Bhaiya Hardeo Singh v. Shambhu Nath Singh — 1986 DIGILAW 921 (ALL)

Judgment Om Prakash, J. 1. THIS is a first appeal from order dated 8th January, 1986 of the learned District Judge, Ballia, holding that the jurisdiction to hear the appeal lay with the High Court and not with the District Judge. Aggrieved by the said order, the defendants-appellants have filed this appeal. 2. THE plaintiffs filed a suit for partition claiming l/3rd share in the properties, comprised in schedule 1, 3, 4 and 5 as annexed to the plaint. Another relief sought by the plaintiffs was that a declaration be made that the plaintiffs and defendants are the beneficiaries of 1/3rd share each in the property, given in schedule 2, which is a Devatian property. It was also prayed that it may further be declared that the plaintiff no. 1 and defendant no. 2 are entitled to act as joint Sarvarakar and are also entitled to manage the property, mentioned in schedule 2 jointly, and that they are entitled to take their share in the net surplus income arising to the deity. Another relief was that the defendant no. 1 be ordered to render account of income of the property, mentioned in schedule 2 from 16th June, 1973, onwards. The suit was, inter alia, decreed by the learned Civil Judge for accounting in respect of the income arising from 'Devatian' property, as shown in schedule 2. The plaintiff no. 1 and the defendant no. 2 were declared joint sarvarakar of the Devatian property. The final decree of the trial court entitled the plaintiffs of receive Rs. 96,000/- representing their 1/3rd share in net income of the 'Devatian property, comprised in schedule 2, that was arrived at after accounting for the period, commencing from June, 1973 to May, 1985. The said sum became pay-able on payment of court-fee. 3. THE defendants filed appeal against the final decree in the court of the District Judge who was of the view that as the final decree was passed for a far greater amount than Rs. 20,000/- being the pecuniary limit for the jurisdiction of the District Judge, the jurisdiction to hear the appeal lay with the High Court. He, therefore, directed that the memo of appeal be returned to the appellants for presentation before the proper court. 4. 20,000/- being the pecuniary limit for the jurisdiction of the District Judge, the jurisdiction to hear the appeal lay with the High Court. He, therefore, directed that the memo of appeal be returned to the appellants for presentation before the proper court. 4. THE main contention of the appellants is that for determining the jurisdiction the valuation as shown in the plaint for the purpose of jurisdiction alone is material and not the amount for which the final decree is passed. Various reliefs claimed in the plaint were valued at a total sum of Rs. 17,225/- including the relief of accounting that was valued at Rs. 1,000/-. After the final decree, a sum of Rs. 96,000/- has been awarded against the relief of accounting, claimed in respect of the net income of the property, comprised in schedule 2. THE contention of the appellants is that the amount as determined in the final decree cannot be taken into account for determining the jurisdiction of the appellate court. THE short question for consideration, therefore, is whether the forum of appeal will be determined on the valuation, shown in the plaint for the purpose of jurisdiction or on the basis of the amount, as ascertained in the final decree. Sri G. P. Bhargava, learned counsel for the appellants, argued that under section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 (briefly "the Act, 1887"), an appeal from a decree or order of a Civil Judge shall lie to the District Judge where the valuation of the original suit was less than Rs. 20,000/-and to the High Court in any other case. The submission is that Section 21 or any other section of the Act, 1887, does not provide that the forum of appeal will be decided according to the relief, granted by the final decree. The suit having been decided by the Civil Judge, Sri Bhargava argued that jurisdiction to hear the appeal lay with the District Judge under section 21 of the Act, 1887, notwithstanding the fact that a sum of Rs. 96,000/- has been awarded under the final decree to the plaintiffs against the relief of accounting in respect of the income that arose to the Devatian property, comprised in schedule 2 for the period from June 1973 to May 1985. 96,000/- has been awarded under the final decree to the plaintiffs against the relief of accounting in respect of the income that arose to the Devatian property, comprised in schedule 2 for the period from June 1973 to May 1985. Another submission of Sri Bhargava is that the relief of accounting, as claimed in respect of the income arising from the property shown in schedule 2, is incidental or ancillary to the main relief of partition and for that reason also the amount awarded pursuant to the incidental relief of accounting will not be germane for determining the forum of appeal. Sri Bhargava submitted that though the court-fees would be payable on the entire amount, awarded in the final decree, but the enhanced amount of the final decree would not be taken into account for determining the valuation for the purposes of jurisdiction and that such valuation would remain the same, as was set out in the plaint. It was argued by Sri Bhargava that the suit of the plaintiffs remained only a suit for partition, notwithstanding