Ajoy Knmar Basu v. Chandi Das Basu — 1986 DIGILAW 378 (ALL)

JUDGMENT A.N. Varma, J. - The applicant was Defendant No 1 in a suit filed by Sri Chandi Das Basu, the Respondent No. 1 herein, for partition of certain immovable and movable properties as well as for rendition of accounts against the Appellant and the remaining Respondents The suit has been decreed by the learned Civil Judge, Allahabad. The decree passed by the court below is for partition of 5/4th share of the Plaintiff in the property mentioned in Schedule ' A ' and 5/24th share in the properties mentioned in Schedule ' R ' to the plaint except house No. 71 Bahadurganj and plot No. 27 Baika-Bagh as well as for possession over his divided portions of the properties mentioned above. The decree also provides for partition of the half share of Defendant No. 6 in the property mentioned in Schedule ' A ' subject to payment by him of the requisite court-fees. Finally, the Appellant was directed under the decree to render full and complete account to the rent and income and expenditure from the properties motioned at serial number 1 to 4 of the properties of Schedule ' A ' with effect Iron August 1967 as well as for the recovery of the Plaintiffs share in the rent and income arrived at upon accounting from the appellant. 2. I shall first briefly summarise the plaint case Srish Caandra Basu, the grand-father of the plaintiff-respondant and Defendant Nos. 1 to 5 and Baman Das Basu the grand-father of Defendant no (Oipaukar Basu) were both sons of one Shyam Charan Basu. Srish Chandra Basu and Baman Das Basu jointly acquired house No. 63 Bahadurganj mentioned in Schedule ' A ' to the plaint. Srish Chandra Basu acquired from his own independent income and funds certain other immovable properties and movable assets mentioned in Schedule ' B ' to the plaint with these properties Baman Das basu had no concern. Thus Srish Chandra Basu and baman Das basu had halt share eaco in the properties ot Schedule ' A. On under death of Srish Chandra Basu his half share in this property devolved upon the two sons equally, namely. Dr. S.N. Basu and Sn Kamendra Nath basu. Likewise, the properties of Srish Chandra Basu mentioned in Schedule B devolved equally on his two sons aforesaid. Dr. Dr. S.N. Basu and Sn Kamendra Nath basu. Likewise, the properties of Srish Chandra Basu mentioned in Schedule B devolved equally on his two sons aforesaid. Dr. S.N. Basu, however, executed a will bequeathing his share and interest in the properties mentioned in Schedules A and B to the Plaintiff and Defendants Nos. 1, 1 and 3 in equal shares with a right of residence to defendant No. 4 in house No. 63 Baaadurganj. Thus, on the death of the lather of the plaintiff and Dr. S.N. Basu the share of the Plaintiff in the properties mentioned in Schedule A worked out to 5/48 and, in the properties mentioned in Schedule B to 5/24. Since the death of Sri K.N. basu in January 1959 the Defendant No. 1 has been looking after the properties in suit and has been receiving all the rents and income therefore without sharing the same with the Plaintiff or rendering accounts there! or The Plaintiff requested the Defendant to effect a partition of the properties but to no avail Hence the suit. 3. The suit was contested by the Appellant (Defendant No. 1). His case was that the Plaintiff had no right to sue He had not made any request for partition before filing the suit. Dr S.N. Hasu was the karta and manager of the entire family properties during his life-time and, after the death of Sri R.N. Basu in January 1959 till August lv67, when the died Alter the death of Dr. S.M. Basu whatever amount to rent was collected by the defendant No. 1 was spent over the maintenance and repair of the properties in suit and payment of taxes etc. Further Sri R.N. Basu had let certain debts most of which were paid off by the Defendant No. 1. Some amount however, still remained to be paid Under the circumstances, the Plaintiff was not entitled to the relief for rendition of accounts- The snare claimed by the Plaintiff in the properties in suit was, however, admitted by toe Defendant No. 1. 4. A separate written statement was filed by Defendant No. 6 in which he asserted that he had halt share in the properties mentioned in Schedule ' A '. He, hoverer, reserved his right in respect of the proposes mentioned in Schedule ' b '. 5. 4. A separate written statement was filed by Defendant No. 6 in which he asserted that he had halt share in the properties mentioned in Schedule ' A '. He, hoverer, reserved his right in respect of the proposes mentioned in Schedule ' b '. 5. On the pleadings of the parties, the following issues were struck by the court below: 1. Whether the Plaintiff is entitled to 5/48 share in house no 63 BahaduTgani, Allahabad, mentioned in Schedule A of the plaint, and 5/24th share in other properties mentioned in Schedule B of the plaint 1 Whether the Defendant No. 1 is not liable to render account as alleged In paragraph 29 of the written statement and whether on such accounting Plaintiff is entitled to 5/24th share in such rent and income, etc. found after accounting ? 2. Whether Plaintiff is entitled to 5/24th share in the movable properties as alleged in paragraph 14 of the plaint ? 4. To what reliefs, if any, is the Plaintiff entitled ? 5. Whether the suit is under-valued and Court-fees paid thereon is insufficient? 