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Mohammad Esahaque Mia Choudhury and ors. Vs. Ananda Chandra Saha and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in164Ind.Cas.1042
AppellantMohammad Esahaque Mia Choudhury and ors.
RespondentAnanda Chandra Saha and anr.
Cases ReferredBidyadhar Bachar v. Manindra Nath Bass.
Excerpt:
court fees act (vii of 1870), section 7, clause (ix) - mortgage--plaintiff coming with case that only a definite sum, is due and to have property freed from mortgage--suit, if one for redemption--court-fee payable--'recovery of the property mortgaged', meaning of--suits valuation act (vii of 1887), section 8--whether includes cases coming under section 7(ix), court fees act. - .....five prayers in the plaint. the fourth prayer is the prayer for costs and the fifth is the general prayer. prayers ka, kha and ga are important. the substance of prayer ka is as follows : that on a declaration that the assignment of the mortgage to defendants nos. 3 and 4 by defendant no. 1 is fictitious, the defendant no. 1 may be directed to receive rs. 300 from the plaintiff and to deliver to the plaintiff the mortgage bond which the plaintiff had executed in favour of the father of defendant no. 1, with an endorsement on it that the said mortgage has been satisfied.2. prayer kha asks the same relief from defendants nos. 2 to 4 if the assignment of the mortgage to them by defendant no. 1 be found to be real and for consideration.3. prayer ga is that if the defendants do not make the.....
Judgment:

R.C. Mitter, J.

1. This Rule has been obtained by defendants Nos. 2 to -1 in a suit instituted by the opposite party No. 1 in the first Court of the Munsif of Lakshmipore against them and opposite party No. 2, Jasada Nandan Bariikya, who is defendant No. 1 in the suit. The suit has been valued for the purpose of court-fees and jurisdiction at Rs. 300 only and the question in this Rule is whether the said valuation is correct. That question depends upon the nature of the suit. For the purpose of determining the question, the following allegations made in the plaint must be considered. The plaintiff admits in para. 1 that he borrowed Rs. 10,000 from Brindaban Chandra Banikya, father of defendant No. 1, opposite party, on Jaistha 12,1331, and on that date executed in his favour a mortgage bond which contained a clause for the payment of compound interest at the rate of Rs. 7-8 per annum. The other statements in the plaint material for the purpose of the question raised in the rule are that there were part payments and that in the month of Agrahayan, 1340, there was an adjustment of accounts, that the defendant No. 1 granted some remission and agreed to release the mortgage and to deliver up the mortgage bond if the plaintiff paid. Rs. 7,200 only; that Rs. 500 was paid to him in Agrahayan, 1340, Rs. 6,400 in the beginning of Falgun, 1340, after some incidents not necessary to notice now, and the balance of Rs. 300 was tendered to him but he refused to accept the same and to deliver up the mortgage bond with an endorsement on its back that it was satisfied. Thereafter defendant No. 1 assigned the mortgage to defendants Nos. 2 to 4. This assignment is challenged in the plaint as fictitious but an alternative prayer is also made, if the said assignment is found to be real. There are five prayers in the plaint. The fourth prayer is the prayer for costs and the fifth is the general prayer. Prayers Ka, Kha and Ga are important. The substance of prayer Ka is as follows : that on a declaration that the assignment of the mortgage to defendants Nos. 3 and 4 by defendant No. 1 is fictitious, the defendant No. 1 may be directed to receive Rs. 300 from the plaintiff and to deliver to the plaintiff the mortgage bond which the plaintiff had executed in favour of the father of defendant No. 1, with an endorsement on it that the said mortgage has been satisfied.

2. Prayer Kha asks the same relief from defendants Nos. 2 to 4 if the assignment of the mortgage to them by defendant No. 1 be found to be real and for consideration.