the fact that the plaintiffs claimed the relief of accounting in respect of the income of the property, shown in schedule 2, which was the joint family property in the beginning and became Devatian property later and, therefore, the valuation was to be done under section 4 of the Act, 1887, and section 8 of that Act was not attracted to the suit. 5. ON the other hand, the submission of Sri R. N. Singh, learned counsel for the plaintiffs-respondents, is that the property comprised in schedule 2, was, admittedly, not the joint property on the date of the institution of the suit and, before, the relief of accounting in respect of the income of the property shown schedule 2, could not be said to be a relief arising from a partition suit and, therefore, that could not have been valued under section 4, but only under section 8 of the Act, 1887. His argument is that a suit for accounting is nothing but a suit for money decree, on which ad valorem court-fee is to be paid. He pointed out that the relief of Rs. 96,000/- was granted subject to the payment of court-fees in the instant suit. He then argued that when the sum of Rs. His argument is that a suit for accounting is nothing but a suit for money decree, on which ad valorem court-fee is to be paid. He pointed out that the relief of Rs. 96,000/- was granted subject to the payment of court-fees in the instant suit. He then argued that when the sum of Rs. 96,000/- was relevant for the computation of court-fees, then the same would be relevant for determining the value for purposes of jurisdiction, as the value as determinable for the computation of court-fees and the value for the purposes of jurisdiction shall be the same under section 8 of the Act, 1887. In short, he argued that the relief of accounting had no nexus with the relief of partition, as claimed by the plaintiffs, and that the suit of the plaintiffs was not purely a suit for partition, but a suit joining multifarious causes of action within the meaning of section 17 of the Court Fees Act. It was urged by him that the relief of accounting in respect of income of the property shown in schedule 2 would have been separately filed and the law does not enjoin upon the plaintiffs to file a single suit for partition of several properties and for accounting of income of the property, shown in schedule 2, which was, admittedly, not a joint property at the time of the institution of the suit. It was, therefore, argued by Sri Singh that the suit was a multifarious suit and not a pure and simple suit for partition. The submission, therefore, was that the suit not being purely a suit for partition was not covered by section 4, but by section 8 of the Suits Valuation Act. 6. FIRST, I take up the question whether or not section 8 of the Suits Valuation Act is attracted to the suit. Admittedly, the property comprised in schedule 2 annexed to the plaint, was not the joint family property at the time of the institution of the suit. Sri Bhargava submitted that the suit property belonged to the family of the parties in the past and later it was given to the deity. The deity and a Hindu Undivided Family are different entities under the law. Sri Bhargava submitted that the suit property belonged to the family of the parties in the past and later it was given to the deity. The deity and a Hindu Undivided Family are different entities under the law. Simply because the property belonging to the deity, belonged to the Hindu Undivided Family in past, it cannot be said that that partook the character of Hindu Undivided Family property. The property shown in schedule 2, ceased to be the joint family property right on the date when it was endowed to the deity and, therefore, that has no nexus with the joint family property, partition of which was sought in the suit. The crux of the situation is whether the plaintiffs can claim a total partition of the joint family property, without including the property, shown in schedule 2. The answer to this question can, unhesitatingly, be given in affirmative. Shorn of the relief of accounting in respect of the income of the property, shown in schedule 2, which ceased to be the joint family property, the plaintiffs could claim total partition of the joint family properties. When the relief of accounting in respect of the income with regard to the property of schedule 2 is not, at all, necessary to be claimed in the suit for partition, Sri Bhargava cannot successfully argue that the relief of accounting with regard to the income of the property of schedule 2 was incidental or ancillary to the relief of partition. These two reliefs are quite separate having no connection with each other and, therefore, the suit could not have been valued under section 4 of the Suits Valuation Act, but that attracted section 8 of the said Act. Then, the question is whether for determining the forum of appeal, the relief of Rs. 96,000/- granted to the plaintiffs by way of accounting has to be considered. The approach of Sri Singh is that under section 8, the value as determinable for the computation of the court-fees and the value for purposes of jurisdiction shall be the same. It is not disputed that for the computation of court-fees, the relief of Rs. 96,000/- granted by way of accounting shall have to be considered and the trial court passed such decree subject to the payment of court-fees. So, far determining the value for computation of court-fees, the