6. Whether late Sri R. EL Basu was the karta of the family during the life-time of late Dr. S.N. Basu ? Issue No. 5 was decided as a preliminary issue in the negative i. e. against the Defendant No. 1 on April 15, 1978. On the remaining issues the parties led evidence. There was, however, hardly any challenge to the share claimed by the Plaintiff in the properties in suit. Indeed before me the learned Counsel for the Appellant did not assail the findings of the court below as regards the share claimed by the Plaintiff in the properties of Schedules ' A ' and ' B ' to the plaint. 6. The trial court on a consideration of the evidence held that the Plaintiff has 3/48 share in house no, 67, Bahadurganj mentioned in Schedule A ' and 5/24th share in the properties mentioned in Schedule B '. It has observed in its judgment that the claim of the Plaintiff that he has 5/24th share in the properties mentioned in Schedule ' B ' was admitted to the Appellant in his written statement. The same finding was recorded in regard to the movable assets. It has observed in its judgment that the claim of the Plaintiff that he has 5/24th share in the properties mentioned in Schedule ' B ' was admitted to the Appellant in his written statement. The same finding was recorded in regard to the movable assets. On issue No. 2 the trial court has held relying on the admissions made by the Appellant that he was liable to render accounts at least with effect from August 1967, the date on which Dr. S. N. Basu died. As regards the other pleas of the Appellant regarding rents having been wholly consumed in the annual white wash and repairs of the properties and payment of taxes, the court below has observed that as the Appellant had not filed any proper account, to substantiate his claim that he was not liable to ^render accounts therefor. The Court below has further noted the fact that during the pendency of the suit house No. 71 Bahadurganj and plot No. 27 Baika bagh of Schedule ' B ' had been sold and the sale proceeds had been equally divided between the parties, there hence remained no occasion for passing any decree in respect thereof. Finally, the court below has held that until his death in 1959 Sri R. N. Basu managed the affairs of his family and. thereafter his brother Dr. S.N. Basu till August 1967 after which it is the Defendant No. 1 who was managing the same as karta of the family. 7. On these findings the suit of the Plaintiff Respondent was decreed by the court below in terms mentioned herein above. 8. Dr. Gyan Prakash learned Counsel for the Appellant did not challenge the findings recorded by the court below as regards the shares of the parties in the immovable and movable properties involved In the suit. Neither did he challenge that the Plaintiff's share in the rent and other income earned from the properties in suit as worked out after accounting shall be 5/24. The main thrust of his submissions was confined to two matters only, namely, the valuation of the suit and the liability of the Defendant No. 1 to render account. His contention was : Firstly that the suit properties had been under valued and consequently, the court fees paid thereon was insufficient. The main thrust of his submissions was confined to two matters only, namely, the valuation of the suit and the liability of the Defendant No. 1 to render account. His contention was : Firstly that the suit properties had been under valued and consequently, the court fees paid thereon was insufficient. That being so, the plaint was completely void u/s 6 of the Court Fees-Act and as a result, the decree passed by the court below must also be treated as null and void. Secondly, the Defendant No. 1 being tie karta of the family was not liable to render any account. 9. I shall take up the first of these contentions first. I do not agree with the learned Counsel that in the facts of the present case the plaint was a void document so as to render the decree passed by the court below a nullity or even illegal. The Plaintiff-Respondent had valued all the properties involved in the suit at a certain amount which was challenged by the Appellant in his written statement. An issue was thereupon struck being issue No. 5 quoted herein above. This issue was to be tried as a preliminary issue and a date was fixed for that purpose. On the date fixed for disposal of that issue, however, neither the Defendant No. 1 nor his counsel appeared before the court below, with the result the following order was passed t- Dated: 15.04.78 Case called out repeatedly at intervals. M.P. Misra counsel for the Plaintiff is present. None for the Defendants. None to press issue No. 5. So it is decided against the Defendants. Put up on 5.07.78 for final hearing. Sd/- I Hegible Civil Judge 10. The Appellant made no attempt whatever throughout the proceedings in the suit before the court below for recalls of this order. The learned Civil Judge in his judgment while dealing with issue No. 5 has observed that the issue was decided as a preliminary issue in the negative on 15.04.78. This finding is now incorporated in the judgment and no fresh finding is required. Now it is not disputed that on the valuation of the suit as put down by the Plaintiff in the plaint the court fees paid by him was sufficient. Neither the court below nor the stamp reporter reported the plaint to be insufficiently stamped or under valued. Now it is not disputed that on the valuation of the suit as put down by the Plaintiff in the plaint the court fees paid by him was sufficient. Neither