Geeta Devi vs Devinder Nath Bhardwaj and Others

M.R. Verma, J.—This order is meant to dispose of the following issue framed in this suit and to pass consequential orders:

Whether the suit has been properly valued for the purposes of Court fee and jurisdiction, if not, its effect?

OP Parties.

The brief facts relevant for the purpose of disposal of the aforesaid issue may be noticed. The Plaintiff instituted a suit for partition of the suit property comprising Khasra Nos. 2472, 2473 and 2474, Khata No. 51 min, Khatauni No. 208 min, measuring 490-62 Sq. metres, situated at Up Mohal Shiv Nagar, Hamirpur and for declaration of the share of the Plaintiff in the Kisan Vikas Patra and National Saving Certificate and for mandatory injunction to hand over the share of the Plaintiff therein alongwith a decree for rendition of accounts. The suit property were earlier admittedly owned by the father of the Plaintiff and predecessor-in-interest of the Defendants. The Plaintiff claims that since he has 1/6th share in the immovable property left by his deceased father which is presently in possession of Defendants No. 1 and 2 and the Plaintiff does not want to remain joint owner of the suit property and thus wants partition thereof and separate possession to the extent of 1/6th share in the house, courtyard and the kitchen. Hence, the suit, which has been valued for the purpose of jurisdiction at Rs. 31 lacs i.e. the entire value of the property in suit and for the purpose of Court fee at Rs. 5,20,000/- i.e. the value of the share of the Plaintiff in the suit property and the Court fee has been accordingly affixed.

The Defendants contested the claim of the Plaintiff inter alia on the ground that the suit was not properly valued for the purpose of Court fee and jurisdiction which led to the framing of aforesaid issue which was dealt with as a preliminary issue.

I have heard the learned Counsel for the parties and have gone through the records.

As per the plaint, case of the Plaintiff is that the property in suit is in possession of Defendants No. 1 and 2. In preliminary objection No.7 in the written statement it has been pleaded by the Defendants also that the Plaintiff is not in possession of the property in the suit, therefore, he cannot claim partition for separate possession without paying the Court fee. Thus what clearly emerges from the pleadings is that the Plaintiff is not in possession and enjoyment of the suit property, therefore, has instituted the suit for partition and possession of his share in the immovable property. It is, therefore, required to be determined as to in the given situation how the suit ought to have been valued for the purposes of Court fee and jurisdiction.

A partition suit may be based on one of the two eventualities i.e. (i) wherein the Plaintiff claims to be in joint possession of the property or (ii) where he is not in enjoyment and possession of the joint property sought to be partitioned and desires to separate his share in such property from the other co-sharers. In the former case the suit would fall under Article 13(vi) of Second Schedule of the H.P. Court Fees Act (hereafter referred to as ''the Act'') and a fixed Court fee will be payable. However, in the latter case the suit will be governed by Section 7(iv)(b) of the Act.

It may be mentioned here that at the time of hearing, a few judgments of different High Courts for and against the law point involved herein were cited by the learned Counsel for the parties. However, they need not be referred to here because the law point involved has already been decided by this Court and such decisions still holds good and fortifies the view hereinabove taken.

In Hushan Kaushal and Ors. v. Bal Raj and Ors. 2001 (2) Shim. L.C. 223, a learned Single Judge of this Court while dealing with a similar question held as under:

Following the ratio laid down by the Full Bench of the Lahore High Court in Asa Ram and Ors. v. Jaggan Nath and Ors. AIR 1934 Lah 563, it was held that in a suit for partition of joint property, where the Plaintiff alleges joint possession, the suit would fall under Article 17(vi) of Second Schedule of Court Fees Act, 1870 and a fixed court fee is payable. Section 7(iv)(b) would not apply to such a suit. If, however, the Plaintiff has been excluded from joint enjoyment or where he has never been in enjoyment or possession, actual or constructive, of the joint property and desires to separate his share from the other co-sharers, he must sue for possession and partition and in such a case he must pay ad valorem court fee on his share u/s 7(iv)(b) of the Court Fees Act, 1870.

To the similar effect has been by the Full Bench of Bombay High Court in Shankar Maruti Girme Vs. Bhagwant Gunaji Girme, and by the Full Bench of Madras High Court in C.R. Ramaswami Ayyanger (Minor) v. C.S. Rangachariar and Ors. AIR 1940 Mad 113 , and by the Delhi High Court in Prakash Wati Vs. Dayawanti and Others,

The position, therefore, is that in a suit to enforce right to share a joint family property, that is, a suit to be restored to joint possession or enjoyment or separate possession and enjoyment by partition of a joint family property, when the Plaintiff is not in possession of such property, whether actual or constructive, court fee would be payable u/s 7(iv)(b), ad valorem on the value of the relief as fixed and in a suit for partition of joint property, whether owned by a joint family or otherwise. Where the Plaintiff claims that he is in actual or constructive possession thereof fixed court fee would be payable under Article 17(vi) of the Second Schedule of the Court Fees Act, 1870, corresponding to Article 13(iv)of the Second Schedule of the H.P. Court Fees Act, 1968.

