R.S. Jhavar vs P. Thanicakchala Gramani and Others

T. Venkatadri, J.—This Revision Petition raises a question of Court-fee in the following circumstances. The plaintiff filed a suit to enforce

specific performance of the unperformed portion of the agreement of sale in respect of properties of an extent of 28.46 acres belonging to the 1st

and 2nd defendants, father and son respectively It is alleged in the plaint that even in 1956, 12 acres 57 cents out of 28 acres 46 cents have been

transferred to the possession of the 2nd defendant, under some arrangement between him and his father, the 1st defendant, and subsequently the

2nd defendant executed a sale deed in respect of 12 acres 57 cents in favour of the plaintiff. The plaintiff in the plaint alleges that a specific

performance of the contract was done by both the father and the son in respect of the 12 acres 57 cents. The present suit was filed for specific

performance of the unperformed portion of the contract dated 31st December, 1960, in respect of 15 acres 89 cents. The plaintiff has valued the

suit for Court-fee at Rs. 3,000 per acre for 15 acres 89 cents, i.e., Rs. 47,670 and paid Court-fee thereon. The Court-fee Examiner was of the

opinion that, even though the plaintiff was able to get conveyance of 12 acres 57 cents from the 2nd defendants, still the plaintiff should seek

specific performance of the contract as a whole and value the suit on that basis. The lower Court seems to have agreed with the Court-fee

Examiner and directed the plaintiff to pay the additional Court-fee. It is in these circumstances the present Civil Revision Petition is filed by the

plaintiff contending that he is not liable to pay the additional Court-fee on the value of the property got by him from the 2nd defendant. The plaintiff

is not seeking any relief against the 2nd defendant. The prayer in the plaint is to direct defendants 1 to 3 to excute a sale deed in respect of 15

acres 89 cents. As regards 12 acres 57 cents, the father had already excuted a release deed in favour of the 2nd defendant who in his turn

conveyed to the plaintiff in pursuance of the original agreement entered into by him and his father in respect of the entire area of 28 acres 46 cents.

There is some force in the contention urged by the learned Counsel for the petitioner herein. Under the Specific Relief Act a contract can be

severable, and the Court may direct specific performance in respect of a portion of the contract. Though the plaintiff entered into an agreement to

purchase 28 acres 46 cents from defendants 1 and 2, which is made up of 12 acres 57 cents belonging to the 2nd defendant in his individual

capacity, according to the allegations made in the plaint, and the balance of 15 acres 89 cents belonging to the joint family consisting of the father,

the 1st defendant and the son, the 2nd defendant, the plaintiff can always file a suit to enforce specific performance of a contract in respect of 15

acres 89 cents against defendants 1 and 2. There is no necessity for him to claim specific performance in respect of 12 acres 57 cents, which had

already been conveyed to him by the 2nd defendant. According to Section 42 of the Madras Court-fees and Suits Valuation Act, 1955, in a suit

for specific performance, whether with or without possession, fee shall be payable in the case of a contract of sale, computed on the amount of the

consideration whereas under Clause (x) of Section 7 of the Court-fees Act (VII of 1870) in a suit for specific performance of a contract of sale the

Court-fee payable shall be according to the amount of the consideration. The importance in Section 42(a) of Madras Act XIV of 1955 is the

addition of the word '' computed ''. Compute means calculate. The intention of Section 42(a) of the Madras Act XIV of 1955 seems to be that, if

the plaintiff is able to get a portion of the properties, which he entered into a contract for specific performance, he can file a suit for specific

performance of the unperformed portion of the contract, and he can pay Court-fee on it. The lower Court seems to have relied on a decision in

Gudia Dullabho Sahu Vs. Cinni Adinarayana and Others, where admittedly a suit arose u/s 7(v) and (x) of the Court-fees Act, 1870.

Venkataramana Rao, J., in that case has held that in a suit for specific performance the view has always been taken by this Court that there is no

question of primary and secondary relief and both the execution of the conveyance and delivery of possession are essential reliefs. Venkataramana

Rao, J., also observed that as the Court would in any event have to declare the original arrangement entered into and only on that basis should give

the relief to the plaintiff, the suit would have to be valued on the consideration mentioned therein. Certainly this case has to be distinguished, as the

word '' computed'' is not in Section 7(x) of the Court-fees Act, 1870. The same view has been held in S. P. Gupta v. Abdul Rahman AIR 1953

All 851. There also the plaintiff wanted to enforce specific performance for the balance of the amount mentioned in the original agreement. The

Court following the decision in Gudia Dullabho Sahu Vs. Cinni Adinarayana and Others, of Venkataramana Rao, J., held that the Court-fee

payable on the suit was the amount of the consideration of the sale. I have distinguished the case in Gudia Dullabho Sahu Vs. Cinni Adinarayana

and Others, observing that the word ''computed'' is not in Section 7(x) of the Court-fees Act, 1870 and also with reference to the Specific Relief

Act where it says that the Court can always give relief in respect of a portion of a contract which can be severed from the original contract. I am of

opinion that the petitioner is liable to pay Court-fee only on the value of 15 acres 89 cents and he need not pay Court-fee on the value of 12 acres

57 cents, which he had already obtained possession from the 2nd defendant by a registered conveyance, according to the allegation in the plaint.

The Civil Revision Petition is allowed. No order as to costs.