the court below nor the stamp reporter reported the plaint to be insufficiently stamped or under valued. Further the Appellant also did not and legally could not challenge the finding of the court below on the valuation of the suit. The Court Fees Act does not confer any right on the Defendant to challenge the correctness of the decision of a court in which a plaint or memorandum is filed on the issue of valuation simplicities of the suit properties for the purposes of court fees chargeable under the said Act. This is what Section 12(i) of the Court Fees Act provides and authoritative pronouncements both of this Court and the Supreme Court say See Smt. Bibbi and Another Vs. Shugan Chand and Others, AIR 1968 All 216 , Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, AIR 1953 SC 28 Paragraphs 9 and 10, 11. Under Clause 2 of Section 12, however, it is provided that if any suit comes before the court of appeal, reference or revision, and if such Court considers that the question relating to valuation of the suit has been wrongly determined to the detriment of the revenue, it shall require the party by whom such fee had been paid to pay within such time as may be fixed by it, so much of additional fee as would have been payable had the questions been rightly decided. If such additional fee is not paid within the time fixed and the defaulter is the Appellant, the appeal shall be dismissed, but if the defaulter is the Respondent, the court shall inform the Collector who shall recover the deficiency as if it were an arrears of land revenue. 12. It will thus be seen that where, as here, the court below decides that the suit has been properly valued for the purpose of determining the amount of any fee chargeable under the Court Fees Act, then even if the appellate court comes to the conclusion that the question relating to valuation for the purpose of determining the amount of court fees has been wrongly decided by the court below, the plaint cannot be characterized as void abilities. On the contrary the only effect is that on the Plaintiff making good the deficiency the plaint and every proceeding relating thereto would become valid as if the plaint had been properly stamped in the first instance. This is how, the Full Bench of this Court in the case of Smt. Bibbi (supra) stated the law in paragraph 24 of the judgment. 13. The contention, therefore, that the plaint was void because, according to the Appellant the suit was under valued and consequently the decree passed on its basis must be held to be null and void must be rejected as entirely misconceived. 14. I shall next proceed to consider whether the plaint was under valued and whether the decision of the court below on issue No. 5 was wrong. I have already set out above the relevant facts relating to the decision of issue No. 5. The Appellant absented himself on the date fixed for the decision of that issue. He also demonstrated his indifference to the proceedings relating to the determination of this issue in that he made no attempt whatever at any stage of the suit to seek the recall of the order dated 15.04.78. Further, he led no evidence whatever on the valuation which might be of any assistance in the determination of this issue. After raising the plea of valuation in his written statement the Appellant did not bother at all about the name. 15. It is in this backdrop that the issue has to be decided. But before examining the facts of the case, the legal position as regards the right of a private party to question the correctness of the decision of the court relating to the valuation simplicities for the purpose of the court fees must be cleared. Interpreting Section 12(i) of the Court fees Act, the Full Bench of this Court in Smt. Bibbi's case (supra) and the Supreme Court in Nemi Chand's case (supr), it was ruled that a party to the suit has no right to challenge the correctness of the decision of the court relating to the valuation of the suit simplicities. But, he has a right to challenge that decision on a limited ground that the court has not applied the appropriate provisions of the court fees Act as regards the category in which the suit falls in determining the valuation for purposes of court fee. 16. But, he has a right to challenge that decision on a limited ground that the court has not applied the appropriate provisions of the court fees Act as regards the category in which the suit falls in determining the valuation for purposes of court fee. 16. If, however, the appellate court on its own finds that the decision of the court below on the issue of valuation has been decided wrongly by the court below to the detriment of the revenue, it can direct the defaulting party to pay additional court fees u/s 12(ii). But this is courts' cover which it may exercise in appropriate cases and not a right claimable by a private litigant. 