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1967 DIGILAW 7 (GAU)

Yumlembam Ningol Leinajam Ongbi Baruni Devi v. Naorem Ningol Leimajam Ongbi Tombirei

1967-01-24

C.JAGANNADHACHARYULU

body1967
ORDER This is a civil revision petition filed by the defendants 1, 2 and 3 in Title Suit 115/63/10 of 1965 on the file of the Munsif, Manipur at Imphal against his order dated 28-3-1966 holding that the valuation of the Plaint A Schedule properties at Rs. 400 is covered by Section 7(iv)(c) of Indian Court-Feet, Act (Act VII of 1870) that the same is also the valuation for the purpose of jurisdiction under the Suits Valuation Act (Act VII of 1887) and that he has got pecuniary jurisdiction to try the suit. 2. The respondents 1 to 4 (plaintiffs) filed Title Suit 115/63/10 of 1965 in the lower court against the petitioners (defendants 1 to 3) and the respondents 5 to 11 (defendants) for partition of 9 items in the plaint A schedule alleging that one Leimajam Tovaima Singh, a Hindu governed by the Dayabaga School of Hindu Law died on 9-5-1959, that the suit properties are the joint properties of the respondents 1 to 4 (plaintiffs) and the petitioners (defendants 1 to 3) being co-heirs of the deceased and that they have been in joint possession and enjoyment of their shares They also pleaded that a registered gift deed dated 4-5-1959 said to have been executed by the deceased in favour of the petitioners 2 and 3 (defendants 2 and 3} in respect of the properties covered by items 1 and 2 in schedule A of the plaint (as alleged by the Petitioners), is void and inoperative and that they form part of the joint family property of the petitioners. The plaintiffs (respondents 1 to 4) prayed firstly for a decree for declaration that the plaint A schedule properties are fee joint family properties left by the deceased, to which the plaintiffs (respondents 1 to 4) and the petitioners (defendants 1, 2 and 3) are entitled as heirs of the deceased. Secondly, they prayed for a decree for declaration that the gift-deed dated 4-5-1959 in favour of the petitioners 2 and 3 in respect of the properties covered by the items 1 and 2 in schedule A of the plaint is void and that the properties still remain as part of the joint family properties. Thirdly, they prayed for a decree for partition of the plaint A schedule properties by metes and bounds in accordance with the shares of the parties. Thirdly, they prayed for a decree for partition of the plaint A schedule properties by metes and bounds in accordance with the shares of the parties. Fourthly, they prayed for a decree for recovery of possession of the shares of the plaintiffs, in case, the plaintiffs are found to be not in possession of the plaint A schedule properties. They valued the suit for the purposes of jurisdiction and court fees at Rs. 400 and paid ad valorem court fee of Rs. 48.75 P under Section 7(iv)(c) of the Indian Court Fees Act. 3. The petitioners raised a preliminary objection that the respondents 1 to 4 had previously filed Title Suit 96 of 1962 in the Court of the Sub-Judge 1 against the petitioners and others for partition of 8 items of the present plaint A schedule properties, that they valued the suit at Rs. 4,000 for the purpose of jurisdiction and paid fixed court fee under Article 17(vi) of Schedule II of the Court-Fees Act, that the respondents 1 to 4 withdrew the suit with liberty to bring a fresh suit on the same cause of action, that the change of the valuation of the suit into Rs. 400 is arbitrary that the present suit should be valued at Rs 4,000 at least and that in such a case, the lower court which has pecuniary jurisdiction to try suits only of the value of Rs. 2,000 would have no jurisdiction to try the suit. 4. The lower court framed a preliminary issue on the question of the value of the suit for the purposes of court fee and jurisdiction and held that Section 7(iv)(c) of the Court Fees Act applies that, therefore, the valuation of Rs. 400 mentioned by the respondents 1 to 4 in their plaint is correct and that the suit is maintainable in the lower court. 5. It is well settled principle of law that the question of court fees must be considered in the light of the allegations made in the plaint and that its decision cannot turn either on the pleas in the written statement or on the final decision of the suit on the merits. Vide Sathappa Chettiar v. Ramanadhan Chettiar. AIR 1958 SC 245 . Vide Sathappa Chettiar v. Ramanadhan Chettiar. AIR 1958 SC 245 . A reading of the plaint shows that the respondents 1 to 4 (plaintiffs) pleaded that they are in joint possession and enjoyment of the plaint A schedule properties. They want separation of their shares from the joint properties by metes and bounds. 