Makhanlal Chatterjee vs Manick Chandra Pramanik

A.C. Sen, J.—The present application u/s 115 of the CPC is directed against Order No. 49 dated April 28, 1964, passed by the learned Munsiff, First Court, Alipore, in Title Suit No. 536 of 1961. The impugned Order relates to the court-fee payable on the plaint in the said suit.

Facts briefly stated are as follows. The opposite party No. 1 as Plaintiff instituted a suit being Title Suit No. 536 of 1961 of the First Court of the Munsiff, Alipore, against the Petitioners and the opposite parties Nos. 2 to 7 for the partition of his one-fourth share in the suit land. The suit land was purchased by Fakir Chandra Pramanik, father of the Plaintiff, in 1933. Fakir died leaving three sons, namely, (i) Manick Chandra Pramanik, the Plaintiff, (ii) Sadhan Chandra Pramanik, (iii) Guiram Pramanik and one grandson Jagannath Pramanik by a predeceased son as his only heir. According to the Plaintiff his other three co-sharers sold their shares in the suit land to the Petitioners, being Defendants Nos. 1 to 4, who thereby became the co-sharers of the Plaintiff by purchase.

The Plaintiff valued his one-fourth share at Rs. 125 and paid ad valorem court-fee thereon. For the purpose of jurisdiction the Plaintiff valued the suit at Rs. 500, which according to him is the value of the entire suit land.

The Defendants raised an objection saying that the suit had not been properly valued and stamped and that the Court had no jurisdiction to try the suit. They contended that for the purpose of court-fee as well as jurisdiction the suit should have been valued according to the market price of the entire suit land, which would exceed the pecuniary jurisdiction of the Court.

The learned Munsiff on taking evidence valued the entire suit land at Rs. 6,000 and the Plaintiff''s one-fourth share at Rs. 1,500. He was of opinion that the suit should be valued for both purposes, namely, court-fee and jurisdiction at Rs. 1,500, which was the value of the Plaintiff''s share in the disputed property. The Plaintiff was accordingly directed to pay the deficit court-fee by May 12, 1964. The relevant portion of the. order of the learned Munsiff runs thus: I hold that the suit land should be valued at Rs. 1,500 for purpose of jurisdiction and court-fee. Amend the plaint and the register. The Plaintiff is to put in deficit court-fee by May 12, 1964. I also hold that the Court has jurisdiction to try this suit.

The only question for consideration is how the instant suit is to be valued for the purpose of court-fee as well as jurisdiction. It is not disputed that the market value of the entire property is Rs. 6,000 and that the Plaintiff''s share in the disputed property is one-fourth. The suit has been instituted by the Plaintiff opposite party No. 1 for partition on the footing that he is out of possession.

Reference may, in this connection, be made to para. vi-A of Section 7 of the Court Fees Act, which appears to be applicable to the facts of the present case. Paragraph vi-A runs thus:

In suits for partition and separate possession of a share of joint family property or of joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property...if the Plaintiff has been excluded from possession of the property of which he claims to be a coparcener or co-owner (the amount of fee shall be computed)- according to the market value of the share in respect of which the suit is instituted.

The suit is one for declaration of title and khas possession on partition. The Plaintiff, opposite party No. 1, claims one-fourth share in the suit land. The Plaintiff has alleged that the Defendants have dispossessed him from the suit land. There is no doubt that the amount of court-fee shall be computed, under para. vi-A of Section 7 of the Court Fees Act, because the Plaintiff''s case in the plaint is that he has been excluded from possession of the suit property of which he claims to be a co-owner. That being the position the suit must be valued for the purpose of court-fee according to the market value of the share in respect of which the suit has been instituted. There is no dispute as-to the market value of the entire property which has been found to be Rs. 6,000. The market value of the Plaintiff''s one-fourth share will, therefore, amount to Rs. 1,500 and court-fee is payable on Rs. 1,500.

