Mathew Veronicka vs State

Koshi, J.—This appeal is now before us in connection with the office report that proper court-fee has not been paid with respect thereof. The appeal arises from a suit instituted by certain junior members of an Ezhava family for recovery of possession of certain properties alienated by the senior members of the family. The alienation was in 1102 and all the then adult members had taken part in it. The suit was filed in 1120. In the suit the alienation was sought to be impugned as unsupported by consideration and without bona fides or family necessity. The learned temporary Additional District Judge," Anjikaimal, who heard and disposed of the suit granted the Plaintiffs a decree & almost in terms of the plaint and Defendant 10, who is the present owner of one of the two items (item 2) alienated, has brought this appeal against that decree. The appeal has been valued for purposes of court-fees as one arising from a suit for recovery of possession of immovable property. The suit was valued likewise. The Appellant has paid court-fee on the above basis on the market value of item 2. Mesne profits have also been decreed against her and in the appeal court fee is paid on the total valuation and not separately on the two reliefs the trial Court granted to the Plaintiffs, namely, recovery of possession and mesne profits. That forms one of the points raised by the reference. The main question is what the applicatory provision of the Court-fees Act is when a Plaintiff seeks to recover possession of immovable property after confessing and avoiding an alienation effected by a limited owner. A further question was raised at the hearing as to the proper mode of assessing the market value of the subject-matter when the alienation and the suit relate only to a limited interest and not to the entire interest in the property.

For purposes of court-fees, this appeal is governed by the provisions of the Travancore Cochin State Court-fees Act 1125. Defendants 5 to 9, who are the present owners of item 1, have preferred a similar appeal in A. S. 57 of 1125 where also the office has raised the question of the inadequacy of the court fee paid. That appeal was preferred before the Travancore-Cochin State Court-fees Act came into force and though the relevant provisions of the Cochin Court-fees Act, II [2] of 1080 and the new Act are not materially different the reference with respect to that appeal will be answered separately.

When this matter came up before us for argument the Appellant was represented by Mr. T. M. Mahalingom Iyer, Advocate and the State by Mr. M. N. Parameswaran Pillai, Government Pleader. The first question is whether the appeal can be taken to have been properly valued for purposes of court-fees when the valuation is made soley on the basis of the market value of the property and no valuation is made or court-fee paid with respect to the relief by way of declaration repeatedly claimed in several paragraphs of the memorandum of appeal as to the valid character of the instrument of alienation found to be void by the Court below. We have said that the suit was valued and court fee paid as in a suit for recovery of possession of immovable property. That mode of valuation and levy of court-fee are in accord with a full Bench decision of the Chief Court of Cochin reported in Narayana Row v. Subba Row 4 S. D. 400. There it was held that a suit to set aside a court sale on the ground of fraud and for recovery of possession of the property which the Defendant got possession on the strength of the sale certification must be valued as a suit for possession of land and the court-fee should be paid according to that valuation. The view taken was that the suit was primarily one for possession and the declaration sought was only ancillary to the prayer for possession. Section 3 (4) (f) of the Travancore Cochin Court fees Act enacts that in suits to obtain a declaratory decree or order whore consequential relief is prayed for, the court-fee leviable is according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. The corresponding provision in the Cochin Court-fees Act is to be found in Section 4 (IV) (c) and it is identically in the same terms. What the case referred to decided was that even though a suit may fall under Sub-clause (c) of Clause (iv) of Section 4 when the consequential relief claimed is recovery of possession of immovable property the suit should be valued and court-fee paid as in a suit for possession. Under the Cochin Court-fees Act, a suit for recovery of possession of immovable property was governed by Section 4 (v). It states that in suits for possession of lands, gardens or houses, the amount of fee payable under the Act is according to the value of the subject-matter.

