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Jitendra Nath Ghose Vs. Hirenmoy Kumar Saha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in172Ind.Cas.794
AppellantJitendra Nath Ghose
RespondentHirenmoy Kumar Saha and ors.
Cases ReferredLtd. v. Moulvi Mafiz
Excerpt:
court fees act (vii of 1870 as amended by bengal act vii of 1935), sections 7(iv), 8-a to 8-f, 17--suit for declaration with alternative reliefs--court, if can revise valuation--suits valuation act (vii of 1887), section 9. - .....was no 'real objective basis of valuation', as would be afforded by rules if framed under the suits valuation act. both these principles were affirmed in the case of the narayanganj central co-operative sale and supply society, ltd. v. moulvi mafiz-ud-din ahmad : air1934cal448 , where it is held that the courts have the power to revise the plaintiffs valuation in suits falling under para. (iv) by virtue of order vii, rule 11 of the code of civil procedure, but in the absence of rales framed under section 9 of the suits valuation act, the court would have no standard whereon to fix the value. the law as it stands, the bengal amending act is summed up in the judgment of mukherjee, j. he pointed out that the court's power in the case of under-valuation is laid down in order xvii, rule.....
Judgment:

S.K. Ghose, J.

1. This Rule raises a question of valuation for the purposes of assessment of court-fees and it has arisen under the following circumstances. The plaintiff-petitioner instituted a suit in the Court of the Subordinate Judge of Nadia against the defendants opposite parties alleging inter alia that he is entitled to a contingent interest tinder the will of one Parasu-ram Mustafi. He died in 1879 leaving two widows, Soudamini and Shivani, both of whom have since died. Soudamini left a daughter Kshirod mohini who died in 1908. Kshirodmohini left two sons of whom plaintiff is the sole survivor. It is alleged in the plaint that one Hari Pada Saha deceased who was husband of defendant No. 2 and father of defendant No. 1 was a monthly tenant-at-will of the disputed house and garden of the late Parasuram Mustafi. It is alleged that he caused a fictitious deed of sale to be executed by Kshirodmohini and her sons, that is the petitioner and his deceased brother on Falgoon 23,1298, B.S. and another sale-deed to be executed by Shivani on Sraban 13, 1300, B.S. it may be added here that according to the will Soudamini was to have 10 as. share and Shivani the remaining 6 as. share in the properties of the testator. On those material allegations the plaintiff brought the suit asking for reliefs which are specified in 12 prayers. Of these only the following are material for the present petition. He asked that the contingent interest of himself, the plaintiff, under the will might be declared and that it might be declared that the document executed by Kshirodmohini and Soudamini and any other document on the strength of which the defendants claim possession are fraudulent, collusive and inoperative. He further asked that khas possession might be decreed upon a declaration that the plaintiff's right had accrued after the death of Shivani that he might be entitled to recover mesne profits, that a permanent injunction might be granted against the defendant restraining them from alienating the disputed properties and committing other acts of malfeasance, and lastly that if the Court held that the tenancy-at-will created in favour of the late Hari Pada Saha by Shivani had not been determined and consequently the plaintiff was not entitled to recover khas possession, it might be declared that the plaintiff was entitled to realise from the defendants monthly rent payable by them. Upon this plaint the plaintiff petitioner paid ad valorem court-fees upon Rs. 2,500 on the following basis.

(a) Rupees 2,400 being the value of properties as stated in the kobalas in favour of Hari Pada Saha.

(b) Rupees 50 value of the injunction.

(c) Rupees 50 value of the mesne profits.

2. To this an objection was raised in the lower Court that the valuation was not correct. The plaintiff claimed to be allowed to put his valuation under Section 7, para, (iv), Clause (c) of the Court Pees Act on the ground that the suit was a declaratory one with prayers for consequential reliefs. It was contended for the other side in the lower Court that this description of the suit was not correct, that the suit was not merely a declaratory one but that it was a suit for declaration of plaintiff's title and for recovery of possession as also for recovery of mesne profits and for injunction. The learned Judge has given effect to this objection, holding that the plaintiff claims title as reversionary heirs and claims recovery of possession and mesne profits, the declaration in respect of the kobalas being merely ancillary. So he has decided that the suit comes under Section 7 (v) of the Court Fees Act and the valuation must be in accordance with the market value of the properties. This he has held to be Rs. 7,250. Against that decision the present rule has been obtained.

