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Smt. Laxmi Moni Basak and ors. Vs. Kedar Nath Basak and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal No. 62 of 1980
Judge
Reported inAIR1982Cal559
ActsWest Bengal Court-fees Act, 1970 - Section 7 - Schedule - Article 15; ;Suits Valuation Act, 1887 - Section 8
AppellantSmt. Laxmi Moni Basak and ors.
RespondentKedar Nath Basak and ors.
DispositionAppeal dismissed
Cases ReferredMeenakshisundaram Chettiar v. Venkatachalam Chettiar
Excerpt:
- .....be convenient to set out the relevant provisions of the west bengal court-fees act, 1970 and the suits valuation act, 1887.10. section 7 of the court-fees act relevant for this case provides as follows :'7. computation of fees payable in certain suits. the amount of fee payable under this act in the suits next hereinafter mentioned shall be computed as follows :(iv) in suits--(a) for movable property of no market value -- for movable property where the subject-matter has no market value, as, for instance, in the case of documents relating to title.(b) for declaratory decree and consequential relief -- to obtain a declaratory decree or order, where consequential relief is prayed.(c) for injunction -- to obtain an injunction,(d) for easement -- for a right to some benefit (not herein.....
Judgment:

R.N. Pyne, J.

1. A question concerning determination of the court-fees arises for consideration in this appeal which is directed against the judgment and order of Mrs. Khastgir, J. dated Feb. 11, 1980.

2. The plaintiffs-appellants filed Suit No. 402 of 1979 (Smt. Laxmi Moni Basak v. Kedar Nath Basak) concerning the trust property under a Deed of Settlement dated 9th Oct., 1934 executed by one Madhab Ballav Basak. The said Deed of Settlement was in respect of three properties namely, 350-A, 350-B and 350/1, Upper Chitpur Road (now known respectively Nos. 327/1, 327/2 and 325, Rabindra Sarani) Calcutta. It appears that by the deed of transfer dated 24th June, 1950 premises Nos. 350-A and 350-B, Upper Chitpur Road were transferred to and vested absolutely in the beneficiaries mentioned in the said deed. The trust is, however, still operating in respect of premises No. 350/1, Upper Chitpur Road (No. 325 Rabindra Sarani), Calcutta. It is stated in the plaint that the defendants Nos. 1, 3 and 4 are the present trustees. It is not necessary to refer in detail to the plaint. In the plaint the plaintiffs have made various allegations and charges against the trustee defendants regarding mismanagement and misappropriation of the trust property and/or funds as also for accounts. The prayers made in the plaint are as follows:

'(a) Leave under Clause 12 of the Letters Patent.

(b) The defendants Nos. 1, 3 and 4 be removed from acting as trustees of the Trust constituted by the Deed of Settlement dated October 9, 1934.

(c) Perpetual injunction restraining the defendants Nos. 1. 3 and 4 from further acting as trustees of the aforesaid trust.

(d) Decree directing the defendants Nos. 1, 3 and 4 to make full and faithful disclosure of their dealings with the aforesaid trust property.

(e) Decree directing the defendants Nos. 1, 3 and 4 to render true, faithful and complete accounts of their dealings with the aforesaid trust property its income realisations and disbursements.

(f) Decree directing the defendants Nos. 1,3 and 4 to pay the amounts found due onsuch enquiry to the persons entitled theretoin accordance with their respective shares orto the Trustees or Trustees to be appointedherein.

(g) Appointment of the trustees or trustees of the aforesaid trust and, if necessary, a direction vesting the trust property in them.

(h) Direction upon the new trustee or trustees, if appointed to apply the income of the said trust property for the benefit of all beneficiaries in accordance with directions contained in the said deed of settlement dated October 9, 1934.

(i) A Decree and/or order for sale of the aforesaid trust property and payment of the proceeds thereof to the persons entitled thereto in accordance with their respective shares after setting apart sufficient amounts for payment of annuity to the defendants Nos. 9 and 10 as mentioned in the plaint.