The next question to be considered is whether for the purpose of jurisdiction too the suit is to be valued at Rs. 1,500. u/s 8 of the Suits Valuation Act the general rule is that the value as determinable for the computation of court-fees and the value for purpose of jurisdiction shall be the same. There are certain exceptions to this rule. Section 8 provides as follows:

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. Since the present suit comes u/s 7, para. vi-A, it is governed by the general rule laid down by Section 8 of the Suits Valuation Act, because suits excluded from the purview of this section are those contemplated by Section 7, paras, v, vi and ix and para, x, Clause (d), Court Fees Act. Suits contemplated by para. vi-A of Section 7 of the Court Fees Act, therefore, fall within the purview of the general rule laid down by Section 8 of the Suits Valuation Act. Ad valorem court-fee is payable in the present case under the Court Fees Act. Therefore, the value as determinable for the computation of court-fee shall be the value for purposes of jurisdiction. It is settled law that in a case like this governed by Section 8 of the Suits Valuation Act there must be a single valuation both for the purpose of jurisdiction and for the purpose of court-fees and that the valuation for the purpose of jurisdiction shall be determined by the valuation for the purpose of court-fee and not vice versa. The present suits therefore, is to be valued at Rs. 1,500 also for the purpose of jurisdiction.

Mr. Roy, appearing on behalf of the Petitioners, say that the present suit being one for partition the value of the suit for the purpose of court-fees as well as jurisdiction should be the value of the entire property in suit. His contention, in other words, is that the instant suit should be valued for both purposes at Rs. 6,000, the market value of the entire property in suit, and not at Rs. 1,500, the market value of the one-fourth share of the Plaintiff in the suit property. He primarily relies upon Rajani Kanta Bag v. Rajabala Dassi (1924) 29 C.W.N. 76, decided by a Division Bench of this High Court. There the Plaintiff alleged in the plaint that he was entitled to a four annas share of the family properties along with some of the Defendants. The Plaintiff prayed for partition on the establishment of his title to the family properties which he valued at Rs. 2,500. He paid court-fee of Rs. 20 for partition and also paid ad valorem court-fee upon the four annas share of the property under partition. The Defendants objected to the trial of the suit by a Subordinate Judge on the ground that as the value of the suit, both for jurisdiction and for court-fees, was u/s 28 of the Suits Valuation Act the same, the same was triable by a Munsiff and not by a Subordinate Judge, The learned Subordinate Judge gave effect to the contention and directed that the plaint be returned to be filed in the proper Court. On appeal the order of the Subordinate Judge was upheld. Then the Plaintiff moved this Court in Revision. The Rule was made absolute and the order of the Subordinate Judge as affirmed by the District Judge was set aside. Their Lordships were of opinion that the Munsiff had no jurisdiction to entertain the suit so far as the claim for partition was concerned, because the jurisdiction of the Court would be determined by the value of the entire property sought to be partitioned. Relying on the case of Bidhata Rai v. Ram Chariter Rai (1907) 12 C.W.N. 37, the case of Kirty Churn Mitter v. Aunath Nath Deb I.L.R (1882) Cal. 757, and the case of Lala Bhugwat Sahay v. Rai Eashupati Nath Bose (1906) 10 C.W.N. 564 their Lordships held that ordinarily'' a suit for partition was triable by the Court which was competent to try a suit valued at the entire value of the property and not the subject-matter of the share which was to be partitioned. It was contended on behalf of the Defendants opposite parties that where an ad valorem court-fee was paid u/s 7, para, V. of the Court Fees Act, the jurisdiction of the Court according to the Suits Valuation Act, Section 8, would be the same as the valuation for the court-fees. This contention was rejected by their Lordships in these words:

That undoubtedly would be so, where the suit is of a simple character and of the character contemplated by that section of the Court Fees Act, But where the suit is not a simple suit contemplated by that section but is a suit for partition, then the Article applicable would be Article 17, Clause (vi). Therefore, in a case like this, in our opinion, Section 8 of the Suits Valuation Act has no application.

