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Moulvi Bazlar Rahman Choudhury Vs. Commissioner of Wakfs and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal438
AppellantMoulvi Bazlar Rahman Choudhury
RespondentCommissioner of Wakfs and ors.
Excerpt:
- .....on a valuation in terms of section 7(iv)(c) and section 7(v)(a), court-fees act. he stated the market value of the subject-matter to be 6 pies only, the amount at which the secretary of state purchased the properties at the certificate sale. with the plaint he filed a statement giving particulars of valuation required to be given in terms of the notification issued by the government under the provisions of section 8(a), court-fees act. those particulars relate to valuation under section 7(v). he stated in those particulars that the annual net profits of the year immediately preceding the institution of the suit was rs. 56-2-0 in respect of the lands of schedule 1 and rs. 17-2-0 in respect of the lands of schedule 2. the net profit according to him of the lands in suit in the year.....
Judgment:

1. The question in this appeal is whether a legal demand has been made upon the plaintiff to pay the sum of Rupees 2175 as additional Court-fees. If the demand is a legal one the order for rejection of the plaint passed by the Court below cannot be re-opened. If however the said demand was not a legal one the order cannot stand. Two jotes held under the Government fell into arrears. A sale was held by the Government under the provisions of the Public Demands Recovery Act. There being no bidders the Government purchased each of the jotes at one pice. Thereafter the Government settled the said jotes with Obaidul Huq Chowdhury. The plaintiff's case is that the original settlement-holder under the Government, one Fateh Ali Chowdhury, had created a wakf of those two jotes long time ago, that the sale by the Government had not affected the wakf because Jariman Bibi, the widow of Fateb. Ali Chowdhury against whom certificate proceedings had been taken had not been made party therein as mutwali of the wakf. The plaintiff on the allegation that he is interested in the wakf in the sense that he is a worshipper of the mosque and the manager of the wakf estate has instituted this suit. He made the Secretary of State principal defendant 1 and the Commissioner of Wakfs, Bengal, a proforma defendant. Later on the Commissioner of Wakf was on his own application transferred as a co-plaintiff. Obaidul Huq Chowdhury was later on added as a principal defendant and Jariman Khatun widow of Fatehali Chowdhury, was made a proforma defendant. In prayer No. 1 he prayed for a declaration that the properties were wakf. In prayer No. 2 he asked for a declaration that the certificate sale was fraudulent, collusive, ultra vires and illegal and as such liable to be set aside. In prayer No. 3 he asked for a declaration that the wakf had not been affected by the certificate sale and that the Secretary of State and Obaidul Huq Chowdhury had not acquired any right on the basis of the certificate sale. In prayer No. 4 he prayed for recovery of a portion of the properties in suit in respect of which he admitted dispossession. In prayer No. 6 he stated that if it transpired that the mutwali had been dispossessed from the rest of the suit lands he may be given a decree for recovery of possession of that also. Prayer No. 7 was a prayer for mesne profits.

2. We need not consider in this appeal the other prayers made in the suit, one of them being a prayer for specific performance on the basis of an alleged contract said to have been made by the Secretary of State with Jariman Khatun for re-settlement o the lands in consideration of a premium of Rs. 9786. In para. 19 of the plaint as originally filed the plaintiff valued the subject matter at Rs. 2100 for purpose of jurisdiction. He also admitted that ad valorem court, fees were payable on a valuation in terms of Section 7(iv)(c) and Section 7(v)(a), Court-fees Act. He stated the market value of the subject-matter to be 6 pies only, the amount at which the Secretary of State purchased the properties at the certificate sale. With the plaint he filed a statement giving particulars of valuation required to be given in terms of the notification issued by the Government under the provisions of Section 8(A), Court-fees Act. Those particulars relate to valuation under Section 7(v). He stated in those particulars that the annual net profits of the year immediately preceding the institution of the suit was Rs. 56-2-0 in respect of the lands of Schedule 1 and Rs. 17-2-0 in respect of the lands of Schedule 2. The net profit according to him of the lands in suit in the year preceding the institution of the suit was Rs. 1098-12-0. He then stated that as the market value however was 6 pies only he was required to pay court, fees upon that amount under the provisions of Section 7(v)(a), Court-fees Act. He accordingly stamped his plaint with a court-fee of 6 as only. On the day the plaint was presented the Sheristadar submitted a report. Ha stated that the price at which the Government purchased the property at the certificate sale, namely 6 pies, cannot be taken as the market value of the subject-matter. He calculated court-fees apparently on the capitalised value of the nett profits stated by the plaintiff in his valuation statement. His recommendation to the Court was that the court-fee was short by Rs. 127-2-0.

3. The report was made to the Court by the Sherisbadar on 15th January 1937, the day on which the plaint was presented to him. On the same date the Court asked the plaintiff to show cause why the plaint should not be charged with additional court-fees. On 25th January following the plaintiff appeared and showed cause. It appears that before the Court did pass final orders the plaintiff amended his plaint and accepted the position that he was liable to pay court-fees on the amount of Rupees 1098-12-0. He accordingly paid a further court-fee stamp of Rs. 127-2-0 as required by the Sheristadar in his report. Thereafter summonses were issued upon the defendants. They entered appearance and raised the question which was made the subject-matter of issue 1 that the court-fees paid on the plaint were still insufficient. The Court found that an ad valorem court-fee on Rs. 9786 was required for the relief for specific performance. It required the plaintiff to put in a further sum of Rs. 750 as court-fees on the basis of the said prayer. That was done and there is no further question with regard to this order which was made by the learned Subordinate Judge and which has been accepted by the plaintiff by putting a further court-fee stamp of Ra. 750. The learned Subordinate Judge then took up the question as to whether in the valuation statement the plaintiff had assessed the nett annual profit correctly. The nett annual profit estimated by the plaintiff was as we have already stated a sum of Rs. 73-4-0. The learned Judge held that the said assessment was absurd apparently because from the valuation statement it appeared that the subject-matter of the suit comprised an area of 762.9 acres of land. He accordingly took up the question as to what was the correct net profit of the land in suit in the year preceding the institution of the suit. He came to the conclusion that the net profit was Rs. 4000. He thereafter stated that court-fees will have to be calculated on a sum obtained by multiplying the said sum by 15, that is to say on the valuation of Rs. 60,000. He accordingly passed the following order:

