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Biraja Charan Nanda Vs. Sailaja Charan Nanda - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal155
AppellantBiraja Charan Nanda
RespondentSailaja Charan Nanda
Cases ReferredDwijendra Narain v. Jogesh Chandra
Excerpt:
- .....performance which are contemplated by sub-section (10) of section 7. in all those classes of suits fees are to be computed in accordance with the consideration for the value of the property. the fact that, although the relief claimed is one for specific performance and yet does not come under the aforesaid provisions, does satisfy one of the conditions of schedule 2, article 17, clause (vi), namely that it is not otherwise provided for by this act. but we have still to consider whether it is not possible to estimate this claim of specific performance at a money value. once, we find that the relief claimed is not the property itself (the subject-matter of the suit) but merely the specific performance of an agreement to execute a deed (the subject-matter in dispute) dr. basak's.....
Judgment:

S.K. Ghose, J.

1. This rule is directed against an order relating to payment of court-fees upon a plaint. The petitioner and the opposite party are brothers. The allegations in the plaint, in so far as they are material to the question before use, are that the petitioner's father created a trust in respect of some properties and that in respect of certain charitable institution he had intended to set apart certain other properties for their maintenance. But before he could make any definite arrangement he died. Subsequently the petitioner and his brother came to terms and executed two agreements, by the second of which it was stipulated that in order to give a legal form to the disposition of the properties as desired by their deceased father the parties should join in executing a deed of trust for the benefit of the charitable institutions and after the execution of the said deed they would divide the remainder of the estate into two equal shares. The opposite party failed to comply with this agreement, whereupon the petitioner brought the present suit. The two relevant prayers are as follows:

(ka). That it may be held and declared that the properties specified in Schedules (ka) to (kha) of the family agreement executed on 19th Chaitra 1340 B.S. (2nd April 1934) are given and dedicated to the religious and charitable institutions mentioned in the said agreement and that they are impressed with the trust mentioned in the agreement.

(kha). That if, according to the just decision of the Court, the plaintiff does not get relief as per prayer (ka) aforesaid, then a decree for specific performance may be passed against the defendant directing him to execute and register the trust deed filed herewith jointly with the plaintiff.

2. It may be added that after the institution of the present suit the opposite party also brought a suit for partition of the whole estate including the trust properties. In the plaint, the petitioner gave the valuation of the suit as Rs. 16,000 for the purpose of jurisdiction, but subsequently it was directed by the Court that the plaint should be amended by valuing the suit at Rs. 8000 for the purpose of jurisdiction. The petitioner paid Rs. 20 as court-fees taking the suit as one for declaration. A question arose as to whether the petitioner should not be made liable for payment of ad valorem, court-fees. The Subordinate Judge has decided that the court-fees payable are on the aforesaid amount ad valorem. Against that order, the present rule has been obtained. In the course of his order, the Subordinate Judge pointed out that under Section 8, Suits Valuation Act, the value for the purposes of court-fees and for jurisdiction shall be the same and, since the petitioner himself put the value at Rs. 16,000 for the purposes of jurisdiction, that must be the value for the purposes of court-fees as well. It is pointed out for the petitioner that the j Subordinate Judge has put the matter in the wrong order and the proper method is to value for the purpose of court-fees first and then to take that value for the purpose of jurisdiction : Sailendra Nath v. Ram Chandra (1921) 8 A.I.R. Cal. 84. The learned Senior Government Pleader has conceded that this argument is correct and that the view of the Subordinate Judge on this point is wrong.

3. The real question is what is the court-fee payable. The principle undoubtedly applies that a fiscal Statute must be construed strictly in favour of the subject. There is no Section in the Court-fees Act which lays down any general principle of valuation which should be applicable to all kinds of suits, but Section 7 lays down certain rules of computation payable in certain suits and the computation varies according, to the nature of the suit. Sometimes computation is made according to valuation, sometimes according to the relief sought, and sometimes according to the subject-matter. The principle which the Subordinate Judge has followed is that the valuation should be in accordance with the subject-matter in dispute, which it is taken to be the property mentioned in the plaint. This method of valuation has also been supported in this Court by the learned Senior Government Pleader. He has relied on Article 1, Schedule 1 which lays down 'the subject-matter in dispute' as the standard of computation. The learned advocate for the petitioner on the other hand has relied on Schedule 2, Article 17, Clause (vi) which lays down a fixed fee for every other suit where it is not possible to estimate at a money value payable the subject-matter in dispute and which is not otherwise provided for by this Act.

