Om Prakash v. Bohra Hiralal and other — 1957 DIGILAW 56 (ALL)

JUDGMENT M.C. Desai, J. - This is a reference by the Taxing Officer about the proper amount of court fee payable on the memorandum of appeal. 2. Joti Prasad and Mool Chand jointly owned a house in equal shares. Joti Prasad died leaving five sons. Mool Chand also died and is represented by his sons and widow. On 18-5-1945 Mool Chand and the two eldest sons of Joti Prasad sold the entire house to Jawahar Singh and Bhup Singh who in turn sold it to Om Prakash and Lachhman Prasad. The suit giving rise to the appeal was instituted by the other three sons of Joti Prasad, who contended that there was no legal necessity for the sale of the half share in the house belonging to the five brothers and and seeking the reliefs of partition of the half share belonging to the five brothers after declaring that the sale deed was null and void and ineffective in respect of the half share and of actual possession over the portion allotted to them. The half share in the house was valued at Rs. 6,000. Advalorem court fee was paid on Rs. 6,000 for the relief of possession and on Rs. 1,200, being one-fifth of the market value, for the relief of cancellation of the sale. The suit was contested by the vendees on the ground that the sale was for legal necessity but was decreed by the trial court which gave to the Plaintiffs a decree for partition of their one-half share and for declaration that the sale was null and void. The appeal has been filed by the vendees; they have paid court fee of Rs. 18/12/- u/Art. 17 (6) of Schedule II of the Court Fees Act contending that it was not possible to estimate at a money value the subject matter in appeal and that there was uo other provision governing the payment of court fee on the memorandum. The appeal has been filed by the vendees; they have paid court fee of Rs. 18/12/- u/Art. 17 (6) of Schedule II of the Court Fees Act contending that it was not possible to estimate at a money value the subject matter in appeal and that there was uo other provision governing the payment of court fee on the memorandum. The relief sought in the memorandum is that the suit of the Plaintiffs be dismissed because it was not proved that the house was ancestral property, that the sale was valid at least in respect of the share of the two eldest sons who executed the sale deed, that the burden of proving legal necessity was wrongly cast upon the vendees, that the sale was for the benefit of the minor Plaintiffs and, therefore, no qestion of want of legal necessity arose, that the trial court acted irregularly or illegally in not postponing the hearing of the suit, in not granting an adjournment and in not receiving documents produced by the Appellants and that the suit was not maintainable in the absence of any relief for cancellation of the sale. 3. Art. 17 (6) of the second schedule does not apply at all. It provides for payment of court fee on a plaint as well as on a memorandum, in a suit where it is not possible to estimate at a money value the subject matter in dispute and which is not otherwise provided for by the Act. Neither of the two condititions is fulfilled in the present case. The subject matter in dispute is capable of being estimated at a money value and has been provided in S. 7 (vi- v) and S. 7 (iv-A) (2). One fact to be noted is that u/Art. 17 the same court fee is payable on a memorandum of appeal as on the plaint; it is impossible to apply the article to a memorandum of appeal if it was not applicable to the plaint. If the subject matter of the suit could be estimated at a money value or if it was provided for in the Act, Article 17 would not govern the court fee payable on the plaint and if it would not govern the court fee payable on the plaint, it would not govern the court fee payable on the memorandum of appeal also. The Appellants did not plead in the trial court that the court. 4. Schedule I of the Act provides for payment of advalorem court fee on plaints and memoranda of appeal. S. 6(1) lays down that(sic) no plaint or memorandum of appeal shall be filed in any court of justice or shall be received by any public officer unless in respect of it there be paid a fee of an amount not less than that indicated by the schedule as the proper fee for it. u/s ub S. (2) a court may receive a plaint or memorandum of appeal in respect of which an insufficient fee has been paid, but it cannot be acted upon unless the Plaintiff or the Appellant makes good the deficiency in court fee within such time as may be allowed by the Court. The proper fee payable on a plaint or memorandum of appeal depends upon the amount or value of the subject matter in dispute; what would be the proper fee on different amounts or values of the subject matter is given in the third column. How the amount or value of the subject matter in dispute is to be calculated is explained in S. 7. The value of the subject matter in a suit for or involving cancellation of or adjudging void or voidable, an instrument securing money or other property is, where the Plaintiff was not a party to the instrument, one-fifth of the amount for which, or value of the property in respect of which, the instrument was executed, vide sub S. (iv-A). The suit in the present case involved cancellation of, or adjudging void, the sale deed which was not executed by the Plaintiffs. Some property along with the house was also sold and therefore, it could not be determined for which amount the house was sold. The value of the half share in the house was Rs. 6,000 and one-fifth of it, that is Rs. 1,200 would be the value of the subject matter of the suit. The Plaintiffs also sought the relief of partition; they were not in possession, the vendees having been put in possession by the vendors Therefore, the value of the subject matter of the suit for partition was the full value of the share which was Rs. 6,000. 