3. The contention which was made in the lower Court is repeated here, namely, that the plaintiff is entitled to fix the valuation as under Section 7, para (iv) (c) and not under para. (v). Bo far as this contention is concerned, it depends upon whether the suit is merely a declaratory one, the other reliefs asked for being in the nature of consequential reliefs. Now with regard to the two kobalas it is suggested that the test is whether it is necessary that the declaration asked for should be made in order that plaintiffs might be allowed to have the other reliefs. With regard to one of the kobalas which relates to the 6 annas share of the properties it is pointed out that the plaintiff was not a party and, therefore, it is necessary that that kobala should be declared void as against him. But with regard to the other kobala which relates to the 10 as. share of the properties, it is pointed out that the plaintiff is a party along with his deceased brother and mother. It is alleged in the plaint that the plaintiff was a minor at the time, that he was not entitled to sell, his title not having arisen at the time of the kobala, and that the document was executed under undue influence. In so far as the allegation as to minority is concerned, is contended by Dr. Basak that on that ground it is not necessary that this kobala also should be declared void as against the petitioner. We do not think, however, that this contention can be accepted having regard to the fact that the plaintiff is a party to the document. Therefore, the view must be accepted that it is necessary that the declaration as asked for with regard to this kobala should be made before the plaintiff can be entitled to have the other reliefs. That being the position it cannot be said that the suit is not one for declaration.

4. But Dr. Basak for the opposite party contends that in any view of the matter the decision of the Court below must be accepted having regard to the provisions of the Court Fees Amendment Act (Bengal Act VII of 1935). The learned Advocate for the petitioner in this Court has objected that this Act should not be relied on as it was not referred to in the lower Court. The Act, however, was published in the Calcutta Gazette on May 16, 1935, and the suit was instituted on some date subsequent to that. Therefore, in any case the Act is applicable and the opposite party is entitled to rely on its provisions. It is pointed out, in the first place, that by reason of the amending Act, Section 7, para. (iv) is made subject to the provisions of Section 8-C which provides for an enquiry as to valuation of suits and further there is Section 17, Sub-section (2) of the amending Act, which provides

Where more reliefs than one based on the same cause of action are sought either jointly or in the alternative the fee shall be paid according to the value of the relief in respect of which the largest fee is payable.

5. For the petitioner reliance is placed on the cases of Sailendra Nath Kundu v. Surendra Nath Sarkar : AIR1935Cal279 , Ganga Dei v. Sukhdeo Prasad 47 A 78 : 84 Ind. Cas. 624 : AIR 1924 All. 612 : 22 ALJ 945 : LR 5 A 618 Civ. Tula Ram v. Dwarka Das : AIR1928All248 , and Radha Kanta Sahav. Debendra Narain Saha 27 CWN 566 : 70 Ind. Cas. 101 : 49 C 880 : AIR 1922 Cal. 506 : 38 CLJ 74. In all these cases the question as to valuation depended on whether it should be made under para. (iv) or para. (v) of Section 7. In the case of Bibi Umatul Batulv. Nanji Koer 11 CWN 705, it was held that although it is for the plaintiff to state the amount on which he valued the reliefs, it is open to the Court, if the question is raised as to the true valuation, to determine such a question. In the case of In the matter of the Court Fees Act and Kalipada Makharjee 34 CWN 870 : 131 Ind. Cas. 587 : AIR 1930 Col. 686 : 58 C 281 : Ind. Rul. (1931) Cal. 475, I do not understand that Rankin, C.J. really dissented from that proposition. What he pointed out was that in spite of the Court's power, it was not always practicable for the Court to revise the valuation in a case where there was no 'real objective basis of valuation', as would be afforded by rules if framed under the Suits Valuation Act. Both these principles were affirmed in the case of the Narayanganj Central Co-Operative Sale and Supply Society, Ltd. v. Moulvi Mafiz-ud-din Ahmad : AIR1934Cal448 , where it is held that the Courts have the power to revise the plaintiffs valuation in suits falling under para. (iv) by virtue of Order VII, Rule 11 of the Code of Civil Procedure, but in the absence of rales framed under Section 9 of the Suits Valuation Act, the Court would have no standard whereon to fix the value. The law as it stands, the Bengal Amending Act is summed up in the judgment of Mukherjee, J. He pointed out that the Court's power in the case of under-valuation is laid down in Order XVII, Rule 11 which is procedural while nothing as to such correction is stated in the taxing Act itself, namely the Court Fees Act (Act VII of 1870J and so he had to read the two enactments together. This omission in the taxing Act is now supplied by the Bengal Amending Act, Sections 8-A to 8 F which provide for an enquiry as to valuation of suits and a certain procedure. Mukerji, J- points out that