sum of Rs. 96,000/- has to be included. It is not disputed that for the computation of court-fees, the relief of Rs. 96,000/- granted by way of accounting shall have to be considered and the trial court passed such decree subject to the payment of court-fees. So, far determining the value for computation of court-fees, the sum of Rs. 96,000/- has to be included. The question is whether the sand amount has also to be considered for the purposes of determining the forum of appeal and whether the forum of appeal will be decided according to section 21 of the Act, 1887. Sri Singh relied on a decision of the Full Bench comprising of as many as 7 Judges in the case of Ragho Prasad v. B. Pratap Narain Agrawal, 1976 AWC 377 . This decision arose from a suit of accounting. By the final decree, much larger amount was granted than the value, shown for the purposes of jurisdiction in the plaint. Then the question arose when an appeal is preferred against such a final decree, what is the valuation which the appellant is required to put on the appeal for purposes of payment of court-fees. The Full Bench interpreting section 7 (iv) (b) of the Court Fees Act, as amended in Uttar Pradesh, held that the court-fees on memorandum of appeal against the final decree in a suit for accounts is to be paid under section 7 (iv) (b) and the appellant has to value the relief, which he seeks in the appeal, at the amount by which he seeks variation of the final decree. The Full Bench was not concerned with the question that has arisen in the instant case. So far as the payment of court-fees is concerned, Sri Bhargava frankly stated in the beginning that the court-fees was payable on the entire amount, found as payable under the final decree. The question for consideration in the instant case is entirely different. The question is whether for determining the value for the purposes of jurisdiction to hear the appeal against the final decree in the case of accounting, the amount by which the final decree has been enhanced, has to be taken into account and whether the jurisdiction of the appellate court will be determined with reference to the valuation, as shown in the plaint for the purposes of jurisdiction ? Not in a case of accounting but in a case of different nature, the question whether the valuation made in the plaint determines the forum of an appeal and whether the forum will change when a decree is passed for a higher amount, came up for consideration before a Division Bench of this Court in the case of National Insurance Company Ltd. v. Vinod Kumar Bansal, 1977 AWC 51 and then this Court scanning the law on the point extensively held that consensus of opinion is in support of the view that it is valuation made in the plaint which determines the forum of an appeal and that forum does not change merely because the decree is passed for a higher amount. 7. THE question is whether the view taken in the case of National Insurance Company Ltd. (supra) can be followed in the instant case. No convincing reason has been given by Sri Singh to take a different view in the instant case, except that it is a case of accounting. He argued that the case of accounting is nothing but a case of money decree and that if it were a suit for money decree, then surely the appeal would have been filed in the High Court. He urged that the only difference between a case of money decree and the case of accounting is that in the former the amount sought to be recovered is known from the very out set and the relief is sought for that definite amount, but in the latter, the exact amount becomes khown only after accounting and that is recovered after payment of court-fees and this amount is not known at the time of the institution of the suit and, therefore, while filing the suit of accounting the plaintiffs may value the relief on the approximate amount. I do not doubt this legal proposition, but there is no clear authority to support the view point of Sri Singh that when a suit for accounting is decreed for higher amount, then the value for the purposes of jurisdiction will be that higher amount and that section 21 of the Act, 1887, will not determine the forum of appeal. His main emphasis is on section 8 of the Suits Valuation Act, which runs as follows :- "8. His main emphasis is on section 8 of the Suits Valuation Act, which runs as follows :- "8. Court-fee value and jurisdictional value to be the same in certain suits- 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 advalorem 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." Neither section 8, nor any other provision indicates that after the final decree is passed for a higher amount, for the purposes of jurisdiction, the higher amount as determined in the final decree in a case of accounting, will be determinative factor to fix up the jurisdiction. Sri Singh urged that the position which he has argued is clearly supported by section 8 of the Suits Valuation Act and there is no need to search for any other provision to support his view point. I do not find much force in this submission. Both the Court Fees Act and the Suits Valuation Act are very old statutes. THE Punjab High Court enacted Rule 4 in Ch. 38 of Volume I of the Rules and Orders of the High Court, which read as follows :- "In a suit for the amount found to be due after taking into accounts, it is not the tentative valuation of the plaintiff, but the amount found to be due and decreed by the court that determines the forum of appeal." 