1,200 would be the value of the subject matter of the suit. The Plaintiffs also sought the relief of partition; they were not in possession, the vendees having been put in possession by the vendors Therefore, the value of the subject matter of the suit for partition was the full value of the share which was Rs. 6,000. As far as the suit was concerned, the court fee was correctly paid by the Plaintiffs on the amounts of Rs. 6,000 and Rs. 1,200. 5. The question is what is the value of the subject matter in appeal S. 7 provides for ascertainment of amounts or values of subject matters in suits and there is no similar provision for ascertainment of amounts or values of subject matters in appeals. But the word "suit" has been defined in S. 2 (iv) to include a first or second appeal from a decree in a suit; therefore when one has to ascertain the value of the subject matter in an appeal it is to be ascertained in the same manner, i.e. one has to read the provisions of S. 7 after substituting the words "first appeals from the decrees in suits" for the word "suits" S. 7. It should be brone in mind that the words "for money" "for maintenance and annuities..." and "or reduction or enhancement..." occurring in the various paras of S. 7 will govern the word "suits and not the words "first appeals". So read, S. 7 will apply to "appeals from decrees in 'suits for money', suits for maintenance and annuities', 'suits' for reduction or enhancement'....". It is not at all necessary, in order to give full meaning to S. 7 so read, to substitute the word "Appellant" for the word "Plaintiff" wherever it occurs in the section. The idea being to make the provisions of the section applicable in any appeal arising from a suit provided for in it, it would have been quite irrelevant to consider what the Appellant was asking for or claiming to be. The intention of the legislature is that the amount of the subject matter must be ascertained in the same manner in an appeal (from a decree in a suit) as in the suit itself. The intention of the legislature is that the amount of the subject matter must be ascertained in the same manner in an appeal (from a decree in a suit) as in the suit itself. If the subject matter remains the same in the appeal so will its value and the court fee payable on the memorandum will be the same as that payable on the plaint. An Appellant is required to pay the same court fee as he would have been paid by the Plaintiff in the suit from which the appeal arises. As I said earlier, S. 7 only lays down rules for determining the values of various subject matters in suits; the value of the subject matter in appeal must necessarily be the same as that in the suit, if the subject matter of the appeal is the same as that of the suit. It may be the same or it may be different. It would be the same when a suit is dismissed and the Plaintiff appeals for the same reliefs that he had asked for in the suit or when a suit is decreed in its entirety and the Defendant appeals for reversal of the entire decree. Whether the subject matter remains the same in the appeal or not does not at all depend upon who files the appeal; it may remain the same whether the appeal is filed by the Plaintiff or by the Defendant. In any appeal. 6. When I have referred to a part of the suit being decreed or a part of the relief being granted or a part of the suit being dismissed I meant a suit involving either more than one subject matter or a subject matter which disliable(sic) into parts. If the subject matter of a suit is indivisible, it cannot vary in appeal; the subject matter of the appeal from any decree passed in such a suit must remain the same as in the suit itself. If a suit is for a sum of money, it involves a divisible subject matter because the sum can be split up into two parts. If a suit is for a sum of money, it involves a divisible subject matter because the sum can be split up into two parts. Same in a suit for possession of property, a suit for possession of property and cancellation for the setting aside, of a document or a decree (it is divisible into two parts, one consisting of possession of the property and the other of cancellation or the setting aside of the document or the decree), a suit for partition (the suit is divisible into two parts, one for partition of some property and the other for partition of the rest) etc. A suit for maintenance may also be treated as a suit involving a divisible subject matter. An instance of a suit