D. Peerajee vs D. Vithal Rao and others

M.A. Ansari, J.—These two revision petitions have been filed against an order of the trial Court, directing the Plaintiff to pay Court-fee on the valuation of the property mentioned in a document.

In order to understand the respective arguments urged on behalf of the revision petitioners, it is necessary to give a brief summary of the allegations contained in the plaint. It is alleged therein that a house No. 5565 belonged to the father of the Plaintiff, who died on Dai 9, 1351 Fasli: November 13, 1941, and the Plaintiff was in full possession of the house as an heir; the Defendants fraudulently executed an agreement, dated Bahman 7, 1347 Fasli: December 10, 1937, which was also registered on Bahman 17, 1347, F.: December 20, 1937; in which the house was shown to belong to Kodi Vithal Rao and D. Subhanji. These two persons have been impleaded as Defendants Nos. 1 and 5 to the suit. Then the plaint continues that on the Plaintiff expressing disagreement with the contract, the Defendants promised to get the agreement cancelled and further to execute a proper document of disclaimer;, a draft of such a disclaimer was accordingly prepared on Farwardi 11, 1354 F.: February 12, 1945, and they appended their signatures on it;. but on notice to execute and have the promised document registered, they have now refused; the Plaintiff is, therefore, entitled to get the document executed and registered; as the house is in possession of the tenants, Md. Hussain and Pashia, whom the Plaintiff does not seek to eject; no relief for possession of property is necessary. Then in paragraph 3 of the plaint, it is claimed that the subject-matter in dispute is to have a document of disclaimer executed, which is not capable of being valued, and therefore, a fixed Court-fee of Rs. 20/- is paid under Article 13 of Schedule 2 to the Hyderabad Court-Fees Act.

This Article is similar to Art. 17, Cl. (6) of Schedule 2 to the Indian Court-fees Act.

The trial Court has held that as in the draft of the document sought to be executed the value off the property given is Rs. 3,000/-, and the suit seeks transfer of title to property and the Court-fee should be paid on the value of the property given in the draft. He has referred to no Sub-sections of Section 4 of the Hyderabad Court-fees Act which are similar to the Sub-sections of Section 7 of the Indian Court-fees Act to support his decision.

The Plaintiff has filed a revision petition urging that the decision is erroneous and he is liable to pay only the fixed Court-fee. The Defendants have also filed another revision petition urging that the Court-fee should be payable on the market value of the house property and the direction to pay on the amount mentioned in the document is incorrect.

In deciding the questions raised, I have been guided firstly by the principle that the Hyderabad Court-fees Act being a fiscal statute should be construed strictly in favour of the subject; and secondly that the amount of fee payable should be determined on the allegations or the plaint as to the cause of action and the reliefs, it being open to me for this purpose to look to the substance and not merely to the form of the plaint. In support of my view, I need quote but one decision of the Nagpur High Court reported in ''Paikan Singh v. Manik Singh'', AIR (36) 1949 Nag 97, where the case law on the subject has been fully reviewed and with which decision, I respectfully agree. The plaint in this case substantially seeks to get a contract specifically executed; but the contract is not for the sale of immovable property. Before applying Article 13 of Schedule 2 to the Hyderabad Court-fees Act, as is urged by the Plaintiff-Petitioner, two conditions have to be fulfilled. One is that it is not possible to estimate at a money-value the subject-matter in dispute and the other is that it is not otherwise provided for by the Act. No section in the Hyderabad Court-fees Act lays down any general principle for the valuation for all kinds of suits. Section 4 of the Act, like Section 7 of the Indian Act, contains certain rules of computation, which vary according to the nature of the suit. The rule of computation for certain classes of suits for specific performance of contracts is contained in Sub-section (viii) of Section 4. Clause (a) of this Sub-section, which is simlar to Clause (a) of Sub-section (x) of Section 7 of the Indian Act provides that in a suit for the specific performance of a contract for the sale, the Court-fee is to be according to the amount of the consideration. Obviously, the present suit is not one to enforce such a specific performance;, for there is no price fixed as the consideration for the transfer of the house. This Clause is, therefore, not applicable. Then every contract of a specific performance is not governed by this provision. In ''Biraja Charan v. Salaga Charan'', ILR (1938) 2 Cal 411, it has been held that the Court-fee payable on a plaint in a suit for a decree for specific performance directing the Defendant to execute and register a trust-deed involving no transfer of possession and effecting only a change in the character of ownership does not come under the similar provisions of the Indian Act, as the relief claimed is not the property itself; but merely the specific performance of an agreement to execute a deed. The learned Advocate of the Plaintiff-Petitioner has relied on an authority of the Division Bench of this Court reported in ''13 Deccan L R 445'', that a suit for specific performance of a contract where the Plaintiff is in possession of the property is governed by Article 13, of Schedule 2 to the Hyderabad Act. That authority, however, has been reversed by a Pull Bench of this Court in ''38 Deccan L R 51, holding that the above Article could only apply if there be no other provision in the Act, and Sub-section (viii), Clause (a) of Section 4 of the Hyderabad Act specifically provides for specific performance of a contract for sale. The Full Bench case further held that the absence of any relief for the possession is immaterial for this purpose. But this Full Bench case is authority for the proposition, that every suit for the specific performance of a contract is governed (sic) by the Sub-section (viii) and in view of the decision of the Calcutta High Court, I am of opinion that this Sub-section does not govern the present suit.

