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Babu Shyamkishore Prasad Singh … vs Babu Bilas Prasad Singh And Ors. on 17 January, 1966

Patna High Court
Babu Shyamkishore Prasad Singh … vs Babu Bilas Prasad Singh And Ors. on 17 January, 1966
Equivalent citations: AIR 1966 Pat 441
Author: S Misra
Bench: S Misra


ORDER

S.C. Misra, J.

1. This application by the defendants arises out of Title Suit No 157 of 1960, pending in the court of the first Munsif, Monghyr for a declaration that the plaintiff-opposite party is the Sebayet of Shree Thakur Jugalkishorejee and also for an injunction restraining the defendants from interfering with the possession of the plaintiff in respect of the properties of Shree Thakur Jugalkishorejee. The defendants objected to the Jurisdiction of the learned Munsif to try the suit on the around that the suit should be valued for court fee under Section 7(iv) (c) of the Court-fees Act according to the market value of the properties vested in the idols and that under Section 8 of the Suits Valuation Act. the value of the suit for the purpose of jurisdiction would be the same as for the purpose of court-fee If that would be so the market value of the temple and the properties attached to it would be in the neighbourhood of more than rupees one lac and a half the temple itself being worth rupees one lac and the dedicated properties as stated in the Schedule of the plaint, would be worth Rs. 40,000/-.

2. The learned Munsif has not gone into the question of court fee in the order under revision, but has accepted the valuation of the plaintiff as for a declaratory suit with consequetial relief of injunction on which a notional value of Rs. 200/- was put by the plaintiff. The learned Munsif has relied on two decisions in the cases of Mohendra Sundar Thakur v. Dinobandhu Thakur, AIR 1914 Cal 879 (2) and Ponnuswami Gounder v. Sinnana Goundar, AIR 1956 Mad 52. Mr. Kaushal Kishore Sinha, appearing in support of the application, who stated it to be confined only to the question of valuation of the suit for the purpose of jurisdiction, has urged that neither of the two decisions referred to in the order can be invoked in support of the order passed. The decision in AIR 1914 Cal 879 (1) no doubt supports the view of the learned Munsif but that decision should not be followed in this Court, inasmuch as it is not only inconsistent with some other decisions of the Calcutta High Court itself, but is also not in consonance with the decisions of this Court as well as other High Courts in India.

In the above case, the plaintiff brought an action for a declaration that he was the sole sebayet of certain endowed properties, that a consent decree was inoperative and that the defendants who had been constituted joint sebayets by the consent decree had not been yalidly appointed as such and that the defendants should be restrained by an injunction from interfering with the plaintiff “in the management of the endowed properties The plaintiff valued the relief of injunction at a sum of Rs 100/ and paid a court-fee of Rs 10 for the declaratory relief. He paid ad valorem court-fee on account of the prayer for injunction. In that case also it was urged on behalf of the defendants that the suit should be valued for the purpose of jurisdiction on the basis of the market value of the endowed properties, and. if the suit was so valued the Court would have no jurisdiction to try it. The trial Court accepted the contention, holding that the value of the suit should be the market value of the endowed property which was Rs. 5,000 and as such the plaint was returned to be filed before the appropriate Court, as the learned Munsif had no jurisdiction to try a suit of that value.

The order was upheld on appeal by the District Judge, against which the application in the Calcutta High Court, filed by the plaintiff was directed The learned Judges expressed the view that the suit was of the description mentioned in Section 7 (iv) (d) of the Court-fees Act. 1870. A reference was then made to Section 8 of the Suits Valuation Act. in which it is provided that in a suit of that description the value as determinable for computation of court-fee and the value for the purpose of jurisdiction must be the same. It was stated that the substantial relief sought by the plaintiff in that suit was an injunction to restrain the defendants from interfering with him in the management of the Debottar Estate. Stress was laid on Sub-clause (d) of Clause (iv) of Section 7 of the Court-fees Act, laying down that the court-fee must be paid according to the amount at which the relief sought has been valued in the plaint.