involving indivisible subject matter is a suit for redemption or fore closure of a mortgage; the subject matter of such a suit cannot be said to be divisible into two parts, (1) redemption or foreclosure of a mortgage for one amount and (2) redemption or foreclosure of the mortgage for the remaining amount. Therefore whatever may be the amount claimed by a mortgagor in a suit for a redemption or by a mortgagee in a suit for foreclosure and whatever may be the amount for which the suit is decreed by the trial court and whoever prefers an appeal from the decree on whatever ground, the subject matter in the appeal remains the same as in the suit and the same court fee is payable on the memorandum of appeal as on the plaint, the subject matter being the right to redeem the property or to foreclose the mortgage. An amount of money simpliciter can be split up into two parts but not a right to redeem on payment of a certain sum of money or a right to foreclose unless a certain sum of money is paid. 7. In the case before me there were two subject matters in the suit (1) possession of one-half of the house after partition and (2) cancellation of the sale deed. The suit was decreed and the whole decree is under appeal; obviously therefore the subject matters of the appeal are the same as in the suit and the same court fee should be paid on the memorandum of appeal as was payable (and was actually paid) on the plaint. The suit was decreed and the whole decree is under appeal; obviously therefore the subject matters of the appeal are the same as in the suit and the same court fee should be paid on the memorandum of appeal as was payable (and was actually paid) on the plaint. The Defendants Appellants claim through the appeal that the property should not be partitioned and possession should not be given to the Plaintiffs Respondents and that the cancellation of the sale deed should be reversed. The appeal involves the questions of possession after partition and of cancellation of the sale deed, though they are raised by the Defendants now and in the negative form. The Defendants certainly do not want the sale deed to be cancelled but they want the cancellation of it decreed by the trial court to be set aside ; therefore the question of cancellation is raised in the appeal and the appellate court has to decide whether the cancellation should be reversed or not, which question is the same as the question whether the sale deed deserves to be cancelled or not. 8. U/sub-S. (vi-A) the value of the subject matter in a suit for partition is the full value of the Plaintiff's share, if on the date of presenting the plaint he is out of possession of the property of which he claims to be a co-owner and his claim to be a co-owner on such date is denied. The claim of the Plaintiffs that they are co-owners in the house was denied by the Defendants on the date on which they instituted the suit; the Defendants claimed that on account of the sale deed the title of the Plaintiffs over their half share in the house had been transferred to them and consequently they had ceased to be co-owners in the house. The Plaintiffs themselves admitted that they were out of possession. The value: of the subject matter in the appeal by the Defendants from the decree for partition remains the same, because one - has to read the words "in first appeals from decrees in suits for partition" for the words "in suits for partition" in the Sub-section. The Plaintiffs themselves admitted that they were out of possession. The value: of the subject matter in the appeal by the Defendants from the decree for partition remains the same, because one - has to read the words "in first appeals from decrees in suits for partition" for the words "in suits for partition" in the Sub-section. The appeal is not for partition; it is on the contrary for avoiding partition, but the words "in first appeals from deerees in suits for partition" mean "appeals from decrees in partition suits", and not "appeals for partition from decree in suits", which phrase makes no sense. If there is no dispute about the property sought to be partitioned, the subject matter in a suit for partition is indivisible; if the Plaintiff's right to partition or the share claimed by him is challenged by the Defendant whatever may be the decision of the trial court and whoever files an appeal from it the subject matter in the appeal remains the same as in the suit. The simple reply to the argument of the Appellants that they only want the finding of the trial court about the invalidity of the sale to be set aside (they think that on the sale being upheld the Plaintiffs must necessarily be found not to be co-owners and not to be entitled to any share) is that if they do not seek the relief of cancellation of the decree for partition it will remain in force even if the sale is adjudged on appeal to be valid and binding. The decree for partition obtained by the Plaintiffs would not be automatically cancelled by the reversal of the finding that the sale was Invalid. A decree cannot be cancelled impliedly; so long as it is not expressly cancelled it remains in force and executable. 