Jenavaram Bailireddi vs Khatipulal Sab and Others

Venkatasubba Rao, J.—The suit has been brought by the plaintiff for the setting aside of certain mortgage deeds and sale deeds executed by

his father and for possession of the immovable properties covered by them. Section 7 (iv-A) introduced into the Court Fees Act by the Madras

Amendment reads thus:

In a suit for cancellation of decree for money or other property having a money value or other document securing money or other property having

such value, according to the value of the subject-matter of the suit and such value shall be deemed to be if the whole decree or other document is

sought to be cancelled, the amount or the value of the property for which the decree was passed, or the other document executed,

if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.

The plaintiff prays, in the words of this section, for the cancellation of documents securing money or other property haying money value.

Mortgage instruments answer the description of documents securing money; so far as sale deeds are concerned, they are, as I have held in

Doraiswami v. Thangavelu AIR 1929 Mad. 669 : 119 Ind. Cas. 38 : Ind. Rul. (1929) Mad. 870, documents securing ''other property'' within the

meaning of the section. This is what I observed in that case:

The words securing money or other property are not happy; but the question is: Is this or not a suit for cancellation of a document securing

property having money value? I think it clearly is. I have no doubt that the release deed in question is a document securing property; in other

words, by that document, the property covered by it is made secure to the defendants. Can there be any doubt that a sale deed comes within the

terms of that section? The present instrument does not materially differ from a sale deed. By that, the rights of the plaintiffs in the partnership and its

property have been transferred for consideration to the defendants. The words ''secure'' may mean according to the Oxford Dictionary, ''to make

the tenure of a property secure to a person.'' I am, therefore, of the opinion that the proper section applicable is Section 7 (iv-A).

The amount of court-fee payable depends upon ''the value of the subject-matter of the suit'', that is what the section says. Where a document

securing money is sought to be cancelled, the section goes on to say, that the value of the subject-matter shall be deemed to be ''the amount for

which the document is executed.'' In the case of a mortgage instrument, therefore, the court-fee has to be computed on the amount for which the

instrument is executed, in ether words, the principal amount secured by it. This is the plain effect of the words of the section, and I fail to see how

the method of computation filed in Section 7(v) can possibly be applied.

Now, as regards the sale deeds, the question arises, is the value referred to in the section, the actual value of the property, that is to say, its

market value or the artificial value prescribed by Section 7(v)? The last-mentioned section deals with suits for possession and the Legislature has

expressly enacted that in such suits the value shall be determined in a particular manner. Clause iv-A refers simply to ''the value of the property,''

which means ''value'' as generally understood, whereas Clause v prescribes an artificial method of valuation. There is no reason to construe Clause

iv-A in the light of Clause v which deals with a specific matter; indeed, when the Legislature intends to prescribe an artificial method, it says so in

express terms, as Clause iv-C also shows. I am therefore of the opinion that in the case of the sale deed, the amount of court-fee payable must be

computed on the market value of the properties with which they deal. Mr. M. Ranganatha Sastri for the respondents relies upon Venkata

Narasimha Raju v. Chandrayya 53 M.L.J. 267 : 105 Ind Cas. 171 : AIR 1927 Mad. 825 : 26 L.W. 159 : 39 M.L.T. 193 and Venkatasiva Rao

v. Satyanarayanamurthy 63 M.L.J. 764 : 139 Ind. Cas. 317 : AIR 1932 Mad. 605 : 36 L.W. 225 : Ind. Rul. (1932) Mad. 643 : (1932) M.W.N.

992, for his contention that the statutory valuation u/s 7(v) furnishes the true basis. The learned Judges in the former case observe:

When there is in the Act itself a special rule as to valuing the property in suits for court-fees, we think it is proper to take that method of valuation in

preference to any method to get the value where there is no indication that any other method should he adopted.

With great respect, there is a fallacy, as I have shown, underlying this reasoning. Sitting as Single Judge, I should consider myself bound by these

decisions, but the present case, as I have said, deals with mortgages and sales, whereas the two cases referred to above deal with decrees.

Another question arises, namely, the prayer for cancellation being coupled with that for possession, is the court-fee to be computed under

Clause iv-A or Clause v? Sundara Ramanujam v. Sivalingam 47 M. 150 : 77 Ind. Cas. 542 : AIR 1924 Mad. 260 : 18 L.W. 333 : 45 M.L.J. 431

: (1923) M.W.N. 726 bears on this point. There, the suit was for the specific performance of a contract of sale and for possession of the property.

It was held that Section 7(x)(a) applied. This is what I observed in my judgment in that case:

Then it is argued that, as the plaintiff also claims possession in the suit, the suit must be regarded as one for possession. But the specific provision

relating to suits for specific performance excludes the applicability of the general provision relating to suits for possession.

Moreover, as pointed out by me in Ramakrishnayya v. Seshama 68 M.L.J. 369 : 156 Ind. Cas. 810 : AIR 1935 Mad. 346 : 41 L.W. 488 : 8

R.M. 63 : (1935) M.W.N. 406, while dealing with a cognate subject:

the maxim generalia specialibus non derogant applies. General words do not derogate from special; conversely, a special law derogates from ''a

general law'':

I therefore hold that the section under which the court-fee has to be computed, is Section 7(iv-A) and not Section 7(v).

With these observations the case will go back to the lower Court and it is directed to assess the court-fee in accordance with the directions

contained in this judgment. If the value of the suit so determined is beyond the pecuniary jurisdiction of the District Munsif''s Court, an order will be

made by that Court returning the plaint for presentation to the proper Court.

I make no order as to costs.