They were also of the opinion that it was no doubt true that even in such a case, the valuation of the relief sought for in the suit would not be made arbitrarily, but since in such a case the plaintiff does not seek to come into possession of the properties in his own right but only as a sebayet, the valuation of Rs. 100 put by the plaintiffs on the relief for injunction could not be regarded as arbitrary. Having put the suit thus under Section 7 (iv) (d) of the Court-fees Act, Section 8 of the Suits Valuation Act was made applicable. Their Lordships allowed the application and directed that the Munsif had jurisdiction to try the suit.

3. In AIR 1956 Mad 52, there was a notification issued by the High Court under section 9 of the Suits Valuation Act, as regards suits for injunction in relation to immovable properties. The allegation of the plaint in the suit was that certain immovable properties were purchased by the father of the plaintiff from the defendant under a registered sale-deed, and ever since the date of the purchase the plaintiffs’ family had been in enjoyment thereof- The plaintiff’s father having died only a few weeks before the date of the suit, the defendants, taking advantage of the plaintiff’s youth were threatening to trespass over the suit properties and disturb his enjoyment. Accordingly, permanent injunction was sought to be issued, preventing the defendants from interfering with the peaceful enjoyment of the suit properties, and the plaintiff valued the relief under Section 7 (iv) (d) of the Court-fees Act in that connection, their Lordships considered the conditions under which alone the notification in question issued by the Madras High Court would come into play. Accordingly the point for consideration in the present case does not at all come within the purview of this decision.

4. Mr. Kaushal Kishore Sinha has contended that three more decisions of the Calcutta High Court are relevant in this connection-(1907) 6 Cal LJ 427, is a case in which the plaintiff brought a suit for a declaration that the decree and the mortgage and the compromise on which the decree was based were fraudulent, asking for injunction to restrain the defendant from the execution of the decree The claim for injunction was construed as a consequential relief and the value of the relief of injunction at Rs. 100 was not held to be sufficient to determine the value of the suit, which depended upon the sum of Rs. 10,000 the amount of the decree, liability for the payment of which was sought to be avoided by the plaintiff In that case also a reference was made to section 7(iv) of the Court-fees Act and it was held that the value of the suit although the relief was on for injunction, must be put at Rs 10,000.

5. In (1913) ILR 40 Cal 245, the plaintiff brought a suit for declaration that he was the sole sebayet of the family deity, and was entitled as such to exclusive possession of the disputed properties on behalf of the deity, and also for a declaration that the registration of the name of the principal defendant as joint owner of the endowed properties with the plaintiff in the books of the Collector was improperly made. The suit was valued for the purposes of jurisdiction at Rs. 11,005, on which a court-fee of Rs. 10 was paid under Schedule II, Art. 17(iii) of the Court-fees Act. It was held by the Court that the prayer for injunction in that case, which was subsequently added and on which a further ad valorem court-fee was paid under Schedule I, read with Section 7 (iv) (d) of the Court-fees Act, was arbitrarily undervalued, and it was held that the plaintiff was bound to pay ad valorem court-fee upon the plaint and the memorandum of appeal on the basis that the value of the relief claimed was Rs. 11,005. Thus the valuation of the suit for the purpose of jurisdiction in that case made by the plaintiff himself was the value of the properties belonging to the deity, whose sole sebayet the plaintiff claimed to be. That was, therefore, a case under the Court-fees Act, which does not arise for consideration in the present application.

6. AIR 1938 Cal 865 was a case in which a prayer was made for a declaration that the properties in suit were debotter properties and there was also a prayer for perpetual injunction, restraining the defendants from appropriating the income or any part of it or withdrawing any part of the money deposited in the bank It was held hat the prayer for perpetual injunction was a consequential relief flowing from the relief that the properties were debottar and the two reliefs must therefore be taken to come not under Schedule II. Article 17 (vi) of the Court-fees Act, but under Section 7 (iv) (c). It is clear, therefore that this case also may concern the question of the amount of court-fee payable and it cannot be denied that indirectly this case along with the above decision in (1913) ILR 40 Cal 245, runs counter to the proposition of law laid down in AIR 1914 Cal 879 (2).