3. Prayer Ga is that if the defendants do not make the endorsement of satisfaction on the mortgage bond within a time to be fixed by the Court, the Court may make the said endorsement on the' bond and return it to the plaintiff. Defendants Nos. 2 to 4 contend that the suit is a suit for redemption, and so the plaint ought to be stamped ad valorem on Rs. 10,000 and the value of the suit should be Rs. 10,000 also for the purpose of jurisdiction. The learned Munsif has overruled that contention and has held that the suit is a suit for specific performance of a contract and has been rightly valued by the plaintiff under Section 7 Clause (x) of the Court Fees Act. I am afraid the learned Munsif has applied Clause (ix) of Section 7 of the Court Fees Act without a close examination of that clause. The clause deals with only four clauses of suit for specific performance only, namely of contracts for sale, mortgage, lease and for specific performance of an award. Even if this suit be regarded as a suit for specific performance of a contract it would not come within Clause (x) of Section 7. Mr. Gupta makes no attempt to support the reasons of the learned Munsif on this part of the case but contends that the suit is for recovery of movable property which cannot be valued, the mortgage instrument being for the purpose the property in suit. He accordingly relies on Section 7, Clause (iv) (a) of the Court Fees Act. I cannot accept that contention. The suit is not simply for recovery of the mortgage bond. The prayer is for delivery of the mortgage bond with an endorsement of full satisfaction. Reading the plaint as a whole 1 am of opinion that the suit in substance is a suit for redemption, the plaintiff coming with a case that a definite sum, namely Rs. 30J only is due upon the mortgage and he wants to have the property freed of the mortgage on payment of the said sum of Rs. 300. If the Court finds that a larger amount than Rs. 300 is due on the mortgage, it would not be debarred from making a redemption decree in the usual form under general prayer Uma. The case in my judgment comes within the first paragraph of Section 7, Clause (ix) of the Court Fees Act and a court-fee on Rs. 10,000 has to be paid. The phrase 'recovery of the property mortgaged does not mean recovery of possession of the mortgage property from the mortgagee, but is a phrase covertible with the word ''redeem'. The ordinary significance of the words to redeem is to recover a pledge, to get property freed from a charge or mortgage.

4. The next question is whether the suit. has to be valued for the purpose of jurisdiction at Rs. 10,000. Section 8 of the Suits Valuation Act does not include cases coming under Clause (ix) of Section 7 of the Court Fees Act. Three views have been taken on this point : (1) that inspite of Section 8 of the Suits Valuation Act, the valuation for the purpose of jurisdiction should be the same as is taken for the purpose of assessing court-fees. This view proceeds on the view that Section 8 of the Suits Valuation Act does not prohibit the same (Kedar Singh v. Matabadel Singh 31 A 44 : 1 Ind. Cas. 703 : AWN 1903, 276 : 5 ALJ 713 and Jallaldzen v. Vijaswami 39 M 447 : 28 Ind. Cas. 624 : 39 M 447 : (1915) MWN 239 : 29 MLJ 142.

(ii) the value of the mortgage property must determine the pecuniary jurisdiction (Ma Hla v. Ma Su, 5 R 499 : 103 Ind. Cas. 412 : AIR 1927 Rang. 304.

(iii) the amount found by the Court as due on the mortgage (Sarada Sundary Basu V. Akramenessa Khatun : AIR1924Cal783 . The soundness of this view, in my judgment, is open to great doubt in view of the later decision of the Full Bench in Bidyadhar Bachar v. Manindra Nath Bass. : AIR1925Cal1076 .

5. This point, however, need not be further pursued because Mr. Gupta admits that if the suit is regarded as a suit for redemption the Munsif would have no jurisdiction to entertain the suit, I accordingly make the Rule absolute and direct the learned Munsif to return' the plaint for presentation to the proper Court. The petitioners must have their costs both of this Court and of the lower Court incurred by them for the hearing of the preliminary points. I assess the total hearing fee of this Court and of the Court below at Rs. 50.


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