Naresh Kumar vs Hakam Singh and others

A.S. Bains, J.—This revision application is directed against the judgment of the learned Subordinate Judge First Class (A), Mansa dated February 26, 1977 vide which he had held that the suit is not properly valve for the purposes of Court fee and jurisdiction and ad valerem Court fee on the sums of the three transactions of Rs. 3000/-, 13000/- and Rs. 28,000/- which are sought to be set aside should be paid and the plaintiff-petitioners were directed to fulfil the deficiency in the Court fee within 10 days failing which their plaint was it be rejected.

The petitioners filed a suit for possession on the ground that they are members of the joint Hindu family and that their brother defendant No. 13 transferred some of the Joint Hindu Family property for a sum of Rs. 3000/- to defendant Nos. 7 to 18 under the mortgage deeds and subsequently sold the same on May 28, 1970 to defendant Nos. 1 to 5 for a sum of Rs. 28000/- and that there was another mortgage deed for Rs. 13000/- regarding the property in dispute. These transactions were challenged on toe ground that defendant No. 13 had no authority in law to mortgage the same and that these transactions were also without consideration and legal necessity. The suit was contested by the mortgagees, (defendants 7 to 12 respondents). A preliminary objection was raised by there defendant-respondents that the suit was not properly valued for the purposes of Court fee and jurisdiction and that ad valorem Court fee was required.

The learned trial Court decided this preliminary objection against the present petitioners and as observed earlier, the petitioners were directed to pay ad valorem Court fee on the sums mentioned above.

Mr. Narula, the learned counsel for the petitioners (plaintiffs) has contended that the order of the learned Subordinate Judge is erroneous and cannot be sustained. No one has appeared on behalf of the respondents in spite of service. The learned trial Court passed the impugned order on the basis of a judgment of the Supreme Court reported as Shamsher Singh Vs. Rajinder Prashad and Others, . The judgment of this Court in C.R. No. 609 of 1974 (Summarjit etc. v. Hans Raj etc C.R. 1909 of 1974) decided on November 19, 1975, was brought to the notice of the trial Court, but since the certified copy of the same was not produced, the learned trial Court did not take any notice. I have perused the judgment in C.R. No. 1609 of 1974 delivered by Pattar J. The facts of the present case are similar to the facts of Civil Revision No. 1609 of 1974. In that case also, the plaintiff Summarjit had sued and pleaded that they and Vidya Bagar had constituted joint Hindu family with his sons and that Vidya Sagar had mortgaged the land in suit belonging to the joint Hindu family situated in village Nangal Kalan on the various dates and on the basis of different mortgage deeds and the total amount of the mortgages was Rs. 35,000/- and a suit was filed by his son for a declaration that the mortgages were without consideration and legal necessity and were not binding on him. A preliminary objection was raised in that case that appropriate Court fee was not paid and in that situation relying on the same Supreme Court judgment, the learned trial Court had ordered for ad valorem Court-fee and the learned judge taking into consideration all the facts and noticing the judgment of the Supreme Court held that the case was covered u/s 7 (iv) (c) read with Section 7 (v) (b) of the Court Fees Act, 1870 and hence the Court fee at ten times the land revenue was to be assessed and not ad valorem.

The facts of the present case are also similar. Here also, the brothers have challenged the mortgages on the basis of the joint Hind family property and that the mortgages were without requisite consideration. The Supreme Court case, which is followed now by the trial Court, was decided on the basis of earlier judgment of the Lahore High Court reported as AIR 1945 13 (Lahore) But after this decision of the Lahore High Court in Prithvi Raj''s case, second proviso to section 7 (iv) (c) was added by the Punjab Government in the year 1963 and this later amendment was not brought to the notice of their Lordships of the Supreme Court. Moreover, the earlier decision of the Supreme Court reported as S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar, was also not brought to the notice of the Supreme Court, wherein it was observed as under:--

(14) The question which still remains to be considered is whether the Division Bench was justified in directing the appellant to pay court-fees both on the plaint and on the memorandum of appeal on the basis of the valuation for Rs. 15,00,000/-. In our opinion, the appellant is justified in contending that this order is erroneous in law. Section 7 sub-section (iv) (b) deals with suits to enforce the right to share in any property on the ground that it is joint family property and the amount of fees payable on plaints in such suits is according to the amount at which the relief is valued in the plaint or memorandum of appeal Section 7 further provides that in all suits falling u/s 7 (iv) the plaintiff shall state the amount at which the value of the relief is sought. If the scheme laid down for the computation of fees payable in suits covered by the several sub-sections of Section 7 is considered, it would be clear that in respect of suits falling under sub-section (iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court-fees. The theoretical basis of this provisions appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim, with any precision or definiteness.

This earlier decision of the Supreme Court is by five Judges, while the later decision is by two Judges.

There is another distinguishing point in the present case. In the present case the land is an agricultural land and in the Supreme Court''s case (supra) viz. Shamsher Singh''s case, it was a factory. The same view is taken in C.R No. 1145 of 1975 decided on March 1, 1977 by the Chief Justice R.S. Narula (as his Lordship then was). Accordingly I hold that the present case falls within the provisions of section 7 (iv) (c) read with section 7 (v) (b) of the Court Fees Act and the Court-fee payable is ten times the land revenue assessed on the land in dispute.

No other point is urged.

For the reasons recorded above, the impugned order of the learned Subordinate Judge 1st Class is set aside and the learned Subordinate Judge is directed to proceed with the case in accordance with law.