17. Further it was not disputed by the Appellant that even if any objection as regards the valuation is upheld, that would not have affected the jurisdiction of the court below to try the suit. 18. Having set out the legal position as I understand it to be, I proceed to consider the facts. The sole basis on which the Appellant raised the plea of under valuation is the statement made by the Plaintiff Respondent before the court below on13.ll.79 in which he said that during the pendency of the suit some properties including House No. 71 Bahadurganj, Alana bad and plot No. 27 baikabagh were sold respectively at Rs. 49,000/- and Rs. 1,35,000/- and the consideration thereof having been distributed to the parties according to their shares, the dispute in respect of these properties had ceased. It was urged that on his own showing it was apparent that the Plaintiff had undervalued the properties mentioned in Schedule-B. 19. In this connection, it must be borne in mind that the valuation of the properties has to be determined with reference to the date of the institution of the suit. The suit was filed in 1976. The sale deeds indicating the above transactions were not filed by the Appellant in the court below for even in this Court. It is hence not possible to know the precise market value of the aforesaid two properties as on the date of the suit except that the statement of the Plaintiff having been recorded on 13.11.1979 the properties must have been sold before that date but after the institution of the suit. It is hence not possible to know the precise market value of the aforesaid two properties as on the date of the suit except that the statement of the Plaintiff having been recorded on 13.11.1979 the properties must have been sold before that date but after the institution of the suit. Further, in any view it would not be safe to rely on these two transactions as evidence of a conclusive character as regards the exact market value of the two properties as the same prevailed on the date of the suit. The statement of the Plaintiff was not being given in the context of the valuation of the properties involved in the suit but only to indicate that two of the properties involved in the suit have been sold during the pendency of the suit and the proceeds there from having been divided between the parties according to their shares, there did not survive any dispute in regard thereto. Neither the attention of the court nor that of the parties was focused on the issue of valuation after the same had been closed on 15.04.1978. 20. It is, however, not necessary to dilate on this point further as Sri Rajeshwari Prasad learned Counsel for the Plaintiff Respondent towards the end of the arguments conceded that the Plaintiff Respondent in order to put an end to the controversy raised by the Appellant was prepared to pay the additional court fees worked out on the basis of the sale price of the aforesaid two properties. A chart prepared by him was submitted before me in which the additional court fees payable by the Plaintiff Respondent has been worked out as Rs. 966.00. The details of how this figure of Rs. 966.00 was set out in the said chart. The Appellant did not file any counter chart. A copy of this chart was handed over to the learned Counsel for the Appellant, who did not dispute the accuracy of the same. The two properties were sold during the pendency of the suit 'fetched an aggregate of Rs. 1,84,000/-. The Plaintiffs' 5/24th share works out to Rs. 38333/-. The court fee payable on l/4th of this amount works out to Rs. 1117.50 out of which the Plaintiff had already paid court fee worth Rs. 141.50. Thus the additional court fees works out to Rs. *66/-. 1,84,000/-. The Plaintiffs' 5/24th share works out to Rs. 38333/-. The court fee payable on l/4th of this amount works out to Rs. 1117.50 out of which the Plaintiff had already paid court fee worth Rs. 141.50. Thus the additional court fees works out to Rs. *66/-. On the remaining properties as valued in the plaint, the court fees had already been paid by the Plaintiff. 21. The result of the aforesaid discussion, therefore, is that even if the Concession made by the Plaintiff Respondent is taken into consideration, additional fee worth only Rs. 966/- becomes payable by the Plaintiff Respondent which his counsel volunteered to deposit as soon as the court directs it to do so. 22. Learned Counsel for the Appellant next submitted that the case should be remanded to the court below for a fresh decision on the issue of valuation of all the properties in suit as it was apparent from the Plaintiff Respondents statement dealt with above that at least two properties which were sold during the pendency of the suit has been under valued. I am, however, not persuaded that the suit should be remanded to the court below. As mentioned above, the Appellant has no right to challenge the correctness of the valuation simplifier. The Court has, however, been given the power u/s 12(ii) to require the defaulting party to make good the deficiency if it comes to the conclusion that the decision of the lower court on the issue of valuation is wrong. I have already commented that but for the concession made by the Appellant counsel, there is no other material on the record which might justify the conclusion that the suit is under valued. Further the suit was filed in 1976. Nearly a decade has already elapsed and we are still at the stage of preliminary decree in a suit for partition. In these circumstances, I am not persuaded to remand the case in invoking the provisions of Section 12(ii) of the Act at the instance, of a private party. 