(j) Framing of a Scheme for proper administration of the trust and suitable directions therefor.

(k) Injunction.

(l) Receiver;

(m) Costs.

(n) Further or other reliefs.'

3. In paragraph 31 of the plaint it is alleged that for the purpose of jurisdiction the value of the suit exceeds Rs. 50,000/-. In paragraph 32 of the plaint it is stated that inasmuch as the reliefs cannot be valued the plaintiffs pay the fixed court-fee of Rs. 15/-as provided in Article 15 (VI) Schedule II of the West Bengal Court-fees Act, 1970 and the plaintiffs have further undertaken to pay additional court-fees, if required. Hence the fixed amount of court-fees of Rs. 15/- has been paid by the plaintiffs on the ground stated above.

4. The defendants Nos. 1, 3 and 4 have entered appearance in this suit. The time for filing of the written statement has, expired on 3rd August, 1979.

5. On 31st July, 1979 Kedar Nath Basak, Dilip Kumar Basak, Smt. Chhabi Basak, defendants Nos. 1, 3 and 4 as petitioners made an application for an order directing the plaintiffs to pay additional court-fees of Rs. 2,347.50 within a fortnight from the date of the order to be made on the petition and in default of the plaintiffs' paying the additional court-fees as aforesaid within the time as may be directed, the plaint be taken off the file and the suit be dismissed with costs. The allegation in the petition is that although the plaintiffs have stated that for the purpose of jurisdiction the value of the suit exceeds Rs. 50,000/- yet they have paid court-fees of Rs. 15/- only. According to the petitioners, the proper court-fees payable is Rs. 2,362.50 p. on the valuation of the suit made by the plaintiff and therefore after deducting the amount already paid by the plaintiffs, the plaintiffs are liable to pay a further court-fees of Rs. 2,347.50.

6. In the affidavit-in-opposition filed on behalf of the plaintiffs-appellants it is stated that proper amount of court-fee of Rs. 15/-in accordance with the provisions of the West Bengal Court-fees Act, 1970 has been paid. Further, the plaint was presented to the Stamp Reporter and he was satisfied that the due and proper court-fees payable on the plaint was Rs. 15/-. Hence, according to the appellants, proper court-fees have been paid on the plaint.

7. In the Court of the first instance it was contended on behalf of the petitioners (the respondents herein) that court-fees must be paid on the basis of the valuation fixed by the plaintiff for the purpose of jurisdiction. As the suit was valued at Rs. 50,000/-proper court-fee payable was Rs. 2,362.50 p. It was further contended that if valuation for the purpose of court-fees was Rs. 15/- the valuation for the purpose of jurisdiction could not exceed Rs. 15/- and hence, the plaintiffs should have filed the suit in other Court. The contention of the respondents (the appellants herein) in the Court of the first instance was that inasmuch as it was not possible to estimate money value of the subject matter of dispute and as the same was not otherwise provided by the West Bengal Court-fees Act the fixed sum of Rs. 15/- was payable in respect of the suit under Schedule II Item 15 (vi) of the said Act. Further, the valuation of the suit for the purpose of jurisdiction should not be the value for the purpose of determination of court-fees.

8. The learned Judge of the Court of the first instance accepting the contentions of the petitioners and holding that the plaintiffs have valued the suit over Rs. 50,000/- made an order directing the plaintiffs to pay additional court-fees on the valuation made for the purpose of jurisdiction within a month from the date in default there would be an order in terms of prayer (b), that is, the plaint would be taken off the file and the suit should be dismissed with costs. It was further held that the plaintiffs paid only Rs. 15/-for the purpose of court-fees then naturally considering the relief asked for in the plaint for the purpose of jurisdiction would be dependent on the valuation of the court-fees as the plaintiff's case did not strictly come under Section 7(iv) Sub-section (b) of the Court-fees Act. By the order the learned Judge also extended the time for filing of the written statement.