Sub-clause (a) provides how that should be ascertained where the subject-matter is land or garden and Sub-clause (b) when it is a house. Sub-clause (a) states that where the subject-matter is land or garden the value of the subject-matter shall be deemed to be fifteen times to the annual rent of such land or garden and Sub-clause (b) states that where the subject-matter is a house according to the market value of the house. The Travancore-Cochin State Court-fees Act provides in Section 3(5) that in suits for possession of land, building or garden which are not based on a contract, the fee payable under the Act shall be according to the market value of the subject-matter and that such value, in cases of dispute, shall be taken to be ten times the annual gross-profits of such land, building or garden where it is capable of yielding annual profits minus the assessment paid, if any, to the Government. It will thus be seen that except with regard to the mode of ascertaining market value there is no difference between the Cochin Court.fees Act II of 1080 and the Travancore-Cochin State Court fees Act, II of 1125. According to the case in Narayana Row v. Subba Row, 4 S. D. 400, even though the plaint contained a prayer for a declaration as to the invalidity of the sale as the consequential relief claimed was one specifically falling u/s 4 (5) the provisions of Section 4 (iv) (c) had no application to the suit. Section 4 (5) governed it, If this view be correct it cannot be doubted that the court-fee paid on the memorandum in the present appeal on the basis of the market value of the property is proper and no valuation or court-fee is necessary with respect to the declaration as to the validity of the document. 4. Section 7 (4) (C) of the Court-fees Act, VII of 1870 corresponds to Section 4 (iv) (C) of the Cochin Court-fees Act II of 1080 and to Section 3(4)(f) of the Travancore Cochin State Court-fees Act, 1125 and the provisions are alt identical. Likewise Section 7(5) of the Act VII of 1870, corresponds to Section 4(5) of the Cochin Act II of 1080 and to Section 3 (5) of our present Court-fees Act. The provisions are also identical so far as they are relevant for our present purpose except as to the mode of assessing the market value of the subject-matter. The decisions of the various Indian High Courts bearing on the subject must therefore serve as a valuable guide to us and we shall now proceed to examine them.

Decided cases in the various High Courts in India view the matter from two aspects, (1) Whether in circumstances similar to the present to obtain recovery of possession the Plaintiff has necessarily to obtain a declaration as to the invalidity of alienation or whether he can go straight to the relief for possession; and (2) whether when a suit falls both u/s 7(4)(C) and u/s 7(5) of the Court-fees Act the valuation and court-fee should be under the former section or under the latter. An examination of the authorities clearly shows that these questions have been answered by the High Courts of Madras, Allahabad, Bombay, Calcutta and the Chief Court of Oudh in the same way as they have been answered by the Cochin Court. According to the provisions of the Travanoore Court-fees Act VI of 1087, now repealed by the Travancore. Cochin Court-fees Act, II of 1125, a suit to obtain a declaratory decree or order, whether or not consequential relief is prayed for, ad valorem court-fee had to be paid according to the subject-matter. In view of this difference in the Statute law, the decisions of the Travancore High Court cannot obviously be of help to us to decide the question now before us.

As early as the case in Unni v. Kunchi Ammal 14 Mad. 26, the Madras High Court enunciated the rule that in a suit on behalf of a Malabar tarwad by two of its members to recover property improperly alienated by the late Karnavan, a prayer for cancellation of the document was not an essential part of the Plaintiff''s relief and that therefore the suit brought beyond three years of the execution of the document was not barred by limitation. The following quotation from that decision would be instructive:

In our opinion there is no distinction between this ease and other oases where a similar charge is made in respect of an instrument of alienation executed by a person who, not being the full owner, of the property, has a conditional authority only to dispose of it. Such are the cases of guardian of a minor, the manager of a Hindu family or the sonless widow In a divided Hindu family. In these cases, as was argued by the Appellant''s vakil it is not only not necessary but it is not possible to have the instrument of alienation cancelled and delivered up, because, as between the parties to it, it may be a perfectly valid instrument. All that is needed is a declaration that the Plaintiff''s interest is not affected by the instrument, and that declaration is merely ancillary to the relief which may be granted by delivery of possession.