In the case in hand, as already stated, the Plaintiff has not claimed to be in possession of the suit property but his case is that it is in possession of Defendants No. 1 and 2 and, as already seen hereinabove, the Defendants in their written statement have not disputed these averments in the plaint and have averred that the Plaintiff is out of possession of the suit property. Therefore, in view of the above position in law, the value of the suit for the purposes of Court fee will be governed by Section 7(iv)(b) of the Act.

The relevant part of Section 7 of the Act reads as under:

Computation of fees payable in certain suits.--The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

(i) xxx xxx xxx

(ii) xxx xxx xxx

(iii) xxx xxx xxx

(iv) In suits-

(a) xxx xxx xxx

(b) to enforce a right to share in joint family property to enforce the right to share in any property on the ground that it is joint family property;

(I) Shim. L.C. Geeta Devi v. Devinder Nath Bhardwaj 313

(c) xxx xxx xxx

(d) xxx xxx xxx

(e) xxx xxx xxx

(f) XXX XXX XXX

according to the amount at which the relief sought is valued in the plaint or memorandum of appeal; In all such suits the Plaintiff shall state the amount at which values the relief sought.

For the purpose of Court fee, the Plaintiff has valued his share at Rs. 5, 20,000/- and such valuation is evidently in accordance with the aforesaid provisions.

Section 8 of the Suits Valuation Act, 1887 provides as under:

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 ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of Court-fees and the value for the purposes of jurisdiction shall be the same.

It is evident on a bare reading of the aforesaid provisions that valuation of a suit which is governed by the various paragraphs u/s 7 except paragraphs v, vi, ix and x for the purpose of jurisdiction shall be the same as for the purpose of Court fee. Therefore, the valuation of this suit which falls under prargraph (iv) of Section 7 of the Act for the purpose of Court fee the value for the purpose of the jurisdiction will also be Rs. 5,20,000/- which is the value for the purpose of Court fee. The Plaintiff, however, has valued the suit for the purpose of jurisdiction at Rs. 31 lacs, which valuation is not in accordance with the provisions of Section 8 (supra). Hence, the suit has wrongly been valued for the purpose of jurisdiction because it ought to have been valued at Rs. 5,20,000/- for the purpose of jurisdiction also.

In view of the above discussion, it is held that the suit is properly valued for the purpose of Court fee but it is wrongly valued for the purpose of jurisdiction. This issue is accordingly decided.

The above decision necessarily raises the question whether this Court should continue to try the suit or the suit has to be transferred to the Court which has the jurisdiction to try a suit of the valuation as found hereinabove.

It was contended by the learned Counsel for the Plaintiff that even if this Court comes to the conclusion that the value of the suit for the purpose of Court fee is Rs. 5,20,000/- that does not mean that this Court has no jurisdiction to try the suit as at the time of institution of the suit, a suit valued at more than Rs. 5 lacs was triable by this Court alone and that the jurisdiction of the District Judges to try suits up to the value of Rs. 10 lacs had been enhanced subsequent to the institution of the present suit. On the other hand, the learned Counsel for the Defendants has contended that once it is held that the value of the suit for the purpose of jurisdiction is such that it is triable by a lower Court the suit deserves to be transferred to such Court for disposal.

There is no dispute that prior to the coming into force of the Himachal Pradesh Courts (Amendment) Act, 2001 (hereafter referred to as ''the Amending Act''), the District Judge had original civil jurisdiction to try the suits value of which did not exceed Rs. 5 lacs and the present suit had been instituted at the time when the District Judges in the State were invested with the aforesaid pecuniary jurisdiction. Thus, even according to the value of the suit for the purpose of jurisdiction, as determined hereinabove, at the time of institution it was triable only by this Court. However, by the aforesaid Amending Act the pecuniary jurisdiction of the District Judges was enhanced to try the suits upto the value of Rs. 10 lacs. Thus, by virtue of the amended provisions a suit valued at Rs. 10 lacs or less became triable by the concerned District Judge. In the ordinary course and by virtue of provisions of Section 15 of the Code of Civil Procedure, it would have been in the discretion of this Court to continue with the trial of this suit, however, Section 21(a) of the Himachal Pradesh Courts Act has been added to the Act to meet the situation when any change is brought about in the pecuniary jurisdiction of the subordinate Courts in this State which provides for the transfer of the suit, appeal or any other proceeding pending in the High Court at the time of such amendment to such subordinate Civil Court in Himachal Pradesh which would have jurisdiction to try such suit, appeal or proceeding. In view of the intendment of these provisions, the present suit deserves to be transferred for disposal to the concerned District Judge.

In view of the above findings, this suit is transferred to the Court of the learned District Judge, Hamirpur, for disposal in accordance with law.

The parties through their counsel are directed to appear before the transferee Court on 23.10.2002.