9. Before proceeding further it would be convenient to set out the relevant provisions of the West Bengal Court-fees Act, 1970 and the Suits Valuation Act, 1887.

10. Section 7 of the Court-fees Act relevant for this case provides as follows :

'7. Computation of fees payable in certain suits. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :

(iv) In suits--

(a) for movable property of no market value -- for movable property where the subject-matter has no market value, as, for instance, in the case of documents relating to title.

(b) for declaratory decree and consequential relief -- to obtain a declaratory decree or order, where consequential relief is prayed.

(c) for injunction -- to obtain an injunction,

(d) for easement -- for a right to some benefit (not herein otherwise provided for) to arise out of land, and

(e) for accounts -- for accounts -- according to the amount at which the relief sought is valued in the plaint or memorandum of appeal subject to the provisions of Section 11.

In all such suits the plaintiff shall state the amount at which he values the relief sought.'

11. Section 11 of the West Bengal Court-fees Act provides as follows :

11. Inquiry as to valuation of suits-- If the Court is of opinion that the subject matter of any suit has been wrongly valued, it may revise the valuation and determine the correct valuation and may hold such inquiry as it thinks fit for such purpose. Item 15 (VI) of Schedule II of the said Act provides as follows:

Number Proper Fee15. Plaint or memorandum of appeal in each of the following suits:--(vi) every other suit .. Fifteen rupees,where it is not possibleto estimate at a money-value the subject-matterin dispute and which isnot otherwise provided by this Act.'

12. Section 8 of the Suits Valuation Act, 1887 is as follows:

8. Court-fee value and jurisdictional value to be the same in certain suits.-- Where in suits other than those referred to in the Court-fees Act, 1870 Section 7, paras (v), (vi) and (ix) and para (x), Clause (d), court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same.

13. The main question that arises for consideration in this appeal is whether correct amount of court-fee has been paid on the plaint in this suit.

14. It was contended on behalf of the appellants that Section 7 of the West Bengal Court-fees Act, 1970 provides for computation of court-fees payable in suits mentioned therein. Section 7(iv) of that Act, inter alia, provides that in suits to obtain declaratory decree, injunction and for accounts court-fees shall be computed according to the amount at which relief sought is valued in the plaint and further that in all such suits the plaintiff shall state the amounts at which he values the relief sought for. It was further submitted that Schedule II Item 15 (vi) of the said Act specifically lays down that where it is not possible to estimate the money value of the subject-matter in dispute a fixed court-fee of Rs. 15/- shall be payable. It was also the submission on behalf of the appellants that the meaning of Section 7(iv) read with Schedule II Article 15 (vi) of the said Act is that the plaintiff is required to state the amount at which he values the suit provided of course it is possible for the plaintiff to estimate the money value of the subject matter in dispute. Any other meaning would render the specific provisions of Item 15 (vi) of Schedule II of the said Act superfluous. In the instant case, it is not the case of the defendants that it was possible for the plaintiffs to estimate the money value of the subject matter of dispute in the suit but the case in the petition is that as the plaintiffs have alleged that for the purpose of jurisdiction the value of the suit exceeds Rs. 50,000/- court-fee was payable on Rs. 50,000/- being Rs. 2,362.50 p. It is further submitted that the plaintiffs have undertaken to pay additional court-fees if required. Counsel for the appellants also submitted that the judgment and order of the learned trial Judge is erroneous. The learned Judge proceeded on the basis that the plaintiffs have valued the suit over Rs. 50,000/-and payment of ad valorem court-fees of Rs. 15/- is therefore not in accordance with the said Act. Accordingly the learned Judge concluded that court-fee is payable on the plaintiffs valuation of the suit as Rs. 50,000/-. According to counsel the judgment and order of the learned trial Judge that the plaintiffs are obliged to pay court-fees on 'the valuation given for the purpose of jurisdiction' is clearly contrary to the Supreme Court decision reported in : [1958]1SCR1021 (Sethappa Cheltiar v. Ramanathan). Further, the finding of the learned trial Judge that the plaintiffs had incorrectly valued the suit for the purpose of Court-fees at Rs. 15/- is erroneous. It was further submitted that the plaintiffs did not value the suit for the purpose of payment of court-fees, the plaintiffs' case being that the plaintiffs are unable to value the subject matter of dispute in the suit and therefore, a fixed court-fee of Rs. 15/- has been paid in accordance with Item 15 (vi) of Schedule II of the said Act.