8. THE aforesaid rule came up for interpretation before the Supreme Court in the case of Mata Din v. A. Narayanan, AIR 1970 SC 1953 . Adverting to the said rule, the Supreme Court stated the legal position thus : "But the rule also obtains that if the amount which is found is larger than the amount at which he stated his tentative valuation, he must file the appeal against the larger amount and in the forum before which an appeal of that valuation can go." If the view as put forward by Sri Singh is accepted, then there would have been no need for the Punjab High Court to enact the aforesaid Rule 4. If the reading or interpretation of section 8 is so patently clear leaving no room for doubt that forum of appeal will be determined with reference to the amount of final decree, then the Punjab High Court would have relied on section 8 and would not have made a duplicate Rule 4, which according to Sri Singh, is already embedded in section 8 of the Suits Valuation Act. Rule 4 enacted by the Punjab High Court furnished a clue that section 8 does not give rise to the legal position, as has been argued by Sri Singh. If the contention of Sri Bhargava that valuation for the purposes of jurisdiction will remain the same as shown in the plaint is accepted, then the defendants-appellants will have the remedy of two appeals, one before the District Judge and another before the High Court, but if the contention of Sri Singh is accepted, then the appellants will loose the right of appeal, which they would have pursued before the District Judge. In my opinion, section 8 has to be so construed as to not destroy or take away the valuable right of one more appeal. 9. FOR the reasons, I hold that section 8 of the Suits Valuation Act cannot be interpreted to mean that the forum of appeal will be determined taking into consideration the amount found to be due and decreed by the court. 10. SECTION 8 of the Suits Valuation Act was interpreted by the Supreme Court in the case of Sathappa Chettiar v. Ramanathan Chettiar, AIR 1958 SC 245 . In para 15 the Supreme Court observed : "There can be little doubt that the effect of the provisions of section 8 is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of court-fees and that is natural enough. The computation of court-fees in suits falling under section 7 (iv) of the Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim for the purpose of court-fees, that determines the value for jurisdiction. The computation of court-fees in suits falling under section 7 (iv) of the Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim for the purpose of court-fees, that determines the value for jurisdiction. The value for court-fees and value for jurisdiction must no doubt be the same in such cases; but it is the value for court-fees stated by the plaintiff that is of primary importance from this value that the value for jurisdiction must be determined. The result that it is the amount at which the plaintiff has valued the relief sought for the purposes of court-fees that determines the value for jurisdiction in the suit and" not vice versa." The argument of Sri Singh is that this authority is not applicable to the instant case, inasmuch as, the Supreme Court did not consider the question of the proper forum of appeal, but only considered a question whether the value determined for the purpose of court-fees and the value determined for the purposes of jurisdiction, should telescope into each other in view of section 8 in the plaint. Since Sri Singh himself does not rely upon the aforesaid authority, I do not consider it expedient to delve into it any more. 11. LASTLY, Sri Singh drew my attention to section 2 (iv) of the Court Fees Act, which defines the word 'suit' meaning as that the suit includes first or second appeal from a decree in a suit and also letters patent appeal. He urged that if the value for the purpose of court-fees and the value for the purpose of jurisdiction has to be the same at the stage when the plaint is instituted, then the same principle will obtain at the stage of appeal, which is included in the definition of 'suit' under section 2 (iv). This argument does not persuade to accept the position that section 8 of the Suits Valuation Act is an exception to section 21 of the Act, 1887. Ordinarily, jurisdiction will be determined according to section 21 of the Act, 1887, and if contrary is alleged by any party, then some express provision has to be shown thereby, which makes section 21 non-operative. Ordinarily, jurisdiction will be determined according to section 21 of the Act, 1887, and if contrary is alleged by any party, then some express provision has to be shown thereby, which makes section 21 non-operative. There being no such express or implied provision, I agree with Sri Bhargava that the appeal was rightly filed before the District Judge under section 21 of the Act, 1887, and that no fresh look can be given to the valuation, as shown for the purpose of valuation, in the plaint, because higher amount has been granted by way of accounting under the final decree. 12. IN the result, the appeal is allowed, the order dated 8-1-1986 of the learned District Judge is set aside and the appeal is restored to the file of the District Judge with a direction that he will decide the appeal on merits. Let the file be sent to the District Judge Ballia within fifteen days. Appeal allowed.