amount due under the mortgage that will have to be taken as the price agreed to be paid for the conveyance. It is therefore clearly a case of sale, and if it is a case of sale, on the ground that the price was capable of being ascertained in money, it could not be said that the relief is one which is not capable of being valued so as to attract the provisions of Article 17-b of Schedule II of the Court-Fees Act. The learned Subordinate Judge was therefore right in finding that the suit for specific performance was governed by Section 7, Clause (x-a) of the Court-Fees Act and directing the plaintiff to pay the same. The Civil Revision Petition is therefore dismissed with costs, two sets.


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