15. Referring to the case of Meenakshi-sundaram Chettiar v. Venkatachalam Chettiar, : [1979]3SCR385 relied upon by the respondents' counsel it was submitted that the Supreme Court did not lay down that the plaintiff must in all cases value the subject matter of the dispute in the suit. Further, in that case the Supreme Court was not considering the case where the plaintiff was unable to put even a tentative value. According to counsel, there may be a case where the subject matter of the dispute is a declaration regarding right of way to a valuable property. Clearly this cannot be estimated in money value. Further Section 7(iv)(e) which deals with accounts cannot be singled out from Section 7(iv) (a), (b), (c) and (d). Different principle cannot apply with regard to the suit for accounts and suits for declaration and injunction. It is possible that the plaintiff is unable to value the subject matter of dispute in a suit even tentatively where declaration or injunction is prayed for.

16. On behalf of the respondents it was contended that in the instant case in view of the prayers of the plaint it cannot be said that the reliefs or the subject matter of the suit cannot be valued or that there is no provision in the Act for valuation of the subject matter of this suit for the purpose of court-fees. It is submitted that the plaintiffs in the suit have claimed, inter alia, for injunction, accounts and administration of the trust estate.

17. It has been contended that those reliefs are to be valued according to Section 7(iv) (c) and (e) of the Act. According to the said section, the plaintiff shall state the amount at which he values those reliefs. It is also stated that according to Section 8 of the Court-fees Act the value for determination of the computation of the Court-fees and the value for the purpose of jurisdiction shall be the same. It has been further submitted that if it is not possible for the plaintiffs to state the correct value about those reliefs they must state at least the tentative value of such reliefs. It has also been the submission of the counsel as only Rs. 15/-has been paid for court-fees this suit should have been filed in other Court and not in the High Court. It has been further contended that in the instant case since the reliefs claimed relate to the trust property, being the subject matter of this suit and the value whereof according to the plaintiffs is over Rs. 50,000/- the learned trial Judge has correctly determined the value of the suit for the purpose of court-fees as well as the amount of court-fees payable in respect of the suit. In support of his above contention reliance was placed on the case of Meena-kshisundaram Chettiar v. Venkatachalam Chettiar, : [1979]3SCR385 .

18. In the case of Sathappa Chettiar v. Ramanathan Chettiar, : [1958]1SCR1021 Supreme Court construing Section 7 of the Court-fees Act and Section 8 of Suits Valuation Act observed as follows (at p. 251):

'If the scheme laid down for the computation of fees payable in suits covered by the several sub-sections of Section 7 is considered, it would be clear that, in respect of suits falling under Sub-section (iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court-fees. The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property. The basis of the claim is that the property in respect of which a share is claimed is joint family property.

In other words, it is property in which the plaintiff has an undivided share. What the plaintiff purports to do by making a claim for partition is to ask the Court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the conversion of the plaintiff's alleged undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definite-ness. That is why legislature has left it to the option of the plaintiff to value his claim for the payment of court-fees. It really means that in suits falling under Section 7(iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the Court in computing the court-fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to consider whether, under the provisions of this section the plaintiff has been given an absolute right or option to place any valuation whatever on his relief.'

* * * *'In other words, so far as suits falling under Section 7 Sub-section (iv) of the Act are concerned, Section 8 of the Suits Valuation Act provides that the value as determinable for the computation of court-fees and the value for the purposes of jurisdiction shall be the same. There can be little doubt that the effect of the provisions of Section 7 is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of court-fees and that is natural enough. The computation of court-fees in suits falling under Section 7(iv) of the Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim for the purpose of court-fees, that determines the value for jurisdiction. The value for court-fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for court-fees stated by the plaintiff that is of primary importance. It is from this value that the value for jurisdiction must be determined. The result is that it is the amount at which the plaintiff has valued the relief sought for the purposes of court-fees that determines the value for jurisdiction in the suit and not vice versa.'

