Amina Begum VsSayadur Rahman Sarkar

Utpalendu Bikas Saha, J.—The instant second appeal is preferred by Smt. Amina Begum, who was defendant No. 3 in TS 20/2001 in the court of the learned Civil Judge, Sr. Division, South Tripura, Udaipur challenging the judgment and decree dated 04.01.2003 and 10.01.2003 respectively, passed by the learned Addl. District Judge, South Tripura, Udaipur in Title Appeal No. 13/2002 reversing the judgment and decree of dismissal dated 14.05.2002 passed by the learned Civil Judge, Sr. Div. South Tripura, Udaipur in TS 20/2001.

Heard Mr. Bhattacharji, learned counsel for the defendant No. 3-appellant as well as Mr. D Chakraborty, learned senior counsel assisted by Mr. H Laskar, learned counsel for the respondent Nos. 1, 2 and 3. None appears for the respondent Nos. 4 and 5.

Respondent Nos. 1, 2 and 3 (hereinafter referred to as the "plaintiffs") have filed the aforesaid suit for declaration that they are entitled to get 3/10th and 3/20th share in the properties of their deceased brother Kabir Ahmed Sarkar, to pass a decree of permanent injunction restraining the appellant (hereinafter referred to as "defendant No. 3") or her authorized person to withdraw the share of the plaintiffs and consequential reliefs.

Kabir Ahmed Sarkar is the brother of the plaintiffs Md. Sayedur Rahaman Sarkar, Md. Chhabir Ahammed Sarkar and Smt. Fatima Begam and the husband of the defendant No. 3, Smt. Amina Begam who was serving as Agri. Assistant in the Department of Agriculture, Govt. of Tripura. He died on 12.04.2001 leaving behind as his legal heirs, the plaintiffs and the defendant No. 3. Due to death of Kabir Ahmed Sarkar his legal representatives are entitled to the service benefits as mentioned in the schedule of the plaint which includes the balance in General Provident Fund, Leave Salary, amount of Group Insurance Scheme, Gratuity benefits and pending Travelling Allowance Bills, etc.

According to Mohammedan Law of Inheritance, the defendant No. 3 being the wife of the deceased, Kabir Ahmed Sarkar is entitled to 1/4 share and the plaintiffs Md. Sayedur Rahaman Sarkar, Md. Chhabir Ahammed Sarkar and Smt. Fatima Begam being the brothers and sister of the deceased are entitled to 3/10, 3/10, and 3/20 share in the properties of the deceased as residuaries. But the defendant No. 3 claimed the entire property as mentioned in the schedule denying the right, title and interest of the plaintiffs in the suit properties with a view to grab the whole suit property left by the deceased Kabir Ahmed Sarkar being the deceased was her husband.

The defendant Nos. 1 and 2, the employers, on approach by the plaintiffs refused to divide the share and advised the plaintiffs not to claim any share. Having information that the defendant No. 2 was trying to withdraw the suit properties for payment to the defendant No. 3 in the first week of July, 2001 the plaintiffs preferred an appeal for declaring right, title and interest in the suit properties and also prayed for an order of injunction, as stated supra. The plaintiffs valued the suit at Rs. 8,000/- and paid the Court Fees on that amount as per provisions of section 7(iv)(c) of the Court Fees Act, 1870.

The defendant Nos. 1 and 2 filed a written statement denying the claim of the plaintiffs and submitted that they have no interest in the matter and they will be bound by the decision of the trial court in regard to payment of the service benefit of Kabir Ahmed Sarkar in the suit. The defendant No. 3, the appellant herein, also submitted written statement challenging the claim of the plaintiffs. She has admitted that the plaintiffs are the legal heirs of the deceased Kabir Ahmed Sarkar and the suit properties are joint properties. But she contested the suit on the ground that the plaintiffs should have filed a suit for partition since the deceased Kabir Ahmed Sarkar has also left some other immovable properties, besides the suit properties, which should have been included in the hotch-potch of the suit. Thus, the suit is not maintainable in its present form. It is also alleged that the suit has been undervalued and proper Court Fees have not been paid.

Upon going through the pleadings of both the parties, learned trial court framed the following issues:--

"i) Is the suit maintainable in its present form?

ii) Is there any cause of action for this suit?

iii) Is the plaintiff entitled to get decree as prayed for?

iv) Whether the plaintiffs are legal heirs of deceased Kabir Ahmed Sarkar?

v) Is the suit properly valued and stamped?

vi) Are the parties entitled to get any other relief/cost."