This however will not make Article 13 of Schedule 2 applicable unless I come to the conclusion that the money value of the subject-matter in dispute in this case cannot be estimated. For this purpose, I have to look to the allegations in the plaint above. The Plaintiff seeks to have a deeds of disclaimer executed and registered, which will effect a change in the character of ownership of the property. But every suit seeking change in ownership is not always assessable in money value. The position is different where recovery of possession is also sought. Here the plaintiff is not claiming possession of the property and there are no allegations that the tenants are not paying rent. Indeed, they are no parties to this suit. In these circumstances, it is impossible to ascertain the benefit to the Plaintiff by the change of ownership. There are authorities which lay down that relief in a suit for partition where the Plaintiff is already in possession of property cannot be estimated in money. Again, in ''Ramu Aiyar v. Sankara Aiyar", 31 Mad 89, it has been held that it is not possible to estimate at a money value, a suit for the registration of deed u/s 77 of the Registration Act. The Calcutta High Court in the case referred to above has held that a suit to execute a trust-deed is one to which Article 17, Clause (vi) of Schedule 2 of the Indian Court-fees Act applies. I am, therefore, of opinion that as the Plaintiff seeks to complete his title to the property and the benefit to him has got to be primarily considered which cannot be assessed in money, the Article relied upon the Plaintiff-Petitioner applies and the lower Court has erred in holding that the Court-fee is to be payable on the value of the property mentioned in the draft document.

The Defendants have urged in their revision petition that the market value of the house should be assessed and the plaintiff be made liable to pay the Court-fee on that. This argument overlooks the distinction between the subject-matter of the property and the subject-matter in dispute. It may be mat the title to the house will be affected if the suit is decreed; but as has been pointed out in ''Finnatunnessa Khatun v. Girindra Nath, 30 Cal 788, it is wrong to look to the consequences of the relief rather than to the relief itself. The learned Advocate for the Defendant-Petitioners urged that Sub-section (iii) of Section 4 applied which is similar to Sub-section (iii) of Section 7. This relates to suits for movable property other than money. But then under the Sub-section the subject-matter in dispute must have a market-value. Here the house is not the subject-matter of the dispute and the deed of the disclaimer can hardly be assessed monetarily. Therefore, this Sub-section does not apply. Having regard to the general principle that a fiscal statute should be construed in favour of the subject, and having regard to the principle that the substance of the allegation in the plaint alone should be taken into consideration for fixing amount of Court-fee payable, as well as the execution of the deed in dispute not being monetarily assessable, I hold that the revision petition of the Plaintiff should be allowed, of the Defendants dismissed, the order of the lower Court directing payment of Court-fee on Rs. 3,000/- set aside and the amount already paid on the plaint is sufficient. In deciding these revisions, my decision does not extend to any point other than one relating to the amount of Court-fee payable. The case is remanded to the original Court for further proceedings and the parties are to bear their own costs. This judgment will govern both the revision petitions.

Naik, C.J.

I agree.