This case is referred to with approval by a Full Bench of five Judges in Ramaswami v. Rengacharia AIR 1940 Mad. 113 : I. L. R. (1940) Mad. 259 . The view expressed in the above extract from 14 Mad. 26 accords with the view the Privy council gave expression to in Bijoy Gopal v. Krishna Mahishi 34 Cal. 329 : 34 I. A. 87 P. C. Speaking with reference to a Hindu widow''s alienation Lord Davey said:

Her alienation is not, therefore, absolutely void, but it is prima facie void able at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. It is true that the Appellants prayed by their plaint a declaration that the ijara was inoperative as against them, as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession, leaving it to the Defendants to plead and (if they could) prove the circumstances, which they relied on, for showing that the ijara or any derivative dealings with the property were not in fact voidable, but were binding on the reversionary heirs.

In that case also the question was one of limitation. In two cases reported in 17 Cochin Law Reports, the Cochin Chief Court adopted this view. See Karunakara Menon v. Subramania Ayyar 17 KER L. R. 4 and Mathai Ouseph v. Plamena 17 KER L. R. 246. In the former case the question raised was one of court-fees and in the latter the point was whether withont setting aside the alienation the erstwhile minor could go straight to the relief of partition and recovery of his share. 7. In Arunachalam Chetty, Nagalingam Chetty by his mother and next friend Parvathathammal Vs. Rangasamy Pillai, a Full Bench of the Madras High Court opened its answer to the court-fee reference in that case by observing thus:

A suit in which the Plaintiff in terms prays for a declaratory decree and consequential relief prima facie comes within Clause 4, Sub-clause (C) of Section 7 of the Court-fees Act, but if at the same time it comes within any of the other classes of suits specified in the section, it must be treated as a suit of that description and dealt with accordingly.

In Paluri Venkatasiva Rao Vs. Bodapati Venkatanarasimha Satyanarayanamurthy and Others, on this question of valuation and court-fee Anantakrishna Ayyar J. observed:

Even where the suit was one for a declaratory decree and also for possession, it has been held by this Court that suits for possession having been specifically provided for by Section. 7 (v), the suit has to be valued accordingly and court-fee paid under the provisions of that Sub-section. This question has been discussed in Chinnammal v. Madarsa Rowther 27 Mad. 480 and Rajagopala Naidu Vs. M.R. Vijayaraghavalu Naidu and Another, and is practically concluded by para 1 of the opinion given by the Full Bench In Arunachalam Chetty, Nagalingam Chetty by his mother and next friend Parvathathammal Vs. Rangasamy Pillai, To the same effect is the observation of Varadachariar J. in Sevugan v. Raghunatha AIR 1940 Mad. 273 : 1939 M W. N. 841 . At page 279 of the report the learned Judge refers to a Full Bench decision of the Allahabad High Court reported in Kalu Ram Vs. Babu Lal and Others, and to the Madras decision in Paluri Venkatasiva Rao Vs. Bodapati Venkatanarasimha Satyanarayanamurthy and Others, in support of the view that Section 7 (iv) (C), Court-fees Act should not be applied to cases falling u/s 1(5). It is unnecessary to refer to very many other authorities of the Madras High Court on this question as a recent decision reported in C. Ramaswami and Others Vs. Kunjammal and Others, has reviewed all the previous authorities and held that in circumstances similar to the present the Plaintiff need not ask for declaration as to the invalidity or seek the cancellation of the deed of alienation impugned by him and that it would be sufficient if the Plaintiff values the suit u/s 7 (v). That decision, no doubt, is by a Single Judge but it reviews practically the whole file of Madras case law bearing on the subject beginning with Unni v. Kunchi Ammal 14 Mad. 96 and brings it up to the date of the decision. Great reliance is, if we may say so, properly placed on the Full Bench decision, Rama sawami v. Rangachariar AIR 1940 Mad.113 : LLR 1940 Mad. 259 already referred to by us.

In referring to the decision of Varada charier J. in Sevugan v. Raghunatha, AIR 1940 Mad. 273: (1939 M. W. N. 841 ) reference was made to the Full Bench decision of the Allahabad High Court reported in Kalu Ram Vs. Babu Lal and Others, The Allahabad High Court had taken this view even earlier. See Tika Ram and Others Vs. Salig Ram and Another, In that case it was held that a suit by Hindu reversioner asking that a sale deed be declared null and void as against them and that possession of the property be granted to them is an ordinary suit for possession of property and the court fee payable thereon is five times the Government revenue chargeable u/s 7(5)(c).