The plaintiffs, in support of their claim produced one witness, i.e. plaintiff No. 1, Sri Chabbir Ahmed Sarkar, and the defendant No. 3 examined herself in support of her case. After appreciation of the evidence, the learned trial court decided almost all the issues against the plaintiffs except issue No. 4, i.e. "whether the plaintiffs are the legal heirs of deceased Kabir Ahmed Sarkar?" and ultimately, dismissed the suit on contest without any cost. Being aggrieved by the decision of the learned trial court, the plaintiffs preferred an appeal before the learned District Judge, South Tripura, Udaipur and the learned District Judge, South Tripura allowed the appeal of the plaintiffs reversing the judgment of the trial court. Being aggrieved, the defendant No. 3 herein has preferred the second appeal.

The instant second appeal was admitted to be heard on the following substantial questions of law:--

"I. Whether the suit can be valued at the whims and caprice of the plaintiffs or whether it should be valued as per value of the property?

II. Whether in a suit under Section 34 of the Specific Relief Act, the value of the suit is to be determined on the property or share or the property as is done in a partition suit?

III. Whether the Suit Valuation Act is applicable in the State of Tripura?"

For the appellant, it was urged that keeping in view the nature of the reliefs claimed in the plaint the suit value has been wrongly mentioned and the court fees has also been paid wrongly under Section 7(iv)(c) of the Court Fees Act (for short, "the Act") and Section 8 of the Suits Valuation Act, 1887. It was also urged that the learned first appellate court also misconstrued the provision of Section 7(iv)(c) of the Court Fees Act as well as the provision of Section 34 of the Specific Relief Act. Learned counsel for the appellant also urges that the suit cannot be valued according to the choice of the plaintiffs, as fixed at Rs. 8,000/- under Section 7(iv)(c) of the Court Fees Act.

On the other hand, learned counsel for the respondent-plaintiffs contended that the court fees are payable under Section 7(iv)(c) of the Act as well as Section 8 of the Suits Valuation Act, and accordingly the plaintiffs prayed for the same while arguing for declaration of their share with consequential relief. Section 34 of the Specific Relief Act is for declaration of legal right as well as the further relief and the learned trial court failed to consider those aspects while dismissing the suit. It is also urged that the learned trial court in its judgment specifically stated that the plaintiffs are the legal heirs of the deceased Kabir Ahmed Sarkar, the husband of defendant No. 3 but held that "the plaintiffs failed to adduce any evidence to prove that any right of the plaintiffs has been infringed or threatened by the defendant". According to Mr. Chakraborty, the finding of the trial court is totally contradictory.

He further submits that all properties involved in the suit are service benefits of the deceased brother of the plaintiffs and husband of the appellant No. 3. Therefore, the plaintiffs have the legal rights to those properties. He also submits that the plaintiffs have a discretion to put own valuation for the purpose of court fees and thus the value has been determined at Rs. 8,000/- under Section 7(iv)(c) of the Act. He also contended that Section 8 of the Suits Valuation Act, 1887 is only to determine the value of the suit for the purpose of pecuniary jurisdiction for deciding the court fees.

It appears that the learned trial court while dismissing the suit held that, no cause of action arose for the plaintiffs to bring the suit against the defendant No. 3 whereas it appears from the record that the defendant No. 3 in her written statement has categorically denied the right, title and interest of the plaintiffs over the suit properties and claimed that she alone is entitled to the suit properties in full share though the plaintiffs are admittedly the legal heirs of her deceased husband, Kabir Ahmed Sarkar. Therefore, denial of the defendant No. 3 to the right, title and interest of the plaintiffs itself give rise to a cause of action for filing the suit by the plaintiffs. Not only that, the learned trial court has committed wrong while holding that since it is a suit for declaration of right, title and interest of the plaintiffs over joint properties, the plaintiffs should have brought the suit for partition and no right of the plaintiffs has been infringed or threatened. Therefore, the suit is not maintainable.

Learned appellate court very rightly held that the suit properties are not in possession either of the plaintiffs or defendant No. 3 who are entitled to the said properties and they are now lying at the disposal of the defendant Nos. 1 and 2 being the service benefit of the deceased Kabir Ahmed Sarkar. The plaintiffs claimed a declaration of their right, title and interest in the said properties and for injunction for withholding the payment of the suit properties till disposal of the present suit which is beyond the provisions of Section 34 of the Specific Relief Act, 1963. The learned first appellate court also noted that "in such a suit the plaintiff must be a person entitled to any legal character to any right as to any property, the defendant must be a person denying or interested to deny the plaintiffs title to such character or right, the declaration sued for must be a declaration that the plaintiff is entitled to a legal character or to a right to a property and where the plaintiff is able to seek further relief then a mere declaration of title he must seek for relief". In the present case, since the suit properties are joint properties and under constructive joint possession of the plaintiffs and the defendant No. 3 the plaintiffs are entitled to bring a suit for mere declaration only and no consequential relief need be prayed for.