4. Therefore from either point of view it is the subject-matter in dispute which is the primary consideration. Mr. Phani Bhusan Chakravarty for the petitioner has pointed out that the 'subject-matter in dispute' may not be the same thing as the subject-matter of the suit.' On the other hand, Dr. Basak has contended that the subject-matter in dispute must be taken to be the properties (the subject-matter of the suit) the valuation of which is given by the plaintiff in his plaint. His contention is that the effect of the prayer in the plaint would be to transfer these properties from the possession and ownership of the parties as private owner to the possession and ownership of the same parties as trustees. He has further contended that in effect the suit cannot be distinguished from one for a transfer of ownership by creating a new trust in respect of properties which were not already the subject-matter of any trust. Dr. Basak has relied in support of this proposition on the case in Parsottamanand Giri v. Mayanand Giri : AIR1932All593 . That case however may be distinguished on the ground that it was a suit for possession by the trustee himself against a private owner. On the other hand, Dr. Basak's contention leads us to a somewhat curious position, as if the plaintiff was asking for specific performance of a contract for a conveyance for which court-fees payable according to the amount of consideration has expressly been laid down by Section 7, Sub-section 10, Clause (a), the only difference being that in the present case there is no consideration and the actual value of the properties is to be taken as equivalent to the consideration. The present dispute as to the amount of court-fees payable is dependent upon the alternative prayer (kha) in the plaint. It is clearly a claim for specific performance of a contract for executing a deed of trust. Dr. Basak has conceded that this does not come under any of the specified classes of suits for specific performance which are contemplated by Sub-section (10) of Section 7. In all those classes of suits fees are to be computed in accordance with the consideration for the value of the property. The fact that, although the relief claimed is one for specific performance and yet does not come under the aforesaid provisions, does satisfy one of the conditions of Schedule 2, Article 17, Clause (vi), namely that it is not otherwise provided for by this Act. But we have still to consider whether it is not possible to estimate this claim of specific performance at a money value. Once, we find that the relief claimed is not the property itself (the subject-matter of the suit) but merely the specific performance of an agreement to execute a deed (the subject-matter in dispute) Dr. Basak's argument cannot be accepted. We cannot altogether ignore the character of the plaintiff in the present suit. He, as well as the defendant, are already owners of the property and are already in possession. The Subordinate Judge is wrong in saying that as a result of the execution of the deed possession will be changed. Possession will remain where it is. It is only the character of the owner, ship that will be changed. The benefit to the plaintiff himself, as pointed out by Mr. Chakravarty for the petitioner, may be nothing more than mental satisfaction and settlement of family disputes which cannot themselves be estimated at a money value.

5. It has been pointed out in other cases that in order to ascertain the exact nature of the relief claimed the benefit to the plaintiff should be considered : Mohendera Chandra Ganguli v. Ashutosh Ganguli (1893) 20 Cal. 762, Bagala Sunddari v. Prosanna Nath (1917) 4 A.I.R. Cal. 668 and Rajabala Dasi v. Radhika Charan Roy : AIR1924Cal969 . It has been pointed out that it is wrong to look to the consequences of the relief rather than to the relief itself : Zinnatunessa Khatun v. Girindra Nath (1903) 30 Cal. 788. In Sudalimuthu Pillai v. Soma Sundaram Pillai : AIR1925Mad722 the plaintiff in a suit under Section 92, Civil P.C., asked that the defendant should be made to refund a specific amount of money and hand over certain property to the trustees. It was held that as his reliefs were merely ancillary reliefs and the plaintiff did not claim any beneficial interest the fixed court-fee of Rs. 10 was proper. To the same effect are the decisions in Ramrup Das v. Mohunt Sujaram Das (1910) 12 C.L.J. 211 and Thakuri v. Bramha Narain (1896) 19 All. 60. Dr. Basak has sought to distinguish these cases on the ground that they are cases under Section 92, Civil P.C., and therefore they refer to public trusts already existing, whereas in the present case what the plaintiff is seeking to do is to create a new trust. But here it seems to me Dr. Basak is looking to the ultimate consequence of the relief sought which as a standard of computation is deprecated : Zinnatunessa Khatun v. Girindra Nath (1903) 30 Cal. 788 referred to above. As I have pointed out, the prayer (kha) amounts to a prayer for specific performance. The matter might have been different if the plaintiff had been a trustee making such a prayer as against a third party in respect of property in the latter's private ownership and, as I have said already, in a matter like this you cannot ignore the nature and status of the plaintiff. Similarly it may be said that a partition suit relates to properties; but. the Courts have held that in such a suit the plaintiff is already in possession of his share and all that he wants is to change the form of enjoyment of the property, to quote the words of Garth C.J. in Kirty Churn Mitter v. Aunath Nath (1882) 8 Cal. 757. The Court-fees Bengal Amendment Act 7 of 1935 in respect of a partition suit has given effect to these decisions of the High Court under the old law. Similarly, as Mr. Chakra-varty for the petitioner has pointed out, a suit for the registration of a document amounts to nothing more than a suit to complete a title by execution of a deed of gift and it has been held to come under Schedule 2, Article 17, Clause (vi): Dwijendra Narain v. Jogesh Chandra : AIR1924Cal600 . These principles it seems to me are applicable to the present case. As I have stated repeatedly, prayer (kha) amounts to the claim for specific performance; but there is no consideration mentioned, and the value of the property cannot be taken to be the value of the relief. It must be held therefore that it is not possible to estimate the money value of the subject-matter in dispute.

6. The result is that the suit comes under Schedule 2, Article 17, Clause (vi). The amount of court-fees payable is Rs. 15 and since the petitioner has paid Rs. 20 for the claim as to declaration the fee alrealy paid is sufficient. The petitioner therefore succeeds. The rule is made absolute. The order complained of is set aside and the court-fee already paid is held to be sufficient. There will be no order as to costs. Let the affidavits and counter-affidavits filed in this Court be kept on the record.

Edgley, J.

7. I agree.


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