19. In the case of Meenakshisundaram Chettiar v. Venkatachalam Chettiar, : [1979]3SCR385 the Supreme Court has observed as follows (at p. 993):

'It is therefore necessary that the plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the cases. In coming to the conclusion that the suit is undervalued the Court will have to take into account that in a suit for accounts the plaintiff is not obliged to state the exact amount which would result after the taking of the accounts. If he cannot estimate the exact amount he can put a tentative valuation upon the suit for accounts which is adequate and reasonable'.

20. On the basis of the said two Acts and the decision of the Supreme Court it has to be decided whether the payment of fixed amount of court-fees at Rs. 15/- under Item 15 (vi) of Schedule II is proper and correct. According to the plaintiffs as in the instant case it is not possible to value the reliefs claimed and it is also not possible to estimate at a money value of the subject matter in dispute and which is not otherwise provided for by the Act a fixed amount of court-fees is only payable in this case.

21. For determination of the question whether correct amount of court-fees has been paid or not, an analysis of the reliefs claimed by the plaintiff and the nature of the subject matter in dispute stated in the plaint is to be considered. In prayer (c) of the plaint, the plaintiffs have asked for injunction. In prayers (d), (e) and (f) of the plaint, the plaintiffs have claimed for accounts and a decree for amount to be found due upon such account. In prayer (j), the plaintiffs have claimed for administration of the trust estate and this comes within the relief of account. These reliefs, it appears, come within the Items (c) and (e) of Sub-section (iv) of Section 7 of the Act. This being the position, according to Section 7 the plaintiffs shall state the amount at which they value the reliefs sought. In the plaint the plaintiffs have not stated the value of the said reliefs which according to Section 7 is mandatory for the plaintiffs to do. If it is not possible to give correct or accurate valuation in respect of the said reliefs at this stage then the plaintiffs will have to give at least tentative values of the same. According to Section 8 of the Suits Valuation Act the value given by the plaintiff for those reliefs would also be the value for the purpose of jurisdiction.

22. In the instant case, it appears that as the plaintiffs have not stated the value of the above reliefs or in other words have wrongly valued the reliefs and/or the subject matter of the suit the trial Court in exercise of the power conferred by Section 11 of the Court-fees Act has corrected the value of the reliefs and/or the subject matter of the suit. The learned trial Judge has fixed the value for the purposes of court-fees at Rs. 50,000/-. The question is whether fixation of the amount of court-fees has been correctly made or not. In respect of the reliefs mentioned above court-fees are to be paid ad valorem under Court-fees Act and the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same. This being the position, the value for the purpose of jurisdiction will be the same as the value for the purposes or court-fees. Hence, if the value for the purpose of computation of court-fee is a particular amount that particular amount will also be the value for the purpose of jurisdiction. In other words both the amounts should be the same. In the instant case as the value for jurisdiction is fixed at Rs. 50,000/- and if this is dependent upon and be same as the value for the court-fees then naturally court-fees become payable on that amount. Apart from reliefs mentioned above the plaintiffs have also made other prayers as will appear from the plaint. In the above view of the matter, in our view, the learned trial Judge has correctly determined the amount payable as court-fees for this suit.

23. For the reasons aforesaid the appeal is dismissed. Time for payment of further court-fees as directed by the Court of first instance is extended by four weeks from date. In default of such payment the plaint shall be taken off the file and the suit will stand dismissed with cost. If further court-fee is paid then the time to file written statement will stand extended by two weeks from the time fixed for payment of court-fees and in that event the cost of this appeal will abide by the result of the suit.

S.C. Ghose, C.J.

24. I agree.


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