in case of suits falling within Sub-section (iv) of Section 7, there must be, having regard to their very nature, a certain amount of option in the plaintiff, because the value of the relief he claims therein would depend not on its intrinsic value but on its value so far as he is concerned. I also agree that in many such suits no real objective standard would be possible or even if possible, would be altogether satisfactory.

6. In In the matter of the Court Fees Act and Kalipada Mukharjee 34 CWN 870 : 131 Ind. Cas. 587 : AIR 1930 Col. 686 : 58 C 281 : Ind. Rul. (1931) Cal. 475, the plaintiff asked for a declaration and also for a consequential relief but instead of valuing the suit for a single sum at his own option he valued it in parts. It was held that the value was not in accordance with the law and so it should be corrected by adopting the procedure under Order VII, Rule 11 of the Code of Civil Procedure. Now in the present case the plaintiff himself has asked for more than one relief based on the same cause of action and has valued them separately. The result of this is to bring into play the provisions of Sub-section (2) of Section 17 and so the direction should be that the fee shall be paid according to the value of the relief in respect of which the largest fee is payable. The conclusion, therefore, is that the valuation must be on the basis of the value of the properties in respect of which possession is asked for. This Value the plaintiff has himself put at Rs. 2,400 being the value as stated in the kobalas in favour of Hari Pada Saha. This is a matter which the Court is entitled to enquire into and it cannot be said, so far as this item is concerned, that in jury to the plaintiff is not known or that there is no objective basis of valuation. The plaintiff himself fixed the value on the basis of the kobalas which at once raises the question of market value. Once the matter comes to that, then whether it lies under para. (iv) or under para. (v) of Section 7, the Court is entitled to hold an enquiry. It may be observed that under the new Sections 8-A to 8-F, the Court's powers are much wider and more specific than those under Sections 9 and 10 which are repealed by the amending Act. Under Sections 9 and 10 the Court has power to revise the valuation only in respect of the market value or the annual net profits. But under Section 8-B the Court is not only empowered but enjoined, ''in every case before proceeding to deliver judgment to record a finding whether a sufficient court-fee has been paid'. Under Section 8 C the Court is empowered to hold an enquiry as to valuation and, included in the Court's powers to follow a special procedure which is laid down, is the power to call for evidence, Section 8-E. It seems to me that the effect of those provisions is, to some extent, to remove the disadvantage under which the Court laboured by reason of the non-existence of rules framed under the Suits Valuation Act, though it may be that the advance is little where there is no objective standard of valuation forthcoming. But in the present case that objection does not hold and there is no point in saying that the lower Court never thought of these new provisions of the amending Act, for the Court did hold any enquiry and it was undoubtedly within its powers in fixing the value at Rs. 7,250. The decision, therefore, doe not call for interference.

7. The Rule must, therefore, stand discharged. We make no order as to costs.

8. The deficit court-fees as directed by the Court below must be paid within one month from the date of the arrival of the record in that Court.

R.C. Mitter, J.

9. I agree.


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