7. Mr Kailash Roy appearing for the Opposite Party has however placed reliance on a decision of the ‘High Court of Bombay in (1904) ILR 28 Bom 567 That in my opinion, however, has no bearing on the question for consideration of valuation, except that it goes to explain the nature of injunction in a, suit where the relief of injunction would involve finding by the Court in terms of the declaration sought He has also relied on another decision of the Bombay High Court in (1886) ILR 10 Bom 60. That case however “in so far as it is relevant, goes against the contention of Mr. Kailash Roy In that case the plaintiff sued for a declaration that he was entitled to the exclusive management of certain Devasthan im-moveable and movable properties There was also prayer for injunction It was held by both the learned Subordinate Judges and by the High Court affirming the order of the learned Subordinate Judge, that the plaint was insufficiently stamped as bearing stamp worth only Rs. 10 inasmuch as the prayer for injunction was a consequential relief and Section 7 (iv) (c) of the Court-fees Act would, therefore, be attracted. This is in consonance with the decision of the Calcutta High Court in AIR 1938 Cal 865.

8. A reference has also been made to a large number of other decisions by the learned counsel for the parties. Mr. Kaushal Kishore Sinha made a reference to AIR 1992 Pat 9, AIR 1938 (1936 ?) Mad 344, AIR 1925 All 602, AIR 1941 Cal 609, and Mr. Kailash Roy to AIR 1956 Mad 52, AIR 1952 Pat 336, ILR 2 Pat 125: (AIR 1922 Pat 615 FB), AIR 1944 Pat 17 (FB), 5 Pat LJ 394: (AIR 1920 Pat 290), ILR 24 Pat 334 (342): (AIR 1945 Pat 421 (425) 1953 BUR 560 and AIR 1932 Pat 9. It appears however, to me unnecessary to refer to all these decisions, which were cited or referred to in course of the arguments by the learned counsel for the parties, inasmuch as the case can be decided on the ruling of the Division Bench of this Court in the case of Maulvi Sayeed v. Shah Tafazul Hussain, AIR 1934 Pat 647- This is a case in which as opinion has been expressed by the learned Judges, which is a via media between the two extremes of views taken by the Calcutta High Court, one laying down that in a suit for declaration that the plaintiff has a right to act as a sebayet and to restrain the defendant from interfering with the possession of the deity through the plaintiff as sebayet, which falls under Section 7 (iv) (d) of the Court-fees Act, as referred to above, and valuation put by the plaintiff would determine the value of the suit as well for the purpose of jurisdiction, and the other view holding that such a suit falls under Section 7 (iv) (c) of the Court-fees Act and both for the purpose of court-fee and the pecuniary jurisdiction the valuation would be determined by the value of the property and the temple of the deity would be taken into account.

Similar question arose before this Court in the above case and Courtney Terrell. C. J. and Luby, J. laid down the view that such a suit falls under Schedule II Article 17 (vi) of the Court-fees Act. That was a suit in which the plaintiffs sought a declaration that they were the Mutwallls of certain wakf in favour of a mosque and defendant No. 2 also put forward a similar claim. It is unnecessary to state the other facts of that suit. It is sufficient to mention that the following observation of the learned Judges covers the point completely:

“It seems to me. notwithstanding the length of lime that the case has taken to argue that the point is really a simple one. Both sides agree in two primary matters. They agree that the house or shop property the rent of which is in dispute is the property of the mosque for the support of which the wakf was created. It is the property of the cestui que trust and is not in dispute at all The real point in dispute is the mutwalliship. The second point upon which both sides agree is that whether the plaintiff or defendant 2 is the mutwalli in no case does the mutwalli derive any personal benefit from his position. He is a mere trustee, and the Income of all the property is to be devoted to the purposes of the trust. What is in dispute in the case is, as I have said, the right to the Mutwallishp, and not the property which is in trust. A question arises, whether this is a matter, which is capable of valuation. The Court-fees Act provides for two classes of cases. On the one hand, under Section 7 it provides for cases in which the subject matter of the suit is capable of monetary valuation. On the other hand, by Schedule II, Article 17, para 6, it provides for the court-fee which shall be payable in the case where no monetary valuation can be given to the subject matter of the suit.”