6. In Manipur State no rules were framed by the State Government or by this Court under the Indian Court-Fees Act or the Indian Suits Valuation Act. The relevant clauses in Sub-Section (iv) of Section 7 of the Indian Court Fees act, which are said to apply to this case according to the learned counsel for the respondents 1 to 4 are said to be either (b) or (c) which run as follows : "7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows : (iv) (a)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... (b) To enforce the right to share in any property on the ground that it is joint family property. (c) To obtain a declaratory decree or order where consequential relief is prayed. In all such suits the plaintiff shall state the amount at which he values the relief sought." 7. As already stated, in the present case the plaintiffs (respondents 1 to 4) allege that they are in joint possession and enjoyment of the plaint A schedule properties and want partition of their shares by metes and bounds. There is consensus of opinion in most of the High Courts that Section 7(iv)(b) of the Court-Fees Act does not apply to a suit for partition by a person in joint possession for partition of his share but that Art. 17(vi) of Schedule II of the Court-Fees Act applies. Vide pages 111, 112, 113, 114 and 115 of the Court-Fees and Suits Valuation Act (AIR Commentaries) Second Edition-Vide also pages 104 to 109 and 542 to 545 of Sanjiva Rows Court Fees and Suits Valuation Act (Sixth Edition) 1960. 8. Vide pages 111, 112, 113, 114 and 115 of the Court-Fees and Suits Valuation Act (AIR Commentaries) Second Edition-Vide also pages 104 to 109 and 542 to 545 of Sanjiva Rows Court Fees and Suits Valuation Act (Sixth Edition) 1960. 8. The correct provision in the Court Fees Act which governs such a case is Article 17(vi) of Schedule II of the Court Fees) Act, which is a residuary Article, which is as follows : Number 17. Plaint or memorandum of appeal in each of the following suits ... ... ... (vi) every other 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 this Act. Proper fee. Rs. 10/- ... ... The ratio decidendi in the cases decided by a major number of the High Courts in India is that the relief of partition of the undivided share of the plaintiffs in the joint properties tantamounts to change in the mode of joint enjoyment into separate enjoyment, that the relief is incapable of valuation and that, therefore. Article 17(vi) of Schedule II of the Indian Court-Fees Act applies to such a case. 9. The learned counsel for the respondents 1 to 4 drew my attention to a judgement of this Court in a batch of Civil revision cases Nos. 4 to 24 of 1959 (Manipur), wherein one of my learned predecessors had occasion to deal with the scope of Section 7(iv)(a) of the Court Fees Act. In those cases, the plaintiffs claimed the relief of declaration that they were entitled to possession of some disputed plots situate in Imphal and for recovery of Khas possession of the same, after dismantling the structures standing thereon. So, my learned predecessor rightly held that the provisions of Section 7(iv)(c) of the Court Fees Act were attracted. In those cases the plaintiffs did not allege that they were in joint possession of the plots. On the other hand, they pleaded that they were dispossessed. The decision in those cases does not apply to the facts of this case. The learned counsel for the respondents 1 to 4 further relied on AIR 1958 SC 245 in support of his contention that Section 7(iv)(b) of the Court Fees Act applies. This case was also relied on by the lower Court. The decision in those cases does not apply to the facts of this case. The learned counsel for the respondents 1 to 4 further relied on AIR 1958 SC 245 in support of his contention that Section 7(iv)(b) of the Court Fees Act applies. This case was also relied on by the lower Court. In that case, the plaintiffs father filed a suit alleging that he was a coparcener entitled to partition of his share in certain joint family properties. In the appellate Court the dispute was settled amicably and in consideration of payment of a specified sum and delivery of possession of certain sites the appellants father agreed to release all his claims and those of the appellant to the suit properties. Subsequently, the appellant filed a suit on the Original Side of the Madras High Court claiming partition of the joint family properties and for an account of the joint family assets. He valued his share of the properties at Rupees 15,000,00. A Division Bench of the Madras High Court held that the relief of partition fell under Section 7(iv)(b) of the Court Fees Act and that the appellant could not be permitted to revise the valuation