The defendant No. 3 in her deposition as DW 1 has stated that she is individually entitled to the money left by her husband. So the findings of the learned trial court that the plaintiffs have not furnished any evidence to show that their right over the suit properties has been infringed are not correct.

Learned first appellate court also discussed about the applicability of Section 7(iv)(c) of the Act and noted that, "considering the facts and circumstances of the case, the plaintiffs are entitled to bring suit for declaration of their right, title and interest in the suit property only without seeking for any consequential relief. So as per provision of Section 7(iv)(c) of the Court Fees Act, the plaintiffs are entitled to state the amount at which they value the relief sought and as per provisions of section 8 of the Suit Valuation Act the valuation for the purpose of jurisdiction and payment of Court Fees shall be same. So the valuation of the suit and payment of Court Fees the plaintiffs has valued the suit at Rs. 8,000/- which appears to have been rightly done." It is also noted that "the suit does not require being valued according to the valuation of the properties fell in the share of the plaintiffs."

In Govind Gopal and Others Vs. Banwari Lal, , a learned Single Judge of the Delhi High Court considered the provisions of Section 7(iv)(c) and (v). In that case, a suit for declaration was filed by the plaintiffs being the legal representatives of the deceased were entitled to the amount lying to the credit of the deceased in the Post Office, a relief was also claimed that defendant should be restrained from realizing the amount, like the case in hand. While deciding the issue, the learned Single Judge held as follows:--

"(6) The plaintiffs claim a declaration that they being the heirs and legal representatives of the deceased are entitled to the amount lying to the credit of the deceased in the said two accounts. As soon as the plaintiffs are held entitled to the declaration, the consequential relief would be to restrain the defendant from Realizing the amount. Thus the present suit is a suit for declaration with consequential relief under S. 7(iv)(c) of the Act. The dispute however arises about the application of second proviso to S. 7(iv)(c) of the Act. According to this proviso the value of the property involved in suits under S. 7(iv)(c) of the Act is to be calculated in the manner provided for by clause (v) of S. 7 of the Act. S. 7(v) provides for determination of the value with respect to certain properties. Those properties are lands, houses and garden. In the instant case the property in dispute is the amount lying in the Post Office. This property is not one of the properties referred to in S. 7(v) of the Act. Thus the method of calculation of the value of the property as mentioned in S. 7(v) of the Act would not be applicable to determine the value of properly in dispute in the present case. Nothing has been provided in S. 7(v) of the Act to determine the value of the property of the nature as in the present case. It must therefore, be held that the plaintiffs have a discretion to put their own valuation on the relief for purposes of court fees. Thus under S. 7(v)(c) of the Act the value of the suit for purposes of court fees would be Rs. 330/-. Under S. 8 of the Suits Valuation Act the value of the suit for purposes of jurisdiction would be the same as has been determined for purposes of court fees. The plaintiffs have fixed the value of the suit for purposes of court fees at Rs. 330/-. They are therefore, bound to value the suit for purposes of jurisdiction also at Rs, 330/-. As already held S. 7(iv)(c) of the Act is applicable and therefore, the plaintiffs have a choice to put their own value which they have fixed at Rs. 330/-."

Section 7(iv)(c) applies to a suit where a consequential relief is prayed along with a declaratory decree. The sub-clause (c) of Clause (iv) of Section 7 speaks of "consequential relief" whereas the proviso to Section 34 of the Specific Relief Act, 1963 speaks of further relief. The expression "further relief" as used in the Specific Relief Act refers to "legal character or a right as to any property to which any person is entitled to and whose title to such character or right is denied by any person or is interested to deny". Therefore, further relief, must rise from the cause of action on which declaratory suit is passed. Consequential relief or further relief means such relief which flows directly from the declaration sought for.

Operation of sub-clause (c) of clause (iv) of Section 7 of the Act confines itself to those cases where a "consequential relief" has been claimed in addition to that of declaration. According to this Court, further consequential relief would therefore be a further relief. There may be other kinds of reliefs which may be granted as further relief but they may not be consequential relief.

In view of the above discussion, it can be easily said that the learned first appellate court did not commit any wrong while deciding the issues, and more so, the substantial questions of law as framed are answered in the negative except question No. (iii). Substantial question No. (iii) is answered in the affirmative being the Suits Valuation Act is a central act and thus the same is applicable in the State of Tripura also. The first appellate court did not commit any wrong while reversing the judgment and decree of the learned trial court. Accordingly, the impugned judgment of the appellate court does not call for any interference.

In the result, the instant second appeal is dismissed being devoid of merit. No order as to costs. Send down the LCR.