In Ramkhelawan Sahu Vs. Bir Surendra Sahi and Others, a Full Bench of the Patna High Court expressed the fee same view regarding valuation and court-fee with respect to a suit in which the Plaintiff claimed certain properties as the reversionary their of a deceased male after the death of his widow on the ground that the alleged gift by the widow under which the Defendants claimed possession was merely void. The following quotation from the judgment of Courtney. Terrell C.J. will fee opposite here:

In every suit for possession, the Plaintiff cannot succeed unless he proves the facts necessary to establish this title, but the real remedy which he seek is a decree for delivery of possession. The distinction between the remedy sought and the finding of fact necessary to justify the granting of that remedy may be simply tested by considering whether the Plaintiff obtaining an order for possession but having been refused a formal ''declaration'' in the decree could come to the appellate Court with complaint that he had not received the whole of the remedy for which he had asked. If the Appellate court is in a position to tell the Plaintiff that the remedy of possession is all that the Plaintiff is entitled to ask and that the so called declaration claimed in the plaint is merely a finding Of the Court set forth in the judgment as distinct from the decree, the jurisdiction for granting the remedy, then so called, ''declaration'' claimed in the plaint is not a declaration at all.

If, on the other hand, the Appellate Court should find that the Plaintiff is really making a claim to a declaration properly so-called and that the decree for possession is merely consequential relief, it may u/s 12 of the Act adjust the matter of the court-fee in accordance with Section 7, Para (iv). It is this very difference which is at the basis of the practice under which, the Court will not ordinarily grant a mere declaration and the Plaintiff must claim consequential relief also. Section 7, Para (IV) (c) has application to declarations properly so-called, such for instance as declarations of public status, or a declaration that the Plaintiff holds a public office or a declaration as to the meaning of a will or a trust deed or other public document. It has no reference to the kind of declaration in the sense of a finding of fact as to the Plaintiff'' title necessary for granting a decree for possession. It is not in the least necessary for a Plaintiff in a suit for possession to claim a declaration. Indeed declarations in the true sense are rarely required. The Plaintiff should only allege the facts necessary to establish his title and that the Defendant is wrongfully in possession. If he goes on to claim, in the manner so beloved of pleaders a declaration of title in addition to an order for possession, the Court may and should treat the case as a claim for possession pure and simple, and ignore entirely the claim for a ''declaration of title''. Suits for possession of land, houses and gardens are to bear a court-fee as provided by Para (v), that is to say

A Division Bench ruling of the Bombay High Court reported in Waman Vinayak Paranjpe Vs. Narayan Hari, quotes the above extract from Ramkhelawan Sahu Vs. Bir Surendra Sahi and Others, with approval and follows the rule laid down there. That also was a suit to recover properties from the possession of a widow''s alienees. Even earlier in the Calcutta High Court Mookerjee and Cuming JJ. had enunciated the same rule in Radha Kanta Saha and Others Vs. Debendra Narayan Saha and Others, In that suit (i) to set aside a sale of certain properties on the ground that owing to a previous adjustment of the decree it was not liable to be legally executed, that the sale was null and void and did not affect the Plaintiff''s title thereto and (ii) for a declaration that a personal decree passed under Order 34, Rule 6, CPC (CPC), 1908, was inoperative against the Plaintiff, it was held that as the plaint disclosed the suit to be one substantially for possession of land and not merely to obtain a declaratory decree and consequential reliefs, for the purposes of court-fees it fell within the meaning of Section 7 (v) (a) and not within Section 7 (iv) (6), Court-fees Act, 1870. In passing, it may be observed that the facts in the Cochin case Narayana Row v. Subba Row, 4 S. D. 400, were strikingly similar. The view of the Chief Court of Oudh can be found, among other cases, in the decision reported in Sarju v. Sheoraj AIR 1926 Oudh 380 : 94 I. C. 179, The head note to that case may usefully be reproduced here ;

Where the Plaintiff claims possession of a certain property and states in his plaint that he claims for possession by cancellation of a sale in favour of the Defendant, he cannot be considered to be asking for two reliefs and thus be liable to pay courtfee on each of these two reliefs. He is practically claiming one relief and that relief is a relief for possession and if in order to give him that relief it is necessary to consider along with that the title of the Defendant and to declare that title to be Ineffective the suit must, still for the purposes of the payment of the court-fee be treated as one for possession.