Court-fees payable according to para. 7(v), Court-fees Act would be upon Rs. 60,000, viz., Rs. 2175.

4. He allowed the plaintiff to put in the deficit amount on or before 27th September 1937. That amount was not ultimately, paid with the result that by his order dated 6th November 1937, the plaint was rejected. It is against this order that the present appeal has been filed. The whole question is whether the demand of Rs. 2175 in the shape of additional court-fees was a legal demand or not. For the purposes of determining this question we will have to construe the provisions of Section 7(v)(a), Court-fees Act. The relevant portion of Section 7 runs as follows:

The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

(v) In suits for possession of land, buildings or gardens:

(a) According to the value of the subject-matter and such value shall be deemed to be fifteen time a the net profits which have arisen from the land, building or garden during the year next before the date of presenting the plaint, or if the court-sees reason to think that such profits have been wrongly estimated fifteen times such amount as the Court may assess as such profits or according to the market-value of the land, building or garden whichever is lower.

5. Sub-clause (b) of Sub-section (v) contemplates a case where such net profits are not readily ascertainable or assessable or where there are no such profits. In such cases, the Court is given the jurisdiction to ascertain the market value and to demand court-fees on the said market value if it had reason to think that the profits mentioned by the plaintiff in the valuation statement required to be filed under the notification issued' in pursuance of the powers reserved by the Local Government in Section 8-A of the Act is low. Sub-clause (b) does not provide for the other case where the market value may not be readily ascertainable. Our view of Sub-section (v) of Section 7, Court-fees Act, is this : that where the amount of net profit stated by the plaintiff in his valuation statement is accepted by the Court the matter ends. But if the Court sees reason to think that such profit had been wrongly estimated then it is to proceed to make inquiries on the two heads mentioned in the concluding ' portion of Sub-clause (a) of Sub-section (v) of Section 7, Court-fees Act. It must proceed to as certain (1) the net profits of the land, building or garden as the case may be in the year immediately preceding the presentation of the plaint; and (2) its market value. If the net profits are not readily ascertainable or assessable it is to ascertain the market value, but if the net profits are readily ascertainable or assessable it is under the obligation to direct its inquiry on both the heads-on the market value also. It can then only require additional court-fee to be paid, (if payable) on the lower of the two figures arrived at such inquiry. In the ease before us the Court has not done so. It has only ascertained the amount of net profits but has not recorded any finding on the market value. It may be that the amount of net profits may be a criterion for the market value. A capitalized value of the net profits may give the market value. But that is not the only method of determining the market value. If the Court adopts this method for ascertaining the market value it will have to determine on the evidence the number of years purchase by which the amount of profits is to be multiplied. The statutory number, fifteen, mentioned in Section 7(v), Court-fees Act, cannot be adopted without such evidence. We have now to construe the provisions of Section 12(1), Court-fees Act. That Section says:

Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum as the case may be is filed and such decision shall be final as between the parties to the suit.

6. In our judgment if the Court comes to the conclusion that a certain amount is the net profit in the year immediately preceding the institution of the suit for the purposes of determining the amount of court, fees that finding would be conclusive and not liable to be challenged in appeal. On this principle the finding that Rs. 4000 is the net profit for the relevant year cannot be challenged before us. That has become final. If the Court had further investigated the question of market value and had arrived at a certain figure that figure could not also have been challenged before us. This only is the effect of Section 12(1). It does not prevent to adjudicate upon the question raised before us. The Court has not determined the last mentioned amount, viz., the market value of the property. As that amount was not determined the Court was not right in determining the court-fee assessed on the figure of Rs. 60,000 arrived at by multiplying the net profits assessed by 15 times in accordance with the statutory provisions contained in Section 7(v)(c). If the market value is less than Rs. 60,000 the plaintiff is under the obligation of paying court-fees on the lesser amount. If the market value on investigation turns out to be more than Rs. 60,000 then and only in that case he could be asked to pay additional court-fees on the sum of Rs. 60,000. Inasmuch as the market value has not been determined by the Court, the Court was not right in demanding the additional court-fee of Rs. 2175 from the plaintiff at that stage. Its demand was premature. Its order for rejection cannot therefore stand.

7. We accordingly set aside that order and remand the case to the lower Court for as investigation as to the market value of the properties in suit. On this point the Court will allow the parties opportunity to adduce further evidence. It would also be open to the Court to proceed under the provisions of Section 8(D), Court-fees Act. The amount of net profits for the year immediately preceding the suit as assessed by the Court (Rs. 4000) must be taken to be final so far as these proceedings are concerned. The appellant must get costs of this appeal from the appearing defendants-respondents, hearing fee being assessed at three gold mohurs.


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