In the instant case, the. suit is of the character contemplated by Section 7, para. vi-A, therefore, even on the reason given by their Lordships in Rajani Kanta''s case (Supra ), the value of the instant suit for the purpose of jurisdiction must be the same as its value for the purpose of court-fees. It may be noted that the case of Rajani Kanta relied on by the opposite parties was decided in 1924. Since then the Court Fees Act has been amended by the insertion of para. vi-A in Section 7 and Clause (va) in Article 17, Schedule II of the Court Fees Act in 1935 Paragraph vi-A of Section 27 has already been quoted above. Clause (va), Article 17, Schedule II provides that on the plaint or memorandum of appeal in a suit for partition and separate possession of a share of joint family property or of joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property if the Plaintiff is in possession of the property of which he claims to be a coparcener or co-owner proper fee is fifteen rupees. The combined effect of para. vi-A of Section 7 and Section 8 has already been noted.

Rajani Kanta''s case (Supra ) can no longer be regarded as good law after the insertion of para. vi-A in Section 7 so far as a suit for partition by a Plaintiff out of possession is concerned. But where the Plaintiff is in possession of the joint property the court-fee payable is the fixed sum of Rs. 15 under Clause (va), Article 17, Schedule II, inserted by way of amendment in" 1935. Before the amendment fixed court-fee was payable under Clause (vi), Article 17, Schedule II, no matter whether the Suits Valuation Act was not applicable to a suit for partition. But after the amendment of 1935, a fixed court-fee is payable only when the Plaintiff is in possession of the joint property, and such a suit is not governed by Section 8 of the Suits Valuation Act even after the amendment. Hence, it may plausibly be argued that such a suit even now is governed by the principles laid down in Rajani Kanta''i case, namely, that the value of a suit for partition for the purpose of jurisdiction is the value of the entire property to be partitioned. But as this question does not arise, in the present case I refrain from expressing any opinion on this question. It may, however, be pointed out that even in Rajani Kanta''s case their Lordships took the view that in a suit for partition by one out of possession the value of the suit for the purpose of court-fee is the value of the Plaintiff''s share in the joint property. Their Lordships quoted with approval the following remarks of Sir Richard Gorth, C.J. in Kirty Churn Mitter v. Aunath Nath Deb (Supra ):

If the Plaintiff''s suit had been to recover possession of, or establish his title to the share which he claims in the property, he must have paid an ad valorem stamp-fee upon the value of that share.

Paragraph vi-A of Section 7 simply gives statutory effect to the view expressed by Sir Richard Gorth, C.J. and followed by the Division Bench in Rajani Kanta''s case (Supra ). So even according to the principle laid down in Rajani Kanta''s case, the instant suit for the purpose of court-fee is to be valued according to the value of the Plaintiff''s share in the property, that is to say, ad valorem court-fee is to be paid on Rs. 1,500 and not on Rs. 6,000 as argued by Mr. Roy on behalf of the Defendants Petitioners.

Mr. Roy also referred to the case of Lala Bhuguiat Sahay, v. Rai Pashupati Nath Ease (Supra ) in support of his contention. There a Division Bench of this Court was called upon to decide the value of the subject-matter of the suit in a suit for partition, for the purpose of valuation within Section 596 of the Code of Civil Procedure, 1882, corresponding to Section 110 of the present Code. Their Lordships observed:

We think that for the purpose of valuation within Section 596 of the CPC the value of the subject-matter of the suit is the value of the whole of the estate which it is sought to partition, and not merely of the particular share which one of the parties may claim.

Towards the end their Lordships added a rider in these words:

Any way it would be difficult to say that the decree does not involve directly or indirectly some claim or question to or respecting property of like amount or value.

Their Lordships, however, were not called upon to decide how a suit for partition was to be valued for the purpose of court-fees and jurisdiction under the relevant provisions of the Court Fees Act read with Section 8 of the Suits Valuation Act. I am, therefore, of opinion that the principle of valuation laid down in Lala Bhugwat Sahay''s case (4) cannot govern the question of valuation in the instant case. As stated above in the instant suit the value of the suit for both purposes, namely, court-fee and jurisdiction, is the value of the Plaintiff''s share in the joint property and not the value of the whole of the joint property.

In the result, the Rule is discharged. There will be no order for costs.