In this state of the authorities, it is impossible to hold that the declaration claimed by the memorandum of appeal should be made the subject of a separate court-fee. Under the Court-fees Act which governs this case in an ordinary suit to obtain a declaratory decree or order where consequential relief is prayed for the valuation of the suit for purposes of court-fees will be according to the amount at which the Plaintiff values the relief sought. The two reliefs declaration and consequential relief cannot be split up either for purposes of jurisdiction or court-fees.

The argument raised by the learned Government Pleader that as the deed of alienation is sought to be declared invalid, ad valorem court fee on the consideration for that document should be paid is open to exception for more than one reasons. In the first place as stated above the new Court-fees Act does not say that in a suit for a declaration and consequential relief court-fee should be paid ad valorem on the value of the subject-matter as was the case under the Travancore Court fees Act, VI of 1087. (Section 4 (v) (d)). A suit for a mere declaration where no consequential relief is prayed for is governed by Article 7 of sch. II of the new Court fees Act and fixed fee of Rs. 10 alone need be paid thereunder. In this respect also, the new Act differs from the now repealed Travancore Court-fees Act. Secondly, the Appellant here is interested only in one of the items involved in the suit and to say that he should pay advalorem fee on the entire consideration for the deed of alienation is clearly wrong. See Ganesh Bhagat v. Sarada Prasad 42 Cal. 370 : AIR 1915 Cal. 705 . There it was held that the Plaintiff who sought to set aside a decree for over as. 22000 need only value the suit and pay court-fee according to the extent of his three annas share in the property sold in execution of the decree. Again, ad valorem court-fee to be paid on the market value of the subject-matter is on the value thereof on the date of suit or appeal and not on the value shown in the deed of alienation which in this case is of the year 1102. See Waman Vinayak Paranjpe Vs. Narayan Hari, In view of the provisions of the new Court-fees Act and the view we have taken that the appeal need only be valued and court fee paid as in a suit for possession some of these questions do not really arise. Perhaps they would all have arisen if the matter were governed by the Travancore Court fees Act, VI of 1087. As, however, the learned Government Pleader sought to raise the argument we have thought it proper to give our answer for the same.