9. In AIR 1939 568 (Lahore) a preliminary decree for the Plaintiff's share was passed, an appeal against it was filed by the Defendant and it was held that he must pay the same court fee on the memoraudum of appeal as was payable on the plaint; Article 17(vi) of II Schedule was held to be not applicable. 9. In AIR 1939 568 (Lahore) a preliminary decree for the Plaintiff's share was passed, an appeal against it was filed by the Defendant and it was held that he must pay the same court fee on the memoraudum of appeal as was payable on the plaint; Article 17(vi) of II Schedule was held to be not applicable. In Kishen Lal v. Produman Kishen Singh ILR 1946 All 359 the mortgagee, who appealed from a decree for redemption and claimed more money, was required to pay the same court fee on the memorandum as was payable on the plaint. The value of the subject matter in a suit for redemption is the principal money expressed to be secured by it, vide Sub-section (ix); in an appeal, even if by the mortgagee and for the purpose of getting more money from the mortgagor, the subject matter remains the same. This stands to reason because the mortgagee does not simply claim more money; he seeks to resist the redemption unless more money is paid to him. Whatever may be the reason, he is seeking to resist the redemption; he does not claim a simple money decree in the appeal in which case alone the value of the subject matter in appeal would be the amount claimed by him. Abdul Hai and Another Vs. Shyam Kishore and Others, AIR 1952 All 176 follows the case of Kishen Lal; in that case the appeal was by the Plaintiff from decree for redemption; though he challenged the amount that he was ordered to pay for redemption the subject matter of the appeal was held to be the same as that of the suit. In Mohammad Saeed v. Abdul Alim AIR 1947 Lah. 40 it was held by Beckett J. that the court fee payable on an appeal by an unsuccessful Plaintiff in a suit to enforce a mortgage is the same as that payable on the plaint. Abdul Rahman v. A. B. Crisp AIR 1930 Raj 164 was an appeal by a Defendant against whom a partition decree was passed, (the Plaintiff claiming to be in possession of the joint property) and the same court fee as was paid on the plaint was held payable on the memorandum of appeal and not advalorem court fee. Abdul Rahman v. A. B. Crisp AIR 1930 Raj 164 was an appeal by a Defendant against whom a partition decree was passed, (the Plaintiff claiming to be in possession of the joint property) and the same court fee as was paid on the plaint was held payable on the memorandum of appeal and not advalorem court fee. Baguley J. observed at page 165 that "the principle of valuing an appeal must be the same as the principle Used in valuing the original plaint for purpose of court fees." 10. There are some decisions which seem to hold contrary to what I have held. In Chief Inspector of Stamps v. Ram Avadh Chowdhary 1951 AWR (HC) 436 a wife obtained a decree for maintenance after (properly) paying court fee according to the proviso to S. 7 (ii) (a) and the husband appealed against it and claimed to pay the same court fee as was payable on the plaint. Mootham J., as he then was, rejected his claim and observed at page 459: The relief sought for in the appeal is not an order for personal maintenance by a female which would have attracted the provisions of Sub-section (ii) (b) of S. 7, but is an order for the reduction of maintenance already awarded, and that the court fee in such case is regulated by another Sub-section, namely, (ii)(b). 11. The result was that a greater amount of court fee was held payable on the memorandum than was payable on the plaint. With great respect I do not think that more court fee can ever be payable on a memorandum of appeal than on the plaint of the suit from which the appeal arises. The learned Judge said that the court fee payable on a memorandum is to be ascertained as if the appeal were a suit; this is not the correct interpretation of S. 2 (iv). A suit does not merely include "an appeal"; it includes "an appeal from a decree in a suit; " the words "from a decree in a suit are very important, because they make the provisions of S. 7 applicable to appeals. A suit does not merely include "an appeal"; it includes "an appeal from a decree in a suit; " the words "from a decree in a suit are very important, because they make the provisions of S. 7 applicable to appeals. It is not quite correct to say that the word "suits" used in S. 7 should be substituted by the word "appeals"; they must be substituted by the words "appeals from decrees in suits" and then the rest of the provisions would make sense. The appeal brought by Ram Avadh Chowdhary was not from a decree in a suit for reduction of maintenance; therefore, the court fee payable on the memorandum could not be governed by Sub-section (ii) (b). Since it was an appeal from a decree in a suit for maintenance, the same court fee was payable as on the plaint u/s ub S. (ii) (a) just as the amount by which he sought the decreed maintenance to be reduced was irrelevant so also the fact that he was not a female or minor. The only thing relevant was that the appeal was from a decree in a suit by a fe male for maintenance. Hiralalsa