23. It was then submitted by the Appellant that issue No. 5 ought not to have been decided as a preliminary issue as it was not a pure question of fact. The submission is misconceived and untenable. The Appellant was given an opportunity to lead evidence on this issue but he did not avail of the same. 23. It was then submitted by the Appellant that issue No. 5 ought not to have been decided as a preliminary issue as it was not a pure question of fact. The submission is misconceived and untenable. The Appellant was given an opportunity to lead evidence on this issue but he did not avail of the same. Even subsequently after the conclusion of the evidence he did not request the court below to reconsider its decision on issue No. 5, in the light of the evidence led on other issues subsequently. In this connection, learned Counsel also submitted that the provisions of Court Fees Act cast a duty on the court to ensure that proper court fees were paid on the plaint. Consequently, the court below itself should have considered the issue of valuation on the material existing on the record even if the Appellant had not led any evidence or pressed issue No. 5. In my opinion, the court below has not failed in its duty. In the absence of any evidence to the contrary, it was -entitled to decide issue No. 5 in the manner in which it did. 24. The upshot of the aforesaid discussion is, therefore, that the decree passed by the court below for partition deserves to be affirmed but subject to the condition that the Plaintiff Respondent makes good the deficiency in court fees amounting to Rs. 966/- within a month from the date of the judgment failing which the same may be recorded as arrears of land revenue by the Collector in accordance with Section 12(ii) of the Court Fees Act. 25. The first submission of the learned Counsel was that in absence of any allegation of misappropriation or fraudulent and improper conversion by the manager of a joint Hindu Family, the karat is not liable to render any account on partition in respect of any rent or income received by him in the course of management of these properties. In support the learned Counsel cited passages from Mullas' Hindu Law. 26. Learned Counsel for the Plaintiff Respondent, however, conceded that this was the true legal position but he argued that with the notice given by the Plaintiff asking for partition of the properties and expressing his intention to separate which was served on the Appellant on 01.09.76 the state of joint ness of the family was disrupted. 26. Learned Counsel for the Plaintiff Respondent, however, conceded that this was the true legal position but he argued that with the notice given by the Plaintiff asking for partition of the properties and expressing his intention to separate which was served on the Appellant on 01.09.76 the state of joint ness of the family was disrupted. The Appellant was hence liable to render account at least from 1.09.1976. 27. I think the submission of the learned Counsel for the Plaintiff Respondent that the Appellant was liable to render accounts at least from 1.09.1976 is correct. The law is settled on the point by a sires of decision See ILK 7 Madras 564, 9 Indian Appeals 125 AIR 1922 PC 71 . 28. The legal position that in the absence of any allegation of misappropriation or fraudulent and improper conversion by a manager of a Joint Hindu Family estate he is liable to account on partition only for assets which he has received and not in respect of his past dealing with the family property is indisputable. 29. In the present case, there is not even a whisper in the plaint that the Appellant was guilty of misappropriation or fraudulent and improper conversion of the joint Family Estate Consequently, the Appellant became liable to render account only after the joint ness of the family was disrupted and brought an end to by means of the notice served by the Plaintiff on the Defendant on 01.09.1976. The decree passed by the court below directing the Appellant to render account right from the date of the death of Dr. S. N. Basu in August 1967 is hence clearly wrong and has to be modified to the extent that the Appellant shall render full and complete account of the rent and income and expenditure from the properties mentioned in Schedule B with effect from 01.09.1976 instead of August 1967. 30. La the result, the appeal succeeds and is allowed in part. 30. La the result, the appeal succeeds and is allowed in part. The decree passed by the court below for partition of the Plaintiffs' 5/48 share in the propsrty mentioned in Schedule A and his 5/24th share in the properties mentioned in Schedule B except house no 71, Bahadurganj and plot No. 27 Bai ka Bagh, Allahabad swell as for separate possession over his divided portions is affirmed subject to the condition that the Plaintiff-Respondent shall make good the deficiency in court fees amounting to Rs. 966/- within a month of the date of the judgment. If the Plaintiff does not deposit the additional court fees of Rs. 966/- in this Court within a month, the Collector Allahabad shall recover the amount as arrears of land revenue from the Plaintiff-Respondent. The decree passed by the court below directing the Appellant to render accounts is, however, modified to this extent only that the Appellant shall be liable to render full and complete account of the rent and income and expenditure from the properties mentioned in Schedule B with effect from 1.09.76 within two months and the Plaintiff-Respondent shall be entitled to recover his 5/24th share in the rent and income derived from the said properties as determined upon accounting from the Defendant No. i. The decree passed by the court below in favor of Defendant No. 6 is also affirmed. In view, however, of the divided success and failure of the parties, they will bear their own costs both of this Court and the court below.