The suit properties belonged in jenmom to the Tripunithura Devaswom and the Plaintiffs'' family had only a verumpattom right over them under the Devaswom. In assessing the market value of item 2 by the process of capitalization mentioned in Section 3(5)(c), namely, ten times the annual gross profits, the Appellant had deducted not only the land revenue assessment but also the dues payable to the jenmi Devaswom. The learned Government Pleader raises objection to the mode of valuation adopted by the Appellant for two reasons. The first is that it is the mesne profits, fixed by the Court below and not the gross profits of the land that is made the basis for capitalization, and the other is that no deduction can be made from the gross profits for the rent or michavarom payable to the Devaswom. The former objection is no doubt sound but in the absence of any evidence as to gross profits the profits fixed by the Court below will in this case be adopted as the basis for capitalization. With reference to the second objection the learned Government Pleader laid great emphasis that according to the section it was the gross profits of the land and not of any limited interest therein that has to be taken into account. We regret we cannot accede to that argument. What the then adult members of the Plaintiffs'' family disposed of in 1102 and what is sought to be recovered now is only the verumpattom right and not the entirety of the rights over the properties. The verumpattom right alone being the subject-matter of the suit it is on the market value of that right that court-fee has to be levied. In the present suit that right alone constitutes the ''land'' under the section. This construction finds support in a decision by Venkatasubba Rao J. in the case reported in Maroof Sahib v. Ayyakannu AIR 1935 Mad. 569 : 58 Mad. 1051. In that case the Plaintiff inamdar was admittedly the owner of the melvarom right and the dispute related only to the kudivarom right. It was held that the suit being only to recover the kudivararam right ''the land'' which formed the subject mattes of the suit within the meaning of the section was the Kudivarom right and that court-fee need, therefore, be levied only on the market value thereof. The Travancore and Cochin High Courts have taken similar views as to the mode of assessing the value of the subject-matter when only a limited right carved out of the property forms the subject of the litigation. In Pulimughathu Aiyan Chitambara Th(SIC) v. Subramania Jedavallabhar Ramasubba Vadhyar 22 T.L.R. 86 ? (Short Notes) p. 311 and in Sankaran Kanda v. Krishna PaniKker 4 T. L.T. 122, the suits were all to set aside the sales of the equity of redemption of properties outstanding on admitted mortgages and in all those cases it was held that the value of the subject-matter of the suit was the value of the equity of redemption and not the value of the full right in the properties. In 2 COCH.L. R. 94, in Damodaran Namburipad v. J. C. Kolof 21 KER. L. R. 394 and in Venkitaraman v. Lekshmikutty 29 KER L. R. 71, the question arose whether in suits to recover possession of properties outstanding in the possession of tenants the improvements on the property in respect of which the tenants may be entitled to compensation should be valued for the purpose of calculating the court-fees. The decision in all of them was that it was not necessary. It was held in those oases that the value of the subject-matter was to be limited to the landlord''s interest in the property and that therefore in assessing such value on the basis of the annual rent, the rent or pattom accruing out of the tenants improvements has to be excluded. In a Oudh case reported in Mahdi v. Gajadhar AIR 1924 Oudh 163 : 73 I. C. 244, it was held that in a suit for possession by a usufructuary mortgagee the suit should be valued for court-fee purposes at the amount of mortgage money. It was further held that in such a case the term ''market value'' in Section 7, Court-fees Act, means the market value of the subject-matter of the suit, namely, the mortgage interest in the property. We have no hesitation to hold that the correct and the logical view is what these decisions have laid down. We cannot, therefore, accede to the learned Government Pleader''s contention that whatever interest in the land be sought to be recovered by a suit the entire interest should be taken to ascertain the market value of the subject-matter and not the value of the interest sought to be recovered alone. The mode of valuation adopted by the Appellant, namely, to capitalise the profits at ten times after deducting the land revenue assessment and the jenmi dues is therefore, perfectly correct.

A third objection raised by the reference is that the court fee should have been calculated separately on the two reliefs sought in the appeal, namely, (1) the retention of possession of the property and (2) exoneration from liability for mesne profits. The learned Government Pleader conceded that a true construction of Section 11 of the Court-fees Act permits the two reliefs being taken as one claim and court-fee being paid on the total valuation and not separately on each. That concession is in clear accord with decided cases. See 2 KER L. R. 94, Krishnan Nayar v. Sree Varaha Devaswom 23 KER L. R. 144 and Parameswara Pattar In Re: AIR. 1930 Mad. 833 : 54 Mad. 1 F.B. The head-note to the last named case reads thus:

In a suit for possession of Immovable property and past mesne profits, court-fee is payable on the aggregate value of both the reliefs and not separately on value of each relief.

The decisions in 2 KER L. R. 94 and Parameswara Pattar, In re AIR. 1930 Mad. 833: (54 Mad. 1 F.B.) follow the decisions in Kishori lal v. Sharat Chunder 8 Cal. 593 : 10 C. L. R. 359 F.B. and Reference under Court-fees Act, Section 5,16 ALL. 401: (1894 A.W.N. 124). Section 11 of the Travancore Cochin State Court-fees Act corresponds to Section. 17 of the Court-fees Act VI of 1870 and in B. V. Viswanatha Iyer''s Law of Court-fees and Suits Valuation Act (4th Edition 1949 p. 334) the question is discussed and the Indian decisions bearing on the point referred to.

The foregoing discussion disposes of all the points raised by the reference. There is, however, a further point to which the Appellant''s learned Advocate invited OUR attention. That point is that there is an arithmetical mistake in calculating the value of paddy awarded as mesne profits for three years preceding the suit. Instead of giving the value for 420 paras as Rs. 630 the appeal memorandum gives that figure as Rs. 530. This error will be corrected and additional court-fee on the valuation of Rs. 100 left out will be paid within a week from this date.