at Rupees 50,000 and pay court fee thereon, which he wanted to do. The Supreme Court held that the parties were bound by the previous decision of the Division Bench of the Madras High Court that Section 7(iv)(b) of the Court Fees Act applied, but that under Section 7, the appellant could give any valuation he liked and that, therefore, he was entitled to revise the valuation at Rs. 50,000 and pay court fee thereon. As such, it was a case where the plaintiff-appellant was not in joint possession of his share. So, it does not apply to the facts of the present case. 10. As the respondents 1 to 4 allege in their plaint that they are in joint possession of the suit properties, the correct provision of Court Fees Act, which is attracted, is Article 17(vi) of Schedule II of the Indian Court Fees Act. So, it does not apply to the facts of the present case. 10. As the respondents 1 to 4 allege in their plaint that they are in joint possession of the suit properties, the correct provision of Court Fees Act, which is attracted, is Article 17(vi) of Schedule II of the Indian Court Fees Act. That the respondents 1 to 4 were aware of this fact is clear from their previous conduct in valuing the suit under Article 17(vi) of Schedule II of the Court Fees Act for the purpose of Court Fee in Title Suit 96 of 1962 filed by them in the Court of the Sub-Judge I against the petitioners and others for partition of 8 items of properties of the plaint A Schedule. They had withdrawn the plaint with liberty to file a fresh suit on the same cause of action. The pleadings are the same in both the plaints. But, they included an additional relief in the present plaint for declaration that the registered gift deed dated 4-5-1959 in favour of the petitioners 2 and 3 in respect dl Items 1 and 2 of the plaint A Schedule is void and does not bind the petitioners But. curiously enough, the respondents 1 to 4 valued the present suit under Section 7(iv)(c) of the Court-Fees Act and their learned counsel was not able to make up his mind as to which of the provisions (b) or (c) of Section 7(iv) applies. 11. The next question to be considered is about the correct provision in the Suits Valuation Act, which applies to this case. As already stated, the local Government of Manipur did not frame any Rules under Section 3 of the Suits Valuation Act Section 8 of the said Act runs as follows : 8. Where in suits other than those referred to in the Court-fees Act, 1870, Section 7, paragraphs v, vi and ix and paragraph 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." 12. Where in suits other than those referred to in the Court-fees Act, 1870, Section 7, paragraphs v, vi and ix and paragraph 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." 12. There is again general consensus; of opinion among the various High Courts except that of Calcutta High Court that the value of a suit for partition for the purpose of jurisdiction is the value of the plaintiffs share in the cases falling under Article 17(vi) of Schedule II of the Court-fees Act. Vide pages 816 to 819 of the Court-fees and Suits Valuation Act (AIR Commentaries) Second Edition and also pages 573 to 574 of Sanjiva Rows Court-fees and Suits Valuatino Act. Sixth Edition The respondents to 4 plaintiffs share in the suit properties in the plaint A Schedule properties is 7/12 They were valued at Rs. 4,000 by the respondents 1 to 4 in the previous Title Suit 96 of 1962 in the Court of the Sub-Judge-1. So, their 7/12th share comes to Rs. 2,166 and odd which exceeds the pecuniary jurisdiction of the lower Court. 13. The respondents 1 to 4 pray for declaration that the registered gift-deed dated 4-5-1959 in favour of the petitioners 2; and 3 regarding the items 1 and 2 in the plaint A schedule is inoperative. So, they have to pay additional court fee under Section 7(iv)(c) of the Indian Court-fees Act for this relief. 14. In the result, the revision petition is allowed with costs here and in the lower court. The lower court is directed to return the plaint for presentation to the proper court. Firstly, the plaintiffs-respondents 1 to 4 should amend the plaint and revise the valuation under Article 17(vi) of Schedule II of the Court-fees Act for the purpose of valuation for payment of Court Fees and pay the Court fee as provided by that provision of the Act. Secondly, they should also amend the plaint by valuing the relief of declaration that the registered gift-deed dated 4-5-1959 is inoperative and does not bind them under Section 7(iv)(c) of the Court-fees Act and pay additional court fee as provided by it. Thirdly, they should amend the valuation for the purpose of jurisdiction by valuing their share in the properties. Petition allowed.