Accordingly, it was held that such a right was not capable of monetary valuation and accordingly the proper court-fee payable was a fixed amount provided by Schedule II, Article 17(vi) of the Court-fees Act.

9. Section 8 of the Suits Valuation Act provides that 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. If, therefore, in a suit which falls outside the purview of Section 8, that is to say, which falls beyond the ambit of Section 7, paragraphs v, vi, ix and x, Clause (d) of the Court-fees Act, no doubt the valuation for the purpose of court fee as also for entertainability of the suit would be the same. Where, however, a suit falls beyond the scope of this the principle of Section 8, Suits Valuation Act, providing for uniformity of both these matters will not be applicable. If, therefore, the suit would fall under Schedule II, Article 17 (vi) of the Court-fees Act, it would not be the same as for the purpose of court-fee. Even on general principle, it would be strange indeed that where the value of the suit property is high, say more than a million or so, a suit for declaration that A, who is the plaintiff, has a right to act as the sole Sebayet, combined with a relief for injunction, restraining the defendant from interfering with the plaintiff’s possession, would be triable by a court of Munsif whose jurisdiction is Rs. 2,000/-.

In my opinion, therefore, the decision of the Calcutta High Court in AIR 1914 Cal 879 (2) appears to me to be a decision which is difficult to accept as correct. Inconsistent as it is even with some decisions of that very High Court, it is clearly not in consonance with a decision of a Division Bench of this Court, as I have already indicated The decision of this Court is binding upon me and with respect, I agree that it has laid down the correct principle on this point. In that view of the matter, therefore, the learned Munsif was not right in holding that he had jurisdiction to try this suit, where the properties of the deity are worth a lac or in the neighbourhood thereof.

10. I may also mention here that a faint endeavour was made by Mr. Kailash Roy, for the opposite party, to distinguish the Patna case on the ground that the possession of the Mutwalli in Mohammedan Law is different from that of a Sebayet or a Mahanth of a Math. That is so, so far as the powers of a Mutwalli to deal with the properties of the wakf as compared with the powers of a Sebayet or a Mahanth are concerned. It may also be that there is some difference between the powers of a Sebayet and those of the Mahanth of a Math. These are questions, however, which do not affect the essential principle of pecuniary jurisdiction, or, for the matter of that, that of court fee, because, as was pointed out by Sir Courtney-Terrell, C. J., in the above case, the basic principle would be the applicability of Section 92 of the Code of Civil Procedure, that is to say where a suit is brought by a person not claiming any interest in his own right but for the assertion of the right of a deity or of a Trust, his case cannot come within the ambit of Section 7(iv) (c) of the Court-fees Act, and likewise of Section 7(iv) (d), as for a relief for injunction, but must be treated as a suit, in so far as the relief for injunction is concerned, as one combined with Schedule II, Article 17 (vi) of the Court-fees Act. It is, accordingly, unnecessary to refer to the various authorities the learned Counsel has brought to my notice bearing upon the question of comperative powers of the three functionaries, referred to above.

11. The order of the learned Munsif, therefore, under revision., must be set aside, I may, however, make it clear that since the question of amount of court-fee payable was not specifically raised before me, any observation in this judgment bearing on that question must not be taken to fetter the discretion of the court where the suit is filed by the plaintiff, when the plaint is returned to him, to determine the amount of court fee payable.

In the circumstances, the application is allowed. The parties will bear their own costs.

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