v. Rambhan AIR 1946 Nag 160 dealt with an appeal by a Plaintiff from a decree in a suit for redemption brought by him; the relief sought by him in the appeal was reduction of the amount to be paid by him. He was held by Niyogi J. liable to pay advalorem court fee on the difference and not on the principal sum secured by the mortgage. The learned Judge observed that it was erroneous to suppose that the relief claimed in an appeal was same as that claimed in the trial court; this was the only reason given in support of the decision. Neither Schedule I nor S. 7 refers to the relief sought in an appeal. S. 7 deals with reliefs but only reliefs sought in suits. Even in appeals what is decisive is the relief sought in the suits from which they arise. There are some observations in Onkar Mal v. Ram Sarup 1954 AWR (HC) 544 which run counter to what I have said, but the facts there, were different. S. 7 deals with reliefs but only reliefs sought in suits. Even in appeals what is decisive is the relief sought in the suits from which they arise. There are some observations in Onkar Mal v. Ram Sarup 1954 AWR (HC) 544 which run counter to what I have said, but the facts there, were different. There was a suit for partition by Plaintiffs who claimed to be in joint possession and therefore, paid court fee under Sub-section (vi-A) on one quarter of the value of their share. The trial court held that they were not in possession and that they were not co-owners and dismissed the suit. On appeal they claimed to pay the same court fee as was paid on the plaint, but a Full Bench of this Court held that in view of their having been found to be out of possession they should pay court fee on the full value of their share. The court fee payable on a plaint depends upon the nature of the suit, i. e., the claim made in the plaint, and cannot possibly depend upon the written statement, mnch less would it depend upon the evidence. It is elementary that the proper amount of court fee should be paid on the plaint when it is presented and the court is required not to accept a plaint unless the proper amount of court fee is paid (or is promised to be paid). This means that the proper amount of court fee cannot be subject to anything happening after the plaint is accepted. The proper amount is determined by the subject matter of the suit; the subject matter of the suit becomes fixed and remains immutable as soon as the plaint is presented in court, and cannot change during the pendency of the suit. It does not change merely because the plaint allegations are denied by the Defendant, whether in toto or in part. If a Plaintiff in a suit for partition claims to be in possession and pays less court fee but is found after evidence has been received not to be in possession, it may be open to the court to dismiss the suit on the ground that he has riot sought the relief of possession, but cannot reject the plaint on the ground that the proper amount of court fee was not paid. The words "his claim to be a coparcener or coowner on such date is denied" refer to denial before the institution of the suit and alleged in the plaint itself and not to subsequent denial through the written statement. It was not at all within the contemplation of the Legislature that the amount of court fee payable on any plaint should remain undermined so long as the written statement is not filed; S. 6 would have been impossible of compliance if that had been the intention. In the case before me the Plaintiffs themselves admitted in the plaint that they were out of possession and that their claim to be co-owners was denied by the Defendants; only in such a case is the full value of the share to be taxed. If a Plaintiff asks for less than he ought to and consequently pays less court fee on the plaint he will get the relief asked for or his suit will be dismissed on the ground that it was not maintainable or that the relief asked for was not grantable (but not on the ground that the court fee paid was insufficient inasmuch as none was paid on the relief not asked for). Since the risk is always his, he can draft his plaint in any manner he likes. In Ram Lakhan v. Raj Kumar 1953 AWR (HC) 699 it was held by a Bench of this Court that in order to ascertain the court fee payable on a memorandum of an appeal from a decree in a suit for partition one must not only read the word "appeal" for the word "suit" but also read the word "Appellant" for the word "Plaintiff". There the suit was for partition; the trial court decreed it for partition of some property but not in respect of other property of which the Plaintiffs were held to be not coowners. They preferred an appeal and paid court fee on the value of the property in respect of which they preferred the appeal. It was held that the court fee paid was adequate and that the Plaintiffs were not required to pay the same amount of court fee on the memorandum as was payable on:he plaint. They preferred an appeal and paid court fee on the value of the property in respect of which they preferred the appeal. It was held that the court fee paid was adequate and that the Plaintiffs were not required to pay the same amount of court fee on the memorandum as was payable on:he plaint. "Suit" includes an appeal from a decree in a suit but with great respect I do not understand how it follows that the word "Plaintiff" ought to be substituted by the word "Appellant". All that is said in S. 2 (iv) is that a suit includes an appeal; not that the word "appeal" should be substituted for the word "suit" whereever it occurs. Not only is the substitution of the word "Appellant" for the word "Plaintiff" not required at all to give full meaning to the provisions of Ss. 2 (iv) and 7, but also anomalies, such as are pointed out in the reference of the taxing officer, would result from it. Further it is elementary that a court has no jurisdiction to add to the words of a statute; that is a legislative function. The court fee on the memorandum of the appeal was correctly levied according to the value of the Appellants'' share of the property in respect of which their suit was dismissed, because the subject matter in the appeal was partition of that property only and in an appeal from a decree in a suit for partition the court fee payable is according to its value. It was not at all necessary for arriving at the result to substitute the word "Plaintiff" by the word "Appellant". In Zamurrad Husain v. Ram Sarup 1943 AWR (HC) 118 Allsop J., also was inclined to substitute "Appellant" for "Plaintiff" in S. 7. With due deference I think the case requires reconsideration. In the first place the learned Judge would have reached the same result without the substitution. Secondly the court fee payable on a plaint under Sub-section (vi-A) does not and cannot (for the reasons given earlier) depend on whether the Plaintiff's share is admitted or denied in the written statement. With due deference I think the case requires reconsideration. In the first place the learned Judge would have reached the same result without the substitution. Secondly the court fee payable on a plaint under Sub-section (vi-A) does not and cannot (for the reasons given earlier) depend on whether the Plaintiff's share is admitted or denied in the written statement. The test laid down by Braund J., in Muniran v. Mukhtar Begam 1940 AWR (HC) 536 is "to consider what would be the position if the Appellant was endeavouriog to establish in a suit in which she was Plaintiff the same right as she is trying to maintain in the appeal." It was also a suit for partition; the Defendant contested it on the ground that she was in possession of the property in lieu of her dower debt. It was decreed because the Defendant's possession was not found to be in lieu of dower debt and she appealed. On the memorandum of appeal she paid court fee u/Art. 17 (VI) and it was held that this was the proper amount. The only alternative case set up was that the Appellant should pay court fee on the amount of the dower debt and this was rightly rejected; no other question was raised. If the Appellant had filed a suit, she would have simply asked for a declaration that she was entitled to remain in possession of the property until her dower debt was satisfied and would have paid court fee u/Art. 17; consequendy the same court fee was held payable on the appeal by her. With great respect I think that the test is not correctly laid down. According to Article 1 of Schedule I the court fee is payable on the value of the subject matter in appeal; the subject matter in an appeal must take into account what has been decreed in the suit. If the Appellant had sued before the decree was passed, she would certainly have sued for only a declaratory decree. But if she sued after the decree for partition, it would not be a simple declaratory suit; she would also have to sue for cancellation of the decree for partition and the court fee for that relief would be the court fee payable on the plaint of the partition suit. But if she sued after the decree for partition, it would not be a simple declaratory suit; she would also have to sue for cancellation of the decree for partition and the court fee for that relief would be the court fee payable on the plaint of the partition suit. For ascertaining the subject matter in an appeal one must take into account what has been granted under the decree appealed from, because that would be the subject matter of the appeal. In Ram Prasad and Another Vs. (Babu) Krishnanand Singh Shaila and Others, AIR 1936 All 221 the question was of the court fee payable on the memorandum of an appeal from a decree in a suit for partition. The decree of the trial court was that the property was charged with a sum of Rs. 5,000 to meet the marriage expenses of the Plaintiff's sisters. The Plaintiffs appealed and claimed that the Defendants also had a share in the charge. In the appeal, therefore the Plaintiffs wanted a reduction of one eighth in their liability under the charge and it was held that they should pay advalorem court fee on Rs. 625. It may be said that the subject matter in appeal was the recovery of Rs. 625 from the Defendants; if so the Appellants had to pay court fee on that amount only. 12. My reply to the reference is that the Appellants should pay the same amount of court fee on the memorandum of appeal as was payable on the plaint.